The report, to be released Monday, is the most authoritative account yet of rights violations by North Korean authorities, and is bound to infuriate its unpredictable leader. But justice remains a distant prospect, not least as North Korea's ally, China, would be likely to block any referral to the International Criminal Court.
The commission, which conducted a yearlong investigation, has found evidence of an array of crimes, including “extermination,” crimes against humanity against starving populations and a widespread campaign of abductions of individuals in South Korea and Japan.
An outline of the report's conclusions was provided to AP by an individual familiar with its contents who was not authorized to divulge the information before its formal release and who spoke on condition of anonymity. A U.S. official, speaking anonymously for the same reason, confirmed the main conclusions.
The three-member commission, led by retired Australian judge Michael Kirby, was set up by the U.N.'s top human rights body last March in the most serious international attempt yet to probe evidence of systematic and grave rights violations in the reclusive, authoritarian state, which is notorious for its political prisons camps, repression and famine that claimed hundreds of thousands of lives in the 1990s.
The report concludes that the testimony and other information it received, “create reasonable grounds ... to merit a criminal investigation by a competent national or international organ of justice.”
A spokesman for North Korea's U.N. Mission in New York who refused to give his name told the AP: “We totally reject the unfounded findings of the Commission of Inquiry regarding crimes against humanity. We will never accept that.”
David Hawk, a former U.N. human rights official and a leading researcher on North Korean prison camps, said that legal scholars, human rights attorneys and nongovernment groups have previously concluded crimes against humanity have been committed, but this would be the first time experts authorized by U.N. member states have made that determination. Hawk testified before the commission, but has not seen its report.
The commission, which conducted public hearings with more than 80 victims and other witnesses in Seoul, Tokyo, London and Washington, but was not allowed into North Korea itself, recommends that the U.N. Security Council refer its findings to the International Criminal Court in The Hague.
There are several procedural hurdles to the commission's report even being referred to the council, and ultimately, permanent council members that have veto power, such as China, are unlikely to support any referral to the court.
Another obstacle is that the court's jurisdiction does not extend to crimes committed before July 2002, when its statute came into force. An alternative -- the kind of ad hoc tribunals set up in Cambodia and Sierra Leone -- also appears unlikely, at least for now. Those tribunals were formed with the consent of their current governments.
But the commission leaves open other avenues for action.
It recommends that the U.N. General Assembly and the Human Rights Council should extend the mandate of special human rights monitoring of North Korea, and it proposes the Geneva-based council establish a structure to help ensure accountability, in particular regarding crimes against humanity, that would build on evidence and documentation the commission has compiled.
The commission will formally present its findings to the rights council on March 17, and the 48-member body will likely consider which of the report's recommendations it wants to support.
Last October, Kirby told the General Assembly that when the commission delivers its final report, “the international community will be obliged to face its responsibilities and decide what concrete action it will take” to protect the North Korean people.
Testimony by North Korean defectors at last year's hearings produced chilling accounts of systematic rape, murder and torture, and suffering during the famine of the late 1990s. The commission says it plans to release on Monday, along with the report, a 372-page document with excerpts of witness testimony.
The report refers to murder, enslavement, torture, imprisonment, rape, forced abortion, sexual violence, forcible transfers and forced disappearances, and persecution on political, religious, racial and gender grounds. It also cites the overall system of political repression, the “songbun” class system that discriminates against North Koreans on the basis of their family's perceived loyalty to the regime, and executions and punishment through forced labor in the North's gulag.
Other than speaking to defectors, the commission heard from experts about North Korea's network of camps, estimated to hold 80,000 to 120,000 political prisoners, and about access to food in the country, where many children suffer stunted growth because of malnutrition. It examined the causes of the 1990s famine and to what extent it was due to natural disasters -- as the authoritarian regime of then-leader Kim Jong-il claimed --or to mismanagement.
The report identifies crimes against humanity committed through “decisions and policies taken for the purposes of sustaining the present political system, in full awareness that such decisions would exacerbate starvation and related deaths amongst much of the population.”
When the Human Rights Council authorized the commission last March, the North denounced it as politically motivated by "hostile forces" trying to discredit it and change its socialist system.
The other two members of the commission are Sonja Biserko, a Serbian human rights expert, and Marzuki Darusman, a senior Indonesian jurist who has also served as the U.N. special rapporteur on human rights in North Korea since 2010.