A/ HRC/46/51 18. While the primary obligation rests with the Democratic People’s Republic of Korea to address systematic human rights violations through its national laws and judicial processes, in the Special Rapporteur’s view, other states should prosecute perpetrators where the Democratic People’s Republic of Korea is unable or unwilling to prosecute. While the Democratic People’s Republic of Korea is not a party to the Rome Statute of the International Criminal Court, the Rome Statute reflects customary international law. The International Criminal Court’s principle of complementarity has institutionalized the primary responsibility for prosecuting international crimes to national criminal jurisdictions.24 However, the Rome Statute reinforces the obligation to prosecute when there is lack of political will or ability to carry out the investigation or prosecution.25 In its 2014 report, the commission of inquiry found that the State institutions of the Democratic People’s Republic of Korea are neither willing nor able to effectively investigate and prosecute crimes against humanity, which are prohibited under the principle of jus cogens, and impunity is enjoyed by those most responsible for crimes against humanity.26 This finding, which in the Special Rapporteur’s assessment has not changed, would appear to trigger the obligation of other states to take action. 19. The four Geneva Conventions, the Convention for the Prevention and Punishment for Crimes of Genocide, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment obligate states parties to extradite or prosecute (aut dedere aut judicare) perpetrators of violations, regardless of the nationality of the perpetrator or the victim and the place the crime was committed. Notably, the Convention against Torture requires states to take necessary measures to establish jurisdiction over such offences whenever the offender is present in their territory.27 This requirement may be considered as obligating states to apply the principle of universal jurisdiction in respect of torture. More recently, the International Convention for the Protection of All Persons from Enforced Disappearance also obligates states parties to extradite or prosecute.28 20. In addition to prosecuting offenders, states also have the duty to assist each other to ensure accountability for serious violations of human rights and international humanitarian law.29 The concept of “responsibility to protect” represents an agreement to take collective action, including under Chapters VI and VIII of the Charter of the United Nations, where states manifestly fail to protect their populations from gross human rights violations.30 Again taking the Rome Statute as a distillation of customary law, it affirms that “the most serious crimes of concern to the international community as a whole must not go unpunished” and “their effective prosecution must be ensured” both at the national level and through international cooperation.31 The Human Rights Committee reiterated the duty of the international community to cooperate: “State parties should also assist each other to bring to justice persons suspected of having committed acts in violation of the Covenant that are punishable under domestic or international law.”32 D. The responsibility of the UN Security Council in pursuing accountability 21. The international obligation of States to prosecute connects directly with the responsibility of the Security Council to pursue accountability for the most serious human rights abuses in the Democratic People’s Republic of Korea under the provisions of Chapter VII of the UN Charter and/or based on the principle of universal jurisdiction and, where 24 25 26 27 28 29 30 31 32 8 Rome Statute, preamble, para.10, article 1. Rome Statute, article 17. A/HRC/25/CRP.1, paras.1199 and 1216. Article 5. Articles 9(2) and 11(1). A/HRC/27/56, para. 30. At the 2005 high-level UN World Summit meeting, Member States committed to the principle of the responsibility to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. (A/RES/60/1). Rome Statute, preamble, para.4. Human Rights Committee general comment No. 31, para. 18.