1. Background of the Incident and Petition to the National Human Rights Commission of Korea
On November 7, 2019, the government of the Republic of Korea deported two North Korean people, who are also South Korean citizens, to North Korea even though they expressed their willingness to defect to South Korea around November 2. The government only believed the claims made by North Korea and made the decision while concealing the incident.
It was revealed at the National Assembly when a text message exposed that someone had reported the incident to a senior official at the Blue House, and it was only then the government finally acknowledged the deportation of North Korean fishermen and Lee Sang-min, a spokesperson at the Ministry of Unification, released the following statement.
“Two North Korean fishermen, who were found near the Northern Limit Line at the east coast sea on November 2, 2019, was deported to North Korea through Panmunjom on November 7 at around 3:10 pm. According to the joint investigation, they are men in their 20s who escaped after murdering 16 fellow crew members on the fishing vessel. The two North Koreans who were deported were not eligible for protection under the ‘North Korean Refugees Protection and Settlement Support Act,’ as they are offenders of nonpolitical and serious crimes, including murder. It was the government’s judgment that the two are possible threats to the lives and safety of our citizens, and that the two cannot be recognized as refugees under international law as they have committed heinous crimes. Also, it was an unprecedented issue requiring close cooperation among related authorities.”
Lawyers for the Human Rights and the Unification of Korea (hereinafter referred to as ‘Hanbyun’) argue that this repatriation is an illegal act jointly committed by the president, prime minister, national security adviser, unification minister, defense minister, Kim Yoo-keun of the National Security Council, an unidentified lieutenant colonel working at the Joint Security Area (JSA) and others. Hanbyun filed a petition with the National Human Rights Commission of Korea on November 11, 2019 to conduct a thorough investigation and to take proper measures and listed the people above as the defendants.
The commission, however, dismissed the petition on December 29, 2020, over a year after it was filed, saying there were limitations as to deciding whether human rights were violated and figuring out the nature of the petition.
However, it is obvious that the defendants’ actions clearly violated human rights, as is described below.
2. Violation of the Constitution
Article 3 of South Korea’s Constitution states that “the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands,” meaning that constitutionally North Korean citizens are in fact citizens of the Republic of Korea. Thus, it is a clear violation of the Constitution to forcibly deport the two defected fishermen, who are South Korean citizens, back to North Korea.
Also, Article 10 of the Constitution guarantees human worth and dignity and the right to pursue happiness and Article 14 states that “all citizens shall enjoy freedom of residence and the right to move at will.” The two North Korean fishermen came to South Korea through their free will and expressed that they wanted to defect to the country. The defendants violated their rights to enjoy the freedom of residence, to move at will, and to have the right to pursue happiness by deporting the North Korean fishermen who moved to the territory of the Republic of Korea through their own free will.
Finally, Article 27, Section 4 of the Constitution states that “the accused shall be presumed innocent until a judgment of guilt has been pronounced.” The two fishermen were not found guilty of murder in the South Korean justice system. However, the government presumed that they committed murder and deported them in just 5 days, thus violating the principle of presumption of innocence.
3. Violation of International Statute
The government’s decision to forcibly repatriate the defected fishermen is in violation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as ‘this treaty’).
This treaty was adopted by the United Nations General Assembly in 1975 and was also applied in our country on February 8, 1995. Article 3, Section 1, states that “no State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” It also states that “for the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”
The UN General Assembly and its human rights office were recommended to refer North Korean individuals to the International Criminal Court (ICC) for systematic, widespread, and gross human rights violations, some amounting to crimes against humanity. According to the report by the UN Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea, people who are deported back to North Korea after fleeing to China were handcuffed and made to walk around the village with other family members. They were forced to work 10 hours a day and received five spoonful of boiled corn three times a day. Pregnant women miscarried after being kicked by guard, and there was a case of “forceful physical removal of fetus by reaching or poking into the vagina with a tong-like apparatus or sharp object to either remove the fetus from the woman’s body or cause its expulsion.” The report included a case in which a newborn baby was killed in front of the mother. It is also well-known that North Korea considers defectors to South Korea to be the worst, and torture and shoot them to death when they return to North Korea.
When considering the fact that the North Korean fishermen voluntarily crossed the border to come to South Korea and expressed their willingness to defect to the country, it can be logically suspected that they will be tortured or persecuted if they are forcibly deported to North Korea. However, they deported them without a thorough and in-depth investigation of their charges. This measure is inhumane, and it is a grave crime that also violates this treaty.
4. Violation of Law
A. Violation of North Korean Refugees Protection and Settlement Support Act
North Korean Refugees Protection and Settlement Support Act (hereinafter referred to as ‘the North Korean Refugee Act’) protects North Korean defectors’ rights. It defines North Korean defectors as “a person who has residence, lineal ascendants and descendants, spouses, workplaces, etc. in the area north of the Military Demarcation Line and who has not acquired any foreign nationality after escaping from North Korea.” This clearly shows that the two fishermen fit the definition of North Korean defectors. They are also considered to be those who need protection, since they expressed their intention to come to South Korea. Article 4, Section 1 of the North Korean Refugee Act states that “the Republic of Korea shall provide persons eligible for protection with special protection on the principle of humanitarianism.”
Therefore, the forced repatriation of the North Korean fishermen directly violates the North Korean Refugee Act
B. Violation of Constitutionalism
The argument that the two fishermen murdered 16 fellow fishermen is what North Korea claims, and there is no evidence whatsoever. It is also difficult to understand how two people were able to kill 16 people on a small ship. The South Korean justice system should find out the truth about the charge through due process and this is not a case that they can just decide through a five-day hasty process. These fishermen are citizens of the Republic of Korea according to the Constitution and are not foreigners and subjected to the refugee act. There is no legal clause anywhere in this country’s law that can legitimize the forcible deportation of North Korean defectors back to North Korea. Thus, forcible repatriation of the North Korean fishermen clearly violated constitutionalism.
Even though these fishermen expressed their willingness to defect to South Korea, the government did not allow these people, who are unfamiliar with the law, to receive help from lawyers, and returned them to North Korea without proper investigation. No excuses can explain this situation. This is clearly a grave violation of human rights that amount to a charge of murder through the principle of innocent agency.
5. Conclusion
It is suspected that the two fishermen were executed immediately upon their arrival due to South Korea’s deportation and there were concerns that they would harm themselves before deportation, which suggests that these concerns are realistic. North Koreans who defect to escape the dictatorship and have a desire for liberal democracy are citizens of Republic of Korea based on the Constitution. The government, which has to protect people’s lives and property, forcibly deported its citizens to North Korea without any legal basis. This is an inhumane act that cannot be imagined in a democratic country, and the government practically forced its citizens into death.
This clearly is a human rights violation, but the National Human Rights Commission of Korea wasted a year and dismissed the petition, saying it was improper to investigate it. The commission says its purpose is to ensure that the inviolable, fundamental human rights of all individuals are protected and the standards of human rights are improved. It says it aims to contribute to the embodiment of human dignity and worth as well as safeguarding the basic order of democracy. The latest decision to dismiss the petition clearly goes against its mission statement. This symbolically shows that the commission, which has to protect people’s human rights has become a puppet of this administration.
We, the Lawyers for the Human Rights and Unification of Korea, will continue to fight till the end and condemn human rights violations committed by the current government.
Lawyers for the Human Rights and Unification of Korea
