The article was originally published by Joongang Ilbo and translated by OKN Correspondent.
Following the investigation into the death of the fisheries official Dae-jun Lee, the Yoon administration seems willing to investigate the forced repatriation of two North Korean fishermen in 2019. Both cases have been frequently criticized concerning inter-Korean relations, especially human rights violations, a universal value of humanity. The forced repatriation notably raised controversy over constitutional violations.
President Yoon also pointed out on the 21st, the possibility of violating the Constitution regarding the forced repatriation of two North Korean fishermen who expressed their intention to defect after arriving in South Korea.
“If you enter South Korea, you are considered a South Korean citizen according to our Constitution. Many people are puzzled about their repatriation and raised questions,” President Yoon said. Regarding some requests for finding out the truth, he said that the case is still “under review.”
We looked at three major issues as to whether the measures of the Moon Jae-in administration, which forcibly repatriated North Korean defectors who had expressed their intention to defect, were appropriate.
① Controversy Over Ignoring the Constitution that the “Moon Administration Did not See the Fishermen as ROK Citizens”
The government explained that two North Korean defectors who were forcibly repatriated to North Korea in 2019 were dissatisfied with the captain’s harsh treatment and killed 15 fellow sailors. The government justified the forced repatriation measures by emphasizing that the North Korean defectors had no sincerity in their intention to defect, raising suspicions that they had defected to avoid punishment for murder.
Former Foreign Minister Eui-yong Chung, the head of the Blue House National Security Council, explained why the two were forcibly repatriated to North Korea during a personnel hearing at the National Assembly in February last year.
“I did not see them as ROK citizens,” he explained. “They did not have the minimum conditions to be protected by the Constitution. They are different from other North Korean defectors,” he said.
However, Article 3 of the Constitution stipulates that “the territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands.” It means that North Korean people should also be regarded as ROK citizens, and we also have a Supreme Court precedent. The same goes for North Korean defectors, and there is no rule that North Korean defectors who commit crimes are exceptions.
Regarding the forced repatriation, criticism also emerged that the government acted as a de facto “exceeding power” according to its own judgment while ignoring the constitutional provisions on the extent to who should be regarded as ROK citizens. In addition, criticism arose because, after this case, the government was enabled to deprive citizenship on a unilateral basis. Critics also pointed out the dangerous perception that the government can arbitrarily decide which defectors to protect according to the constitution and whom to repatriate to North Korea forcibly.
② Controversy Over Violation of the Convention Against Torture While Harsh Treatment Was Obvious After Repatriation
Some view that the Moon administration’s decision of forced repatriation was a violation of the UN Convention against Torture, to which ROK is also a party. Article 3 of the Convention says that “no State Party shall expel, return 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.” At that time, North Korean human rights organizations criticized the case as “aiding a murder.”
The international community has already confirmed the harsh treatment of North Korean defectors forcibly repatriated. In its report released in 2014, the UN Commission of Inquiry for Human Rights in North Korea (COI) stated that all North Korean defectors forcibly repatriated had experienced beatings and torture by the North Korean authorities.
In particular, the COI noted that North Korean defectors who were forcibly repatriated would face ▶regular torture and prolonged arbitrary detention ▶sexual violence ▶forced disappearance ▶summary executions, and ▶other serious human rights violations. The forced repatriation of 2019 may correspond to the empirical evidence that there was a clear risk of being tortured.
③ Controversy Over Arbitrary Decision, Lack of Legal Basis
The government expelled two North Korean defectors—who were fishermen—five days after arresting them in the waters near the Northern Limit Line (NLL) in the East Sea. First, it rapidly completed investigations such as background checks of their defection, the sincerity of the intention to defect, and review of relevant laws. Then, it carried out actual deportation through Panmunjom swiftly. Criticism arose that the government politically decided to forcibly repatriate the defectors rather than relying on the legal judgment since North Korea reacts sensitively to handling defectors.
In November 2019, the National Assembly Foreign Affairs and Unification Committee urgently questioned the issue of the legal basis for repatriation. While then Unification Minister Yeon-cheol Kim said that the government reviewed many laws, he did not explain which law the government based itself on to repatriate the defectors.
During a hearing last year, former Foreign Minister Eui-yong Chung cited the Refugee Act, saying that “the government does not recognize an applicant who committed a non-political crime as a refugee.” He also cited the Immigration Act that “the government can expel persons harming public safety” and explained that this was the basis for forcibly repatriating the two North Korean defectors. However, the target of such laws are foreigners, not ROK citizens. This case shows that the government applied wrong laws, breaking the premise that North Korean defectors are also ROK citizens.
Coincidentally, on November 5, 2017, when the government notified North Korea in writing that it would expel two North Korean defectors, President Moon sent an invitation letter to North Korean leader Kim Jong-un to the ASEAN-Korea Special Summit to be held in Busan in the form of a personal letter. Regarding this, Yang-seok Jeong, then chief deputy floor leader of the Liberty Korea Party (predecessor to the People’s Power Party), criticized, saying, “the two defectors who defected to live eventually became victims due to the invitation letter (from President Moon).”
