What went wrong with forced repatriations of North Korean fishermen?

By Park Jung-won

When news emerged in November 2019 that two North Korean fishermen, who had been detained by South Korea after crossing repeatedly into South Korean waters and had confessed to murdering their fellow crewmembers, were forcibly repatriated by the Moon Jae-in administration after five days, a number of scholars, media and international human rights experts raised the alarm about the case's legality.

Although there have been 194 cases of repatriation of North Koreans by the South since 2010, this case was the first time since the Korean War ended in 1953 that South Korea had repatriated North Koreans back to the North against their will. Such a shocking event has raised a fundamental question as to whether South Korea is truly a liberal democratic country in which the principle of rule of law is guaranteed for all.

One may consider the Moon administration's explanation and insistence at the time that one should fully examine the characteristics of the two fishermen's confessed alleged murders of 16 people and the "peculiarities of inter-Korean relations," for a country such as South Korea that possesses relevant domestic laws which should be directly applicable to this kind of case, and is a contracting party to relevant international human rights treaties.

Given this situation, however, the fact that the Moon government sent the suspects back to North Korea without having put them through a trial and affording them procedural due process cannot be excused. Is it a "highly political question" to treat North Korean escapees in accordance with international law?

North Korea may be regarded internationally as having statehood because it is a U.N. member state. However, the status of the North's U.N. membership itself does not automatically oblige the South to recognize its statehood. Whether a state grants such state recognition to a political and territorial entity is up to its political discretion under international law.

The two Koreas have not recognized each other as states, and through the 1991 Inter-Korean Basic Agreement, they have viewed each other as having a "special relationship" status rather than a purely "state-to-state" one. It might be possible to reestablish inter-Korean relations at a state-to-state level in the future, but doing so will require a clear and definite consensus on the part of the South Korean people as a whole, and relevant legislative measures such as a constitutional amendment must first be implemented.

As long as the existing constitutional provisions and related legal interpretations through the judiciary regard North Korean defectors or escapees entering the territory of South Korea as South Korean citizens without need for naturalization (unless they genuinely want to return to North Korea), any political regime in South Korea, regardless of its political colors, cannot and should not violate this principle.

On Jan. 28, 2020, the U.N. Human Rights Council, the special rapporteur on the situation of human rights in North Korea, the Working Group on Enforced or Involuntary Disappearances, the special rapporteur on extrajudicial, summary or arbitrary executions and the special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment jointly sent a five-page inquiry letter to the Moon administration concerning the repatriation. A month later, the Moon administration submitted a 16-page response which included logical flaws and inconsistencies with international law.

Even if the two fishermen could not be treated as South Korean citizens due to the allegations of murder, as argued by the Moon administration, they should not have been sent back to North Korea in such a hasty manner without seriously taking into account the risks of such a move.

The U.N. Convention against Torture, which South Korea joined in 1995, contains the principle of prohibiting forced repatriation, known as the principle of non-refoulement. Article 3(1) of the Convention stipulates 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." The protection provided by these provisions is applicable to all human beings, not just refugees. The risks of torture should be evaluated strictly by the competent authorities under Article 3(2) of the Convention.

North Korea is notorious for committing large-scale human rights violations which have been consistently monitored by the international community, as confirmed in the U.N. Commission of Inquiry (COI) report published in 2014 as well as by multiple resolutions adopted by the U.N. Human Rights Council and General Assembly.

The officials under the Moon administration did not properly evaluate the risks before repatriating the detainees to North Korea. In the aforementioned response, there was no statement of whether a sufficient risk assessment had been undertaken; instead it affirmed that handing them over to North Korea on the grounds that they had committed heinous crimes was justified in accordance with the relevant domestic laws of South Korea.

The response should have also reviewed diverse aspects surrounding the coverage of Article 3 of the U.N. Convention against Torture in conjunction with sufficient reference to international human-rights law. For instance, Article 7 of the International Covenant on Civil and Political Rights, to which South Korea is also a contracting party, provides for the prohibition of torture and other inhumane treatment, embracing contextually and teleologically the principle of non-refoulement.

A liberal democratic government's legitimacy is based, among other principles, on the protection of individual human rights. If it tries to make an exception to this protection, it must explain its reasons to the people and take responsibility for the consequences. It is thus rather disappointing that while the Moon administration as a whole has provided explanations, former President Moon, who was a human rights lawyer, has not stepped forward individually to explain the forced repatriation in 2019.

A universal value is not universal if it is applied selectively according to political preferences and partisan logic. The photos of the two fishermen fiercely resisting deportation will be remembered as a dark chapter in the history of human rights in South Korea.

Park Jung-won (park_jungwon@hotmail.com), Ph.D. in law from the London School of Economics (LSE), is a professor of international law at Dankook University.