By Robert R. King

On November 7, 2019, the South Korean government delivered two North Korean fishermen to North Korean officials at the Demilitarized Zone at Panmunjom.  The two were part of a crew involved in illegal squid fishing in South Korean territorial waters, and they were detained after a two-day pursuit and the firing of warning shots at their vessel during the chase.  The South said that an inter-departmental investigation had determined that the two men killed 16 other North Korean crew members on the fishing boat with them.  This was the first time since the Korean War ended in 1953 that North Koreans were returned to the North by the South Korean government against their will.

A spokesman of the South Korean Unification Ministry said that the decision to return the two fishermen to the north was justified because they were “non-political, serious criminals who did not receive protection” under South Korean law and they “could pose a threat to the lives and safety of our people if accepted into our society, and as brutal criminals could not be recognized as refugees under international laws.”

Human rights organizations were critical of the decision.  “Returning these two men to North Korea was illegal under international law because of the likelihood they’ll be tortured under North Korea’s extremely brutal legal system,” said Phil Robertson, deputy Asia director of Human Rights Watch.  “South Korean authorities should have thoroughly investigated the allegations against the two men and ensured they had a full opportunity to contest their being returned to North Korea.”

The speed of the decision was particularly troubling.  “South Korean authorities took only three days to issue these two men a death sentence,” said Greg Scarlatoiu, Executive Director of the Committee on Human Rights in North Korea.  “The fact that two human beings can be issued a death sentence in South Korea in three days . . . sends a signal to other North Korean escapees that South Korea . . . no longer provides a safe haven for them.”

The issue is a very troubling one.  On the one hand, these two fishermen were apparently involved in the brutal murder of their shipmates.  The details of the events and the evidence or any extenuating circumstances have not been made clear.  On the other hand, returning them to North Korea means they were most likely summarily executed—if not for murder, certainly for attempting to defect to South Korea.  North Korean law enforcement is not known for unbiased investigations, and legal protections are not available for the accused.

UN Human Rights Envoys Question North and South Korea

The criticism of South Korea’s actions in the case of the fishermen was not limited to human rights organizations.  In January, both North Korea and South Korea received a letter from four special rapporteurs appointed by the United Nations Human Rights Council.  The leader of the effort among the four was Tamás Ojea Quintana, the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea.  He has played a leading role in the UN human rights effort in North Korea since his appointment in 2016.

The four all had responsibilities to report to the Council on particular human rights issues, and their titles give a clear indication of the issues of concern with regard to North Korea:  (1) Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea; (2) Chair-rapporteur of the Working Group on Enforced or Involuntary Disappearances; (3) Special Rapporteur on extrajudicial, summary or arbitrary executions; and (4) Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.  The fact that four UN special mandate holders raising questions is highly significant.  Both North and South Korea were challenged to explain and defend their actions.

The two letters the group sent were not identical.  South Korea was questioned about why the two fishermen were not granted asylum when they objected to being returned to North Korea.  The principle of non-refoulement under international human rights law is an issue of concern in international human rights agreements.  Return to one’s country of citizenship when there is the possibility (the certainty in the case of North Korea) is something given great weight by the UN Human Rights Council.

North Korea Challenged on Treatment of Prisoners, Ignores UN

The letter to North Korea’s representative to the UN Human Rights Council in Geneva focused on areas where Pyongyang has defied international practice and explicit criticism by the UN Human Rights Council and the UN General Assembly.  The letter was implicitly critical of the North, and asked for information about the two fishermen.

“We wish to urge your Excellency’s Government to inform about [the two fishermen’s] whereabouts and ensure due process and fundamental human rights for these two individuals, including the right to the presumption of innocence, the right not to be subjected to torture and other forms of ill-treatment and the right to a fair trial and equality before the courts, guaranteed by the International Covenant on Civil and Political Rights and other human rights treaties to which the Democratic People’s Republic of Korea is a State Party.  We would also like to refer your Excellency’s Government to the 1992 Declaration on the Protection of all Persons from Enforced Disappearance, in particular that any act of enforced disappearance is an offence to human dignity and that no state shall practice, permit or tolerate enforced disappearance.”

There is no indication that United Nations officials have received any response from Pyongyang to their letter.  North Korea has been anxious to cite its membership in the United Nations as an indication of its international acceptance, but it has been particularly quick to denounce or to ignore the United Nations when its policies and practices have come under criticism.

In December 2019 the United Nations General Assembly again adopted its annual resolution critical of the North’s human rights.  The North Korean ambassador to the UN in New York was harshly critical of the resolution, which was adopted in the General Assembly by consensus without a recorded vote.  The North Korean ambassador said, the resolution has “nothing to do with the genuine promotion and protection of human rights, as it is an impure product of political plots by hostile forces that seek to tarnish the dignity and image of the DPRK and overthrow our social system.”

The sensitivity of Pyongyang to UN discussions of its human rights conditions was also evident in December when there was talk of the UN Security Council again taking up the human rights question in a Council meeting.  With threats and bombast, the North Korean ambassador to the UN denounced an effort to raise the issue at the Council.  In a letter to Council members, he said that taking up North Korean human rights would be an “act of conniving at and siding with the U.S.’s hostile policy, which will lead to undermining rather than helping reduction of tensions on the Korean Peninsula and resolution of the nuclear issue.”

South Korea’s Response to the UN Human Rights Envoys

On February 28, the South Korean Mission to the United Nations agencies in Geneva sent a formal response to the UN special envoys.  The document outlined the events involving the capture and return to North Korea of the two fishermen.  It then gave the justification for not recognizing the “intention of defection,” and gave the legal grounds for repatriation of the two men.  The bottom line was that the desire of the two individuals to defect was questionable and trying the individuals in the South would be difficult on legal and substantive grounds.

A press report explained that although the two men “said they wanted to resettle in South Korea, authorities determined their intentions were insincere, considering the men were trying to flee even when the [South Korean] navy fired warning shots to capture them.”  The South Korean government considered it difficult to guarantee a fair trial because of the difficulty of gathering evidence and the lack of assistance expected from North Korea.  There was also some concern that “exercising jurisdiction on North Korean citizens could pose a danger to its own citizens.”

The issues raised in the South Korean government response to the UN are valid concerns.  At the same time, however, Seoul’s actions in the case of the two fishermen are particularly troublesome, and the response does not resolve the problems.

The “investigation” was hurried and precipitous.  The South Korean timeline in the written response to the UN special rapporteurs, indicates that the capture of the fishermen occurred on November 2.  Three days later on November 5, Seoul notified Pyongyang that it intended to expel the two, the North confirmed that it would take custody of the two fisherman the following day, and on November 7 in the afternoon the two were deported at Panmunjom in the Demilitarized Zone.

The two fishermen were not given access to attorneys, they had no court hearing, and they had no chance to appeal their repatriation.  From what we know, the two were not told that they were being handed over to the North until their blindfolds were removed at the inter-Korean border.  According to South Korean National Assembly members who were briefed by officials, one of the fishermen collapsed when he realized that they were being returned to the North.

No South Korean official could believe that there was any expectation that the two would receive a fair trial in North Korea.  For Pyongyang, defecting is as serious a crime as murder.  The two likely were summarily executed without the inconvenience and delay of a trial.  Even with the limitations of access to information and the likely noncooperation from the North, a trial in the South would have been far more credible and fair than whatever “judicial” treatment they received in the North.  The UN Human Rights Council Commission of Inquiry report on human rights in the DPRK reported on the lack of free, fair and open legal proceedings in the North.

Furthermore, South Korean officials attempted to cover up the repatriation.  The handover of the two fishermen at the border was only discovered shortly after it happened when an army officer at the border sent a text message reporting the handover to a senior Blue House aide, and a South Korean photographer captured the message on the aide’s smart phone.  The South Korean statement to the United Nations indicated that the government intended to raise the issue at a 4 PM press briefing after the handover had taken place at the border, but the press availability was advanced by 20 minutes when the press learned of the repatriation.

The South Korean government should be commended for its serious and lengthy response to the Office of the High Commissioner for Human Rights, particularly in light of the North’s apparent failure even to respond.  On the other hand, Seoul’s haste, denial of access to counsel in the repatriation of these two fishermen, and attempted secrecy in the refoulement are particularly disappointing from a democratic government.  The crimes which the two are accused of committing are horrific, but that does not excuse denial of due process and failure to follow legal procedures.

Note on the Text of UN Documents.  I have not found online the exchange of letters between the Office of the High Commissioner for Human Rights and the governments of North Korea and South Korea.  I have a paper copy of the letter of the four UN Special Rapporteurs to the North Korean government with a Reference indication: UA PRK 2/2019 dated 28 January 2020.  I also have a copy of the response of the Permanent Mission of the Republic of Korea, Geneva with the reference KGV/ 49 /2020 dated Geneva, 28 February 2020.  Both documents apparently became available publicly in early April because they are discussed in The Korea Herald April, 1, 2020 and JoongAng Daily, April 2, 2020

Robert R. King is a Non-Resident Fellow at the Korea Economic Institute of America.  He is former U.S. Special Envoy for North Korea Human Rights.  The views expressed here are his own. 

Photo from UN Geneva 2’s photostream on flickr Creative Commons.