The new South Korean government under President Yoon Suk-yeol demonstrates a shift toward a more value-oriented diplomacy with a special emphasis on “universal values” such as freedom, democracy, human rights, the rule of law, and adherence to norms of international behavior. South Korea, surrounded by the autocratic countries of North Korea, China, and Russia, seeks to align itself as a liberal democracy and challenge those nations on the disregard for democratic principles, including human rights.
For those who do not follow Korean politics closely, President Yoon was elected on March 9, 2022. The contest pitted Yoon’s conservative People Power Party against the ruling progressive Democratic Party. The key issues in the race were the denuclearization of North Korea, the operability of the U.S.-Korea extended deterrence system, the counter-force strategy of preemptive strike, the resumption of joint military exercises with the U.S., and the “normalization” of the Terminal High Altitude Area Defense (THAAD) base in South Korea. The outcome of the election impacts relations with North Korea.
Especially on issues of human rights in North Korea, President Yoon and his predecessor, Moon Jae-in, have stark differences in their approaches. During the previous Moon administration, Seoul turned a blind eye to North Korea’s human rights violations for the sake of appeasing the Kim Jong-eun regime and abstained from voting on UN resolutions about its human rights violations.
In 2020, the Moon government even passed a law banning the practice of sending anti-Pyongyang leaflets into North Korea. Moon’s policy tailored mostly to inter-Korean rapprochement invariably negatively affected Washington-Seoul relations. The Korean government seemed more favorable to Pyongyang’s interests rather than those of Washington regarding core democratic values and human rights.
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Unlike his predecessor, President Yoon gives more attention the human rights concerns and strives to play a positive role in the human rights of North Korea. His administration’s high priority on human rights is well reflected in its determination to find the truth of the circumstances concerning the 2019 repatriation case of two North Korean escapees who committed felonies.
In November of 2019, the Moon government forcibly repatriated the two North Korean fishermen who had sailed in a small squid fishing boat to South Korean waters. They were known to have expressed their intention to defect to South Korea but were forced back across the border at the Panmunjom truce village to North Korea against their will five days later. The pictures capturing the repatriation process, released last week, showed they struggled desperately to resist being handed over to the North Korean authorities as they were dragged and pushed to the North Korean side of the border.
The way in which the repatriation was handled by the South Korean authorities seems to have been atrocious. In the beginning, they attempted to cover up the repatriation process, but South Korean press discovered it. On top of that, they seem to have hastily claimed or concluded that the North Korean escapees had committed aggravated felonies. Conducting a brief investigation on factual circumstances for three days was qualified neither for due process of law nor for the rule of law. The criminal matter should have been litigated in South Korea in accordance with its investigatory procedures and legal system, even though the evidence and witnesses were in North Korea. In hindsight, the case should have been treated openly in a transparent manner, and the information should have become public.
In theory, under the South Korean Constitution, the North Korean fishermen involved were considered South Korean citizens once they crossed the inter-Korean border. Yoon’s presidential office has criticized the repatriation as a potential “crime against humanity” in violation of the South Korean Constitution and applicable international human rights laws.
A U.S. congressman, Rep. Chris Smith (R-N.J.), says that the repatriation underscores the “brutality of North Korea’s communist regime and the callous complicity of the previous Moon administration.” In this regard, David Alton, a member of the House of Lords of the United Kingdom, wrote a letter asking President Yoon to investigate the repatriation case to assess who ordered the swift return of two fishermen.
Under international law, people seeking freedom should not be subject to forced returns to North Korea, regardless of whether the fishermen are deemed to have committed a “particularly serious crime.” The applicable law to the case is the Convention Against Torture and Other Crimes, Inhumane or Degrading Treatment or Punishment in 1984 (CAT). South Korea is a signatory to the CAT and ratified it in 1995. In particular, the Article 3 non-refoulement obligation of the CAT is linked historically with the prohibition on the return of refugees, contained in Articles 32 and 33 of the United Nations 1951 Convention on the Status of Refugees (“the UN Convention”), and reflected in the withholding of removal provision under U.S. law. In addition to its conventional form, the principle of non-refoulement or non-return, a so-called jus cogens norm of customary international law, applies equally to the expulsion or return in circumstances in which there is a real risk of torture.
Torture, i.e., the intentional infliction of severe physical or mental pain or suffering, has long been prohibited under international human rights law. In order to claim protection under the CAT, a person must show that there are “substantial grounds” for believing that the North Korean escapees would be tortured. In other words, an examination of whether they would face a real risk of torture in North Korea comes within the purview of the prohibition of the refoulement. Unlike its counterpart in the UN Convention regarding refugees, the Article 3 obligation is absolute and the question of exceptions to non-refoulement in a human rights context is straightforward. No exceptions are permitted. Thus, the protection afforded by Article 3 is wider than that provided by Articles 32 and 33 of the UN Convention in the context of refugees. Accordingly, the activities of the two fishermen in question and what really happened on board the squid fishing boat in 2019, however undesirable or dangerous, cannot be a material consideration in the implementation of the principle of non-refoulement.
North Korea is not a signatory to the CAT, and it is well known that the North Korean pretrial detention and investigation system is arbitrary and lacks any semblance of due process. According to reports by Human Rights Watch, North Korea is notorious for systematic torture, dangerous and unhygienic conditions, and unpaid forced labor. This is reinforced by the case of Otto F. Warmbier, a U.S. college student who was imprisoned in North Korea and died shortly after being returned to the U.S. in a coma. He had been repeatedly beaten, physically tortured, and brain damaged.
In conclusion, the North Korean fishermen were eligible for protection under the CAT and the sudden repatriation is a clear example of violating international human rights law. They should not have been subject to forced returns to North Korea. In 2019, political considerations of the South Korean government seemed to prevail over all other considerations for the sake of appeasing the North Korean regime in the hopes of inter-Korean reconciliation. Consequently, human rights issues were sacrificed at the altar of political expediency.
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