NATIONAL

[Feature] ‘Due process ignored in deporting North Korean fishermen’

By Choi Si-young

Some legal experts contend that deportees were denied due process under local, international laws

  • Published : Dec 2, 2019 - 08:48
  • Updated : Dec 2, 2019 - 11:32

“Deeply concerned,” the Washington-based Committee for Human Rights in North Korea said in a statement Nov. 7. The same day, South Korea had deported North Koreans for the first time since the 1953 Korean War Armistice.

The South Korean Navy tows a North Korean fishing boat to the North in the East Sea, Nov. 8. (Yonhap)

The two North Korean fishermen were suspected of fleeing to the South on a fishing boat after killing 16 of their colleagues. In defending the decision, South Korea’s Unification Ministry cited concern for the safety of the South Korean public.

The government’s swift expulsion of the North Koreans has also drawn criticism from local human rights groups and experts, who say that Seoul failed to protect the two North Koreans despite a constitutional mandate to do so. They also argue that Seoul violated the international convention on torture.

The Unification Ministry, however, says the North Korean fishermen are not South Korean nationals governed by local laws and that its actions did not run afoul of international law either.


‘Escapees entitled to protection as S. Korean nationals’

“The two deportees became South Korean nationals once they signed, as confirmed by the Unification Ministry, the letters of defection,” Jhe Seong-ho, who teaches international law at Chung-Ang University, said in an email response to The Korea Herald.

Other experts contend the escapees are South Korean nationals regardless of what they signed.

“Given our Constitution, the two accused deportees are South Koreans, meaning they are entitled to the same rights and due process as Koreans under local laws,” Cha Jina, a professor of constitutional law at Korea University, told The Korea Herald.

Article 3 of the Constitution stipulates that the country’s territory extends to North Korea, including the adjacent islets.

Seoul’s Unification Ministry, however, disagrees.

“First, they didn’t become South Korean nationals since we didn’t see their sincere intentions to defect. Hence, our local laws didn’t apply to them,” the ministry’s spokesperson told The Korea Herald. “Second, the accused escapees posed a threat to our people’s safety, which led us to the decision to expel them.”

Unification Ministry spokesman Lee Sang-min holds a press briefing on the deportation of North Korean fishermen at the Government Complex Seoul in downtown Seoul on Nov.7. (Yonhap)

Cha disagreed. “That isn’t a cogent argument,” Cha said. “If that were true, that there wasn’t actually a hint of sincerity (in their intentions) to defect, then why blindfold and handcuff them during the deportation?” she asked, referring to local media reports that said Seoul blindfolded and handcuffed the pair when it handed them over to Pyongyang in the truce village of Panmunjom.

The ministry added the North Korean boat was initially fleeing from the South Korean Navy in the East Sea for two days before its seizure. That was one of the signs of insincere intentions, it said.

“How do we ascertain ‘sincerity’?” Kim Sang-kyum, a professor of constitutional law at Dongguk University, asked in a telephone interview with The Korea Herald.

“The course of action is that when they (the escapees) express their intention to defect, the government accepts it. We deal with problems later if there happens to be one,” he said.

International law professor Jhe concurred, saying the government’s role is simply to confirm incoming North Koreans’ intentions to defect, rather than second-guess defection requests. Even if defector hopefuls have committed a crime, they are still South Korean nationals, he wrote in local weekly magazine Futurekorea.

Legal experts assert that the South Korean government should have protected the two escapees pursuant to Article 10 of South Korea’s Constitution, which guarantees the basic rights of its people.

Meanwhile, Jhe of Chung-Ang University points to another shortcoming in Seoul’s handling of the situation.

“All incoming escapees wishing to defect to South Korea should be offered a chance to file an objection to a decision from Seoul about their deportation,” Jhe said.


Deportation violates international law?

Seoul’s Unification Ministry maintains that the deportation did not violate Article 3 of the United Nations Convention Against Torture, which prohibits returning people to countries where they might face torture.

The ministry pointed to Article 16 of the convention, which states that its provisions are “without prejudice to any international instrument or national law” that relates to “extradition or expulsion.”

It said it had “no doubt” that the North Korean pair committed crimes based on its “intelligence and the pair’s testimony.”

Legal experts, however, opine otherwise.

“The deportees were never formally indicted or convicted. So there is no room here whatsoever to invoke the extradition rule,” Jhe wrote in an email to The Korea Herald.

“The Unification Ministry has no power to name them criminals, let alone kick them out based on that assumption. Judges and prosecutors make that call,” the international law professor said. 

Local North Korean human rights groups protest against the deportation of North Korean fishermen in front of the Government Complex Seoul in downtown Seoul on Nov. 12. (Yonhap)

“You can never assume guilt,” said Joshua Stanton, a Washington-based lawyer who served as a member of the US Army Judge Advocate General’s Corps stationed in South Korea between 1998 and 2002, according to the US government-funded Radio Free Asia on Nov. 7.

“Arrest them. Indict them. Give them their day in court,” he said.

Both experts conclude that the Unification Ministry’s actions violated the international torture convention.

Stanton further warns of the ramifications of Seoul’s decision.

“South Korea has now implicitly recognized that that (North Korea) is a legitimate justice system,” he said.

Other human rights organizations and members of the public have condemned the lack of transparency around the case.

“The whole story doesn’t make sense,” Phil Robertson, deputy director of the Asia division of Human Rights Watch, said in a statement. He said Seoul should reveal details of the investigation.

Robert King, a former US special envoy for North Korean human rights issues, also called on Seoul to be up front with the facts.

“Was this thoroughly investigated before they were returned, and was the evidence sufficiently convincing that they committed these crimes?” King asked in an interview with Voice of America.

Robertson from Human Rights Watch went further, urging Seoul not to give Pyongyang “a completely free pass on human rights issues.”

By Choi Si-young (siyoungchoi@heraldcorp.com)