01.08.2022 Author: Konstantin Asmolov

South Korean “Case of the Killer Fishermen”: Legal Aspects

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This is not the author’s first publication on the infamous scandal in South Korea. In 2019, two North Korean fishermen were detained near the maritime border in the East Sea. They confessed to the murder of 16 of their comrades who were in the same boat, and expressed a desire to stay in the ROK. However, the government considered them criminals and decided to return them back to the North.

From the very beginning of this story, the conservative bloc has expressed suspicions that the Moon administration decided to send fishermen to the DPRK against their will as a “gift” to invite North Korean leader Kim Jong-un to the South Korea-ASEAN summit in Busan. When the government changed, the administration of the new President Yoon Suk-yeol declared that repatriation could be a “crime against humanity” and promised to reveal the truth about this case.

Consideration of this high-profile scandal by the author goes in two directions. On the one hand, it is possible to analyze it in the context of a political struggle. On the other hand, it is worth trying to figure out to what extent it is possible to talk about a violation of the law here, since the case is quite confusing and raises several questions.

Status of Refugees from the North and the Question of the Legality of Repatriation

When deciding on deportation, the South Korean government argued that, since a serious criminal offense had been committed, and the refugees themselves pose a threat to the life and safety of South Korean citizens, they are not subject to protection under the Law on the Protection of North Korean Refugees. In addition, criminal offenders are not recognized as refugees in accordance with international law.

The South Korean Law on the Protection of North Korean Refugees states that persons who have committed serious crimes, such as murder, are not entitled to state protection, subsidies, etc. However, this does not necessarily mean that the government should expel North Korean criminals.

In this regard, the Ministry of Unification stated that “it is difficult to apply this law as a basis for repatriation in 2019,” while adding that 23 North Koreans who fled to the South after committing serious crimes live in South Korea.

However, how legitimate is it to consider defectors as refugees at all? The Constitution of the ROK (Article 3) recognizes the entire Korean peninsula and adjacent islands as the country’s territory and, thus, does not recognize North Korea as a legitimate state. The “Five Provinces Administration” continues to exist, and President Yoon recently solemnly appointed the governors of North Hamgyong Province and South and North Pyongyang provinces located in North Korea.

Accordingly, defectors from the DPRK are not legally defined as refugees and are treated as South Korean citizens. North Koreans can obtain refugee status in China and other countries, but not in South Korea.

On July 15, while referring to the report of the Ministry of Unification, a representative of the Democratic Party said that the repatriation of 2019 is not unusual, since the only difference between the case of the Killer Fishermen from other cases is that the couple tried to escape from North Korea after committing a brutal crime.

It turns out that from 2010 to May 2022, 276 North Koreans crossed the Northern Limit Line (the disputed maritime border) 67 times, and in 47 cases 194 of them were sent back to the North.11 cases occurred under Lee Myung-bak, 21 cases under Park Geun-hye and 15 cases during the reign of Moon Jae-in. At the same time, the average period before repatriation in all cases was 5-6 days.

However, the Democrat kept silent that these were NOT repatriations against the will. Indeed, the ROK often returned North Korean citizens who happened to be on the territory of the ROK by accident and clearly expressed a desire to return home. Therefore, the author considers this argument irrelevant.

According to the Ministry of Unification, 23 subsequently convicted criminals from North Korea, including murderers, defected to South Korea.  But unlike the killer fishermen, none of the defendants above have ever been repatriated against their will.

In conclusion: in this matter, the conservatives follow the letter of the law (North Korea is NOT another country, but part of the South; the deportation of its own citizens is unacceptable, as is the application of refugee laws to them), and the Democrats follow the logic of reality. De facto, North Korea has been and remains an independent country with its own history, political and socio-economic systems, leadership, culture, etc. Even the United Nations accepted both countries as separate members in 1991. Inter-Korean exchanges and agreements between the North and the South also legitimize the status of the DPRK not as an “anti-state organization” by themselves.    It is clear that this duality is recognized by everyone (as well as the need to streamline it and revise some formulations), but so far the gray zone gives two interpretations.

Conducting an Investigation into a Mass Murder with Extreme Cruelty

Before deciding the question “whether defectors who committed a serious crime should have been allowed into the country,” it is worth confirming the fact of the crime.

Conservatives claim that the decision to repatriate was made on the basis of data or even a request from the DPRK, while Democrats note that the North was contacted after the fishermen were recognized as criminals, after which the North asked if it was ready to accept them.

In addition, after the North Koreans move to South Korea, they must undergo joint interrogation by security agencies, including the National Intelligence Service (NIS), the military and the Ministry of Unification. This interrogation takes time, and even if, as a result, North Korean defectors are not allowed to live in South Korea, they can file a complaint with the Minister of Unification within 90 days.

Then, if defectors are suspected of committing a serious crime, they must be punished according to the laws of the ROK after the trial. Article 27.1 of the Constitution of the ROK states:  “All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act,” and theoretically, in accordance with Article 3 of the Constitution, South Korean courts can exercise jurisdiction over a murder committed on the territory of the DPRK (which they sometimes do by arranging trials against the leadership of the North).

But in this case, the trial took a maximum of three days, which does not pull for a full investigation.

Technical issues are added to this. How exactly did they kill the captain and 15 other people on a boat 16 meters long, 3.7 meters wide and with a displacement of 17 tons?

Democrats claim that there was no need for a long investigation. Firstly, the fishermen confessed themselves, and secondly, the fact of the murder was confirmed by intercepted North Korean negotiations.  As for a full-fledged investigation, given the lack of evidence and the absence of witnesses, the transfer of the case to court seemed unlikely.

Moreover, some add that if the case had gone to trial, the murderous fishermen could have been acquitted altogether. Firstly, there might not be enough evidence, after which the presumption of innocence would work. Secondly, with an engaged lawyer (who would most likely appear to them), confessions could be disavowed by statements about pressure from the authorities, and then the political conjuncture would be involved in the case.

In conclusion: an unpleasant story, which is used by conservatives. On the one hand, the confession of the murderers themselves and the initial inspection of the boat was apparently enough to establish the fact of the crime and, while realizing what kind of public it was, return the murderers to the DPRK. On the other hand, the presumption of innocence exists, and recognition is by no means the “queen of evidence”. Technically, no one has officially recognized killer fishermen as murderers, which means that one can say that since the murder has not been proven, it means that the innocent were sent to the North.

 Punishment for mass murder with special cruelty in the North and South

Critics of the previous administration’s decision cite the fact that South Korea signed the UN Convention against Torture, which prohibits sending people to a country where they face torture and ill-treatment.  “Human rights activists” like Suzanne Scholte (chairwoman of the North Korea Freedom Coalition and winner of the Seoul Peace Prize) or Phil Robertson (Amnesty International) claim that “Moon and his officials knew that, too, and yet still sent them back in what was a disgusting and callous disregard for human rights” (which is equivalent to complicity in murder), or creepy torture, since “it’s very clear that North Korea tortures people, especially those who have escaped overseas.” And since South Korea ratified the UN Refugee Convention in 1992 and the UN Convention against Torture in 1995, it is bound by its own obligation not to send refugees or asylum seekers back to places where they may be at risk. Thus, there is a clear violation of international law

This argument is neutralized by an elementary attempt to compare the penalties for this offense in the DPRK and the ROK. Article 266 of the Criminal Code of the DPRK “Premeditated grave murder” with aggravating circumstances in the form of the number of victims and the method of their murder punishes the crime committed by fishermen with lifelong correctional labor or the death penalty.

Article 65 “Treason to the Motherland”, which, it is believed, could be imputed to fishermen after repatriation, also “gives” life or the highest measure, but only in the case of “grave consequences”. Without them, correctional labor for a period of five years should be the case.

Article 250 of the Criminal Code of the ROK “Murder” implies punishment “in the form of death penalty, hard labor for life or for a period of at least five years.” Taking into account the aggravating circumstances, the choice of punishment is similar to the northern one. The only exception is that there is an informal death penalty moratorium in the South, but I would venture to assume that if the crime itself had occurred South of the 38th parallel, NGOs would have already declared an extraordinary situation that requires the lifting of the moratorium. We know this from other cases of brutal murders with a much smaller number of victims.

In conclusion: If we put aside the fact that the death penalty is not usually applied in the ROK (although an exception could be made for this), then the punishment for the brutal murder of a group of people in the North and South is identical, and therefore the thesis “the Moon administration sent fishermen to death” is politically biased.

“Insincerity” and “Crimes against Humanity”

Both sides like to use incorrect or emotionally colored formulations in this case, some of which are also interpreted differently. This also applies to the expression of the phrase “sincere desire to escape.” Democrats understand by this that when escaping, the main motivation of the runner is the desire to gain freedom, and not the desire to avoid punishment, and therefore there is no question of sincerity.  Conservatives believe that their desire to escape was quite sincere, as they REALLY wanted not to be executed for murder.

The wording “crimes against humanity” is also hypocritical. Firstly, formally, such crimes mean actions that are purposefully committed by the State or on behalf of the State within the framework of a large-scale or systematic policy, which is not visible in this single case. Secondly, taking into account the comparison of punishments, we can only talk about the assumptions that the killer fishermen were particularly ill-treated. News about their fate (which, of course, has already appeared in conservative media with reference to anonymous correspondents from the North) comes from invalid sources (given how previous reports were not confirmed) or the opinions of biased experts, such as “it is obvious that they will be terribly tortured and executed together with their families.”

A Secret Action Not Coordinated with Anyone?

Conservatives like to talk about the fact that the repatriation was not coordinated with anyone and the society found out about it by accident after a message from a military man, who was photographed by a journalist, was displayed on the smartphone screen of the deputy head of the National Security Department.

On July 24, conservative MP Thae Yong-ho even said that the joint command in charge of the demilitarized zone rejected the government’s request for cooperation in the repatriation of North Koreans five or six times and warned that any use of ropes and blindfolds is completely prohibited (after which the fishermen were given a strong-willed decision).

But this is not the case. Former National Security adviser Chung Eui-yong said that the government decided to carry out the deportation after consulting with the relevant government ministries. This, in particular, was confirmed by the Ministry of Justice of the ROK, which, around noon on November 7, 2019, shortly before repatriation, checked the legality of this fact. According to a representative of the Ministry on July 20, 2022, it found no reason to send them back, even though by law they were not entitled to state protection as criminals. The Ministry of Justice ruled that it is difficult to deport them under the Immigration Law, which applies only to foreigners, but told the Blue House that the deportation of North Koreans is inevitable. Here, however, it is worth noting that the decision was actually made simultaneously with the deportation process and to what extent the consultations were formal in nature with the expected result is a question.

Then, and this was confirmed by the current Minister of National Defense Lee Jong-Sup, the United Nations Command (UNC) still approved the repatriation. The extradition process, we recall, took place in the village of Panmunjom, where the inter-Korean truce was concluded, and it is impossible to arrive there without the approval of the UNC. This is an important point, since the command really oversees everything that passes through the border, and during the inter-Korean warming, the Moon administration often referred to the fact that “we were ready for more, but the UNC won’t let us.”

***

If we sum up the results as a whole, then somewhere the position of the Democrats is closer to the truth, somewhere the conservatives.   As Jason Lim, an organizational culture expert from Washington, notes in the Korea Times, “the crux of the controversy is less about the fact of the crimes than about due process”

Most of the problems are related to the duality of the DPRK’s status, which creates a gray zone of interpretation, as well as ideological clichés that are taken as facts.  The new data may clarify the picture, but it should be remembered that in this story “both sides lied and continue to lie,” each on a favorable occasion. But if we go exclusively by the letter of the law, the conservatives have a weighty reason to hit their opponents. There was no proper investigation that would officially establish the fact of the murder, and the extradition of “their” citizens is a violation of the Constitution. It seems that the Democrats are used to acting on the principle of “it is obvious to everyone, which means it will do,” which they have used since the Candle Revolution, but here it let them down.

But this led to the fact that the murderous fishermen were extradited so quickly and without a full investigation procedure, and without additional information this all is yet unclear. Perhaps it is indeed political conjuncture, but the author believes that ethical considerations outweighed the letter of the law, and cruel criminals decided to give appropriate punishment.  It is not by chance that the masses, to whom the ethical position is closer to the legist one, support this step. A poll conducted on July 22 showed that 58.9% against 33.5% consider the extradition of fishermen to be a “good solution”.

Separately, the servility of the system should be noted, i.e. how, under the new government, both the Ministry of Unification and the Ministry of Justice are actively “hesitating along with the general line,” stating that “they were against it even then.” At the same time, these fluctuations are associated with a change of power, and not with the fact that new facts have surfaced in the case.

Konstantin Asmolov, PhD in History, leading research fellow at the Center for Korean Studies of the Institute of China and Contemporary Asia RAS, exclusively for the online magazine “New Eastern Outlook”.

 


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