South Korean Court Rules Against Human Rights Commission’s Rejection to Investigate Forcible Return of Two North Korean Defectors
GHRTV Reporter
Jasmine Velasquez
East Asia and Human Rights Researcher
Global Human Rights Defence
In November of 2019, South Korea captured two North Korean fishermen who had crossed over into South Korean waters. Though these two men had submitted hand-written statements in which they said they hoped to defect to South Korea, they were deported to North Korea five days later. The South Korean government announced that the men had killed 16 fellow crew members and fled the ship they were operating on. The two men were denied access to lawyers, a proper court hearing, or a chance to appeal the government’s decision to repatriate them.
Public outcry and criticism followed this forced repatriation from human rights groups and advocates, including South Korea’s bar association. Thousands of North Koreans have defected to South Korea prior to this, and South Korea has accepted them all. This was of particular concern to the public because of North Korea’s track record of human rights and humanitarian violations. The United Nations along with the broader international community, has lamented the widespread violations in North Korea, including torture, starvation, murder and other crimes against humanity, especially to those forcibly repatriated from abroad. The silence from the two men after being repatriated highlighted this concern.
In response to this repatriation, the Conservative Lawyers Association for Human Rights and Unification of the Korean Peninsula (Han Byun) filed a complaint with the National Human Rights Commission of Korea for investigation and remedy (Kim, 2022). However, the Human Rights Commission rejected this complaint in December of 2020, stating that there were difficulties in conducting a realistic investigation when the victims have already been deported to North Korea. In response to this, Han Byun filed a lawsuit countering this rejection, demanding that the Human Rights Commission's decision to be dismissed be reversed.
Now, almost three years after the initial forced repatriation of the two fishermen, the South Korean courts have confirmed that the Human Rights Commission’s rejection of the filed claim was unjust. They stated that “It cannot be seen that the Human Rights Commission has the discretion to dispose of legitimately filed complaints arbitrarily.” The Human Rights Commission appealed this decision, but it was dismissed by the appellate court.
International law prohibits governments from returning people to a country where they is a well-founded fear of persecution or risk of torture and other ill-treatment. Particularly relevant is Article 16 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which South Korea ratified in 1995 (Ratification Status by Country). According to the Office of the High Commissioner of Human Rights, “the principle of non-refoulement is characterized by its absolute nature without any exception”(Yoon, 2022). Furthermore, the right to a fair trial and due process is protected under Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which South Korea ratified in 1990 (Ratification Status by Country).
Thus, it can be concluded that South Korea indeed violated the right to non-refoulment and due process under human rights law by forcibly repatriating the two fishermen. The South Korean Human Rights Commission had thus obstructed an investigation into a serious human rights violation.
Moving forward, the Human Rights Commission has assigned an investigator to investigate whether the case is a human rights violation. Separate to the complaint filed with the Human Rights Commission, the Office of Public Investigation at the Seoul Central District Prosecutors' Office is investigating whether the Moon Jae-in government's decision-making process in the process of forcibly repatriating North Korean fishermen to North Korea was legitimate.
Sources and further reading:
Ha J, “北어민 강제북송 조사 각하한 인권위...법원, 조목조목 반박 왜 [그법알]” (중앙일보 November 2, 2022) <https://www.joongang.co.kr/article/25114418>; accessed November 8, 2022
Jeong C, “법원 ‘국가인권위, 강제북송 인권침해 진정 각하는 부당’ 판결 확정” (데일리안 November 8, 2022) <https://www.dailian.co.kr/news/view/1171008/?sc=Naver>; accessed November 8, 2022
Kim S, “'강제북송 인권침해' 진정 각하는 부당...인권위 상고포기로 확정” (중앙일보 November 8, 2022) <https://www.joongang.co.kr/article/25115848>; accessed November 8, 2022
Lee J, “법원 "'강제 북송' 진정 각하는 부당’ 판결 확정...인권위, 상고 포기” (뉴스1 November 8, 2022) <https://www.news1.kr/articles/4858088>; accessed November 8, 2022
“Ratification Status by Country” (United Nations Human Rights Treaty Body Database) <https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=141&Lang=EN>; accessed November 8, 2022
Yoon L, “South Korea Investigates Forcible Return of Two North Koreans” (Human Rights Watch July 22, 2022) <https://www.hrw.org/news/2022/07/22/south-korea-investigates-forcible-return-two-north-koreans>; accessed November 8, 2022
