South Korea’s decision in 2019 to forcibly repatriate two North Korean fishermen suspected of murder is spurring debate over whether North Koreans can be treated as people of South Korea, and under what circumstances.

President Yoon Suk-yeol, vowing to reopen the case of two North Koreans deported by his predecessor, has said the Constitution “dictates that defectors are our people.”

The administration of then-President Moon Jae-in had described the men as “violent criminals” who murdered 16 of their fellow crew members on their fishing boat to flee their country, and viewed their intentions to defect to the South to be “insincere.”

Yoon again on Monday called for approaching the case “as per the Constitution and the laws.” So what does the law say?

 The Constitutional Research Institute said in a 2019 report that the question of how to legally treat North Koreans comes down to whether or not North Korea has the legitimacy to be respected as a nation.

The report said while widely accepted mainstream theories do not recognize North Korea as a nation, the fact remains that South Korea is restricted from administering and enforcing laws in North Korea. The report concluded that in defining the legal status of North Koreans, the primary consideration should be their self-determination.

Similarly, as early as in 2008 the Ministry of Government Legislation noted in its report the “dual nature” by which North Korea and its people are construed by South Korea’s laws.

South Korea has long regarded North Korea as an “anti-government organization,” the rights of whose people are protected under the Constitution as South Korean nationals, the report said. At the same time, North Korea has been deemed as a partner in negotiations and economic and other exchanges.

“There are views that the legal interpretations of North Korea and its people should be renewed to reflect the changes in the landscape,” the report said.

Should defectors with possible past criminal activities have been allowed into the country?

That’s not a call that should have been made by Cheong Wa Dae or the National Intelligence Service, according to Jhe Seong-ho, a professor of international law at Chung-Ang University.

Jhe argued in a July 15 forum that the repatriation resulted from “a series of decisions made by parties that were not theirs to make.” “It’s up to the court to decide if the two men committed crimes, as well as the extent of those crimes, and up to the Ministry of Justice to either acknowledge or relinquish their South Korean citizenship,” he said.

Choi Jin-nyoung, a senior attorney at Seoul-based law firm, agreed that it was “questionable” whether it was within the authorities of the officials to expel North Koreans seeking defection “without due procedure of law.”

“People accused of crimes have the rights to access to a lawyer and court proceedings, which the two men did not have,” he said at the same forum.

South Korean courts, in principle, can exercise jurisdiction over the murders that are alleged to have been committed by the two fishermen over North Korean waters, according to Kang Dong-beom, a professor of criminal and criminal procedure codes at Ewha Womans University in Seoul.

“Criminal acts that took place within South Korea’s territory -- which, according to the Constitution, includes North Korea -- can be tried at courts here,” he said in a phone call with The Korea Herald.

There were also legal grounds for holding accountable South Korean authorities who were involved in the repatriation, said Kim Woong-ki, a lawyer at the Korean Bar Association’s center providing legal support to North Korean defectors.

“It is possible to be charged for aiding people accused of criminal activities to avoid being located or investigated for one thing. The fishing boat where the supposed murder took place was cleaned up and returned to North Korea, which may amount to destruction or concealment of evidence,” he said.

At the core of the controversy surrounding the repatriation “lies South Korea’s dismissal of North Korea’s sovereignty,” according to Jang Kyung-wook of Lawyers for a Democratic Society, known more widely as Minbyun.

“Had we recognized North Korea as a sovereign state and the judicial powers that it has over its own people, there wouldn’t be a controversy,” said Jang, a lawyer who had worked with North Koreans who ended up in South Korea as a result of displacement or other reasons.

“It’s cold war thinking on South Korea’s part that continues to disavow North Korea as a separate country,” he said.

The main argument adopted by activists concerns the potential human rights violations.

The Lawyers for Human Rights and Unification of Korea on Monday characterized the repatriation as an “anti-humanitarian act” that could constitute human rights violations-related crimes.

The lawyer group’s President Kim Tae-hoon told reporters that it is “extremely unlikely that South Korean authorities repatriated the North Koreans without being aware of the what they were being returned to.”

The Transitional Justice Working Group pointed out in a report that the ambiguity of South Korea’s legal order “make possible such egregious human rights violations against North Korean escapees.”

The report said the legal status of North Korean escapees “can be worse than that of non-South Korean nationals who are entitled to due process rights.”

Although South Korean courts have “consistently held that North Koreans are entitled to the South Korean citizenship,” they were denied protection until a Ministry of Unification recommendation.

“This legal limbo enables various human rights violations and abuses, as witnessed in the deportation of the two fishermen,” said Shin Hee-seok, an international law scholar with the group.

Park Won-gon, a professor of North Korea studies at Ewha Womans University, said that while there “inherently existed legal gray zones,” this particular repatriation was “no doubt outside of convention.”

“Rejecting North Korean defectors, and repatriating them despite having expressed their desire to settle in South Korea is certainly unheard of, and without a documented precedent,” he said.

By Kim Arin (arin@heraldcorp.com)