During a speech at Victory Day celebrations on July 27, the North Korean supreme leader Kim Jong-un criticized President Yoon Suk-yeol, mentioning his name for the first time since his inauguration. Amid the dark days of inter-Korean relations due to Kim Jong-un’s strong criticism toward the current South Korean government, domestic political debate is still heated over the forced repatriation of two North Koreans who claimed to have killed 16 fellow sailors in 2019. Regardless of the legal aspects of whether this repatriation was compulsory or not, and regardless of domestic political powers’ interests laid underneath the issue, we are keeping our eyes on the situation as the government’s basic principles on North Korea, including human rights, can bring a certain impact on inter-Korean relations. In order to understand the implications of the incident, this week’s discussion invites Ko Gyoung-bin, the director of the Peace Foundation research committee and the former chairman of the North Korean Refugee Foundation (The Korea Hana Foundation), and Yoon Yeo-sang, the president of Database Center for North Korean Human Rights, who is also serving as an adviser to the North Korean Refugee Foundation.



Hwang: How do you basically interpret the recent forced repatriation?



Ko: This forced repatriation did not happen in recent days but was in 2019. Therefore, today is not the first time it was controversial, and it was actually the same back in 2019 also. The faults and flaws of the Korean governmental system was pointed out as well. However, 2 1/2 years have passed since then and we are still repeating the same controversies we had in the past, which is basically about the matters of humanitarianism, legal process and procedure legitimacy, rather than efforts to improve or supplement the system. We have to put the things right once we recognize the problem. Otherwise, repeating the criticism stays as the criticism for criticism itself. No cow can be raised in a destroyed cowshed. We must focus on rebuilding and fixing the cowshed, not obsessing over the lost cow.



Yoon: I would say that something that should not have happened in Korea had happened. As the repatriation happened forcibly against North Korean defectors’ will, as they requested protection from the previous Korean government, this is an illegal action and a crime. Also, since it is highly likely that the defectors must have been executed, this is a serious violation of human rights at the same time. The Korean government back then seems to have determined a secret repatriation, firstly because the defectors had criminal charges laid against them, and secondly, because the decision was made in a political context with a lack of legal examination in order to promote inter-Korean relations and to suggest a friendly attitude to North Korea. Now it is waging a public opinion battle, stimulating public sentiment by using the term “brutal criminals,” and not giving a clear explanation based on a legal approach.

The national institutes and civil servants who are in charge of official tasks must determine and implement them according to the laws and regulations. Making an excuse of public sentiment and deciding for political purposes that does not have a concrete legal grounds is a populist move and can be a shortcut to a dictatorship. Witnessing what has happened, it is regrettable that we could clearly see that political and ideological logic takes precedence over rules, regulations and human rights when it comes to issues regarding North Korea. I guess ideological camp logic can strongly influence people’s decisions and life, compared to how North Korea weighs people’s social classes and backgrounds.



Hwang: Was there a similar case to this?



Yoon: In fact, there have been hundreds of cases of North Korean defections via maritime routes since the 1990s, and the majority of them were repatriated after investigations. The government maintains that these defectors voluntarily clarified their will to repatriate, however, it is a fact that some must have been forcibly sent back for sure. Whether they were sent back by force or not can be made clear once the investigation documents written by the joint government investigation institute are made public. Therefore, the necessity of an investigation in relation to government or special inspection regarding repatriation is being raised.



Ko: According to the spirit of the Korean Constitution, North Korean defectors are allowed to live in Korea after acquiring permanent residence just like other ordinary foreign refugees or by only verifying their nationality as a Korean citizen without a particular naturalization process. To this end, the North Korean Refugee Protection and Settlement Support Act has been enacted and implemented. Under the law, even North Korean defectors can be refused from requesting protection, if they have committed crimes against humanity, such as international terrorism and murder. However, even if this is a reason to refuse protection, in most cases, the protection is provided because the evidence cannot be obtained easily. The only case when a North Korean defector who requested protection was deported to North Korea under this provision was this controversial one in 2019.



Hwang: So you mean that although these repatriated North Korean fishermen were charged with murder, the Moon Jae-in government’s decision to deport them is problematic?



Ko: Actually, this remains legally ambiguous. It seems the case was problematic in that sense. The deportation of the North Korean fishermen rescued by South Korean military and police until now is also legally groundless. Their repatriation was based on considerations of inter-Korean relations and humanitarian reasons or common sense judgments, rather than legal ones, and if we have to mention legal issues, we have to explain it as an act of governance.



Yoon: Yes, indeed. The South Korean government has no legal basis for deportation if North Koreans enter the country and request protection. Even felons cannot be screened and repatriated, at least under the law so far. In the event of a serious crime such as murder, the Korean government will still accept the defector as a citizen, but he or she will be decided as a nonprotected person during the screening process for the protection, conducted by the Ministry of Unification. In case the defector is excluded from the protection, it does not mean repatriation right away, but it means that the defector will be excluded from the government’s settlement support service, normally provided for North Korean defectors.



Hwang: President Yoon Suk-yeol stressed Article 3 of the Constitution after receiving a report from the Ministry of Unification on July 22. Based on Article 3, North Korean defectors should be regarded as citizens, so it seems that the ruling camp has strengthened its claim that forced repatriation was an illegal process. What do you think?



Yoon: Article 3 says “The territory of the Republic of Korea shall consist of the Korean Peninsula and its adjacent islands.” From context, Article 3 can only affect the legal status of people in North Korea whether they are citizens of the Republic of Korea, and has nothing to do with the legal status of North Koreans who entered the country and requested protection. According to Article 3, scholars may disagree on whether North Korean residents have the status of South Korean citizens, but there is no legal or academic disagreement on the fact that North Koreans who entered the country and requested protection are considered as citizens of the Republic of Korea or not.



Ko: The president also mentioned that Article 4 of the Constitution should be realized and embodied at the same time. Article 3, in other words the territorial provisions, confirm the legitimacy of the Republic of Korea as the only legal government on the Korean Peninsula, and Article 4, the peaceful unification provision, recognizes North Korea as a partner to cooperate with peaceful unification. In reality, North Korea is an adversary that is hostile against us under the armistice regime, but at the same time, it is a partner whom we must talk to and cooperate with for peaceful reunification. The issue of bringing North Koreans to our courts, who are consulted on crimes in North Korea, should also be dealt with from a reciprocal perspective considering these two realistic aspects. Inter-Korean relations need to develop cooperatively and now we see the need for a criminal extradition agreement between the two Koreas.



Hwang: How about if we look at the legal system regarding North Korean defectors?



Ko: The current legislation is centered on settlement support once the protection is decided. On the other hand, the process before and after the protection is still remaining at the principle level, that the specifications are not stipulated. Again, the management and post-process of those who are excluded from the protection almost does not exist. The institution in charge of protection is also ambiguous. Under the current law, the minister of unification has the right to decide on protection, but he or she is only responsible for follow-up management of those who are determined to be protected, and he or she does not get involved in the investigation or the judgment process. In order to improve this institutional deficiency, in addition to human rights, considerations should be made at the level of anti-communist security and criminal policy. In our reality, the process of protecting North Korean defectors should be thoroughly prevented from being used as a safe invasion route for North Korean spies in disguise or as a refuge for inhumane felons. Moreover, there have been about 200 cases in the past 10 years in which the protections have been canceled in the middle due to serious crimes or smuggling attempts while these defectors were living in our society. In response, the legal system, such as accountability for follow-up management, is in a vacuum and still has problems in terms of human rights.



Yoon: Discussing this case that we are talking about these days, I think the relevant laws should include the grounds and procedures for repatriation for the ones who voluntarily ask for repatriation, and if necessary, the criteria, procedures and regulations should be further discussed to cover repatriation of those who are difficult for the government to accept due to public sentiment. If the government’s repatriation decision and procedures are unofficially handled by a limited number of government officials, there is a risk of forcible repatriation against their will. As such, there is a suggestion to form and operate a North Korean Defector Repatriation Screening Committee that involves both related government agencies and private human right experts.



Hwang: To be honest, the domestic politicization of the North Korean issue seems quite excessive. Can we understand this case in this light?



Yoon: Rather than judging whether the case and the act was illegal against the rule of law or not, it tends to be split into those who support and criticize it depending on which ideological camp people go for. This irrational social phenomenon is happening for sure.



Ko: In democratic politics, people’s attention to security and anti-communist issues is no exception. However, even if there are differences in perception between the ruling and opposition parties and even if political disputes are inevitable, there must be a barrier that should not be crossed. Especially, if politicians’ involvement in the security and anti-communist sectors go excessively far, workers’ morale would deteriorate for one thing, and then we must acknowledge that in the worst case they can come under pressure to work to suit those in power, not for the sake of national interest.



Hwang: President Yoon also called for the launch of the North Korean Human Rights Foundation as soon as possible, saying that “peaceful unification based on the basic free and democratic order” stipulated in Article 4 of the Constitution means the unification process led by all the people of the two Koreas. What should the nature and function of the North Korean Human Rights Foundation be when it is established?



Ko: There still is controversy over the pros and cons of the North Korean Human Rights Act, including the nature and function of the North Korean Human Rights Foundation. However, this law was enacted under the compromise between the ruling and opposition parties, and the nature and function of the North Korean Human Rights Foundation were also determined by compromise and agreement. Nevertheless, the delay in law enforcement is a problem in terms of compliance. I am just hoping the North Korean Human Rights Foundation to be cautious not to undermine private organizations’ voluntary activities by eroding what they are already were doing for our society.



Yoon: In order for the North Korean Human Rights Foundation to function properly, it would be reasonable to organize the functions centered on activities that support North Korean human rights and then include humanitarian aid in existing relevant laws, rather than including humanitarian aid alongside human rights issues, which North Korea has been reluctant to accept.



Hwang: Stressing that individual human rights should be respected in the unification process, the president also mentioned that he would point out human rights issues which North Korea is sensitive to. How will this affect inter-Korean relations in the future?



Ko: The establishment of the North Korean Human Rights Foundation was not intended to improve relations with the North Korean authorities. Of course, the North Korean authorities will feel provoked. I assume everything depends on what actually can be done under the pretext of human rights. North Korea will link the improvement of inter-Korean relations and the issue of human rights, but we have no other choice but to make a separate effort. This too, should be recognized in the context of a realistic need, not from viewing it as a contradiction in the situation on the Korean Peninsula.



Yoon: Since North Korean authorities are reluctant to address its human rights issues, in case the problem is strongly raised at the government level, it would negatively affect future inter-Korean relations and cooperation. However, looking back at the inter-Korean relations and the exchange process so far, it is an excessive concern that the inter-Korean relationship will break down or a war will break out just by raising the issue of North Korean human rights. It is reasonable for the government to raise human rights issues at the theoretical level and make efforts to improve human rights in North Korea in the form of supporting the international community and private organizations, because the government still needs consultations with North Korea in various fields, such as denuclearization, economic cooperation and humanitarian issues.



Hwang: In what direction do you think the new government’s policy toward North Korea, the so-called “bold plan,” should head toward as it aims to come up with economic cooperation and security measures step by step in a response to North Korea’s denuclearization measures?



Yoon: First of all, the government needs to clarify whether it aims to completely denuclearize North Korea or to manage the denuclearization process. And if the “bold plan” basically means denuclearization, it should be definitely acceptable to experts and the general public, as well as to the North Korean officials. However, it is questionable whether there is a denuclearization plan that both sides would agree on.



Ko: I theoretically welcome the new government’s continued efforts to denuclearize North Korea through dialogue and its announcement that it will include measures to resolve not only economic issues but also the security threats that North Korea feels in its “bold plan” as a counterbenefit to denuclearization.