Forced Repatriation Spurs Political, Legal Debate in South Korea
South Korea's controversial 2019 decision to forcibly repatriate two North Korean fishermen suspected of murder is receiving renewed attention following the release of photos showing the men being sent across the border against their will.
The pictures, released this week by South Korea's Ministry of Unification, showed the two fishermen struggling desperately as they were dragged and pushed to the North Korean side of the border at the Panmunjom truce village in November 2019.
While the images offered few new details about the deportation, their release renewed fierce domestic political debate over the incident, which tested South Korea's legal commitment to protect fleeing North Koreans.
Many human rights groups condemned the deportation as a violation of international law, saying the men were almost certain to be tortured and sentenced to death without a fair trial in North Korea. They also argue the incident violates South Korea's constitution, which recognizes North Koreans as South Korean nationals.
South Korean officials in charge at the time argued the fishermen were "heinous criminals" who could endanger South Koreans. They allege it would have been very difficult to secure a conviction in South Korean courts, given the unique details of the alleged murder, which occurred in North Korean waters.
Grisly crime
South Korean naval authorities captured the two fishermen in November 2019, when their small squid fishing boat crossed the eastern sea border.
The men confessed to killing the boat's captain and 15 other crew members, and dumping their bodies overboard, South Korean officials said.
While the two men expressed a desire to defect, South Korean authorities rejected the request as insincere and incoherent.
Following a three-day investigation, South Korean authorities decided to return the suspects and their fishing boat to North Korea.
North Korea has not revealed the men's fate, but many activists say it is impossible they received a fair trial, noting the totalitarian country's well-established record of torture and other abuses.
"This is an outrageous and inexcusable human rights violation that should be utterly condemned, and the [South Korean] officials responsible for this decision should be held accountable," said Human Rights Watch Deputy Asia Director Phil Robertson.
The newly released photos revealed the men's "desperate resistance" to being sent back to North Korea, Robertson said.
"They understood they were fighting for their lives. [Former South Korean President] Moon Jae-in and his officials knew that too, and yet still they sent them back in what was a disgusting and callous disregard for human rights," Robertson said.
Legal questions
According to many rights activists, the deportation violated South Korea's commitments under both domestic and international law.
Under the United Nations Convention Against Torture, which South Korea signed in 1995, individuals may not be deported to places where they likely face torture. South Korea has also signed the Universal Declaration of Human Rights, which recognizes the right to a fair trial.
In theory, South Korea's constitution considers North Koreans as its citizens, and Seoul usually accepts fleeing North Koreans, pending an investigation into their background.
However, South Korean law also allows authorities wide latitude to reject incoming North Koreans, for instance, on national security or criminal grounds.
In the view of those who oversaw the deportation, the fishermen's alleged crimes made them ineligible for defector protection under South Korean law.
Even if the men were tried in a South Korean court, conviction would be extremely difficult, since the evidence and witnesses are in North Korea, according to testimony by Kim Yeon-chul, then South Korea's minister of unification.
While the two men did admit to murder, convictions based on confessions alone are difficult to secure in South Korean courts, according to legal analysts. Many worry that raised the chances the two men would have been set free, even if they committed murder.
"If someone brutally murdered 16 people and then exploited legal loopholes.,and was acquitted because of a lack of evidence and witnesses...is that really justice?" asked Joo Seong-ha, a prominent North Korean defector-turned journalist, in a Facebook post.
Rather than deal with a complicated and uncertain legal battle, the Moon administration returned the fishermen to North Korea, prompting a wave of outrage.
Many of Moon's critics alleged he was motivated by a desire to placate North Korea, amid inter-Korean peace talks that by then were faltering. The left-leaning Moon placed a high priority on dialogue with the North.
The dynamic made for a tricky situation for officials at U.N. Command, the multinational military force that oversees the demilitarized zone, including the Panmunjom village where the deportation took place.
"While this was a [South Korean government] decision that we were not going to meddle in because of their laws, there was a lot of concern expressed by the [South Korean military] leadership if this was the right decision," said a senior defense official with knowledge of the repatriation.
"The general feeling was this was another example of trying to appease the North Koreans and gain some good favor," the official told VOA.
Political payback?
The administration of South Korea's new conservative president, Yoon Suk Yeol, is determined to reassess the incident.
This week, a Yoon spokesperson called the repatriation a "crime against humanity." South Korea's National Intelligence Service has also filed a complaint with prosecutors against Moon's former spy chief, alleging the investigation into the fishermen ended too soon.
Yoon's government is also investigating a separate 2020 incident in which North Korea killed a South Korean fisheries official near the inter-Korean sea border. The Moon administration claimed the fisheries official was killed while attempting to defect to the North, but that determination was reversed last month under the Yoon government.
Some observers worry Yoon is continuing a longstanding pattern in which conservative presidents pursue legal charges against their liberal predecessors, and vice versa.
"Yoon Suk-yeol seems determined to perpetuate the cycle of political revenge that has long marred South Korea's democracy," wrote longtime Korea watcher Aidan Foster-Carter in an editorial in NK News, a Seoul-based website.
"To be sure, Moon Jae-in played that game too -- with a vengeance," he said. "Now it's payback time for the conservatives."
