DPRK Public Threats and ROK Revoking Incorporation of NK Groups as Juristic Persons

Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression

Special Rapporteur on the rights to freedom of peaceful assembly and of association

Special Rapporteur on the situation of human rights defenders

Special Rapporteur on the right to education

Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance

Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea

Office of the High Commissioner for Human Rights

United Nations Office at Geneva

8-14, avenue de la Paix

1211 Geneva 10, Switzerland

 

23 July 2020

 

Re: The North Korean (DPRK) government’s public threats against North Korean escapees for their dissemination of information about its supreme leader and the South Korean (ROK) government’s policy in response to revoke or attempt to revoke the incorporation of over 25 North Korean human rights and escapee settlement support groups as juristic persons

 

We are writing to request an urgent action (UA), possibly with a press release, by the Special Rapporteurs concerning the North Korean (DPRK) government’s public threats against North Korean escapees for their dissemination of information about its supreme leader and the South Korean (ROK) government’s policy in response to revoke or attempt to revoke the incorporation of over 25 North Korean human rights and escapee settlement support groups as juristic persons.

Since 4 June 2020, the North Korean state press (there are no independent or private press in North Korea) has engaged in a virulent campaign against the North Korean escapees in South Korea whom it referred to as “rubbish” for exercising their right to leave their country in violation of article 13 of the UDHR and article 12 of the ICCPR and openly called for use of force against South Korea and discrimination against North Korean escapees in violation of article 2 of the UDHR and articles 20 and 26 of the ICCPR. The violent reaction against any criticism or dissemination of information about North Korea’s supreme leader Kim Jong-Un further constitutes violation of the right to freedom of expression and association under articles 19 and 20 of the UDHR and articles 19 and 22 of the ICCPR.

Unfortunately, the South Korean government failed to respect and ensure the right to freedom of expression and association under articles 19 and 20 of the UDHR and articles 19 and 22 of the ICCPR, the presumption of innocence and principle of legality under article 11 of the UDHR and articles 14 (2) and 15 (1) of the ICCPR, the right to education under article 26 of the UDHR and article 13 of the ICESCR, and the prohibition of discrimination under article 2 of the UDHR and article 26 of the ICCPR to all individuals within its territory in its response as it prioritized improving relations with North Korea even by arbitrarily persecuting North Korean human rights and escapee settlement support groups that it deems as hindrance to its North Korean policy.

The current administration has already revealed the dangerous and worrying tendency to turn a blind eye to ongoing systematic, widespread and gross human rights violations that amount to crimes against humanity in its forced repatriation of two fishermen defectors to North Korea in violation of the principle of non-refoulement on 7 November 2019.1

We submit that such utter disregard for human rights in the name of peace and security bears disturbing resemblance to the attempts by the United Kingdom and France to “appease” Adolf Hitler’s Nazi Germany in the 1938 Munich Agreement and the “gag rule” implemented in the United States House of Representatives in 1836-1844 that banned consideration or discussion of slavery by abolitionists in that federal legislative chamber.

As those cases demonstrate, peace without justice is neither justifiable nor sustainable. In fact, by standing up for universal human rights even in difficult negotiations with North Korea, the South Korean government has a far better chance of securing a solid foundation for peace in the Korean peninsula that is just and lasting.

For reasons described below, we ask the Special Rapporteurs to enquire the North and South Korean governments about these violations of human rights and fundamental freedoms.

Specifically, we ask the Special Rapporteurs to urge the North Korean government to:

  1. Publicly retract and apologize for the statements made by Kim Yo-Jong and other officials that violate article 13 of the UDHR and article 12 of the ICCPR; article 20 of the ICCPR; article 2 of the UDHR and article 26 of the ICCPR; and articles 19 and 20 of the UDHR and articles 19 and 22 of the ICCPR; and
  2. End the criminalization of North Koreans who leave their country and vicious threats against criticism or dissemination of information about supreme leader Kim Jong-Un.

 

We further ask the Special Rapporteurs to urge the South Korean government to:

  1. Immediately cancel the termination of the incorporation of the Fighters For Free North Korea (FFNK) and KuenSaem as juristic persons and drop all criminal charges against Park Sang-Hak and Park Jung-Oh;
  2. Immediately end all “business inspections” of the incorporated North Korean human rights and escapee settlement support groups by the ministry of unification (MOU);
  3. Revise the provisions of the civil code and related administrative legislation to bring them into line with the international standards in particular with respect to the right to freedom of expression and association; and
  4. Ensure that North Korean human rights defenders and North Korean escapees, who have already become objects of hate speech and widespread discrimination in South Korean society, in South Korea, are not blamed and used as political scapegoats for the North Korean provocations.

 

In addition, we also ask the Special Rapporteur to urge the South Korean national human rights commission to:

  1. Reaffirm its past findings, namely the recommendation of 6 December 2010 and the decision of 26 January 2015 upholding the leaflet campaign from the perspective of the right of access to information for North Koreans
  2. To recommend urgent relief measures to the government under article 48 of the National Human Rights Commission Act (“After the Commission receives any petition, if it is deemed highly likely that any violation of human rights or a discriminatory act against a person subject to investigation is in progress and then it is deemed likely that any damage impracticable to recover where such violation or discrimination is left unattended, the Commission may recommend the respondent or the head of the competent institution, etc. to take measures falling under any of the following subparagraphs on the application by the petitioner or victim or ex officio before making a decision on such petition …”2)3

 

 

 

 

 

  1. Factual background

 

  1. The June threats by North Korea

 

On 4 June 2020, Kim Yo-Jong, sister of supreme leader Kim Jong-Un and the first vice department director of the central committee of the workers’ party of Korea (WPK) central committee4, issued a statement entitled “Do not bring calamity upon yourself”5.6

The statement referred to the “anti-DPRK leaflets” flown to North Korea by “North Korean escapees”7, dubbed “rubbish beyond the pale of human value”8, in South Korea on 31 May that “insolently find fault with the ‘nuclear issue’ while touching upon our supreme dignity [i.e. Kim Jong-Un]”9. Kim Yo-Jong reasoned that for the vile deeds of these “shit dogs”10, “it is time to hold their masters responsible”11.

Recalling the provisions of the Panmunjom declaration of 27 April 201812 and the military agreement of 19 September 2018 that ban all hostile acts including the dispersal of leaflets (in fact, only the former actually contains such provisions while the latter merely refers to the cessation of all hostile acts against each other), the statement warned that “if such malicious acts are left unchecked in the name of ‘individual freedom’ and ‘freedom of expression’, the South Korean authorities must look forward to the worst phase shortly”13.

The statement went on to threaten the rescision of Mount Kumgang tourism, complete demolition of the Kaesong industrial region, the closure of the inter-Korean liaison office or termination of the 9.19 military agreement unless the South Korean authorities take “due measures”14.

Kim Yo-Jong’s June 4 statement was unusual in that it was reported not only in the outbound Korean Central News Agency (KCNA), which serves only the international audience, but firstly in Rodong Sinmun, the WPK central committee’s official newspaper. It also used the expression “North Korean escapees”, a taboo term as it all too painfully betrays the reality of the workers’ paradise.

This immediately prompted the observation that Pyongyang was fomenting a crisis situation for its domestic political purposes to deflect the instability and discontents generated by failed command economy, exacerbated by COVID-19 border closures with China, as well as possible internal power struggle within the elite ruling class.

Just four hours after Kim Yo-Jong’s early morning bombshell, the South Korean ministry of unification (MOU) announced that it would prepare legislation banning the leaflets to North Korea.15 The Blue House (the presidential office) officials also told journalists that “the dispersal of leaflets to North Korea are acts that do nothing but harm”16 and that “the government will respond resolutely to acts that harm security”17 adding that “There is no change in the Blue House’s position that the 4.27 Panmunjom declaration and 9.19 military agreement must be observed”18 in the afternoon.19

This was a complete reversal of the government’s consistent position for many years of avoiding such legislation for fear of infringing upon the freedom of expression, as the North Korean statement complained, even after the 4.27 Panmunjom declaration in 2018 for over two years. Kim Hong-Geol, a ruling party lawmaker, and others began to sponsor bills in the National Assembly to ban the leaflets.20

On 5 June 2020, however, the WPK central committee’s united front department (UFD)21 issued a spokesperson’s statement scolding Seoul for the lack of apology and signing the 9.19 military agreement without even enacting the anti-leaflet ban for two years. According to the statement, Kim Yo-Jong ordered the UFD to review her statement for practical implementation and the first order was the demolition of the inter-Korean liaison office sitting idly in the Kaesong industrial region.22

On 9 June 2020, Kim Yo-Jong declared the transition to “hostile relation”23 with South Korea and moved to sever the official communication lines between the two governments including the hotline between the WPK central committee and the presidential office as the “first stage” in the “price to be paid for the sins committed by traitors and rubbish”24 in a KCNA article.25

On 10 June 2020, the South Korean MOU announced that it would file charges against Park Sang-Hak and Park Jung-Oh, brother defectors from North Korea, for violation of article 13 of the Inter-Korean Exchange and Cooperation Act26 requiring prior approval of inter-Korean exchange of goods and revoke the incorporation of their organizations, the Fighters For Free North Korea (FFNK)27 and KuenSaem28, as juristic persons for sending leaflets in air balloons and rice-filled PET bottles on sea currents to North Korea, especially on 31 May 2020, as cited by Kim Yo-Jong.29

On 11 June 2020, the Blue House convened the National Security Council (NSC). Afterwards, Kim You-Geun, the NSC spokesperson, issued a statement claiming that North and South Korea had agreed to end the dispersal of leaflets in the 1972 7.4 joint communique, 1992 basic agreement and the 2004 6.4 agreement as well as the 2018 Panmunjom declaration and that such act is in violation of domestic laws such as the Inter-Korean Exchange and Cooperation Act, the Public Waters Management and Reclamation Act30 and the Aviation Safety Act31, threatening “thorough crackdown” and “stern response in accordance with the law in case of violation”.32

However, on 12 June 2020, Jang Kum-Chol, the director of the WPK central committee’s united front department (UFD)33, issued his first-ever statement acknowledging the Blue House’s announcement the previous day but stating that trust in Seoul has been shattered, among other things for the failure to enact an anti-leaflet ban for two years since the Panmunjom declaration and the “domestic outbursts of all the noise calling for ‘freedom of expression’”34 before predicting that “the coming times will be truly regretful and painful for the South Korean authorities”35.36

The next day on 13 June 2020, Kwon Jong-Gun, the DPRK foreign ministry’s director-general of the department of U.S. affairs37, lambasted the South Korean foreign ministry’s call for denuclearization and permanent peace regime the previous day, concluding that “it would be good to shove the bollocks about denuclearization”38.39

Kim Yo-Jong capped off the 24-hour verbal blitz against South Korea with her second statement of the month on the same day forewarning “the terrible sight of the useless inter-Korean liaison office demolished without a trace before long”40 and adding that “the next right to exercise action against the enemy will be handed to our military’s general staff”41 whom “she also trusts would decide and execute what it takes to cool the anger of the people to some extent”42.

On 16 June 2020, the Korean People’s Army (KPA)43 general staff made an “open report”44 stating that it would draw up military actions plans to speedily execute the suggestions by the WPK central committee’s united front department (UFD)45 and other relevant offices to refortify zones demilitarized under the inter-Korean agreement and further strengthen military alertness against South Korea as well as to actively assist the large-scale leaflet campaign against South Korea, for approval by the WPK central military commission46.47 While apparently submitting to Kim Yo-Jong’s wishes, the KPA general staff deferred the actual decision to the WPK central military commission, under Kim Jong-Un’s direct control.

However, in the afternoon of the same day, North Korea demolished the inter-Korean liaison office in the Kaesong industrial region, as Kim Yo-Jong had threatened to do three days earlier. The South Korean public expressed outrage and disgust since the office building had been constructed with South Korean budget and had served as a symbol of inter-Korean détente. The rapid escalation of tension by Pyongyang, without giving Seoul reasonable time to take any measures helped convince many that the leaflet campaign by North Korean escapees was merely an excuse to foment crisis for internal political purposes.

The South Korean NSC finally expressed “strong regrets” at the North Korean action and warned robust response against actions further aggravating the situation while Suh Ho, the vice minister of the ministry of unification (MOU), stated that the demolition of the inter-Korean liaison office is a violation of the 2018 Panmunjom declaration and that Pyongyang must be held responsible for it, and the ministry of national defense assured robust response in the case of military provocation by North Korea.48

On 17 June 2020, Pyongyang lobbed further verbal bombshells at Seoul. KCNA unilaterally revealed in flagrant violation of diplomatic protocol that the day before South Korean president Moon Jae-In had pleaded with Kim Jong-Un to send Chun Eui-Yong, director of the national security office, and Suh Hoon, director of the national intelligence service, as special envoys to Pyongyang at earliest possible date only to be turned down by Kim Yo-Jong.49

The spokesperson for the KPA general staff announced that four specific military action plans (stationing of units in the Mount Kumgang tourism region and Kaesong industrial region, redeployment in the guard posts that had been evacuated in accordance with the military agreement, raising of combat readiness in the frontier zones and preparation for the leaflet campaign against South Korea) for ratification by the WPK central military commission.50

Kim Yo-Jong issued her third statement in the escalating crisis, panning President Moon Jae-In’s speech two days earlier as “riddled with self-justification, evasion of responsibility and deep-rooted serving the great [the United States] ideology”51 that was nauseating. She spiced her statement with other personal insults against Moon which she referred to as “a bomb of words”52 including her observation that “he makes her worry that he appears to be outwardly normal but mentally insane”53.54 Jang Kum-Chol in the similar spirit stated that there will be no further talks with the South Korean authorities.55

On the same day, in response to Kim Yo-Jong’s verbal abuse and unilateral revelation of South Korea’s offer to send special envoys, President Moon at last took an uncharacteristically stern stance against North Korea starkly warning it that it will have to take full responsibility for the consequences of its speech and behavior.56

On 20 June 2020, North Korea’s state newspapers revealed the leaflets being mass produced for dispersal to South Korea, prompting Seoul’s protest.57 The spokesperson for the WPK central committee’s united front department (UFD) made clear that North Korea will not back down.58 North Korea reportedly prepared 12 million leaflets, featuring President Moon and his son, as well as redeployment to the evacuated guard posts in the Demilitarized Zone (DMZ) and placing over 10 loudspeakers for propaganda against South Korea.

However, on 24 June 2020, Kim Jong-Un hosted a “preliminary meeting” for the 5th meeting of the 7th session of the WPK WPK central military commission, which decided to withhold the military actions plans against South Korea that had been raised to the commission by the general staff. Tensions quickly melted away afterwards as it had arisen about 20 days earlier.

Although it is not clear why North Korea beat a hasty retreat, it is obvious that the demolition of the inter-Korean liaison office and the verbal abuse of President Moon alienated the South Korean public to the extent unforeseen by Kim Yo-Jong and that the North Korean saber-ratting also resulted in the deployment of U.S. forces in the oceans to the great irritation of the KPA general staff as well as China.59

However, the North Korean government never retracted or apologized for its military provocations or unacceptable insults against the North Korean escapees in South Korea or President Moon Jae-In.

On 30 June 2020, Russian ambassador Alexander Ivanovich Matsegora stated in his interview with his country’s state news agency TASS that the North Korean leadership as well as the general population was incensed by the nature of the leaflets dispersed on 31 May 2020 that contained a crude composite of pornographic materials with the face of North Korean first lady Ri Sol-Ju made using Adobe Photoshop.60

However, Park Sang-Hak has never sent such outrageous leaflets on 31 May 2020 or on any other occasion. In fact, it is true that another North Korean defector named Baek Yo-Sep and other right-wing South Korean groups had sent such inexcusable, misogynistic materials, but that had occurred seven years ago on 6 October 2013.61

 

  1. The South Korean government’s continuing persecution of North Korean human rights and escapee settlement support groups

 

Even after the crisis largely subsided, the South Korean government has continued and expanded its assaults on organizations that it deems to be a threat to its policy of placating Pyongyang and improving ties with North Korea even at the cost of sacrificing human rights and fundamental freedoms in South Korea.

On 17 July 2020, ironically the constitution day in South Korea, the ministry of unification (MOU) announced that it has revoked the incorporation of Park Sang-Hak’s Fighters For Free North Korea (FFNK) and Park Jung-Oh’s KuenSaem as juristic persons for contravening the conditions for permitting their incorporation by grossly impeding the government’s reunification policy, dispersal of leaflets and items to North Korea beyond the stated goal of their incorporation as juristic persons and fomenting tension in the Korean peninsula under article 38 of the civil code after holding a hearing on 29 June 2020.62

While the government has in the past revoked the incorporation of inactive juristic persons in the past, it is the first time that it has done so for an otherwise functional organization after holding a hearing to that end. The police investigation against Park Sang-Hak and Park Jung-Oh for alleged violation of article 13 of the Inter-Korean Exchange and Cooperation Act is also pending.

The MOU has also moved to conduct “business inspections”63 of other North Korean human rights and escapee settlement support groups among the over 400 associations incorporated by the MOU’s permission, possibly with a view to revoking their incorporation.

On 15 July 2020, the Association of North Korean Defectors received a notice from the MOU that there will be an inspection next month for the first time since its incorporation in 2010. When confronted by a journalist, an MOU official, while admitting that it was not a regular inspection, responded that the MOU is not targeting just escapee groups.64

In fact, the day after, on 16 July 2020, the MOU authorities informed journalists that they will first conduct business inspections on 25 incorporated North Korean human rights and escapee settlement support groups, among which 13 are headed by North Korean defectors, with more to be inspected in the future.65 While acknowledging that the leaflet issue triggered the inspections, the MOU added that the business inspections will not concern just the leaflet campaign.

Indeed, the MOU’s inspection targets do not appear to be limited to groups that disperse leaflets to North Korea as the number of such groups is nowhere near 25. The MOU refused to reveal the 25 groups to be inspected, citing privacy. All this indeed is needless to say unprecedented.

 

  1. Legal analysis

 

  1. Human rights violations by North Korea

 

North Korea is one of the few remaining totalitarian states in the world. The most recent country resolution adopted on 22 June 2020 by the UN Human Rights Council “not[ed] with regret that independent civil society organizations cannot operate in the Democratic People’s Republic of Korea and, as a result, no civil society organization based in the Democratic People’s Republic of Korea was able to submit a stakeholder report for the universal periodic review process” (A/HRC/RES/43/25).

Similarly, there is no independent or private press in North Korea to disseminate information or ideas to the ordinary North Korean people. This is why many North Korean escapees in South Korea have tried various means to information and ideas from the outside world to their former countrymen, especially about North Korea’s supreme leader Kim Jong-Un and his royal family.

The North Korean government’s vehement hatred of North Korean escapees in South Korea, who have acquired South Korean nationality, is based on the understanding that they are criminals because they have exercised their freedom to leave their former country, as guaranteed in article 13 (2) of the UDH and article 12 (2) of the ICCPR. Such understanding no doubt negates and abridges the liberty of movement without any reasonable justification and therefore must be considered a clear violation of article 13 of the UDHR and article 12 of the ICCPR.

The description of North Korean escapees who have become South Korean citizens variously as traitors, “rubbish beyond the pale of human value” and “shit dogs” is also a flagrant violation of article 20 (2) of the ICCPR as advocacy of national hatred that constitutes incitement to discrimination, hostility and violence. Kim Yo-Jong’s bellicose language, such as “the next right to exercise action against the enemy will be handed to our military’s general staff” to “decide and execute what it takes to cool the anger of the people to some extent” in her statement of 13 June 2020 must be considered prohibited propaganda for war for the purpose of article 20 (1) of the ICCPR.

The virulent language used against North Korean escapees also constitutes illegal discrimination in violation of article 2 of the UDHR and article 26 of the ICCPR.

To be fair, the North Korean officials are rarely sparing when it comes to attacking foreigners who offend their supreme leader. Most notably, on 27 December 2014, the policy division of the DPRK national defence commission (NDC) issued a statement with infamous racist phrases such as “Obama whose words and deeds are unfailingly imprudent just like the image of a monkey inhabiting tropical jungles”66.67

Pyongyang’s violent reaction against any criticism or dissemination of information by any groups about North Korea’s supreme leader Kim Jong-Un further constitutes violation of the right to freedom of expression and association under articles 19 and 20 of the UDHR and articles 19 and 22 of the ICCPR.

For these reasons, we ask the Special Rapporteurs to urge the North Korean government to:

  1. Publicly retract and apologize for the statements made by Kim Yo-Jong and other officials that violate article 13 of the UDHR and article 12 of the ICCPR; article 20 of the ICCPR; article 2 of the UDHR and article 26 of the ICCPR; and articles 19 and 20 of the UDHR and articles 19 and 22 of the ICCPR; and
  2. End the criminalization of North Koreans who leave their country and vicious threats against criticism or dissemination of information about supreme leader Kim Jong-Un.

 

  1. Human rights violations by South Korea

 

While it may not come as a surprise that Kim Yo-Jong and other North Korean officials have difficulties mentioning freedom of expression or other individual freedoms with anything but disdain, it is truly sad to see the South Korean government fail to uphold its proud tradition of liberal democracy when it comes to its relation with North Korea. In fact, the extent to which the Blue House and the ministry of unification (MOU) under President Moon Jae-In, a former human rights lawyer, would go to sacrifice human rights and the rule of law is nothing short of scandalous.

When Kim Yo-Jong first raised the issue of leaflets on 4 June 2020, President Moon could have politely reminded his North Korean counterpart that South Korea is a liberal democracy where the rule of law takes precedence over the rule of man. Instead, the Blue House and the MOU tried to find any legal pretext possible to stymie the exercise of freedom of expression and association.

Articles 19 and 22 of the ICCPR provide for the right to freedom of opinion and expression and freedom of association as follows:

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Article 22

1. Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

 

With respect to article 19 (3), the Human Rights Committee stated in its general comment 34 (https://undocs.org/CCPR/C/GC/34) reaffirmed that the restrictions must be “provided by law”, limited to the enumerated grounds, and subject to the principle of necessity and proportionality:

22. Paragraph 3 lays down specific conditions and it is only subject to these conditions that restrictions may be imposed: the restrictions must be “provided by law”; they may only be imposed for one of the grounds set out in subparagraphs (a) and (b) of paragraph 3; and they must conform to the strict tests of necessity and proportionality. Restrictions are not allowed on grounds not specified in paragraph 3, even if such grounds would justify restrictions to other rights protected in the Covenant. Restrictions must be applied only for those purposes for which they were prescribed and must be directly related to the specific need on which they are predicated.

 

The Human Rights Committee’s general comment no. 34 elaborates upon the phrase “provided by law” thus:

25. For the purposes of paragraph 3, a norm, to be characterized as a “law”, must be formulated with sufficient precision to enable an individual to regulate his or her conduct accordingly and it must be made accessible to the public. A law may not confer unfettered discretion for the restriction of freedom of expression on those charged with its execution. Laws must provide sufficient guidance to those charged with their execution to enable them to ascertain what sorts of expression are properly restricted and what sorts are not.

 

It is difficult for the South Korean government to argue that the 2018 4.27 Panmunjom declaration provides the legal basis for restricting the leaflet campaign as it may be considered a political statement rather than a legally binding document. Even if it is viewed as a legal document, it has not been formally ratified by the government as an inter-Korean agreement. The relevant text of the Panmunjom declaration, as seen below, imposes obligations of the North and South Korean governments without reference to actions by private parties:

2. South and North Korea will make joint efforts to alleviate the acute military tension and practically eliminate the danger of war on the Korean Peninsula. Alleviating the military tension and eliminating the danger of war is a highly significant challenge directly linked to the fate of the Korean people and also a vital task in guaranteeing their peaceful and stable lives.

South and North Korea agreed to completely cease all hostile acts against each other in every domain, including land, air and sea, that are the source of military tension and conflict. In this vein, the two sides agreed to transform the demilitarized zone into a peace zone in a genuine sense by ceasing as of May 1 this year all hostile acts and eliminating their means, including broadcasting through loudspeakers and distribution of leaflets, in the areas along the Military Demarcation Line.

South and North Korea agreed to devise a practical scheme to turn the areas around the Northern Limit Line in the West Sea into a maritime peace zone in order to prevent accidental military clashes and guarantee safe fishing activities.

South and North Korea agreed to take various military measures to ensure active mutual cooperation, exchanges, visits and contacts. The two sides agreed to hold frequent meetings between military authorities, including the Defense Ministers Meeting, in order to immediately discuss and solve military issues that arise between them. In this regard, the two sides agreed to first convene military talks at the rank of general in May.

[emphasis added]68

 

The Blue House and the MOU’s use of domestic provisions, such as article 13 of the Inter-Korean Exchange and Cooperation Act69, the Public Waters Management and Reclamation Act70 and the Aviation Safety Act71 openly crack down upon Park Sang-Hak’s Fighters For Free North Korea (FFNK) and Park Jung-Oh’s KuenSaem is problematic too.

For instance, article 13 (1) of the Inter-Korean Exchange and Cooperation Act provides that: “Any person who intends to take out or bring in goods, etc. shall obtain approval from the Minister of Unification with respect to the items, forms of trading, methods of payment, etc. of goods, etc., as prescribed by Presidential Decree”.72 This clearly refers to commercial trade of goods with North Korea not the unilateral dispersal of leaflets for the dissemination of information and ideas.

Nor are the relevant provisions of the Public Waters Management and Reclamation Act and the Aviation Safety Act enacted to regulate speech. Given that the government has never applied these legal provisions for the leaflet campaign, it was impossible for any “individual to regulate his or her conduct accordingly” and they risk “confer[ring] unfettered discretion for the restriction of freedom of expression on those charged with its execution”.

The Blue House and the MOU’s announcement that Park Sang-Hak and Park Jung-Oh brothers are in violation of the vague relevant laws that lack sufficient precision also contravened their due process right to the presumption of innocence and principle of legality under article 11 of the UDHR and articles 14 (2) and 15 (1) of the ICCPR. Again, such criminal proceedings “confer unfettered discretion for the restriction of freedom of expression on those charged with its execution”.

The South Korean government’s unprecedented moves to revoke the incorporation of the Fighters For Free North Korea (FFNK) and KuenSaem’s as juristic persons on 17 July 2020 and to conduct “business inspections” on 25 incorporated North Korean human rights and escapee settlement support groups, among which 13 are headed by North Korean defectors, with little or no connection to the leaflet campaign, possibly ending in revocation of their incorporation as juristic persons, raise further concerns about the freedom of expression and association in South Korea.

The South Korean civil code provides rather broad, unfettered powers to the government in permitting, inspecting or revoking incorporation as a legal person.73 Article 32 provides that “an association or foundation relating to science, religion, charity, art, social intercourse, or otherwise relating to enterprises not engaged for profit or gain, may be formed as a juristic person subject to the permission of the competent authorities”; article 37 that “The business of a juristic person shall be inspected and supervised by the competent authorities”; and article 38 that “Where a juristic person operates such business outside the scope of its purpose, violates such conditions attached to the permission for its incorporation, or engages in acts harming public interests, the competent authorities may cancel the permission”.74

The ministry of unification (MOU), like other government ministries, can approve, inspect and terminate the incorporation of civil society organizations (CSOs) as juristic person under the delegated administrative legislation.75 These legal provisions served to restrict the creation and operation of CSOs in the authoritarian era and continue to hinder the CSOs acquiring legal personality, which is necessary for everything from opening a bank account in their name to receiving tax-deductible donations.

The present case demonstrates the danger and pitfall of such loosely defined and delegated powers to administrative offices like the MOU. Indeed, it is difficult to dispute that the existing legislation “confer[s] unfettered discretion for the restriction of freedom of expression on those charged with its execution”. The extremely vague wording of article 38 of the civil code such as “operating business outside the scope of its purpose”, “violating conditions attached to the permission for its incorporation” or “engaging in acts harming public interests” cannot safeguard the freedom of expression and association.

The examples of the Fighters For Free North Korea (FFNK) and KuenSaem and the politically motivated “business inspection” of other incorporated North Korean human rights and escapee settlement support groups may set dangerous precedents for other CSOs that fall out of the government’s favor in the future and will undoubtedly have a chilling effect on the exercise of the right to freedom of expression and association by new or existing CSOs.

In the case of the Fighters For Free North Korea (FFNK) and KuenSaem, we further submit that the revocation of incorporation can hardly be considered proportionate even assuming arguendo that the leaflet campaign was subject to legitimate restrictions on security grounds. Surely, the government could have considered less drastic actions to curb its activities. We note in particular that KuenSaem runs a special school for North Korean escapee children and that its dissolution will constitute additional violation of the right to education under article 26 of the UDHR and article 13 of the ICESCR.

While one can never downplay the importance of peace and security in the Korean peninsula, securing peace cannot come at the price of sacrificing freedom of expression or other individual freedoms that Kim Yo-Jong and other North Korean officials appear to view as nothing more than an excuse for malicious personal attack on their supreme leader.

In this regard, we note the Human Rights Committee’s restatement of the principle that the value placed by the Covenant upon uninhibited expression is particularly high in public debate concerning public figures and that all public figures, including heads of state are legitimately subject to criticism and political opposition (https://undocs.org/CCPR/C/GC/34) in general comment no. 34:

38. As noted earlier in paragraphs 13 and 20, concerning the content of political discourse, the Committee has observed that in circumstances of public debate concerning public figures in the political domain and public institutions, the value placed by the Covenant upon uninhibited expression is particularly high. Thus, the mere fact that forms of expression are considered to be insulting to a public figure is not sufficient to justify the imposition of penalties, albeit public figures may also benefit from the provisions of the Covenant. Moreover, all public figures, including those exercising the highest political authority such as heads of state and government, are legitimately subject to criticism and political opposition.

Unfortunately, the South Korean government failed to respect and ensure the right to freedom of expression and association under articles 19 (2) and 22 (1), due process under articles 14 (2) and 15 (1), and the prohibition of unjustified discrimination under article 26 of the ICCPR to all individuals within its territory in its response as it prioritized improving relations with North Korea even by arbitrarily persecuting North Korean human rights and escapee settlement support groups that it deems as hindrance to its North Korean policy.

The current administration has already revealed the dangerous and worrying tendency to turn a blind eye to ongoing systematic, widespread and gross human rights violations that amount to crimes against humanity in its forced repatriation of two fishermen defectors to North Korea in violation of the principle of non-refoulement on 7 November 2019.76

We submit that such utter disregard for human rights in the name of peace and security bears disturbing resemblance to the attempts by the United Kingdom and France to “appease” Adolf Hitler’s Nazi Germany in the 1938 Munich Agreement and the “gag rule” implemented in the United States House of Representatives in 1836-1844 that banned consideration or discussion of slavery by abolitionists in that federal legislative chamber.

As those cases demonstrate, peace without justice is neither justifiable nor sustainable. In fact, by standing up for universal human rights even in difficult negotiations with North Korea, the South Korean government has a far better chance of securing a solid foundation for peace in the Korean peninsula that is just and lasting.

We further note that South Korea’s National Human Rights Commission has in the past upheld the right to conduct the leaflet campaign in the recommendation of 6 December 2010 on “conferring the right of access to information for North Koreans” and the decision of 26 January 2015 re “the National Human Rights Commission’s position on stopping the leaflet activities”.77

While the South Korean supreme court by contrast has rejected lawsuit brought by a North Korean escapee against the government for stopping his leaflet campaign, the decision merely affirmed the existence of “urgent and serious danger”78 without applying the strict tests of necessity and proportionality per the Human Rights Committee’s general comment 34

For these reasons, we ask the Special Rapporteurs to urge the South Korean government to:

  1. Immediately cancel the termination of the incorporation of the Fighters For Free North Korea (FFNK) and KuenSaem as juristic persons and drop all criminal charges against Park Sang-Hak and Park Jung-Oh;
  2. Immediately end all “business inspections” of the incorporated North Korean human rights and escapee settlement support groups by the ministry of unification (MOU);
  3. Revise the provisions of the civil code and related administrative legislation to bring them into line with the international standards in particular with respect to the right to freedom of expression and association; and
  4. Ensure that North Korean human rights defenders and North Korean escapees, who have already become objects of hate speech and widespread discrimination in South Korean society, are not blamed and used as political scapegoats for the North Korean provocations.

 

We also ask the Special Rapporteur to urge the South Korean national human rights commission to:

  1. Reaffirm its past findings, namely the recommendation of 6 December 2010 and the decision of 26 January 2015 upholding the leaflet campaign from the perspective of the right of access to information for North Koreans; and
  2. Recommend urgent relief measures to the government under article 48 of the National Human Rights Commission Act (“After the Commission receives any petition, if it is deemed highly likely that any violation of human rights or a discriminatory act against a person subject to investigation is in progress and then it is deemed likely that any damage impracticable to recover where such violation or discrimination is left unattended, the Commission may recommend the respondent or the head of the competent institution, etc. to take measures falling under any of the following subparagraphs on the application by the petitioner or victim or ex officio before making a decision on such petition …”79).80

 

Citizens’ Alliance for North Korean Human Rights (NKHR)북한인권시민연합

Fighters For Free North Korea (FFNK)자유북한운동연

KuenSaem큰샘

Transitional Justice Working Group (TJWG)전환기정의워킹그룹

 

 

 

3 국가인권위원회법 http://www.law.go.kr/lsInfoP.do?lsiSeq=216011 [in Korean]

4 In Korean: 조선로동당 중앙위원회 제1부부장. There have been reports that Kim Yo-Jong de facto heads the powerful organization and guidance department (OGD; 조직지도부) of the WPK central committee.

5 In Korean: 스스로 화를 청하지 말라.

6 조선중앙통신사, “김여정제1부부장 반공화국삐라살포에 북남군사합의파기 경고”, 2020. 6. 4., http://www.kcna.co.jp/calendar/2020/06/06-04/2020-0604-004.html [in Korean].

7 In Korean: 탈북자

8 In Korean: 사람값에도 들지 못하는 쓰레기들

9 In Korean: 우리의 최고존엄까지 건드리며 《핵문제》를 걸고 무엄하게 놀아댄것이다

10 In Korean: 똥개

11 In Korean: 이제는 그 주인에게 책임을 물어야 할 때이다

12 Formally called the Agreement on the Implementation of the Historic Panmunjom Declaration in the Military Domain [역사적인 판문점선언 이행을 위한 군사분야 합의서].

13 In Korean: 이런 악의에 찬 행위들이 《개인의 자유》요,《표현의 자유》요 하는 미명하에 방치된다면 남조선당국은 머지않아 최악의 국면까지 내다보아야 할것이다

14 In Korean: 응분의 조처

15 원선우, “김여정의 삐라 비난 4시간여 만에…통일부 삐라 금지법 만들겠다“”, 조선일보, 2020. 6. 4., https://news.chosun.com/site/data/html_dir/2020/06/04/2020060401772.html [in Korean].

16 In Korean: 삐라(대북전단) 살포는 백해무익한 행동

17 In Korean: 안보에 위해를 가져오는 행위에는 정부가 단호히 대응할 것

18 In Korean: 청와대는 4·27 판문점선언과 9·19 군사합의가 지켜져야 한다는 입장에 변함이 없다.

19 박경준, “청와대 삐라는 백해무익…안보위해에 단호 대응할 것“”, 연합뉴스 2020. 6. 4., https://www.yna.co.kr/view/AKR20200604085651001 [in Korean].

20 [2101650] 남북교류협력에 관한 법률 일부개정법률안(김홍걸의원 등 15), 2020-07-08 제안, https://likms.assembly.go.kr/bill/billDetail.do?billId=PRC_F2J0T0Y7L0O8M1H5T5F7Z1Q3I4P6K5 [in Korean].

21 In Korean: 조선로동당 중앙위원회 통일전선부

22 조선중앙통신사, “조선로동당 통일전선부 북남공동련락사무소 철페,련속 조치도 경고”, 2020. 6. 5., http://www.kcna.co.jp/calendar/2020/06/06-05/2020-0605-012.html [in Korean].

23 In Korean: 적대관계

24 In Korean: 배신자들과 쓰레기들이 저지른 죗값

25 조선중앙통신사, “912시부터 북남통신련락선 완전차단”, 2020. 6. 9., http://www.kcna.co.jp/calendar/2020/06/06-09/2020-0609-003.html [in Korean].

26 남북교류협력에 관한 법률 http://www.law.go.kr/lsInfoP.do?lsiSeq=151783 [in Korean]

27 In Korean: 자유북한운동연합

28 In Korean: 큰샘

29 정래원, “정부, 교류협력법 위반으로 전단살포 탈북단체 고발…설립 취소(종합)”, 연합뉴스 2020. 6. 10., https://www.yna.co.kr/view/AKR20200610127451504 [in Korean].

30 공유수면 관리 및 매립에 관한 법률(공유수면법) http://www.law.go.kr/lsInfoP.do?lsiSeq=210200 [in Korean].

31 항공안전법 http://www.law.go.kr/lsInfoP.do?lsiSeq=219587 [in Korean].

32 박경준, “[전문] 대북 전단 및 물품 등의 살포와 관련한 정부 입장문”, 연합뉴스 2020. 6. 11., https://www.yna.co.kr/view/AKR20200611163000001 [in Korean].

33 In Korean: 장금철 조선로동당 중앙위원회 통일전선부장

34 In Korean: 집안에서 터져나오는 그 모든 잡음

35 In Korean: 이제부터 흘러가는 시간들은 남조선당국에 있어서 참으로 후회스럽고 괴로울것이다.

36 조선중앙통신사, “조선로동당 통일전선부장 남조선당국에 대한 신뢰는 산산쪼각”, 2020. 6. 12., http://www.kcna.co.jp/calendar/2020/06/06-12/2020-0612-016.html [in Korean].

37 In Korean: 권정근 외무성 미국담당 국장

38 In Korean: 비핵화라는 개소리는 집어치우는것이 좋다.

39 조선중앙통신사, “권정근 외무성 미국담당 국장 남조선은 비핵화 소리 집어치우라”, 2020. 6. 13. http://kcna.co.jp/calendar/2020/06/06-13/2020-0613-005.html [in Korean].

40 In Korean: 멀지 않아 쓸모없는 북남공동련락사무소가 형체도 없이 무너지는 비참한 광경을 보게 될것이다.

41 In Korean: 다음번 대적행동의 행사권은 우리 군대 총참모부에 넘겨주려고 한다.

42 In Korean: 인민들의 분노를 다소나마 식혀줄 그 무엇인가를 결심하고 단행할것이라고 믿는다.

43 In Korean: 조선인민군

44 In Korean: 공개보도

45 In Korean: 조선로동당 중앙위원회 통일전선부

46 In Korean: 조선로동당 중앙군사위원회

47 조선중앙통신사, “조선인민군 총참모부 당과 정부의 조치 담보할 군사적태세 갖추다”, 2020. 6. 16. http://www.kcna.co.jp/calendar/2020/06/06-16/2020-0616-001.html [in Korean]

48 이정진, “북한, 개성 연락사무소 전격 폭파…청 강력한 유감“(종합3)”, 연합뉴스 2020. 6. 16., https://www.yna.co.kr/view/AKR20200616134554504 [in Korean].

49 조선중앙통신사, “남조선당국이 특사파견 간청,김여정제1부부장 불허 표시”, 2020. 6. 17., http://www.kcna.co.jp/calendar/2020/06/06-17/2020-0617-005.html [in Korean].

50 조선중앙통신사, “조선인민군 총참모부 다음단계 대적군사행동계획방향 발표”, 2020. 6. 17., http://www.kcna.co.jp/calendar/2020/06/06-17/2020-0617-004.html [in Korean].

51 In Korean: 자기변명과 책임회피, 뿌리깊은 사대주의로 점철된

52 In Korean: 말폭탄

53 In Korean: 겉으로는 멀쩡해보이는 사람이 정신은 잘못된것이 아닌가 하는 걱정이 든다.

54 조선중앙통신사, “김여정제1부부장 남조선당국자의 연설 비난”, 2020. 6. 17., http://www.kcna.co.jp/calendar/2020/06/06-17/2020-0617-007.html [in Korean].

55 조선중앙통신사, “장금철 통일전선부장 남측당국과 더는 마주앉을 생각 없다”, 2020. 6. 17., http://www.kcna.co.jp/calendar/2020/06/06-17/2020-0617-008.html [in Korean].

56 매일신문, “[전문] 청와대 北 김여정 담화, 몰상식한 행위강력 비판”, 2020. 6. 17., https://news.imaeil.com/Society/2020061710525766184 [in Korean].

57 김동현, “통일부 북한 대남전단 살포계획 매우 유감…즉각 중단해야“(종합) ”, 연합뉴스 2020. 6. 20., https://www.yna.co.kr/view/AKR20200620039351504 [in Korean].

58 조선중앙통신사, “조선로동당 통일전선부 대남삐라살포계획 변경할 의사 전혀 없다”, 2020. 6. 21. http://kcna.co.jp/calendar/2020/06/06-21/2020-0621-001.html [in Korean].

59 김민석, “패착으로 끝난 대남 강공전략, 김여정의 운명은?”, 중앙일보 2020. 7. 2., https://news.joins.com/article/23815339 [in Korean].

60 김승현, “저열한 리설주 합성사진이 北 도발 불렀다? 대북전단의 진실”, 조선일보 2020. 6. 30., https://news.chosun.com/site/data/html_dir/2020/06/30/2020063002352.html [in Korean].

61 홍성준, ““정은아! 핵 보다 더 무서운게 날아간다!” 리설주 성추문 실체 알리는 대북전단 50만 장 살포”, 불루투데이 2013. 10. 6., http://www.bluetoday.net/news/articleView.html?idxno=5598 [in Korean]

62 서재준, 나혜윤, “’삐라·페트병 쌀북한에 살포한 단체 법인 설립 허가 취소(종합) ”, 뉴스1 2020. 7. 17., https://www.news1.kr/articles/?3999257 [in Korean].

63 In Korean: 사무검사

64 권순완, “통일부, 이례적으로 탈북단체 방문조사“”, 조선일보 2020. 7. 16, https://news.chosun.com/site/data/html_dir/2020/07/16/2020071600154.html [in Korean].

65 김지현, “통일부 북한 인권·정착지원 관련 등록단체 25개 사무검사“”, 뉴시스 2020. 7. 16., https://newsis.com/view/?id=NISX20200716_0001097433 [in Korean].

66 In Korean: 열대수림속에서 서식하는 원숭이상 그대로 언제 봐야 말과 행동이 경망스럽기 그지없는 오바마

67 조선중앙통신사, “국방위정책국 미국의 불순반동영화상영 규탄”, 2014. 12. 27., http://www.kcna.co.jp/calendar/2014/12/12-27/2014-1227-008.html [in Korean].

68 Korea Times, “[FULL TEXT] Panmunjeom Declaration”, 2018. 4. 27., https://www.koreatimes.co.kr/www/nation/2018/04/731_248077.html

69 남북교류협력에 관한 법률 http://www.law.go.kr/lsInfoP.do?lsiSeq=151783 [in Korean].

70 공유수면 관리 및 매립에 관한 법률(공유수면법) http://www.law.go.kr/lsInfoP.do?lsiSeq=210200 [in Korean].

71 항공안전법 http://www.law.go.kr/lsInfoP.do?lsiSeq=219587 [in Korean].

75 통일부 소관 비영리법인의 설립 및 감독에 관한 규칙 http://www.law.go.kr/lsInfoP.do?lsiSeq=178333 [in Korean]; 통일부 소관 비영리법인의 사무 처리 규정 http://law.go.kr/admRulLsInfoP.do?chrClsCd=&admRulSeq=2200000068180 [in Korean].

78 대법 2016. 3. 29. 선고 2015247394 판결(모든 국민은 헌법 제211항의 표현의 자유를 보장받지만 이러한 표현의 자유는 무제한 적인 것이 아니고 국가안전보장, 질서유지, 또는 공공복리를 위해 필요한 때 국가가 법률로써 제한할 수 있는 것인데, 북한은 A가 대북전단을 날리는 행위에 대한민국이 동조하고 있다고 주장하면서 대북전단 날리기에 대응하기 위해 전면적인 군사적 타격을 하겠다고 위협하고 있고, 실제로 A20141010일 경기 연천 지역 인근에서 대북전단을 실은 풍선을 대량으로 살포하기 시작하자 북한에서 경기 연천 인근 민통선에 포탄을 쐈던 점에 비춰볼 때, 대북전단 살포 행위가 휴전선 지역 부근에 사는 국민의 생명•신체에 대한 급박하고 심각한 위험을 발생시키므로, 대북 전단 살포행위와 휴전선 부근 주민들의 생명•신체에 급박한 위험을 발생시키는 북한의 도발 행위 사이에 인과관계가 있다고 판단한 원심은 옳고, 경찰관직무집행법 제51항과 정당방위 및 긴급피난을 규정하는 민법 제7612항에 따라 국가는 대북전단 살포 행위를 제지할 수 있다.)

80 국가인권위원회법 http://www.law.go.kr/lsInfoP.do?lsiSeq=216011 [in Korean]