DPRK’s Capture and Summary Execution of Mr. Lee for COVID-19 Prevention on 22 September 2020

Special Rapporteur on extrajudicial, summary or arbitrary executions

Working Group on Enforced or Involuntary Disappearances

Working Group on Arbitrary Detention

Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment

Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health

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

 

18 October 2020

Re: Communication and press release for North Korea (DPRK)’s capture, interrogation and summary execution of Mr. Lee, a South Korean (ROK) national, and burning of his remains at sea, reportedly in the name of COVID-19 prevention, on 22 September 2020

 

The map of the incident1

 

 

Introduction

We respectfully request an urgent action (UA) or an allegation letter (AL), possibly with a press release, by the Special Rapporteurs and Working Groups concerning North Korea (DPRK)’s capture, interrogation and summary execution of Mr. Lee, a South Korean (ROK) national, and burning of his remains at sea, reportedly in the name of COVID-19 prevention, on 22 September 2020. The gravity of this case calls for an intervention and an inquiry by the UN’s independent human rights experts.

 

Mr. Lee’s disappearance

On 21 September 2020, Mr. Lee, an official of the South Korean ministry of maritime affairs and fisheries, aboard the Mugunghwa No. 10, a fishery inspection boat, left the steering house at around 1:30 a.m. He told his colleagues that he will take care of some paperwork as he left. At the time, the inspection boat was approximately 1.9 kilometers (1.2 miles) south of the Yeonpyeong Islands in the South Korean waters.

At around 11:30 a.m., Mr. Lee’s colleagues noticed his absence and began searching the boat and the waters in the vicinity but failed to find him. At 12:51 p.m., the crew reported Mr. Lee missing to the South Korean coast guard. In the afternoon, the South Korean navy and coast guard began searching the area.

 

Mr. Lee’s capture, interrogation and summary execution and burning of his remains at sea, in the name of COVID-19 prevention, by the North Korean forces

On 22 September 2020, a North Korean vessel reportedly spotted Mr. Lee, who had drifted 38 kilometers from where he went missing in a west-northwest (WNW) direction, in North Korean waters near the Deungsan cape, at around 3:30 p.m. This was at least 26 hours after he had gone missing. Instead of taking him aboard, the authorities kept him in the water and threw a rope at him for him to hold on, as they interrogated him. After three hours, the exhausted Mr. Lee let go of the rope and it took the North Koreans two hours to relocate him. He held on to the rope for another hour.

At around 9:40 p.m., the North Koreans shot and killed Mr. Lee in the water. Then, a little past 10:00 p.m., North Koreans wearing gas masks and protective suits poured gas on Mr. Lee’s remains and set them alight.

On 24 September 2020, the South Korean military held a press conference to report the case as described above, based on the communication between the North Korean crew and their land-based command that it had intercepted. It was speculated that the North Koreans had carried out their “shoot-to-kill” order on unauthorized trespassing, which is reportedly also in effect in the border with China.

The South Korean authorities stated that Mr. Lee had tried to defect to North Korea, but this claim is disputed by his family and many observers.

The outraged South Korean government and public demanded North Korea to apologize, investigate and punish those responsible for Mr. Lee’s summary execution.

 

North Korea’s letter of 25 September 2020

On 25 September 2020, Suh Hoon, the South Korean director of national security office at the Blue House (presidential secretariat), announced the receipt of a letter from the united front department of the central committee of the Workers’ Party of Korea addressed to the Blue House.2

According to the letter, on 22 September 2020, a North Korean navy vessel approached Mr. Lee, who is referred as an “illegal intruder”, up to 80 meters away, and asked him to identify himself, but he initially fudged the answer by saying that he is so and so from South Korea once or twice. He then continuously refused to comply.

Because of Mr. Lee’s continued silence, the North Korean forces approached him further and fired two blanks at him. The surprised Mr. Lee ducked and appeared to be preparing to abscond and appeared to try to put on something.

In accordance with the code of conduct, as authorized by the maritime patrol duty regulation, the North Korean forces opened fire at Mr. Lee under the captain’s decision. At the time, the distance was 40-50 meters.

After the shooting, there was no movement or sound. The North Korean troops approached up to about 10 meters for searching but only the floating material was identified with a large amount of bloodstain. They determined that Mr. Lee had been killed and his floating material was burnt on the spot in accordance with the state emergency quarantine regulation.

The united front department questioned South Korea’s grounds for using disrespectful and confrontational expressions such as “atrocities” and “just deserts” and expressed regret. The department did add though that it had ordered the strengthening of maritime patrol duty, as well as the creation of a system containing the entire process of maritime enforcement to avoid recurrence of such unfortunate event.

The letter also conveyed a sense of regret for an act that would unfavorably affect the inter-Korean relation. The united front department would be more vigilant to avoid undermining the trust and respect recently accumulated in the inter-Korean relationship, and emphasized the need to develop necessary safety measures.

In addition, according to the letter, Kim Jong-Un, chairman of the state affairs commission, has ordered the united front department to convey his sense of regret for furthering the disappointment of President Moon Jae-In and the South Korean brethren with the disreputable act in North Korean waters just when they are suffering from the threat of coronavirus.

 

Violations of international human rights law

Despite substantial disputes over the details, there can be no doubt that North Korea has summarily executed an unarmed civilian adrift at sea without trial. This constitutes a grave violation of the right to life, liberty and security of person as well as the right to a fair trial under articles 3 and 10 of the Universal Declaration of Human Rights and articles 6 (1) and (2), 9 (1) and 14 (1) of the International Covenant on Civil and Political Rights, as well as the Safeguards guaranteeing protection of the rights of those facing the death penalty, approved by Economic and Social Council resolution 1984/50 of 25 May 1984,3 and the spirit of General Assembly resolution 73/175 adopted on 17 December 20184 and Human Rights Council resolution 42/24 adopted on 27 September 2019.5

Even by North Korea’s account, Mr. Lee would have been adrift at sea for at least 12 hours when he was approached and interrogated by North Korean forces on 22 September 2020. Any person exposed to the sea water for such duration is likely to have been too exhausted from hypothermia, thirst and hunger to put up any resistance or attempt flight.

It is more plausible to assume that Mr. Lee was effectively deprived of his liberty by the North Korean authorities in the water from the time of their encounter until the moment of his summary execution. North Korea has cited the maritime patrol duty regulation as the legal basis for his summary execution but provided no legal basis for his de facto deprivation of liberty. Mr. Lee’s deprivation of liberty was a violation of articles 3 and 9 of the Universal Declaration and article 9 (1) of the International Covenant.

During the time of Mr. Lee’s deprivation of liberty, North Korea refused to disclose his fate or whereabouts or acknowledge his deprivation of liberty to the South Korean authorities or his family in South Korea even though he stated that he was from South Korea. This placed him outside the protection of the law, and resulted in his enforced disappearance in violation of his right not to be subjected to torture and the right to recognition as a person before the law under articles 5 and 6 of the Universal Declaration and articles 7 and 16 of the International Covenant.

Furthermore, refusing to take Mr. Lee aboard for six hours in the water during his deprivation of liberty and/or firing of blanks followed by live rounds that killed him for no justification per se amounts to torture and ill-treatment in violation of article 5 of the Universal Declaration and articles 7 and 10 of the International Covenant.

In addition, if the North Korean authorities had summarily executed him because of a standing order to kill unauthorized border trespassers, as has been alleged for the North Korean-Chinese border6 and evidenced by the reported use of protective gears by North Korean soldiers and burning of his remains in this case, it would amount to a violation of the right to health under article 25 of the Universal Declaration and article 12 of the International Covenant on Economic, Social and Cultural Rights. Indeed, Mr. Lee’s murder may be just one case of widespread and systematic violation of the right to life and health of North Korean and foreign nationals perpetrated by North Korea in the name of controlling the COVID-19 pandemic without parallel in our time.

 

Violations of international humanitarian law (laws of war)

Although an armistice agreement was signed by military commanders at the end of the Korean War (1950-1953), a peace treaty between the political leaders envisioned in the agreement was never concluded. In fact, there are on-going diplomatic talks for an end-of-war declaration between the two Koreas and the United States. In practice as well, one can observe that there never was a general close of military operations in the Korean peninsula. Hence, international humanitarian law (laws of war), including the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War and the 1977 Additional Protocol I relating to the Protection of Victims of International Armed Conflicts, to which both North and South Korea are parties, are applicable in this case.

The torture, ill-treatment, arbitrary detention, enforced disappearance and summary execution of Mr. Lee by the North Korean forces are manifest violations of articles 3 and 16 of the 1949 Geneva Convention (IV) and qualify as grave breaches under article 147 thereof. They also violate articles 40 and 75 of the 1977 Additional Protocol I. The burning of Mr. Lee’s remains by the North Korean forces further violated article 130 of the 1949 Geneva Convention (IV) and article 34 of the 1977 Additional Protocol I.

Under article 131 of the 1949 Geneva Convention (IV), North Korea has the international obligation to conduct an official inquiry for Mr. Lee’s death as the Detaining Power, to immediately send a communication to the Protecting power and to take all necessary steps to ensure the prosecution of the person(s) responsible if the enquiry indicates their guilt. North Korea’s failure thus far to take these measures constitute a separate breach of its international obligations.

Furthermore, if South Korea requests an enquiry concerning Mr. Lee’s summary execution and other alleged violations of the Convention, North Korea will be obliged to institute one in a manner to be decided by the two governments.

Under article 90 (2) (d) of the 1977 Additional Protocol I, South Korea may also request the International Humanitarian Fact-Finding Commission (IHFFC) to institute an enquiry with North Korea’s consent.

 

Violations of international criminal law

As the International Military Tribunal at Nuremberg famously opined in its judgment against the major Nazi war criminals: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

North Korea is a state party to the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity7, which sets out in article I that: “No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:

(a) War crimes as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the “grave breaches” enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;

(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nürnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid , and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.”

Article II of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity further stipulates that: “If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.”

According to principle 4 of the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted and proclaimed by General Assembly resolution 60/147 of 16 December 2005: “In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him. Moreover, in these cases, States should, in accordance with international law, cooperate with one another and assist international judicial organs competent in the investigation and prosecution of these violations.”8

The Updated Set of principles for the protection and promotion of human rights through action to combat impunity (E/CN.4/2005/102/Add.1) also states in principle 19 that: “States shall undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law [encompassing grave breaches of the Geneva Conventions of 12 August 1949 and of Additional Protocol I thereto of 1977 and other violations of international humanitarian law that are crimes under international law, genocide, crimes against humanity, and other violations of internationally protected human rights that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery] are prosecuted, tried and duly punished”.9

North Korea therefore has the international obligation under conventional and customary international law to bring the individuals responsible for Mr. Lee’s summary execution and other grave human rights violations under international criminal law.

The responsible North Korean officials may be tried for war crimes under international law, as codified in article 8 (2) of the Rome Statute of the International Criminal Court.10 Article 8 (2) (a) criminalizes grave breaches of the 1949 Geneva Conventions such as (i) wilful killing; (ii) torture or inhuman treatment, including biological experiments; and (iii) wilfully causing great suffering, or serious injury to body or health. Article 8 (2) (b) criminalizes other serious violations of the laws and customs applicable in international armed conflict, including (i) intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities. Individual acts of war crimes may be punished in domestic courts, including in North Korean and South Korean courts.

Furthermore, the North Korean officials who have issued and executed the “shoot-to-kill” order to the border units in the name of preventing the spread of coronavirus may also be guilty of crimes against humanity under international law, as codified in article 7 (1) of the Rome Statute of the International Criminal Court, for murder, illegal deprivation of liberty, torture, impermissible persecution against an identifiable group or collectivity, enforced disappearance and/or other inhumane acts under article 7 (1) (a), (e), (f), (h), (i) and/or (k).

Mr. Lee’s murders may also be brought to justice under the heading of torture, enforced disappearance and extrajudicial execution.

Conclusion

As discussed above, Mr. Lee’s capture, interrogation and summary execution and burning of his remains at sea, in the name of COVID-19 prevention, by North Korea, was a grave violation of international human rights law, international humanitarian law and international criminal law.

While the united front department of the central committee of the Workers’ Party of Korea has purportedly sent a letter addressed to the Blue House on 25 September 2020, with an apology by supreme leader Kim Jong-Un, it falls far short of the necessary measures that North Korea must take.

The letter’s account of the events are not consistent with the known facts, it says nothing about the punishment of those responsible and it provides no specific measures to prevent reoccurrence other than vague assurances. Kim Jong-Un’s apology also does not acknowledge responsibility for the actions of the North Korean forces. It is also problematic that the letter was not reported in the North Korean state media to disseminate the relevant information to the North Korean people.

Accordingly, we ask the UN human rights experts to urge North Korea to:

  1. Conduct an official inquiry, on its own or with South Korea, or allow the International Humanitarian Fact-Finding Commission (IHFFC) to conduct an inquiry for Mr. Lee’s capture, interrogation and summary execution, and to prosecute or extradite the individuals criminally responsible in accordance with its international obligation, inter alia the provisions of the 1949 Geneva Convention (IV) and the 1977 Additional Protocol (I);
  2. Publicly issue an apology admitting its responsibility for Mr. Lee’s murder and report it with the factual and legal findings of the case in the state media in a manner accessible to the North Korean people; and
  3. Take measures to guarantee non-repetition in the future, including by publicly announcing and implementing new COVID-19 that is in line with North Korea’s international obligation to respect and ensure the right to life and security of person.

 

Furthermore, the South Korean government has the obligation to protect and ensure Mr. Lee’s human rights and fundamental rights as his state of nationality by disclosing information, including granting full access to the relevant intercepts of North Korean communication, for the fact-finding and criminal prosecution in the case.

We therefore ask the UN human rights experts to urge South Korea to:

  1. Disclose information, including full access to the relevant intercepts of North Korean communication, at least to Mr. Lee’s family members and their representatives; and
  2. Ask North Korea to conduct an official inquiry on its own or with South Korea or to allow the International Humanitarian Fact-Finding Commission (IHFFC)

 

1 Gawon Bae and Jake Kwon, “South Korea official shot dead by North Korean troops after crossing border: Seoul”, CNN, 24 September 2020, https://edition.cnn.com/2020/09/23/asia/north-korea-south-korea-intl-hnk/index.html

2 “[전문] 공무원 피살 관련 북측이 보내온 통지문” https://www.yna.co.kr/view/AKR20200925103200001 [in Korean]

6 AFP, “North Korea issues shoot-to-kill orders to prevent virus: US”, 11 September 2020.