Joint open letter to Special Rapporteur DPRK Elizabeth Salmón urging measures to ensure Accountability for North Korean crimes against humanity

August 29, 2022

Ms. Elizabeth Salmón
Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea
By email: hrc-sr-dprk@un.org

RE: Urgent measures to ensure justice and accountability for North Korea’s crimes against humanity

Dear Ms. Salmón

We welcome your historic appointment as the fourth, and first woman, Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea at the start of this month as well as your expeditious first official visit to South Korea beginning on 29 August 2022—months earlier than your predecessors’ following their assumption of the mandate.

North Korea’s long-standing and ongoing systematic, widespread and gross human rights violations amounting to crimes against humanity, committed pursuant to policies established at the highest level of the state—including extermination; murder; enslavement; torture and other cruel, inhuman and degrading treatment or punishment; imprisonment; rape, forced abortions and other sexual and gender-based violence; persecution on political, religious, racial and gender related grounds; the forcible transfer of populations; the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation—as catalogued by the UN commission of inquiry (COI) in 2014 and reaffirmed by the successive resolutions of the UN Human Rights Council and General Assembly, require your immediate attention.

In your first statement upon the assumption of the current mandate on 1 August, you have avowed that your mandate will remain firmly devoted to a victims-centered approach. You have also stated earlier in your application for the mandate that, as a Latin American woman, scholar and lawyer, you are familiar with the consequences of state authoritarianism and the victims’ struggle for justice, and you believe in the inalienable duty to use the law to respond to the crimes of authoritarian power.

We cannot agree more, especially since, as the COI’s findings noted, the gravity, scale and nature of the systematic, widespread and gross human rights violations that in many instances constitute crimes against humanity in North Korea reveal a State that does not have any parallel in the contemporary world—in other words, a totalitarian state that does not content itself with ensuring the authoritarian rule of a small group of people but seeks to dominate every aspect of its citizens’ lives and terrorizes them from within.

Therefore, we urge you to include the following issues concerning justice and accountability for North Korea’s crimes against humanity in the agenda of all meetings with the stakeholders during your first official visit to South Korea:

 

  1. Meeting and talking with the victims of North Korea’s atrocities and grave human rights violations during your visit and online afterwards to realize the victims-centered approach

For many victims of North Korea’s atrocities and grave human rights violations, an opportunity to meet and speak with you in person is perhaps the most public and personal recognition of their suffering by a UN human rights expert. They also appreciate the mere mention of such meetings and their names and harms suffered in the reports submitted to the UN Human Rights Council and General Assembly. We sincerely hope that you continue your communication with the victims online after your visit this week.

On February 19, 2022, three South Korean POWs met with your predecessor, Mr. Tomás Ojea Quintana, during his penultimate visit to South Korea, prior to his last 3-day visit on June 27-29, 2022. This was South Korean POWs’ first-ever meeting with a Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea in the mandate’s 18-year history and it could not have come earlier for one of the three, Mr. Lee Gyu-Il [이규일], who passed away three weeks ago on August 8, 2022. With Mr. Lee’s death, only 14 of the 80 POWs who have escaped to South Korea in 1994-2010 remain. The various victims—be they POWs or abductees and their families, prisoners from the kwanliso gulags, people who were forced to watch the public execution of their family members, mostly women escapees who have endured trafficking and enslavement, forced repatriation, torture, rape, forced abortions and other sexual and gender-based violence—have stories to tell.

Tomorrow, August 30, is the International Day of the Victims of Enforced Disappearances. As OHCHR rightly noted in its report “Torn Apart: The Human Rights Dimension of the Involuntary Separation of Korean Families” in 2016, the issue of enforced or involuntary separation of families must be examined from a human rights perspective. This is an additional source of pain and suffering for the victims who have family members left in North Korea, resulting from the denial of their right to know.

 

  1. The documentation of ongoing systematic, widespread and gross human rights violations, in particular those arising to crimes against humanity, primarily by recording interviews with North Korean escapees

When the National Assembly debated and passed the North Korean Human Rights Act in March 2016, the Ministry of Unification (MOU), the Ministry of Justice (MOJ) and the National Human Rights Commission of Korea (NHRCK) competed for the mandate of human rights documentation, inspired by the Central Registry of State Judicial Administrations (Salzgitter Archives. German: Zentrale Erfassungsstelle der Landesjustizverwaltungen, ZESt) created by the Federal Republic of Germany (then-West Germany) in 1961 to document East Germany’s human rights violations. When the dust settled after the bureaucratic turf war, the MOU stood as the undisputed winner while the MOJ was given a consolation prize and the NHRCK left empty-handed.

In the resulting political compromise, the MOU’s North Korean Human Rights Records Center was assigned the primary role of collecting and recording the materials, primarily by interviewing the recently arrived North Korean escapees at Hanawon, that are to be transferred to the MOJ’s North Korean Human Rights Archive for their preservation and management.

Accordingly, article 13 of the North Korean Human Rights Act [북한인권법][1] provides:

 

Article 13 (Center for North Korean Human Rights Records) (1) In order to collect and record information on the status of North Korean human rights and information for the improvement of human rights in North Korea, there is hereby established a Center for North Korean Human Rights Records (hereinafter referred to as the “Center”) in the Ministry of Unification.

(2) The Center shall perform the following functions, and shall be assigned to collect, research, preserve, publish, or otherwise deal with various kinds of materials and information:

  1. Investigation and research into human rights in North Korea;
  2. Functions relating to the Korean War prisoners detained in North Korea, abductees in North Korea, and separated families;
  3. Other functions deliberated on by the Committee and acknowledged by the Minister of Unification as necessary.

(3) Any of the functions prescribed in the subparagraphs of paragraph (2) may be outsourced to outside institutions. In such cases, subsidies may be granted to cover necessary expenses, within budgetary limits.

(4) The Center shall have one head, appointed or commissioned by the Minister of Unification, from among public officials belonging to the Senior Civil Service Corps or persons with profound knowledge and experience in the human rights issues of North Korea.

(5) Materials collected and recorded by the Center shall be transferred to the Ministry of Justice every three months, and the Ministry of Justice shall establish an organ assigned to preserve and manage the materials related to records on North Koran human rights.

(6) Other matters necessary for the composition, operation, etc. of the Center shall be prescribed by Presidential Decree.

 

Moreover, articles 14 and 15 of the Act’s enforcement decree [북한인권법 시행령],[2] the subsidiary legislation, provides:

 

Article 14 (Operation of Center for North Korean Human Rights Records) (1) Where a public official of the Center for North Korean Human Rights Records established under Article 13 (1) of the Act (hereinafter referred to as the “Center”), collects necessary materials and information while hearing a statement from a related person pursuant to paragraph (2) of the same Article, the public official shall record the relevant details in a written inquiry form prescribed by Ordinance of the Ministry of Unification, and require the related person to affix his/her name and seal on or to sign the last page of the written inquiry form: Provided, That, if the statement is complex or the related person desires, the public official may allow the related person to prepare and submit a handwritten statement, as prescribed by Ordinance of the Ministry of Unification.

(2) In hearing a statement from a related person under paragraph (1), a public official of the Center shall collect and record the human rights violation cases committed against North Koreans and the relevant evidence systematically and may video-record the process of giving a statement with the consent of the related person, if deemed necessary for such purposes.

(3) The Minister of Unification shall notify the Minister of Justice of the status of materials collected and recorded by the Center pursuant to Article 13 (2) of the Act within ten days after the end of each quarter and transfer the originals of such materials to the Minister of Justice within 20 days after the end of each quarter pursuant to Article 13 (5) of the Act.

(4) The Minister of Unification may request the head of a related administrative agency to dispatch public officials, if necessary to operate the Center.

(5) Except as otherwise expressly provided for in paragraphs (1) through (4), matters necessary to operate the Center shall be prescribed by Ordinance of the Ministry of Unification.

Article 15 (North Korea Human Rights Archive) (1) The name of the organization to be established under the jurisdiction of the Ministry of Justice under Article 13 (5), is the “North Korea Human Rights Archive.”

(2) The North Korea Human Rights Archive referred to in paragraph (1) (hereinafter referred to as the “North Korea Human Rights Archive”), shall perform the following:

  1. Affairs necessary to receive materials transferred under Article 13 (5) of the Act;
  2. Affairs related to systematically preserve and manage materials transferred under Article 13 (5) of the Act (hereinafter referred to as “transferred materials”);
  3. Other affairs the Minister of Justice deems necessary to preserve and manage transferred materials.

(3) The Minister of Justice may request the head of a related administrative agency to dispatch public officials, if necessary to operate the North Korea Human Rights Archive.

(4) Except as otherwise expressly provided for in paragraphs (1) through (3), matters necessary to operate the North Korea Human Rights Archive shall be prescribed by Ordinance of the Ministry of Justice.

 

From the start, many questioned the logic or desirability of entrusting the MOU to carry out this crucial task for two reasons. First, as the ministry created and mandated to engage in inter-Korean dialogue, exchange, coordination and humanitarian assistance, it would be personally and politically awkward for the MOU officials to simultaneously document the grave human rights violations, including crimes against humanity, committed by their North Korean counterparts. Second and perhaps more importantly, the MOU personnel are mostly administrators with limited legal training or experience unlike the MOJ which is staffed mostly by public prosecutors and lawyers. Without the proper understanding of international human rights law or international criminal law, it would be difficult to ask legally relevant questions in the interviews with the North Korean escapees, especially with a view to future criminal investigation and prosecution.

To allay such concerns, the MOU North Korean Human Rights Records Center, which formally opened on September 28, 2016 after the entry into force of the North Korean Human Rights Act and its Enforcement Decree on September 4, 2016, at first appeared to make genuine efforts to document North Korea’s human rights violations. The MOU North Korean Human Rights Records Center hired mostly women investigators, as over 80 percent of North Korean escapees are women, and conducted a preliminary survey on November 29, 2016 and a pilot survey of 116 North Korean escapees at Hanawon on December 12-23, 2016 before starting a formal survey in January 2016.

The MOU North Korean Human Rights Records Center stated that it would publicize its findings about the human rights situation in North Korea domestically and internationally by making them available online and publishing annual periodic reports as well as separate reports for significant documented cases and that it would transfer the documentation of specific cases and perpetrators of human rights violations to the MOJ North Korean Human Rights Archive, which had opened on October 10, 2016, for criminal prosecutions in the future.

On April 20, 2017, the MOU North Korean Human Rights Records Center made the first transfer of 1,364 pages of recorded answers from 105 (73 women and 32 men) of 253 (193 women and 60 men) escapees interviewed mostly at Hanawon that referred to human rights violations in the 1st quarter of 2017 to the MOJ North Korean Human Rights Archive. By the end of July 2022, the MOU North Korean Human Rights Records Center has interviewed 3,392 escapees of whom 2,055 reported experiencing human rights violations; by the end of June 2022, the MOJ North Korean Human Rights Archive has analyzed 21,950 pages of answers from 2,044 escapees that the MOU North Korean Human Rights Records Center recorded up to the 1st quarter of 2022 and transferred on April 19, 2022 to produce 3,538 individual cards, including 1,538 perpetrator cards (on July 19, 2022, a further 107 pages of recorded answers from 8 escapees for the 2nd quarter of 2022 were transferred).

While these numbers look impressive on the surface, they mask serious flaws and failings. First, many questions have been raised about the quality and consistency of the questionnaires used by the MOU North Korean Human Rights Records Center. From the start, the MOU North Korean Human Rights Records Center kept the contents of its questionnaires secret and, while such secrecy may be justified to avoid the escapees’ prior exposure, even most members of its own advisory board were denied access. It appears that the questionnaires were initially modeled after those used earlier in human-rights surveys conducted by other institutions at Hanawon and that the contents shifted away from the accountability for the most serious violations to economic and social rights in line with President Moon Jae-In (May 2017 – May 2022)’s emphasis on humanitarian assistance. The constant trials and errors of the MOU staff that lack expertise and experience as well as politically induced changes resulting in different sets of questions being asked in interviews over time.

Second, the MOU North Korean Human Rights Records Center has failed to make its findings public by making them available online or publishing annual and special case-specific reports, as it initially promised to do. The previous Moon Jae-In government came under criticism for this policy reversal, but new President Yoon Suk-Yeol’s officials, including Unification Minister Kwon Young-Se, has also expressed reluctance to the publication of annual reports. This is raising the fear that the quality and consistency of the questionnaires have been too compromised over the years for the MOU North Korean Human Rights Records Center to publish credible reports even if it so desires. If true, the damage to justice and accountability could be lasting as the individual escapees’ memory fades with time and access to them lost after they leave Hanawon. The MOU officials’ claim that the publication could inadvertently harm the involved North Koreans rings hollow as the 2014 COI report and numerous other reports on North Korea’s human rights situation referred extensively to statements from anonymized sources; another common excuse that the publication could harm the inter-Korean relation merely confirms that the task should be transferred from the MOU to the MOJ. It is also of concern that the Korea Institute for National Unification (KINU), a government think tank, has yet to publish the 2022 edition of its annual White Papers on Human Rights in North Korea (first published in 1996), which it usually does in the first half of the year.

Third, the MOJ North Korean Human Rights Archive’s work on preparing criminal case files has been hampered by the political sabotage under the Moon administration on top of its structural reliance on information collected and recorded by non-legal professionals at the MOU North Korean Human Rights Records Center. In September 2018, President Moon’s Justice Minister Park Sang-Ki ordered the relocation of the MOJ North Korean Human Rights Archive from the 8th floor of MOJ’s main building in Gwacheon to the MOJ’s training complex in Yongin; months earlier, Minister Park had reportedly ordered the removal of the Archive’s signboard from the main entrance because North Korea expressed displeasure at its frequent exposure in the pictures he took there. Minister Park also gradually reduced the number of public prosecutors assigned to the MOJ North Korean Human Rights Archive, including its first three chiefs, until none were left in August 2019 from when it was headed by a non-legal administrator. In early July 2022, President Yoon’s new Justice Minister Han Dong-Hoon undertook a major reshuffle of the MOJ, but the Archive still lacks public prosecutors with no sign of its imminent return from Yongin to Gwacheon. The Archive also refuses to reveal the yearly, let alone quarterly, breakdown of the 1,538 perpetrator files on national-interest grounds.

It should be noted that under South Korea’s Government Organization Act, the MOJ administers duties concerning prosecution, enforcement of sentences, protection of human rights, immigration control, and other legal matters. The MOJ therefore has the power and responsibility to expand the MOJ North Korean Human Rights Archive’s mandate to include documentation of North Korea’s grave human rights violations, including those that constitute crimes under the Rome Statute and its domestic implementing legislation (the Act on Punishment, etc. of Crimes under Jurisdiction of the International Criminal Court), for future criminal prosecutions as well as publication of its findings without the revision of the North Korean Human Rights Act by an act of the National Assembly. By reference, (West) Germany’s Salzgitter Archives (ZESt) as well as its Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes (German: Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen, Zentrale Stelle) were joint efforts by justice ministries of state governments without a legislative mandate. Moreover, the KINU has been regularly interviewing the escapees at Hanawon for its White Papers on Human Rights in North Korea long before the North Korean Human Rights Act came into force in 2016.

For these reasons, we recommend that you urge:

–        the South Korean government officials to consider consolidating the documentation and publication of interviews with North Korean escapees under the MOJ by revising the North Korean Human Rights Act or by administrative reorganization;

–        the MOU to grant you and OHCHR access to the questionnaires that had been used and are currently being used by the MOU North Korean Human Rights Records Center in interviews with North Korean escapees for review of their adequacy for the purpose of ensuring justice and accountability for the most serious violations;

–        the MOJ to return the MOJ North Korean Human Rights Archive from Yongin to Gwacheon and reassign public prosecutors to the Archive to adequately undertake its mandate;

–        the MOJ and the MOU to, jointly or separately, publish and translate into other languages their findings in annual reports and online database, including a legal analysis of the reported cases and overall human rights situation in North Korea, the breakdown of the reported cases by violation, region, year and reporting period, and the breakdown of the MOJ North Korean Human Rights Archive’s individual cards, including perpetrator cards, by crime, region, year, reporting period, affiliation, age and gender;

–        the KINU to make public its plans to publish or to discontinue the publication of its annual White Papers on Human Rights in North Korea for year 2022 and the subsequent years.

 

We also note that OHCHR Seoul, which was created as a field-based structure to strengthen monitoring and documentation of the situation of human rights in the DPRK, to ensure accountability, to enhance engagement and capacity-building with the Governments of all States concerned, civil society and other stakeholders, and to maintain visibility of the situation of human rights in the DPRK, may also lead by example. More frequent release of reports such as “‘I Still Feel The Pain’: Human rights violations against women detained in the Democratic People’s Republic of Korea” based on interviews with the victims conducted by OHCHR on issues such as enforced disappearances as part of its sustained communications, advocacy and outreach initiatives would undoubtedly put pressure on the South Korean government to do the same.

 

  1. The creation of fact-finding commissions to make authoritative factual and legal findings for the past systematic, widespread and gross human rights violations, in particular those arising to war crimes and crimes against humanity

The South Korean government has created a number of fact-finding commissions over the years to address past atrocities and grave human rights violations, including those committed by North Korea against South Korean citizens. However, there are significant gaps that need to be filled to ensure justice and accountability.

The National Committee on Investigating Abductions during the Korean War [6·25전쟁납북진상규명위원회], which was established by the Act on Finding the Truth of the Damage from North Korea’s Abduction during the Korean War and Restoring the Honor of the Victims, enacted in 2010, published its final report in 2017 which has not been translated into other languages.[3] Although the Committee made relatively comprehensive factual and legal findings, including the documentation of testimonies and archival research at home and abroad as well as the legal examination of the abductions under the rubrics of international humanitarian law, international criminal law, international human rights law and transitional justice, they are not without shortcomings. According to the final report (pp. 54-55), the Committee commissioned experts to conduct sample and nationwide field surveys of the wartime abductees in the lists compiled during and after the war, but their findings have not been made public and the MOU recently denied the request to disclose them. Moreover, as the final report makes clear (pp. 43-44), the Committee’s mandate of investigating the civilian abductees during the Korean War (June 25, 1950 – July 27, 1953) excluded other victim classes from its remit: the pre-war abductees, the post-war abductees and prisoners of war (POWs).

The Committee’s final report (p. 44, FN 46) states that it has received a small number of submissions from the families of abductees from the pre-war period without even disclosing their exact number. The MOU, which has taken over the Committee’s materials, recently denied the request to disclose any details, including the total number, date/month, location and perpetrators of the pre-war abductions, on privacy grounds. The South Korean government has yet to make a formal legal examination of the pre-war abductions under international law.

According to the MOU, as quoted in the KINU’s White Papers on Human Rights in North Korea, between 1955 and 2000, North Korea abducted a total of 3,835 South Korean of whom 3,310 were returned by North Korea and 9 escaped back to South Korea, leaving 516 in North Korean captivity. The Committee on the Compensation and Assistant for Victims Abducted to North Korea [납북피해자 보상 및 지원 심의위원회] created under the Act on Compensation and Assistance to Persons Kidnapped to North Korea After Conclusion of the Military Armistice Agreement, enacted in 2007, published its white paper in 2011 that lists the names and birth dates of the 516 persons as well as their abduction dates and incidents, including numerous seizures of fishing ships and the 1969 hijacking of Korean Air Lines YS-11 (pp. 142-160).[4] However, the Committee made no appraisal of these cases under international law. In addition, the MOU inexplicably refuses to add post-2000 abduction cases such as the abduction of ex-escapee South Korean citizen Jin Kyoung-Sook [진경숙] in 2004 and as well as the abduction/detention of 7 South Korean missionaries and defectors [김정욱, 김국기, 최춘길, 김원호, 남진우, 고현철, 함진우] in 2013-2017, to the tally. The MOU and the National Intelligence Service (NIS) which monitors the movement of North Korean defectors may have more information about those have been secretly taken by North Korea since 2000.

The South Korean government has never created a commission to make factual and legal findings for its POWs in North Korea, limited not only to those taken during the Korean War but also those taken during the Vietnam War and post-1953 naval/border clashes, although there is a bill pending in the National Assembly to establish one.[5] In fact, the POWs issue is handled by the Ministry of National Defense (MND)’s Arms Control Division [군비통제과] as if these people are some pieces of weapons or equipment rather than human beings entitled to dignity and rights; by comparison, the MOU’s Separated Families Division [이산가족과] oversees the civilian abductees issue. The MND and the NIS have failed to present credible updated information about the POWs to the public. In 2007, the NIS reported that, based on the testimonies from the escaped POWs and other North Korean escapees in South Korea, it has information concerning 1,770 South Korean POWs in North Korea (560 alive, 910 dead and 300 unknown); since then, the government has failed to provide updates even though more escaped POWs and other North Korean escapees with information about the POWs must have arrived in South Korea. The KINU’s 2007 White Papers on Human Rights in North Korea (p. 278) as well as an NGO report[6] (pp. 41-42) citing the White Paper published the names of 68 out of the 80 known escaped POWs in South Korea.

Under article 13 (2) (1) of the North Korean Human Rights Act, it is one of the functions of the MOU North Korean Human Rights Records Center to collect, research, preserve and publish materials and information related to the abductees and POWs, but there are no indications that the Center has thus far taken any action or coordinated with the MOJ North Korean Human Rights Archive on these issues.

The South Korean government should also consider creating a fact-finding commission for the so-called “paradise on earth” movement that saw the “return” of 93,340 ethnic Koreans in Japan to North Korea from 1959 to 1984 and its consequent grave human rights violations for the “returnees” in North Korea. The vast majority of ethnic Koreans in post-war Japan had migrated from or had been conscripted from the southern half of the Korean peninsula during the Japanese colonial period and many South Koreans fled to Japan even after 1948 to avoid the brutal counterinsurgency campaign in Jeju Island and the Korean War. Many victims’ families in Japan have acquired the citizenship of the Republic of Korea (South Korea). All this bolsters the case for the South Korean government to undertake factual and legal findings for this historical tragedy.

It is also worth noting that South Korea’s Truth and Reconciliation Commission (TRC) which had been previously active in 2005-2010 has been reactivated by the revision of the Framework Act on Settling the Past Affairs for Truth and Reconciliation in 2020.[7] Article 2 of this Act provides:

 

Article 2 (Scope of Clarifying Truth) (1) The Truth and Reconciliation Commission under Article 3 shall clarify the truth regarding the following matters:

…

  1. Acts of terrorism, human rights abuses, violence, massacres, and suspicious deaths committed by forces which deny the legitimacy of the Republic of Korea or are hostile to the Republic of Korea from August 15, 1945 to the period of authoritarian rule;
  2. Cases of historical significance, for which the Truth and Reconciliation Commission under Article 3 deems that clarifying the truth is necessary to achieve the purpose of this Act.

 

The term “forces which deny the legitimacy of the Republic of Korea or are hostile to the Republic of Korea” in Article 2 (5) refers to North Korea. Indeed, the TRC has previously investigated the wartime massacres committed by the North Korean forces during its earlier existence in 2005-2010. Some POWs and abductees’ families have already made submissions to the TRC requesting investigations into the violations they suffered. The TRC may proactively initiate investigations under Article 2 (6) into other North Korea-related historical events such as the pre-war abductions and the “Return to Paradise” movement.

 

For these reasons, we recommend that you urge:

–        the South Korean government officials to translate the National Committee on Investigating Abductions during the Korean War’s final report into other languages and to publish the reports of the experts’ sample and nationwide field surveys of the lists compiled during and after the war or to grant you and OHCHR access to them;

–        the MOU to publish information about the reported cases of pre-war abductions, including the total number, date/month, location and perpetrators of the abductions, as well as their legal appraisal under international law;

–        the MOU and the NIS to update the formal list and total number of known South Korean abductees and detainees in North Korea and to grant you and OHCHR access to the relevant information and materials, including the ex-escapee South Korean citizens who were last reported departing to China;

–        the MND to establish a commission to investigate the South Korean POWs held in North Korea to make authoritative factual and legal findings, modeled after the National Committee on Investigating Abductions during the Korean War, and to create a dedicated POW/MIA accounting agency to address the issue as a matter of human rights rather than arms control;

–        the MOU, the MND and the NIS to refer the materials and information about the abduction and POW cases as well as their perpetrators to the MOU North Korean Human Rights Records Center and the MOJ North Korean Human Rights Archive;

–        the South Korean government to consider creating a fact-finding commission for the so-called “paradise on earth” movement in 1959-1984 and the consequent human rights violations suffered by the “returnees” in North Korea;

–        the TRC to proactively investigate North Korea’s past atrocities and grave human rights violations such as the pre-war abductions and the so-called “paradise on earth” movement.

 

  1. The facilitation of civil litigations in national courts for the systematic, widespread and gross human rights violations, in particular those arising to war crimes and crimes against humanity

As the North Korean government shows no sign of heeding the international community’s call to bring to bring to justice those persons most responsible for crimes against humanity or seek international advice and support for transitional justice measures, many surviving victims have been resorted resorting to civil lawsuits against North Korea in national courts to seek justice and accountability. In US courts, the parents of the late Otto Warmbier, the children of the Reverend Kim Dong-Shik and the sailors of the USS Pueblo and their families have successfully sued the DPRK under the terrorism exception to the Foreign Sovereign Immunities Act (FSIA).

In the absence of any ongoing criminal investigations or prosecutions against the grave human rights violations, including those arising to crimes against humanity, committed by the DPRK in international or domestic courts, such civil lawsuits currently provide the only available forum to seek justice and preserve their evidence, including the statements by the victims and witnesses, as court documents.

On July 7, 2020, the Seoul Central District Court ordered the DPRK and Kim Jong-Un to pay compensation to two escaped South Korean POWs, Mr. Han Jae-Bok [한재복] and Mr. Ro Sa-Hong [노사홍], for decades of forced labor in North Korea in violation of the Geneva Convention in a civil lawsuit first filed on October 11, 2016 (case no. 2016 Ga-Dan 5235506). On September 2, 2020, five more POWs filed a second lawsuit against the DPRK and Kim Jong-Un in the Seoul Central District Court, but the trial has yet to start in earnest even as three of the five plaintiffs, including Mr. Lee Gyu-Il, are already dead (case no. 2020 Ga-Dan 5229294). The reason for the delay in the second POW lawsuit is the difficulty of serving the defendants. However, the court in the first POW lawsuit already settled the issue with ‘service by public announcement (공시송달)’, which is used in the case of prolonged delay in the service of process. While this is a matter for the court’s discretion, the repeated delay is regrettable for the ageing plaintiffs who may never see a day in court. The Seoul Central District Court has also ordered the DPRK and Kim Jong-Un to compensate the families of wartime abductees on March 25, 2021 in the one lawsuit filed on December 2, 2020 (case no. 2020 Ga-Dan 5306603) and on May 20, 202 in another lawsuit filed on June 25, 2020 (case no. 2020 Ga-Hap 2804).

However, even the plaintiffs who have won their cases against the DPRK have faced difficulties enforcing their judgments. The enforcement suit filed by the POWs against the copyrights fees owed by a South Korean foundation to North Korea’s state broadcasters on December 16, 2020 in the Seoul Eastern District Court has been rejected on January 14, 2022 on the ground that the DPRK is not a “private association that is not a juristic person (비법인사단)” and accordingly lacks the “capacity for being a party (당사자능력)” in a South Korean court (2020 Ga-Dan 154367). This is contrary to the holding in earlier court decisions that the DPRK is a “private association that is not a juristic person”. The POWs appealed the ruling and, regardless of who wins in the appeals court decision (2020 Na 21202), the case is likely to be appealed again to the Supreme Court.

The plaintiffs in these lawsuits have made “application for fact reference (사실조회)” to the MOU regarding the DPRK’s legal status, namely whether it can be considered a “private association that is not a juristic person” in the South Korean domestic legal order, but the MOU has failed to respond. The inaction by the MOU is partly responsible for the contradictory rulings in courts in the absence of authoritative Supreme Court precedents. It also contributes to procedural delays as the courts tend to be reluctant to move speedily in cases that involve unresolved legal issues.

For these reasons, we recommend that you urge:

–        the MOU or other South Korean government ministries that received “applications for fact reference” from the plaintiffs in the human rights litigations against the DPRK concerning its legal status to respond without delay.

 

We also note that the Tokyo District Court dismissed the lawsuit filed by five “returnees” who decades later successfully escaped to Japan, including Ms. Kawasaki Eiko, against the DPRK and Kim Jong-Un because of its failure to recognize enforced disappearance as a cause of action and application of the statute of limitations on March 23, 2022.

 

  1. Justice and accountability for North Korea’s treatment of the two North Korean escapees forcibly repatriated by South Korea in November 2019 and North Korea’s killing of a South Korean citizen, Mr. Lee Dae-Jun, at sea in September 2020

As you are aware, South Korea’s public prosecutors have opened criminal investigations into South Korea’s forcible repatriation of two North Korean escapees in November 2019 and South Korea’s response to North Korea’s killing of a South Korean citizen, Mr. Lee Dae-Jun [이대준], at sea in September 2020. While the South Korean government’s blatant violation of the principle of non-refoulment and the presumption of innocence in the former case and its campaign to judge the dead person of attempting to defect to North Korea in the latter case deserve condemnation, it is worrying that North Korea’s role in both cases is almost forgotten.

In the former case, the life and well-being of the two repatriated North Korean escapees should be paramount. Unfortunately, the South Korean government has never asked North Korea to reveal the fate and whereabouts of the two persons, whose names remain anonymous. While it is widely speculated that the two North Koreans accused of mass murder were likely disappeared, tortured and executed without due process or fair trial and that the North Korean government will ignore calls for clarification as it has failed to respond to the joint urgent appeal by UN human rights experts, including your predecessor, of 28 January 2020, the South Korean government must continue to press for an answer both at home and in international arenas such as the UN General Assembly and Human Rights Council. It is indeed the least that it can do for willingly exposing the two North Korean escapees to the danger of torture, enforced disappearance and arbitrary deprivation of life.

The South Korean government must also take measures to guarantee non-recurrence. These include: the codification of the newly arriving North Korean escapees’ right to South Korean citizenship, provided that they freely express a permanent allegiance to South Korea before a judge; the transfer of the primary authority for the interrogation of North Korean escapees as well as their detention facility from the NIS to the MOJ; and a clearly defined law governing the interrogation/detention process with minimum due process and the principle of non-refoulement.

In the latter case, it is not sufficient for North Korea to simply “apologize” in a letter to South Korea’s presidential office. The North Korean government must ensure a full and independent investigation of the circumstances surrounding Mr. Lee Dae-Jun’s extrajudicial killing, including the official who gave the ultimate order, and take appropriate measures against those responsible for the violation of his rights. The South Korean government must publicly demand North Korea to take these measures both at home and in international forums including the UN General Assembly and Human Rights Council.

It must also be recognized that Mr. Lee Dae-Jun’s execution did not happen in the vacuum, but in the broader context of North Korea’s draconian response to the COVID-19 pandemic. As the UN General Assembly and Human Rights Council resolutions confirmed, any restrictions on addressing the pandemic must be necessary, proportionate, non-discriminatory, time-bound, transparent and strictly in line with international law, including North Korea’s obligations under international human rights law. The reports of shoot-to-kill orders in the border areas suggest that this is not the case.

We note that South Korea’s president or foreign minister can raise these issues vis-à-vis North Korea in the speech at the General Assembly in September or at the Human Rights Council next March.

For these reasons, we recommend that you urge:

–        the South Korean government officials to reveal the full names of the two North Koreans forcibly repatriated in November 2019 and publicly ask the North Korean government to reveal their fate and whereabouts, including in the speeches by high-level officials at the UN General Assembly and Human Rights Council;

–        the South Korean government officials to ensure non-recurrence of forcible repatriation of North Korean escapees by codifying their right to South Korean citizenship when they freely express a permanent allegiance to South Korea before a judge; by transferring the primary authority for the interrogation of North Korean escapees as well as their detention authorities from the NIS to the MOJ; and by having a clearly defined law governing the interrogation/detention process with minimum due process and the principle of non-refoulement;

–        the South Korean government officials to publicly demand North Korea’s full and independent investigation of the circumstances surrounding Mr. Lee Dae-Jun’s extrajudicial killing, including the official who gave the ultimate order, and take appropriate measures against those responsible for the violation of his rights, including in the speeches by high-level officials at the UN General Assembly and Human Rights Council;

–        the South Korean government officials to reiterate to North Korea, including in public speeches at the UN, that any restrictions on addressing the pandemic must be necessary, proportionate, non-discriminatory, time-bound, transparent and strictly in line with international law, including North Korea’s obligations under international human rights law.

 

We would also like to respectfully ask you to consider addressing these issues, especially the recommendations to North Korea with respect to the disclosure of the fate and whereabouts of the two repatriated North Korean escapees and the need for a full and independent investigation of Mr. Lee Dae-Jun’s extrajudicial execution and appropriate measures against those responsible for the violation of his rights, in your first report to the General Assembly.

 

We understand the importance for the Special Rapporteur to establish direct contact with the North Korean government and the North Korean people, including through visits to the country, and to investigate and report on the situation of human rights in North Korea, as the former-UN Commission on Human Rights requested when it created the mandate with resolution 2004/13 of 15 April 2004. However, this should not come at the expense of compromising the victim- and survivor-centered approach or surrendering the victims’ right to truth, justice, reparation and guarantees of non-recurrence.

Moreover, the North Korean government refused to maintain contact or dialogue with all your predecessors let alone grant them access to the country, not because they did not try but because it is anathema for North Korea to recognize the existence of a UN-approved country mandate like yours which is incompatible with its self-perception of totalitarian perfection. Ironically, the only instance where North Korea even considered discussing the possibility was after the release of the COI’s report in a desperate, vain efforts to stop the Human Rights Council and General Assembly’s endorsement of its recommendation to bring those responsible, including the Supreme Leader, to justice in 2014.

 

Sincerely,

1969 KAL Abductees’ Families Association
HanVoice
Korean War Abductees Family Union (KWAFU)
Mulmangcho
Stepping Stones
Transitional Justice Working Group (TJWG)

 

[1] North Korean Human Rights Act [Enforcement Date 04. Sep, 2016.] [Act No.14070, 03. Mar, 2016., New Enactment] https://www.law.go.kr/lsInfoP.do?lsiSeq=181623&viewCls=engLsInfoR

[2] Enforcement Decree of the North Korean Human Rights Act [Enforcement Date 04. Sep, 2016.] [Presidential Decree No.27476, 02. Sep, 2016., New Enactment] https://www.law.go.kr/lsInfoP.do?lsiSeq=186157&viewCls=engLsInfoR

[3] 6·25전쟁 납북피해 진상조사보고서 / 국무총리 소속 6·25전쟁납북진상규명위원회(서울 : 6·25전쟁납북피해진상규명및납북피해자명예회복위원회, 2017) [in Korean] https://dl.nanet.go.kr/SearchDetailView.do?cn=MONO1201737388

[4] 전후 납북피해자 보상 및 지원 백서 / 납북피해자보상및지원심의위원회(서울 : 납북피해자지원단, 2011) [in Korean] https://dl.nanet.go.kr/SearchDetailView.do?cn=MONO1201214458

[5] [2113813] 국군포로의 송환 및 대우 등에 관한 법률 일부개정법률안(조태용의원등12인), https://likms.assembly.go.kr/bill/billDetail.do?billId=PRC_B2Z1A1F2B0C3Y0A9X5P8C3W6S3S5K1

[6] 국군포로 문제의 종합적 이해 : 북한 억류생활과 한국생활 실태, 그리고 해결방안 / 오경섭; 윤여상; 허선행 지음(서울: 북한인권정보센터, 2008) [in Korean] https://dl.nanet.go.kr/SearchDetailView.do?cn=MONO1200811556

[7] Framework Act on Settling the Past Affairs for Truth and Reconciliation, [Enforcement Date 10. Dec, 2020.] [Act No.17392, 09. Jun, 2020., Partial Amendment] https://www.law.go.kr/lsInfoP.do?lsiSeq=219039&viewCls=engLsInfoR

 

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