North Korean fishermen or murderers?

By Jason Lim

The first legitimate political bombshell of the new Yoon administration is here. It's about the forced repatriation of the two North Korean squid fishermen who confessed to killing 16 of their fellow crew members after being captured by the South Korean Navy in November 2019. After a three-day investigation by South Korean authorities, the two North Korean men were sent back to North Korea for having committed "heinous crimes."

Although there is criticism over the hurried nature of the investigation and decision to repatriate, most seem to agree even now that these two men, by their own admission, committed heinous crimes. The crux of the controversy is less about the fact of the crimes than about due process. Here is where the Republic of Korea's Constitution comes in, especially three places that are particularly interesting when seen in the context of this issue.

One, the Preamble reads, "We, the people of Korea, proud of a resplendent history and traditions dating from time immemorial, upholding the cause of the Provisional Republic of Korea Government born of the March First Independence Movement of 1919 and the democratic ideals of the April Nineteenth Uprising of 1960 against injustice ..."

So, the Constitution traces back its legitimacy to the March 1 Independence Movement of 1919 when Korea was still unified throughout the peninsula. However, it also mentions the April 19, 1960, uprising against Syngman Rhee, the first president-turned-dictator of South Korea. This uprising was a seminal event only applicable to South Korea. The inevitable schizophrenia of Korea's modern history is evident from the very beginning of the South Korean Constitution.

This problem is further highlighted by Article 3, "The territory of the Republic of Korea shall consist of the Korean peninsula and its adjacent islands." In other words, South Korea is claiming the whole territory of the Korean peninsula as its own. This claim is the legal foundation that is most often cited as allowing all North Koreans to be treated as automatic South Korean citizens, including the two fishermen who were forcibly returned.

Therefore, if Article 3 holds, then Article 27.1, "All citizens shall have the right to be tried in conformity with the Act by judges qualified under the Constitution and the Act," should have applied to the two North Korean fishermen. The rest of Article 27 lays out familiar cascading rights such as the right to a speedy trial and the presumption of innocence, which should also have been brought into play.

However, the right to be tried for their crimes in South Korea according to South Korean laws only holds if we take Article 3 literally and recognize that South Korea has legal sovereignty over all of the Korean peninsula. This claim naturally means that North Korea is not an independent country, and there is no legitimate government in the peninsula north of the 38th parallel.

However, whatever is stated on a South Korean piece of paper, North Korea has been a de-facto independent country since the split in 1945, with its own history, political and socioeconomic systems, leadership, culture, military, etc., recognized by the international community as such. Even the United Nations admitted both countries as separate, independent members in 1991.

Therefore, it's difficult to take politically posturing language from the South Korean Constitution and apply it literally in order to justify trying the two men ― who allegedly killed 16 North Korean citizens ― in South Korean courts as South Korean citizens.

Also, the critics of the previous administration's decision concerning this case further cite that South Korea is a signatory to the United Nations Convention Against Torture, which states that individuals may not be deported to places where they likely face torture. And it is certainly true that the two fishermen would have faced certain torture and death when sent back to North Korea.

However, for an international treaty to hold, the relationship between two Koreas would have to be between two independent nation-states, which would actually go against the argument that the two fishermen were automatic South Korean citizens. So, the critics of the repatriation decision seem to hold two contradictory positions.

Having said that, the counterargument that Moon was right to send the two men back because they were heinous criminals who would have gotten off ― for lack of evidence ― in South Korean courts is also engaging in circumlocution. In other words, they are heinous criminals whom we can't prove that they are heinous criminals, according to the rule of law, so we have to send them back to face certain torture and death.

Even while admitting that the two fishermen are not automatic South Korean citizens, don't they have universal human rights to due process that need to be respected or at least agonized over, instead of a quick investigation and repatriation to a place where it is well-known that their human rights won't be respected?

Jason Lim (jasonlim@msn.com) is a Washington, D.C.-based expert on innovation, leadership and organizational culture.