The lives of the two North Korean defectors who have been forcefully repatriated from South Korea must be protected

By Dr. Yeosang Yoon

 

NKDB News (11.11.2019) – http://bit.ly/2RhgYMq – An act that should never have happened in South Korea has unfolded. According to media reports, the South Korean government handed over two North Koreans to DPRK officials at the border village of Panmunjom in the DMZ at 15:10 on November 7th, 2019. It is the South’s very first deportation of North Korean defectors who have expressed their intent to remain in the Republic of Korea.

 

The South Korean government revealed that the two North Korean fishermen in their 20s crossed the maritime border (NLL) and were seized by the South Korean navy on November 2nd, 2019. While being interrogated by the ROK’s authorities, the two young men expressed their intention to defect to South Korea. According to the South’s investigators, the two fishermen killed 16 fellow crew members aboard a squid fishing vessel on North Korea’s East Coast before fleeing to South Korean waters.

 

The South Korean government mentioned the following grounds for sending them back to the DPRK: they are serious criminals and thus denied the rights to be protected under the law, they pose a threat to the safety of South Koreans if they were to be granted entry, and that criminals are not recognized as refugees under international refugee law.

 

However, the announcement and the reasons for the deportation provided by the South Korean government fail to comply with every law that pertains to the essence of this issue including the South Korean Constitution, North Korean Refugees Protection and Settlement Support Act (hereinafter “North Korean Refugees Support Act”), and all past Supreme Court decisions; and can be defined as a crime against humanity.

 

Article 3 of South Korea’s Constitution stipulates that “the territory of the Republic of Korea (South Korea) shall consist of the Korean peninsula and its adjacent islands,” recognizing the North Korean region as its territory. Past Supreme Court decisions recognize all North Korean citizens and North Korean defectors who have entered South Korea as South Korean citizens.

 

Despite such legal basis, and the fact that the two North Koreans entered the South, sought protection from the South Korean government, and refused to return to the North by expressing their intent to defect to ROK, the authorities nevertheless deported the two North Koreans. The South Korean government stated the reasons below to explain their justification of the deportation.

 

  • First, offenders of serious crimes are exempted from protection pursuant to the North Korean Refugees Support Act, thus it was justifiable that they were deported.
  • Second, serious criminals are also not recognized as refugees under international refugee law. It is justifiable that they are deported to keep the lives and safety of South Koreans.
  • Third, the unprecedented nature of this case and the absence of relevant regulations have led South Korean government bodies to make a joint decision.
  • Fourth, this case was not disclosed to the public and was mistakenly uncovered by the media. If the case remained undisclosed, it would have likely remained low-profile.

 

The claims by the South Korean government can be deemed to have breached the Constitution, relevant laws, Supreme Court decisions, and even humanity for the following reasons:

 

First, it is stated in Article 1 of North Korean Refugees Support Act that “the purpose of this Act is to provide for matters relating to protection and support as necessary to help North Korean residents escaping from the area north of the Military Demarcation Line who desire to be protected by the Republic of Korea, as swiftly as possible to adapt themselves to, and settle down in, all spheres of their lives, including political, economic, social and cultural spheres.” Just as the Article clearly states that North Korean residents who seek protection from South Korea are subject to the Act, the two young North Koreans who sought protection from South Korea are duly subject to the Act.

 

Article 2 of the same Act also stipulates that North Korean refugees refer to “persons who have their residence, lineal ascendants and descendants, spouses, workplaces, etc. in the area north of the Military Demarcation Line (“North Korea”), and who have not acquired any foreign nationality after escaping from North Korea.” Pursuant to the Act, they are North Korean refugees.

 

When the South Korean government locates and holds custody of a person claiming to be a North Korean refugee, it is the South Korean National Intelligent Service (NIS) that determines the person’s status as a resident of North Korea, hence a North Korean refugee (once verified as a resident of North Korea, the person is automatically recognized as a North Korean refugee regardless of the purpose of or reason for defection, escape route, identity, and past acts or records.) The NIS’s North Korean Defector Protection Center conducts an investigation and once determined as a resident of North Korea, the person is deemed a citizen of South Korea.

 

There is currently no single legal basis including the Constitution, laws, and Supreme Court decisions that provides basis for the South Korean government to deport a South Korean citizen to North Korea. North Korean residents or refugees are deemed South Korean citizens, and hence cannot be sent back to North Korea. If done so, this is a grave breach of the Constitution and relevant laws.

 

The information compiled through the investigation at the NIS’s North Korean Defector Protection Center are sent to the Ministry of Unification to use it to review and determine whether the North Korean refugee is now eligible for special protection and support from the government.

 

The South Korean government announced that it has confirmed that the two fishermen were residents of North Korea. In other words, the government deported North Korean refugees against their will.

 

Article 2 Section 2 states that “the person eligible for protection” refers to a resident escaping from North Korea who is provided with protection and support pursuant to this Act. According to Article 8 (Decision on Protection) and Article 9 (Criteria for Protection), the person intending to receive government support (financial support for settlement, social integration education, shelter, medical service, education, employment, living support, etc.) must first be recognized as “the person eligible for protection.” Hence, this Act is only to decide whether the North Korean refugee is eligible to receive the government benefits. It does not decide on whether the person shall be deported or not.

 

The decision on whether the person is eligible for protection is under the authority of the Minister of Unification after review by the Consultative Council. However, if the North Korean refugee is deemed as a significant threat to national security, the Director of the National Intelligence Service shall decide on his or her protective status and immediately report to the Minister of Unification and the North Korean applicant respectively.

 

According to Article 9, the government may not decide to provide protection to the following persons:

 

  1. International criminal offenders involved in aircraft hijacking, drug trafficking, terrorism or genocide, etc.;
  2. Offenders of nonpolitical and serious crimes, such as murder;
  3. Suspects of disguised escape;
  4. Persons who have earned their living for at least ten years in their respective countries of sojourn;
  5. Persons who have applied for protection when three years elapsed since their entry into the Republic of Korea;
  6. Other persons prescribed by Presidential Decree as unfit for the designation as persons eligible for protection.

 

The government announced that the two North Koreans apply to the second item and hence they are ineligible for protection. In addition, it added that as the two men were significant threats to the security of people in South Korea, it is only right that they shall be deported.

 

If it is true that the two North Koreans were offenders of serious crimes as announced by the government, they may not be provided protection pursuant to the Act. As such, the documents that led to this decision by the Minister of Unification and the Consultative Council should be verified. Nonetheless, even if they were deemed to be ineligible for protection, it simply means that their potential government benefits have been stripped away, and in no way does it serve as the basis to make a decision for deportation.

 

According to the 2019 report on the parliamentary inspection of the administration, three North Korean refugees have been denied legal protection over the past five years as a result of them having committed serious nonpolitical or transnational crimes. The report on the protection decision submitted to the legislature by the Ministry of Unification on October 20, 2019, showed that a total of 137 North Korean refugees have been deemed ineligible for protection over the past five years, and among them was a bounty hunter aiming to arrest North Korean defectors, and two murderers.

 

People ineligible for protection are thus given other forms of protection and support from the government and society specific to their needs, but they are not subject to deportation. Which is why until now, there has never been a public announcement of the government forcefully repatriating North Koreans back to North Korea. In fact, while there have been quite a large number of North Korean refugees who have been denied protection pursuant to the Act, not a single person has been deported.

 

Pursuant to the Enforcement Decree of the Act, any person who is likely to affect national security to the considerable extent prescribed in the provision to Article 8 (1) of the Act shall be any of the following persons.

 

  1. A person who has committed a crime concerning insurrection or crime concerning foreign aggression defined in the Criminal Act; a crime of insurrection, crime of benefitting the enemy, or crime of unlawful use of secret codes defined in the Military Criminal Act; or any other crime falling under the National Security Act (excluding Article 10) or the Military Secret Protection Act; or a person who initially intended to commit any of the aforesaid crimes but has expressed his/her will to renounce such intention;
  2. A person deemed essential for national security by the Director of the National Intelligence Service among persons actively engaged in protecting the North Korean regime in the Workers’ Party; the Cabinet; the armed forces; the Ministry of People’s Security; or the Ministry of State Security of North Korea;
  3. A spouse or relative of the person of supreme power in North Korea;
  4. A person with important intelligence in advanced science or other special and professional fields closely related to national security.

 

The government has yet to disclose when and by whom the decision that led to the status of ineligibility for protection of the two North Korean nationals was made. According to the government statements, other than the fact that they are fishermen, no particular information pertaining to their personal identity has been announced which makes it unlikely that the Director of National Intelligence Service would be the one to make the decision for protection. There is no additional information that would show that these North Koreans would affect national security. Assuming that what the South Korean government announced about the two men is all true, they are simply offenders of criminal law, not threats to national security. In this case then, the decision maker for such matters on protection should have been made by the Minister of Unification. The Consultative Council under the Ministry of Unification normally holds the review meeting once a month, and hence it is highly likely that the normal process was not applied to the two North Koreans. If this was the case, the two men were deported without due procedures as required by law.

 

When North Koreans are found by the South Korean government at sea (usually on fishing vessels that have drifted away or crossed the border for fishing) and they express their intent to go back to North Korea, the government respects their will and sends them back without the procedures required for decision on protection. Although the two fishermen in this case refused to go back, the same process as those wishing to go back was undertaken. Because the two fishermen escaped from North Korea, their repatriation will only place their lives in greater danger.

 

In conclusion, first, the South Korean government has no authority to deport North Koreans against their will even if they are deemed offenders of serious crimes or threats to the national security. While North Koreans eligible for protection can receive various social government benefits, those who have been decided as ineligible for protection only receive a resident registration card. The only difference is that once they start living in South Korea, their living conditions may be more difficult than other North Korean defectors who receive protection. Since the two Koreas have been divided, several hundreds of North Korean defectors have integrated into Korean society without these protection benefits.

 

Second, the government claims that the two seized North Koreans are offenders of serious crimes and thus not recognized as refugees under international refugee law. Once North Koreans are confirmed to be residents of North Korea by the NIS, whether they have left for political reasons or for survival, they automatically become North Korean refugees regardless of the reason.

 

North Korean defectors who wish to voluntarily return to North Korea should be sent back on humanitarian grounds. If they wish to reside in South Korea then their eligibility for protective status should be reviewed and if they are eligible they can live in South Korea and receive the relevant benefits, and those who are considered eligible are unable to receive governmental benefits (some are able to receive partial governmental benefits), and live their lives in difficulty by their own accord in South Korea.

 

As North Koreans (including North Korean defectors in South Korea) are deemed citizens of South Korea pursuant to the Constitution, relevant laws, and Supreme Court decisions, they are not subject to the general refugee status review. The general refugee status review is for people of other nationalities. As North Koreans are citizens of South Korea, the refugee status review does not apply to them. North Koreans may be subject to refugee review and obtain refugee status in China and elsewhere but not in South Korea. The claim by the South Korean government that they are not recognized as refugees under international law because they are serious criminals and that they were sent back for this reason, cannot be established. To put it simply, North Korean “refugees” are not legally defined as refugees under South Korean law and are legally considered as South Korean citizens with full rights and protections including legal due process provided to other South Korean citizens.

 

If the two North Koreans are criminals and as such present a great threat to the safety of South Koreans, as claimed by the ROK government, they must be put under trial pursuant to South Korean law. The crimes that occurred in North Korea and in the South can be investigated and punished pursuant to current law, and this has been the norm. Although there may be restrictions in verifying facts for crimes that occurred in North Korea, the South’s prosecution, police, and the Court have the basis to put them under trial and punish them accordingly. Hence, the forced deportation for such reasons cannot be justified. If there are limitations to the legal system, the emergence of such North Koreans should only lay the foundation for improved regulations, not the basis for forced deportation.

 

Third, the government claimed that the absence of appropriate regulations and the fact that this is an unprecedented case led government bodies to hold joint meetings for the decision. The method of investigation, method of granting legal status, the authority to review and decide on protection related to North Koreans who have entered the South are already clearly laid out in the North Korean Refugees Support Act. As the Constitution and Supreme Court decisions deem North Korean residents as South Korean citizens, there has been no need to put in place regulations that allow the forced deportation of North Koreans who refuse to be deported back to the North. Such regulations do not need to exist which is why this case is unprecedented.

 

If this has been the first case of forced deportation as announced by the government, it means that the past government and authorities have duly performed their duties related to North Korean residents in compliance with the law and the current government and related decision makers have not. It implies that they have committed crimes against the North Koreans who have every right to undergo fair and appropriate procedures for defection.

 

If the government officials made the deportation decision through joint meetings, then the meeting minutes must be disclosed. If breaches of laws are found in the processes, they must be held accountable.

 

There have been many cases of North Korean residents being sent back through Panmunjom, but it is yet factually unclear if their intent to go back had been confirmed in an objective manner. If the media did not reveal this case of the two fishermen, it is likely that this case would have never been disclosed publicly. For all other cases of North Korean residents who allegedly have voluntarily went back to the North, objective verification is called for.

 

The following measures are urged in light of this recent case:

 

  1. The protection of the lives of the two North Korean deportees must become top priority. Considering the charges made against them, North Korea’s legal system and its past punishment practices, the lives of the two deportees will be in grave danger. The South Korean government, the UN, international organizations, and domestic and international human rights activists, and the media must make continued efforts to reach out to the North Korean authorities and check the safety of the two people. The attention of the international community is called for to ensure their human rights are not infringed in the process of investigation, detention, and punishment by the North Korean government.

 

  1. South Korea needs to put in place appropriate processes to confirm the intent of the repatriated North Korean residents was voluntary or not. Past voluntary repatriations were only checked and decided by the government, and hence it is necessary for additional neutral parties such as international human rights organizations including the UN Human Rights Office in Seoul to engage and verify the voluntary intent of the people being sent back.
  1. Special investigation and legislative inspection of the administration to this case must be taken. It is highly likely that this case has breached the Constitution and relevant laws to a serious extent and will lead to adverse consequences for North Korean residents and defectors in and outside of Korea. This case calls for a strict investigation of the relevant government agencies and officials involved in this matter. As it is the government being put under investigation, matters related to their accountability and their breach of law must be investigated through an appointed special prosecutor. Legislative inspection of the administration is also necessary for the overall investigation of what happened.

 

The forced deportation of the two North Koreans will be the first human rights infringement case to be recorded by the Database Center for North Korean Human Rights in its North Korean Human Rights Archives which currently holds approximately 120,000 records of human rights abuses and personal files, in which the South Korean government has become the perpetrator.

 

North Koreans have the same right to life as anybody else. I call for the South Korean government, the National Assembly, international organizations, civil groups, and human rights organizations to make sincere and concerted efforts to protect the rights of the deportees and prevent such unfortunate events from happening in the future.




North Korean workers in China forced to work overtime before sanctions deadline

 

North Korean workers at a fish processing plant in Hunchun, China. AP Photo/Ng Han Guan

Radio Free Asia (23.10.2019) – https://bit.ly/2KFlYXf – North Korean authorities are forcing workers dispatched to China to work grueling overtime schedules in the few remaining months they have left as legal workers overseas, industry sources told RFA’s Korean Service.

 

Sanctions aimed at depriving Pyongyang of resources that could be used in its nuclear and missile programs mandate that all overseas North Korean workers return home by the end of this year.

 

Pyongyang’s overtime push is an attempt to squeeze every last penny they can out of their overseas workers before the well of foreign cash their work provides dries up.

 

A Chinese source, a quality control specialist at a fish processing plant in Donggang, China, told RFA’s Korean Service Sunday that North Koreans there have been working grueling hours since last month.

 

“North Korean workers take on an extra four or five hours after eating dinner at 6 p.m. and they don’t go to their rooms until 11,” said the source.

 

The source said that the North Koreans were not working overtime on the company’s orders.

 

“The North Korean supervisor asked the company if they could work overtime for extra pay. All the North Korean workers need to return home by the end of the year, but they are really driven to earn as much foreign cash as they can before their return,” said the source.

 

But the source also revealed that the workers themselves aren’t’ seeing the fruits of their extra work.

 

“All the extra pay they are earning is actually given in a lump sum of Chinese yuan to the supervisor at the end of the month,” the source said.

 

“For all their toiling for extended hours into the wee hours of the night, they are not getting paid at all,” the source said.

 

The source noted that most of the workers are young and are also trading away the best years of their youth.

 

“They eat lunch and dinner at the work site, so they can immediately get back to work without any break. It is so sad to see young girls struggling to work like the men, processing and packing frozen fish well into the night with no complaints,” said the source.

 

Another source in Dandong, China said that North Koreans there were already in violation of sanctions.

 

“There are more than 10 fish processing companies in Dandong that employ North Koreans. Most of them are in China on short-term [30-day] visas, because they are not allowed to get working visas in China due to sanctions from the U.N. Security Council,” the second source said.

 

“When their short-term visas expire, they go back home then immediately return [to China] to work again on another short-term visa,” said the second source.

The second source said that even after the deadline, North Korea will find a way to send workers to China.

“The North Korean authorities ordered all their workers in China to return home by the end of December. But in the new year, [they] will find a way to send their foreign currency-earning workers back by any means necessary,” said the second source.

According to a Forbes article published in July, there is an upper estimate of 80,000 North Korean laborers working in China.

 

Reported by Hyemin Son for RFA’s Korean Service. Translated by Leejin Jun. Written in English by Eugene Whong.




North Korean refugees rely on cellular phones during journey to freedom

Thirteen North Koreans peer across the Mekong river, after arriving in Southeast Asia October 18, 2019

 

Radio Free Asia (15.11.2019) – https://bit.ly/2rVAbc1 – Cellular phones are the single most important tool for North Koreans making the risky trek to South Korea through China and other Asian countries, according to the head of a South Korean NGO that helps refugees after they have escaped from the North.

 

Ji Seong-ho, a former refugee who founded Now Action Unity Human Rights (NAUH) in 2010, told RFA’s Korean Service that for the 13 North Korean refugees who were able to rendezvous with him and his team in a Southeast Asian country last month, cellular phones were vitally important.

 

The phones allowed NAUH to remain in constant communication with the group up until the moment they met.

 

The 13 had travelled through China and then two other countries before arriving in their final destination, where NAUH had sent a rescue team.

 

Ji said that after groups of refugees cross a river to reach the destination country, it is never easy to find them, because they could be anywhere within a wide area of river border.

 

For the group of 13, which included several minors, NAUH was able to quickly pinpoint their exact location thanks to a cellular phone carried by one of the refugees, a woman in her 20s.

 

She was reportedly able to text her location to the NGO’s rescue team before crossing the river, then she called them after they had safely crossed.

 

Double-edged sword

As valuable as cellular phones can be to refugees on the run, they can also be tools for their pursuers as they can be tracked to pinpoint the location of users. Chinese authorities are believed to use the technique to catch groups of North Korean refugees trying to get to third countries through China.

 

Ji told RFA that another group of North Korean refugees was caught mid-journey by Chinese police last month. He said he assumed the authorities used cellphone tracking to find them.

 

Refugees therefore have been known to turn off the phones except for when they are absolutely needed.

 

One of the 13, going by the alias Park Ju-yeong, told RFA that he tried to get the others in his group to refrain from using their phones during their journey because he was afraid that their location would be exposed.

 

Reconnecting

 

Once the 13 arrived at a private house, where they spent the first night in the destination country, the refugees asked for access to Wi-Fi so that they could connect their cellular phones to the internet and communicate with family members who had already settled in South Korea.

 

They were able to send text messages and videos, so many of them assured their relatives and friends that they had safely arrived.

 

Shortly after the 13 refugees arrived and met the members of NAUH, they turned themselves in to the police for their illegal entry into the country. RFA has confirmed they have reached safety and are expected to arrive in South Korea soon.

 

Including these 13, NAUH claims to have rescued more than 460 North Korean refugees since 2011. Ji Seong-ho says the group will continue their work to deliver more North Korean refugees to freedom.

 

According to South Korea’s Ministry of Unification more than 33,000 North Koreans have entered South Korea over the past several decades, including 546 as of June this year.

 

Reported by Jung Min Noh for RFA’s Korean Service. Translated by Leejin Jun. Written in English by Eugene Whong.




South Korea deports two North Koreans accused of murder, angering rights groups

At a press briefing, South Korea’s Unification Ministry spokesman Lee Sang-min reports that two North Korean fishermen that authorities picked up at sea were deported to North Korea on November 7, 2019.

By Eugene Whong

Radio Free Asia (07.11.2019) – https://bit.ly/2KzmgPr – South Korea deported two North Koreans accused of murder to North Korea Thursday, an act that experts and rights organizations criticized as a troubling decision that could send the wrong signal to future asylum seekers from the North.

 

According to Seoul’s Ministry of Unification, the fishermen killed 16 crew members on their fishing boat prior to being picked up Saturday near the Northern Limit Line, the maritime border between North and South, in waters east of the Korean peninsula.

 

They were sent back to North Korea at about 3:10 p.m. Thursday through the joint security area in Panmunjom, a first for deportations.

 

“We decided to deport them after determining that accepting them to our society could pose a threat to the lives and safety of our people and that such criminals cannot be recognized as refugees under international law,” said Ministry of Unification Spokesperson Lee Sang-min, at a press briefing.

 

South Korean officials said that the two fishermen confessed that they and another crew member killed the captain of the fishing vessel in late October because of his harsh treatment. They then killed the other crew members one by one, dumping their bodies overboard.

 

According to their account, they tried to return to North Korea, but when they entered a port on the North’s east coast, the other crew member was detained by police.

The other two fled to the South on the fishing boat.

 

“Troubling” deportation

 

Human rights experts and lawyers told RFA’s Korean Service that deportation was not the way South Korea should have handled the situation.

 

“I am deeply troubled and deeply disturbed by this development. For more than 20 years, the South Korean government and the people of South Korea, the taxpayers of South Korea, have extended help and naturalization programs to about 33,000 North Koreans,” said Greg Scarlatoiu, executive director of the Committee for Human Rights in North Korea (HRNK).

 

“What’s really, really troubling is that the South Korean authorities took only three days to issue these two men a death sentence,” he said.

 

“The fact that two human beings can be issued a death sentence in South Korea in three days is deeply, deeply troubling. It sends a signal to other North Korean escapees that South Korea no longer welcomes them. South Korea no longer provides a safe haven for them,” Scarlatoiu added.

 

HRNK also issued an official statement Thursday saying that it was deeply concerned over “the first deportation of North Koreans by South Korea since the 1953 Korean War Armistice.”

 

The statement pointed out that the men were returned to the North against their will, an act that “undermines” the South Korean constitution, which recognizes all North Koreans as citizens of the Republic of Korea, “granting them the right to live in the South and be protected by its legal system.”

 

Meanwhile, Phil Robertson of Human Rights Watch (HRW) criticized the lack of transparency on the part of the South Korean authorities in determining the pair’s fate.

“The whole story doesn’t quite make sense because the South Korean government at this point should really make available the full information about whatever investigation and questioning they engaged in with these North Korean men before they sent them back,” said Robertson.

 

“There should be a full review of the investigation that was done to make sure it was, in fact, thorough and impartial,” HRW’s Asia Division deputy director said.

 

Robertson questioned the entire process.

 

“What evidence to they have? The South Korean government needs to provide that and has to make that public. Do they have the 16 bodies? Do they have other evidence to show that two men were able to kill 16 other people, which seems very improbable? The fact that the South Korean government is refusing to release information about this is immediately suspect,” he said.

 

A Washington, DC-based lawyer criticized the deportation, saying that Seoul should have simply tried the men in a South Korean court.

 

“South Korea claims jurisdiction over all of the South Korean peninsula in its constitution. While I am critical of South Korea’s legal system, because I’ve represented clients who are in that system, it is far fairer and far more humane than the North Korean system, in which there is torture, a complete lack of due process, and where these men can expect the most brutal treatment imaginable,” said Joshua Stanton, who was a member of the U.S. Army Judge Advocate General’s Corps stationed in South Korea between 1998 and 2002.

 

“It is a dangerous precedent for the same reason the people of Hong Kong saw the extradition of an accused murderer to China as a dangerous precedent,” said Stanton.

Stanton said that South Korea might even be in violation of international law by returning the men to North Korea.

 

“It sounds like a violation against the U.N. convention on torture. Article III of that convention says you’re not supposed to send people back to places that torture people,” he said.

 

He maintained that the men should be deemed innocent until proven guilty.

 

“You don’t know that someone is a danger to society or a murderer until you give them a trial. You can never assume a person’s guilt,” he said, adding, “Arrest them. Indict them. Give them their day in court,” he said.

 

“You have legitimized a system in North Korea that routinely tortures, that denies due process, that punishes with extraordinary brutality. South Korea has now implicitly recognized that that is a legitimate justice system and it is not.”

 

Robertson was very critical of the South Korea’s president Moon Jae-In, saying the deportation was yet another example of the administration’s poor record in dealing with North Korea on human rights issues.

 

“The problem, frankly, is that the South Korean government has continuously failed to take North Korean human rights seriously. President Moon and his administration have unfortunately given North Korea a completely free pass on human rights issues. It’s actually shameful and unacceptable,” said Robertson.

 

Jung Gwangil, a former official at a North Korean trading company who now runs a human rights organization based in South Korea, told RFA that he believed that Seoul gave the men up so quickly to placate the North over other issues in the fractious inter-Korean relationship.

 

“It doesn’t make sense at all. I think the [South Korean government] offered them up to North Korea as a sacrifice, since North Korea is so adamant about the Mt. Kumgang issue,” said Jung, referring to Kim Jong Un’s recent order to demolish South Korean buildings at an inter-Korean tourist resort.

 

Experts see the controversial demolition order as Kim’s deliberate lashing out at the South over its unwillingness to decouple itself from the United States’ push to get North Korea to dismantle its nuclear weapons program.

 

Hee Jung Yang contributed to this report.

 

CORRECTION: An earlier version of this report incorrectly attributed some of Robertson’s comments to Scarlatoiu.




FINLAND / ECtHR: An Iraqi asylum-seeker deported from Finland and killed in Iraq

Finnish decision to deport an Iraqi man who was killed when he arrived back in his country of origin violated the Convention

N.A. v. Finland (application no. 25244/18)

 

Registrar of the European Court (14.11.2019) – In today’s Chamber judgment 1 in the case of N.A. v. Finland (application no. 25244/18) the European Court of Human Rights held, unanimously, that there had been:

 

a violation of Article 2 (right to life) and Article 3 (prohibition of torture and inhuman and degrading treatment) of the European Convention on Human Rights owing to decisions to deport the applicant’s father to his country of origin, Iraq, where he was subsequently killed.

 

The Court found in particular that the Finnish authorities had not carried out a thorough enough assessment of the individual risks faced by the applicant’s father in Iraq although they had accepted his account of having faced two near deadly attacks in a context of tensions between Shia and Sunni Muslim groups, the father belonging to the latter.

 

The Finnish authorities’ decision to expel the father, who had had a conflict with a Shia colleague in his place of work as an investigator for the Interior Ministry, had ultimately forced him to agree to return voluntarily to Iraq, where he had been shot and killed soon after arrival.

 

Principal facts

 

The applicant, Ms N.A., is an Iraqi national who was born in 1996 and lives in Finland.

 

The applicant’s father was a Sunni Muslim Arab from Baghdad. He served as a major in the army under former Iraqi leader Saddam Hussein and then for an American logistics company after the fall of that regime. Between 2007 and 2015 he worked in the Iraqi Office of the Inspector General, part of the Interior Ministry, where he was an investigator and then a leading officer on human rights crimes and corruption cases. He often had to investigate intelligence service officers or officers in militia groups. His work became more dangerous when Shia militia gained prominence.

 

He was investigating a case in 2015 when he had a disagreement with a colleague, who allegedly belonged to a leading Shia militia group, the Badr Organisation. The colleague assaulted the applicant’s father and insulted him but was then transferred to the intelligence service and promoted. In February 2015 there was an attempt on the applicant’s father’s life when someone tried to shoot him. He reported the attack but later concluded that it was not being investigated. Feeling that he would not be protected in Iraq or receive any justice, he resigned in March 2015.

 

In April 2015 a bomb exploded in the family car just after the applicant’s father and mother had got out of it and in May of that year the applicant herself was the victim of an attempted kidnapping.

 

The family arrived in Finland in September 2015 and the father sought international protection. The authorities rejected his asylum application in December 2016, the Immigration Service accepting his account of the facts but deciding that Sunni Arabs did not per se face persecution in Iraq.

 

An appeal by the applicant’s father was dismissed by the Helsinki Administrative Court in September 2017. It held that he faced no danger owing to his past work for the regime of Saddam Hussein or the American logistics company. There was no proof that the attacks on him had been due to his conflict with his former colleague at the Interior Ministry, rather the general security situation in Iraq was to blame. There was also no real risk of persecution owing to his Sunni background. He was refused leave to appeal to the Supreme Administrative Court at the end of November 2017.

 

The applicant’s father returned to Iraq in November 2017 under assisted voluntary return. In December 2017 the applicant learned that her aunt’s apartment, used previously by the family as a hiding place, had been attacked. Later that month she was informed that her father had been killed by unidentified gunmen. According to documents submitted by the applicant her father was shot three times in a street in Baghdad.

 

Complaints, procedure and composition of the Court

 

The applicant complained that her father’s expulsion to Iraq had violated Article 2 (right to life) and Article 3 (prohibition of torture and of inhuman or degrading treatment).

 

The application was lodged with the European Court of Human Rights on 23 May 2018.

 

Judgment was given by a Chamber of seven judges, composed as follows:

 

Ksenija Turković (Croatia), President, Krzysztof Wojtyczek (Poland), Aleš Pejchal (the Czech Republic), Pauliine Koskelo (Finland), Tim Eicke (the United Kingdom), Jovan Ilievski (North Macedonia), Raffaele Sabato (Italy),

 

and also Abel Campos, Section Registrar.

 

Decision of the Court

 

Article 2 and Article 3

 

The Court took note of the Government’s argument that Finland did not have jurisdiction as the applicant’s father had returned voluntarily to his land of origin. However, the applicant had argued that the return had not been voluntary, but had rather been forced on him by the Finnish domestic authorities’ decisions. Her father had not wanted to attract the attention of the Iraqi authorities by being forcibly returned and had not wanted to have a two-year Schengen area visa ban.

 

The Court found that the applicant’s father would not have returned to Iraq if an enforceable expulsion decision had not been issued against him and so his decision had not been voluntary in the sense of being a free choice. The respondent State’s jurisdiction could therefore be engaged under Article 1 of the Convention.

 

The Court also cited the lack of a genuinely free choice as a reason to reject a further implicit argument by the Government that the applicant’s father had waived his right to Convention protection because he had signed a declaration that no agency or authority taking part in his return could be held liable or responsible.

 

The Court noted that the Finnish authorities had found the applicant’s father’s account of events in his asylum application to be both credible and coherent, including the possibility that he could be of interest to the Iraqi authorities or non-State actors.

 

The domestic authorities had also referred extensively to relevant country information on Iraq, which showed among other things that there were tensions between Shia militia groups and Sunni Arab Muslims, that there had been incidents where Iraqis who had worked for American companies had been killed, and that the security situation in Baghdad required decision makers to look at the risks faced by particular individuals facing deportation.

 

When taken cumulatively, and considered in the light of the general security situation and violence, it was possible that such factors could give rise to a real risk. However, the domestic authorities had not made such a cumulative assessment.

 

Even more importantly, the courts had not given enough consideration to the violent attempts on the applicant’s father’s life before he had left Iraq, although the Finnish authorities had acknowledged the shooting and car bomb as facts. Instead, they had seen those incidents as part of the general security situation, rather than being focussed on the applicant’s father in particular.

 

The Court could not see a plausible explanation for why the Finnish authorities had not taken those two incidents more seriously or looked at them in terms of a risk that the father had been personally targeted. Furthermore, the dispute between the father and his colleague had been dismissed as a personal conflict rather than being examined for possible links with their religious affiliations and tensions between Shia and Sunni groups or the attempts on the father’s life.

 

The Court was thus not convinced that the Finnish authorities’ assessment of the risks faced by the father if he was returned to Iraq had met the requirements of Article 2 or Article 3. Indeed, those authorities were or should have been aware of the risks he faced.

 

The Court concluded that the Finnish authorities had failed to comply with their obligations under Article 2 or Article 3 when dealing with the applicant’s father’s asylum application and there had been a violation of both of those provisions. It rejected a complaint by the applicant about her own rights under Article 3 having been violated.

 

Just satisfaction (Article 41)

 

The Court held that Finland was to pay the applicant 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 4,500 in respect of costs and expenses.

 

The judgment is available only in English.

 




BULGARIA: Bulgarian Helsinki Committee under pressure from far-right government party

Liberties EU (11.10.2019) – https://bit.ly/33iBeka – The attempt to dissolve Bulgaria’s largest human rights organization is the latest attack against civil society – and European values – by an EU government.

 

Misrepresent facts, call them colorful names, plant misinformation in the media, pass legally dubious regulations to hamstring their work – it’s the go-to game plan for populists trying to discredit civil society.

 

And it’s on full display in Bulgaria. The governing coalition party VMRO-Bulgarian National Movement is trying to dissolve the Bulgarian Helsinki Committee, the largest and most prestigious human rights organization in the country and a member of the Liberties network. It’s the latest worrying example of a European government attempting to silence the critical voices of civil society organizations.

 

Politics and publicity

The VMRO, led by Deputy Prime Minister Krasimir Karakachanov, considers BHC and other rights organizations to be an unnecessary annoyance for the government and an insult to the nation. But its current effort to get rid of BHC appears also to be, at least in part, a publicity stunt to exploit the media’s current focus on the case of Paul “Jock” Palfreeman.

 

Palfreeman, an Australian citizen, was convicted in 2009 of murdering a Bulgarian student two years earlier. He was sentenced to 20 years in prison, although he has always maintained his innocence. The Bulgarian Helsinki Committee gave him legal aid, first in his attempt to secure a lawful transfer to Australia to serve out his sentence, and later to secure parole in Bulgaria.

 

On 19 September, a three-judge panel of the Sofia Appellate Court granted Palfreeman parole. The decision triggered a backlash from nationalists and the far right, with VMRO among the most vocal in condemning the ruling. And now, unsurprisingly, the party is looking to capitalize on the media attention by going after the organization that helped secure Palfreeman’s release.

 

Bulgaria’s prosecutor general announced on 8 October that he would not initiate deregistration proceedings against BHC. But it was a short-lived victory. Almost immediately, VMRO said it would take its request directly to the courts – a possibility under Bulgarian law. The continued threats to BHC caused an international outcry resulting in 110 NGOs declaring their solidarity with BHC.

 

Attacks can have sinister consequences

This is not the first time VMRO has attacked the Bulgarian Helsinki Committee. In 2014, the party wrote to the National Revenue Agency demanding that it audit the organizations finances. The audit uncovered no irregularities whatsoever. In 2016, VMRO asked the prosecutor general to indict BHC’s director, Krassimir Kanev, for “sabotage”. According to VMRO, the “sabotage” in question was nothing more than Kanev calling for stronger LGBT rights protections in Bulgaria. The prosecutor declined that request.

 

Even if the current efforts by VMRO fail, they will still do damage. Every public attack against civil society organizations reinforces the false accusations against these groups. And every public attack sows mistrust in these groups among the general public. And it can have sinister consequences, including physical violence against human rights activists – as happened to Kanev in 2016.

 

The EU as founded on precisely the values that civil society organizations work every day to protect: democracy, rule of law, fundamental rights, equality. And yet today, as these values come increasingly under attack from within, the EU is not doing nearly enough to defend them. The Union’s new values fund, which will help support the work of civil society organizations operating inside the EU, should be fully funded and empowered to protect European values.

 

We at Liberties hope that common sense will conquer political manipulation, and that citizens will come to understand that the ban of a prestigious human rights organization in an EU member state is not just an unacceptable attack on that group, but an attack on European values.