Minister Chung, Call Your Lawyer

South Korea’s Anti-Unification Ministry has recently flailed to portray its new anti-defector policy as a politically neutral effort against human smuggling and asylum fraud, and some of the media seem willing to buy that line. The Minister must now wish he had chosen his words more carefully in this recent OhMyNews interview and not issued that now-withdrawn set of proposed regulations, which clearly show that his intent is to keep out virtually all defectors, and keep in all NGO reps who would help them, not just an undeserving few:

[T]he government clearly opposes organized defections. For the people in the North to live their lives in the North with their families is necessary both for individuals and for co-existence and co-prosperity. The policies of reconciliation and cooperation call for humanitarian aid to the North along with strengthening of economic cooperation, and continuous pursuit of North Korea’s participation in the international community. . . . With this in mind, it is not desirable for anyone to organize defections, intentionally bringing people out of North Korea. In particular, this runs counter to the government’s policy of co-existence and co-prosperity. . . . [Incidents like last summer’s mass airlift of defectors] have been unfortunate from the point of the total interests of the Korean people.

So how legal is all this? I have already posited that such a policy, as described by the Unification Ministry, would likely violate the 1951 U.N. Convention on Refugees. As it turns out, the policy could also violate the spirit, if not the letter, of the U.N. Convention Against Torture, or CAT, which prohibits states from returning persons to places there they are likely to be tortured. Article 3 of the CAT defines torture as–

. . . any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Even the U.N. has found it impossible to withhold concern about North Korea’s record in this regard; it passed this resolution on April 15, 2003:

1. Expresses its deep concern at reports of systemic, widespread and grave violations of human rights in the Democratic People’s Republic of Korea, including:

(a) All-pervasive and severe restrictions on the freedoms of thought, religion, opinion, expression, assembly and association, and on access of citizens to information, and limitations imposed on citizens who wish to move freely within the country and travel abroad;

(b) Torture and other cruel, inhuman or degrading treatment or punishment, public executions, imposition of the death penalty for political reasons, the existence of a large number of prison camps and the extensive use of forced labour, and lack of respect for the rights of prisoners;

South Korea, of course, infamously abstained from voting on that resolution. But does that relieve South Korea from its own obligations under the CAT? Clearly not, since there are “substantial grounds for believing” that repatriated North Koreans would be subjected to torture. That triggers this prohibition in Article 3:

1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Note the absence of any exception for persons believed to have committed criminal offenses (ahem) or any requirement to invoke the convention within any specific time frame. But of course, the South Koreans will claim that they aren’t really extraditing or returning anyone. China is the one doing that, and as we all know, China doesn’t have any hangups about flagrantly violating North Koreans’ international treaty rights. CAT Article 13, however, presents a more difficult problem for our friends at the Anti-Unification Ministry:

Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.

And of course, South Korea does claim jurisdiction over all of the Korean Peninsula–and by implication, all of its people–under Articles 2 and 3 of its own Constitution. Article 2(2) goes so far as to specifically state, “It is the duty of the State to protect citizens residing abroad as prescribed by law.” It will be interesting to see what passes for an examination of torture claims by competent authorities in the newly sinified South Korea.

UPDATE: I realize that Article 13’s reference to “jurisdiction” is really meant to mean “control,” ie., this is a self-reporting requirement. Fine, then . . . so it’s a “novel” argument. Given China’s non-compliance with the Refugee Convention, who out there wants to argue that flinging a North Korean defector back onto the streets of Beijing is not the functional equivalent of “expel, return, or extradite” to North Korea? There may also be “substantial grounds” to believe that China itself tortures North Koreans, which means that returning a defector to China violates the CAT.