The western association of “left” with “liberal” does not hold up well in South Korea, whose political spectrum is dominated by warring factions of nationalists. These factions wield the law as an authoritarian sword against their rivals, and as a (sometimes flimsy) shield against their rivals’ authoritarian assaults. Historically, the worst authoritarianism was on the political right before the transition to democracy in 1987. The left still fuels its moral propulsion from the nostalgia of dissent dating back to this time, but the authoritarian imperative survives, throughout Korea’s political spectrum.
In 2003, a left-wing human rights lawyer named Roh Moo-hyun fell, moist and unsteady, from the womb of a leftist lawyers’ group called Minbyun (Lawyers for a Democratic Society) into the presidency of the Republic. But Roh’s government was no paragon of liberal democratic virtues. It threatened opposition newspapers with tax audits, and the union goons and radicals it subsidized intimidated their enemies with iron pipes and bamboo poles.
Time and again, Roh’s allies were exposed as North Korean agents of influence, or worse. For the sake of Kim Jong-il’s tender sensitivities, his government overlooked the greatest crimes against humanity in the long history of the Korean nation. There were the disgraceful U.N. abstentions when the U.N. General Assembly voted to condemn human rights abuses in the North, and a callous die-in-place policy toward North Korean refugees. Those policies are consistent with Minbyun’s views, too, but you won’t read anything about them, or about human rights in North Korea, on Minbyun’s blog. That topic has been trotskied out of the approved history.
In 2012, Minbyun very nearly gave the Republic a second president in Moon Jae-in. Another Minbyun alumnus, Mayor Park Won-soon of Seoul, may run for the presidency in 2017. No organization is as identifiable with the elite of South Korea’s political left as Minbyun.
In light of Minbyun’s history of agnosticism about the atrocities in the North, its sudden interest in the welfare of 12 young North Korean women who risked their lives and their families to defect from a regime-run restaurant in China earlier this year seems uncharacteristic, even suspicious. (For reasons that aren’t clear to me, the proceedings of only 12 of the 13 are in contention.)
Minbyun has filed a habeas corpus petition “to check whether the defectors moved to South Korea on a voluntary basis.” It is a question with no evidentiary basis but the North Korean government’s unsupported allegation that South Korea kidnapped them; it’s also what Anna Freud would have called “projection.” Under Korean law, “people housed in state-run facilities” can petition to the courts for their own protection. In this case, however, the refugees aren’t behind that petition. In fact, they’re begging the court to deny it.
What Minbyun demands is nothing less than the right to interrogate 12 terrified refugees whom it doesn’t represent, in open court, in a city where multiple North Korean spies have been arrested for collecting information about refugees, and even for attempting to assassinate the most politically active ones. Pyongyang has also used threats against refugees’ family members to coerce them into going back.
Of course, the notion that Seoul would send abduction squads to China to kidnap North Korean waitresses is so asinine that only the sort of people who still cling to Cheonan conspiracy theories would entertain it. Surely the Chinese authorities would have said something, either at the time or now, if there were anything to it. As Choi Song-min, himself a North Korean refugee, asks in an opinion piece for the Daily NK, just what legitimate purpose could Minbyun’s interrogation possibly have? How long could such a secret be kept in South Korea’s open society after the 13 enter South Korean society to start their new lives? On what basis does it believe the North Korean government’s accusation and disbelieve the South Korean government’s denial? Has it thought through the consequences of forcing the refugees to go on the record publicly?
We’ll get to all of those questions.
The problems with Minbyun’s argument go beyond its illogic and the lack of credible evidence to support it. The claim is legally frivolous. Neither Minbyun, nor the family members of the 12, nor their ventriloquists in the Reconnaissance General Bureau have any standing to intervene in an asylum proceeding. Granting Minbyun’s petition would not only violate the refugees’ internationally recognized right to confidentiality, it would endanger lives. Not only would it endanger the lives of the 12 and their families, it would have a chilling effect on any other future asylum claims by North Koreans in South Korea.
The 12 already have a lawyer, Park Young-sik, from by the law firm of Bae, Kim, and Lee. Park was recommended by the Korean Bar Association, an organization that has long shown a deep concern for the human rights of North Koreans by compiling and publishing book-length scholarly reports on North Korea’s prison camps (I’ve cited them for these pages on North Korea’s prison camps). Park insists that his clients have all told him that they want to stay in South Korea, have no interest in meeting with Minbyun, and want Minbyun to go away and leave them alone. Park has made those representations to the court, and so far, the court has been satisfied with them.
So what business does Minbyun have in intervening? It claims to represent the families of the 13, back in North Korea, using a power of attorney obtained either through an unnamed U.S. citizen in China or a Chinese journalism professor. (The details are vague, although Minbyun certainly didn’t have much trouble finding someone in Pyongyang to authorize its intervention.)
And yes, Park was retained by the South Korean National Intelligence Service (NIS), which helped get the Ningpo 13 out of China, but which undoubtedly has a sordid history. Minbyun’s skepticism would be a virtue if it weren’t so selective.
While Minbyun chases Pyongyang’s unsupported abduction claims through the courts in Seoul, it shows its more credulous side to Pyongyang, which recently “allowed an Associated Press Television crew to interview some of the colleagues and parents of the waitresses.” Yet even the AP, which has hardly distinguished itself for questioning Pyongyang’s narratives — it has even used North Korean regime-supplied “journalists” to “interview” subjects — concedes that “it is common for authorities to coach interviewees beforehand to make sure they stay on message.” Even the AP acknowledges that Pyongyang, in making the parents available for an interview, appeared to be “trying to capitalize” on “concerns for family left behind.” Lest there be any doubt about Pyongyang’s game: “[O]ur leader Kim Jong Un is waiting for you, parents and siblings are waiting for you, please come back.”
Later, after the twelve young women exercised their legal right not to be hauled into court for committing no crime, citing the fear of “possible reprisals against their relatives in North Korea,” Minbyun demanded that the judge be replaced
because he’s a Mexican because he denied their frivolous attempt to abuse the legal process to terrorize twelve brave, frightened young women.
All in the name of human rights, of course.
I should explain why I call Minbyun’s case “frivolous.” When countries ratify treaties, they give those treaties preemptive effect over national law. The relevant treaty here is the 1951 U.N. Refugee Convention which, along with its 1967 protocol, provides certain legal protections to refugees. South Korea has ratified both documents, and international law has recognized that the absolute confidentiality of asylum applications is one of those legal protections. Here’s how our own government applies it, and here’s how the U.N. High Commission for Refugees explains it:
2.1 Confidentiality in UNHCR RSD Procedures
2.1.1 The Applicant’s Right to Confidentiality
• The confidentiality of UNHCR RSD procedures is essential to creating an environment of security and trust for asylum seekers who approach UNHCR. All UNHCR staff, including interpreters and security staff, as well as any implementing partners, counsellors or medical practitioners who provide services to asylum seekers and refugees under agreement with UNHCR, are under a duty to ensure the confidentiality of information received from or about asylum seekers and refugees, including the fact that an individual has registered or is in contact with UNHCR.
• UNHCR standards regarding the confidentiality of information about asylum seekers and refugees should be incorporated into RSD procedures in every UNHCR Office, and should be understood by all UNHCR staff and any other individuals who are responsible for implementing the RSD procedures. Specific recommendations for ensuring confidentiality in each stage of the RSD procedures are proposed in the relevant sections of this document.
• Applicants for RSD should be informed of their right to confidentiality in UNHCR procedures. Any limits on the right to confidentiality, including information sharing arrangements with host country authorities or resettlement countries where applicable, should be explained to the Applicant (see § 2.1.3 – Disclosure to Host Country Authorities). Applicants should also be advised that the UNHCR Offices may share information with UNHCR Headquarters or other UNHCR Offices.
• Applicants should be assured that UNHCR will not contact or share any information regarding the Applicant with the country of origin, unless expressly authorized to do so by the Applicant. [UNHCR]
Given that Minbyun claims to represent the family members in North Korea, presumably, it intends to tell those family members what its questioning reveals. Whatever Minbyun tells the family members, they’ll certainly tell their own interrogators in Pyongyang. What Minbyun knows, Pyongyang also knows, in clear violation of the refugees’ internationally recognized right to confidentiality. Surely Minbyun is well aware of this right, although I’ve yet to find a journalist who has reported it. Not a single reporter who covered this story — not the New York Times’s consistently biased Choe Sang-hun, not one of the three NK News reporters who covered it, and none of the conservative papers that defended the NIS’s position — has cited or referred to this inviolable right.
Minbyun points out that Pyongyang already knows who the 12 are, so what’s the harm? Park Young-sik answers that question with a question of his own: “What’s going to happen for a defector’s family if the defector’s motivation and process of defection is revealed?”
“They believe that their families’ lives will be threatened if they openly testify that they fled the North of their own free will,” Park said. “They don’t want to be exposed openly in the media and draw attention, and they don’t want to appear in court,” Park added. “In this situation, forcing them to appear and testify in open court might seriously infringe their human rights.” [Chosun Ilbo]
The moment Minbyun gains the right to interrogate the 12, lives will be in danger. If they’re forced to reaffirm their asylum claims in public, Minbyun will have succeeded in winning its “clients” a slow death in the gulag. If, knowing and fearing this, the 12 publicly renounce their asylum claims, they’ll be sent back to North Korea and a dark, uncertain fate. And if Minbyun establishes a precedent that it has a right to interrogate refugees every time Pyongyang trots out a terrified family member as a cat’s-paw plaintiff, no North Korean refugee would ever dare to enter South Korea again.
“The North’s claim is absurd in that it could dismantle the system of North Korean defectors’ entry into the South and their protection.” Unification Ministry spokesman Chung Joon-hui said, “The North Korean waitresses are undergoing the due course for legal protection, which is designed to support their settlement in South Korean society.”
“If this is how it works, whenever North Korean defectors come to South Korea, and if someone who claims that he or she has been commissioned by the defectors’ families in the North file a lawsuit, the court should determine whether those defectors voluntary defected or not. It is like conducting collective interrogation of the defectors in public before North Korea,” a South Korean government source said. “If so, we doubt whether any North Koreans will dare to defect to the South.” [Joongang Ilbo]
The practical effect of this? South Korea would have effectively renounced the Refugee Convention, at least with respect to refugees from North Korea.
To the extent anyone entertains Pyongyang’s spurious claims, as Minbyun does, there is a safe and easy way to resolve them. South Korea could (and should) let a UNHCR representative interview the 12. The representative could submit an affidavit attesting to their decision in a closed proceeding. The court should then deny Minbyun’s motion, seal the record, and reiterate that courts will continue to honor the confidentiality of asylum proceedings. If Minbyun were sincere, that’s exactly what it would have asked the court to do. Of course, it would have no right to know who the refugees met with. The very fact that a refugee has contacted a UNHCR representative is confidential.
In fact, for all we know, that meeting has already happened.
[From the Ministry of Unification, via NK News]
The latest word is that the 12 have filed a complaint with local prosecutors that Minbyun is violating the National Security Law. That’s not the strategy I’d have chosen, because it plays right into Minbyun’s nostalgia of victimhood, but then, I’m not a terrified young refugee from North Korea, either. Just try to imagine the terror, heartache, and confusion these young women must be feeling right now. It does cause me to wonder whether South Korea has an attorney licensing authority to discipline lawyers who file unethical motions to abuse the process, and who are waging a cynical campaign of lawfare against 12 vulnerable and terrified young refugees. Minbyun’s lawyers probably shouldn’t be jailed, but they should be disbarred.
The best thing you can say about Minbyun is that it doesn’t give two shits who it gets killed or sent to a prison camp. But then, Minbyun never gave Shit One about the prison camps anyway. Its lawyers can’t be complete idiots, especially lawyers clever enough to create such a terrifying paradox. They must know exactly the danger they’re putting these people in. Everyone from government officials to editorial writers to refugees to Park Young-sik has explained it for them. But of course, if Minbyun is deliberately trying to terrorize refugees, no amount of explanation will discourage them. That’s clearly Pyongyang’s aim, and that’s who’s controlling Minbyun’s “clients.”
Viewing Minbyun’s motives this way has the advantage of making more sense than any other explanation. The defection of the Ningpo 13 wasn’t just a tremendous embarrassment to Pyongyang, it’s a threat to the very stability of the regime. A group defection of a dozen vetted daughters of the Pyongyang elite is so unprecedented — so unthinkable — that it threatens to become a preference cascade by other members of the elite. The defection of the Ningpo 13 was followed by a smaller group defection from another restaurant, an astonishing mass protest by 100 North Korean workers in Kuwait, the defection of two other workers in Qatar, and most recently, rumors of yet another group defection from China. This, despite Pyongyang’s redoubling of the indoctrination of its overseas slaves and extra precautions to keep them under control.
In its desperation to make examples and prevent further outbreaks of dissent, Pyongyang fulminated, threatened, and transparently tried to use the refugees’ loved ones as hostages. What Pyongyang needs now, as if its survival depends on it, is stooges with briefcases who would discard all notions of legal ethics, abuse the legal process to pervert international law, and perhaps, terrorize other North Korean refugees away from South Korea. It looks like Pyongyang has found its stooges. So give yourself a big fucking hand, Minbyun.
Just remember to wash them well afterward.