[Law & Story] The Final Destination of the 'Forced Repatriation' Prosecution: Punishment of Those Responsible

North Korean Fishermen’s Forced Repatriation Is Clearly “Unlawful”
Political Interference Must Not Obstruct the Investigation

Seokjin Choi, Legal Affairs Specialist Reporter.

[The Asia Business Daily, Seokjin Choi, Legal Affairs Specialist Reporter] The Constitution of the Republic of Korea contains two provisions that, at first glance, may appear contradictory. One is Article 3, the territorial clause, which states, "The territory of the Republic of Korea shall consist of the Korean Peninsula and its adjacent islands." The other is Article 4, the peaceful unification clause. According to Article 3, North Korea is an anti-state organization attempting to overthrow the Republic of Korea, the only legitimate government on the Korean Peninsula. However, under Article 4, North Korea is a partner for dialogue and cooperation toward peaceful unification.

The Constitutional Court has acknowledged this duality, holding that the Constitution recognizes North Korea's dual character. As a result, there can be individual laws that perceive North Korea differently depending on the situation. The National Security Act is based on the former perspective, while the Inter-Korean Exchange and Cooperation Act is grounded in the latter.

One thing is clear: according to the territorial clause, which has existed since the founding Constitution, North Korean territory is also part of the Republic of Korea, and North Korean residents are, by default, citizens of the Republic of Korea without the need for a separate naturalization process. This has been the unwavering position of both the Supreme Court and the Constitutional Court.

There is currently intense political strife between the ruling and opposition parties over the forced repatriation of North Korean fishermen that occurred during the Moon Jae-in administration. While political ideology or personal beliefs about North Korea may lead to differing evaluations, there can be no disagreement regarding whether the government's actions at the time were lawful or unlawful and thus subject to punishment. It is either one or the other-lawful or unlawful.

The prosecution has not disclosed the specific charges related to the forced repatriation, but it is at least investigating on the premise that ordering the forced repatriation of defectors who expressed their intention to defect, against their will, is unlawful and punishable under current law. The Supreme Court also ruled in 1996 that a deportation order under the Immigration Control Act can only be issued to foreigners, and therefore, a deportation order against North Korean residents, who are citizens of the Republic of Korea, is seriously flawed and must be revoked.

Former Blue House officials and Democratic Party lawmakers have muddied the essence of the issue by claiming that the repatriated fishermen were murderers or that their intention to defect was not genuine. However, even if the purpose of defection is questionable, the intention itself cannot be denied. Punishment for murder, too, must be handled in accordance with Korean criminal law, with an investigation and trial conducted by the prosecution as stipulated by the Constitution and the Criminal Code.

This case, in which a text message related to the repatriation was accidentally captured by the media in the National Assembly and made public, raises suspicions that the authorities knowingly carried out an illegal action based on the facts revealed so far.

The joint government investigation of the defectors, which can take several weeks, was forcibly concluded in just three days. Only two hours after sending a diplomatic message to North Korea announcing the fishermen's repatriation, the Moon Jae-in administration sent a letter inviting Kim Jong Un to the Korea-ASEAN Summit in Busan later that month. The request for a legal review from the Ministry of Justice regarding the legitimacy of the forced repatriation was made just three hours before the repatriation, and the Ministry's conclusion that "there is no legal basis for forcibly repatriating North Korean defectors" was ignored. Instead of the military, the police special forces were deployed for the forced repatriation.

The prosecution's goal is clear: to identify and bring to justice those who ordered or approved these unlawful measures in violation of the Constitution and Supreme Court precedents. There can be no room for political controversy in this matter.