Human rights groups, lawyers and former defectors are criticizing South Korea’s decision to return two North Korean fishermen who are suspected of killing 16 of their colleagues and then fleeing to the South.

The two men were captured late last week after their squid fishing boat crossed the eastern sea border separating North and South Korea, according to Seoul’s Unification Ministry. The two confessed that they and another man killed the captain and then 15 other crew members.

South Korea rejected the men’s request for defector status on the grounds they are “heinous criminals” and returned them to North Korea through the Panmunjom border village Thursday.

The bizarre incident tests South Korea’s domestic and international legal commitments. The country’s constitution in theory recognizes North Koreans as South Korean nationals, and Seoul usually accepts fleeing North Koreans, pending an investigation into their background. But South Korean law also allows authorities wide latitude to reject incoming North Korean individuals, for instance, on national security grounds.

Despite the criminal allegations against the North Korean fishermen, some defector and human rights groups in Seoul say the men deserved the legal protections offered by South Korea, noting it is highly likely they will now be executed without a fair trial.

“The two defectors should be handled under the South Korean legal system. We can expect what punishment they will receive in North Korea,” said a statement from Saejowi, a Seoul-based defector support group.

No due process

The Committee for Human Rights in North Korea (HRNK) also said it was “deeply concerned” about “the first deportation of North Koreans by South Korea since the 1953 Korean War Armistice.”

“This is the first time (South Korea) has sent North Koreans back against their will,” said HRNK. “In doing so, South Korea has undermined its national constitution, which recognizes all North Koreans as citizens of South Korea, granting them the right to live in the South and be protected by its legal system.”

“As we know from decades of research into how North Korea treats its citizens, there is no doubt that the two deportees have been returned to a place where they face no due process, harsh punishment, torture, and almost-certain execution,” said Greg Scarlatoiu, executive director of HRNK.

The two Koreas do not have an extradition agreement. While South Korea’s government technically claims judicial authority over the North, South Korean officials say that does not apply to this case.

Officials point to Article 9 of South Korea’s North Korean Refugees Protection and Settlement Support Act, which says authorities are not required to extend protection to those who commit “serious crimes such as murder.”

Grisly killings

Following a three-day investigation, South Korean investigators expressed confidence they have pieced together the details of the grisly slayings.

The fishing boat left the North Korean port of Kimchaek on Aug. 15 with a crew of 19, officials say. But late last month, three crew members killed the captain, allegedly because he had treated them harshly.

“The young men told investigators they decided to kill the other 15 crewmembers as well because they feared they would be punished for the murder if any witnesses were left alive,” reported South Korea’s Chosun Ilbo.

“They called out the others by twos every 40 minutes on the pretext of changing shifts and methodically slaughtered them with a blunt weapon and threw the bodies into the water,” the paper reported.

The three men initially tried to return to the same North Korean port, but after one of the men was arrested, the two others fled using the same boat and were subsequently detained by the South Korean navy, according to South Korean officials.

Joo Seong-ha, a prominent North Korean defector-turned journalist who lives in Seoul, supports the decision to deport the fishermen.

“Crimes against humanity must be punished everywhere,” Joo said in a public Facebook post. “I believe that the agents from NIS and Defense Ministry made a rational decision.”

International obligations

But while it may be difficult to sympathize with those accused of multiple homicides, the decision sets a bad precedent, said Seoul-based human rights lawyer Kim Se-jin, who said South Korea did not live up to its international obligations.

Specifically, Kim points out that South Korea is a signatory to the United Nations Convention against Torture, which prohibits the return or extradition of a person to another state “where there are substantial grounds for believing that he would be in danger of being subjected to torture.”

“We respect the South Korean investigation, but the Convention Against Torture says if the criminal or suspect is expected to be tortured or threatened, then the government should not repatriate,” Kim said. “Even though the facts that constitute the crime are obvious, South Korea should have subjected them to judicial proceedings in South Korea.”

“It is de facto truth that the two criminals have a high chance of extrajudicial executions,” she said.

Defections slow

Since the end of the 1950s Korean War, which ended in a truce and not a peace treaty, around 32,000 North Koreans have fled to the South, most via China.

North Korean refugees are first interrogated by South Korean authorities to ensure they are not spies. They are sent to a government-run center to receive training meant to better equip them to live in South Korea.

In recent years, the number of North Koreans coming to the South has slowed. In 2018, 1,137 North Koreans entered South Korea. That is down from a peak of 2,914 in 2009.

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