International Symposium on Resolving the Abductee Issue: Can Kim Jong Un be tried at the ICC?


Oct. 24, 2013
New Daily

On the day marking the 60th anniversary of the Armistice Agreement ending the Korean War, legal specialists and human rights experts gathered to call for international efforts to resolve the Korean War abductee issue.

Despite the fact that North Korea’s Kim Il Sung ordered the systemic abduction of more than 100,000 South Korean civilians during the Korean War, the country has refused to acknowledge these abductions.

The symposium’s participants discussed possible ways to raise awareness of the abductee issue internationally and whether Kim Jong Un could be held responsible for the abductions by being tried at the ICC.

Organized by the Korean War Abductees’ Family Union, the conference, entitled “Resolving the Civilian Abductee Issue through International Cooperation,” was held at the Seoul Press Center on the 24th. Participants discussed ways to resolve the issue.

The symposium was presided over by Won Jae Cheon, a professor at Handong University’s Graduate School of International Law. A presentation was made by Kim Tae Hun, the head of Lawyers for Human Rights and Unification of Korea, and a discussion was led by Jae Seong Ho, a professor at Chungang University’s Graduate School of Law, and Park Song Gi, the head lawyer for Daedong Law Offices and former judge for the UN International Criminal Tribunal for Rwanda.

Kim Nam-Sik, Vice-Minister of Unification, HyeonByeong-Cheol, chairman of the National Human Rights Commission of Korea, Lee Mi-Il President of the Korean War Abductee's Family Union, and more than 300 people attended the symposium.

In the opening remarks, President Lee Mi-Il said, "The government is actively involved in working toward a solution to the Korean War Abductee issue, but there is a limit to what it can accomplish."

"I'm sincerely grateful to all of you who have taken time out from you busy schedules to attend today. On this deeply meaningful United Nations Day, which marks the 60th anniversary of the armistice ending the Korean War, the opening of this symposium on international cooperation to find a solution to the Korean War Abuctee issue couldn't be more moving.

After North Korea started the Korean War in order to communize the South, the UN military’s participation in the war is the reason why South Korea has freedom and democracy, and on that basis was able to achieve economic development. I would like to take this opportunity to express the deep gratefulness of the Korean people to the U.N. troops who protected our nation.

Unfortunately, however, 60 years after the ceasefire that ended the war without a winner or a loser, hostilities are continuing and we are unable to hold the North Korean authorities accountable for the abduction of 100,000 innocent civilians.

We still don't even have information about our 100,000 beloved family members who were kidnapped by the North Korean authorities.

We, the families who have been wronged, have continuously urged North Korea, the responsible party, to straightforwardly admit the veracity of these abductions and to deal with the problem properly.

However, the North Korean regime has so far claimed that there were no such abductees, and not only has refused repatriation but even refused to confirm whether they were living or dead - a crime against humanity.

In respect to this, in 2010 the government of South Korea enacted the Law Concerning Truth Investigations for Korean War Era North Korean Abductees and the Restoration of Their Honor and began working to solve the problem, including the collection of reports from the families of those abducted.

However, the fact is that there is a limit to what the South Korean government alone can accomplish.”

Chairman Lee emphasized, “In order to resolve the Korean War abductee issue, international cooperation is an absolute necessity.

“It is therefore my fervent hope that those domestic experts gathered here with the support of the government and the Lawyers for Human Rights and Unification of Korea will search for a concrete and practical strategy for resolving this issue and holding North Korea accountable.

I’m sincerely grateful to the chair of this meeting and those presenting and leading discussion for so gladly taking time out of their busy schedules.

In closing, I hope that the international community taking active interest in resolving the Korean War Abductee Issue will be a turning point, opening to door to making peace and justice a reality on the Korean peninsula and in international society.”

HyeonByeong-Cheol, chairman of the National Human Rights Commission of Korea, also emphasized the need for international cooperation in his words of encouragement.

“First, I would like to thank President Lee Mi-Il of the Korean War Abductees’ Family Union and everyone attending this momentous event for the sake of developing a concrete and practical plan for resolving the issue of civilian abductions during the Korean War.

Additionally, I would like to thank the experts who will be taking part in invaluable presentations and discussions today. It has already been 63 long years since the outbreak of the Korean War, but the scars of that day are still visible in our society. The Korean War abductees and their family members, who we have come together here today to discuss, are representative examples. I will take this opportunity to offer some words of encouragement to them for the pain and suffering they have undergone.

To the families of Korean War abductees: Since the founding of our committee we made great efforts toward find a resolution to the abductee issue and raising public interest, including submitting petitions.

Our efforts toward this end included recommending that the National Assembly enact a law concerning the abductee issue.

I believe that the 2010 enactment of the Law Concerning Truth Investigations for Korean War Era North Korean Abductees and the Restoration of Their Honor is a historical achievement, the result of continuous efforts including those of the Korean War Abductees’ Family Union.

I want to say that in order to resolve the issue of kidnappings of civilians, which can be labeled a crime against humanity, the most important things is the cooperation of the international community.

After emphasizing that “North Korea’s kidnapping of civilians is a crime against humanity,” Chairman Hyeon went on to say that, “We will work proactively to resolve the Korean War abductee issue and the issue of North Korean human rights.

“In civilized society, the kidnapping of civilians is absolutely unacceptable, a flagrant crime against humanity. The fact that last March the United Nations Human Rights Council opened a Commission of Inquiry on North Korean human rights and included Korean War abductees within the scope in inquiry can be seen as evidence of this position.

I want to emphasize again that in the future we need to work in solidarity with international organizations and human rights groups including the UN to make this issue a matter of public discussion.

This is because the issue of abductions falls under a nation’s fundamental duty to protect its citizens.

In this sense, in 2011 the Human Rights Commission recommended the National Policy on the Development of North Korean Human Rights, casting off a political and military perspective on the issue in favor of the perspective of universal human rights.

We therefore recommended that an organization devoted exclusively to the Korean War abductee issue was necessary, and it is hoped that the Commission’s recommendation will be fully accepted. I believe that today’s symposium will become the beginning of a new movement toward the resolution of the abductions committed by North Korea.

I have faith that if we express our diverse opinions and pool our strength, it won’t be long until a resolution is reached.

The Commission will also work proactively not only toward resolving the problem of those harmed by abductions, but also promoting the human rights of citizens of North Korea.

I wish health and happiness to everyone who has joined us here today.”

In a congratulatory address, Kim Nam-Sik, Vice-Minister of Unification, pledged the government’s assistance, saying, “The government and international society must move beyond ideology to solve problem of Korean War abductions.”

“Many things occurred to me during the stirring words of encouragement by HyeonByeong-Cheol, chairman of the National Human Rights Commission of Korea.

“More than anything else, I thought that the government will have to work diligently to resolve the issue of abductions.

First, I want to thank those who have organized this meaningful event.

I would also like to thanks those domestic and foreign experts who are participating in today’s presentations and discussions.

The painful truth is that in the course of the Korean War around 100,000 South Koreans were taken forcibly to the North.

Recently, the government of South Korea has approached the abductee issue as an affair of state, and has also petitioned for repatriation of abductees or confirmation of whether they are living or dead through the Red Cross working-level talks.

In the future we will continue to work unceasingly toward a practical resolution of the issue.

For more than 60 years, the abductees have been unable to return to their families, and their families have not even been able to learn whether they were living or dead - we must heal the wounds of this national tragedy.

North Korea needs to cooperate actively in reuniting divided families and resolving the Korean War abductee issue.

The government will continue to work toward a resolution which restores honor to Korean War abductees, and we will also participate in collecting the stories of Korean War abductees to be published and passed down to future generations.

We must move beyond ideology and cooperate with international society to resolve this issue, which is directly related to fundamental human rights.

Today’s seminar is expected to play an important role in this.

I hope that it will become an opportunity to propose a constructive alternative and unite our wills as one, and I pray for good health for all of you.”

In the opening of his presentation, attorney Kim Tae-Hun emphasized that, “The North Korean authorities must receive historical judgment.”

“October 24th is United Nations Day. Even so, despite the fact that this is the 60th anniversary of the cease-fire agreement negotiated by the UN, fact finding regarding abductions during the war and proposals to resolve the issue are currently ongoing.

The brutality and inhumanity of the Korean War, which lasted for more than three years, cannot be expressed in words. Wartime abductions are a representative example.

The term ‘Korean War abductees’ refers to Koreans residing in South Korea during the Korean War - between June 25, 1953, and the conclusion of the armistice on July 7th, 1953 - who were taken to North Korea forcibly and against their wills, and resided or were detained there.

Not only must there be a historical judgment against the North Korean administration under Kim Il Sung, but a legal reckoning of responsibility for wartime abductions is an important issue which must not be neglected.”

Kim Tae-Hun explained that North Korea carried out wartime abductions systematically and broadly.

“These wartime abductions were carried out by the North Korean authorities. They were targeted at civilians, planned in advance, and were not only wide-ranging but also organized and systematic - they have the characteristics of crimes against humanity and war crimes under international law.

Following the statistical analysis of the 90,013 Korean War abductees gathered and organized by the Korean War Abductees’ Family Union, it can be see that the abductions were carried out broadly and according to a prior plan, in order to make up a shortfall in necessary manpower.

The time of the abductions is concentrated in the period immediately after the war from July to September of 1950, when 84,659 or 88.2% of them occurred. The majority of those abducted were males from the socially active class, and more than 90% were in their teens to 30s.

About 80% were abducted in or near their homes, and although their occupations are diversely distributed, leaders of society and the intellectual class make up a quite substantial proportion. They were National Assembly members and other politicians, legal professionals, police officers and other civil servants.”

He emphasized that the families of abductees continued to be harmed by North Korea’s refusal to admit the truth of the abductions.

“Since the time of the armistice and until the present day North Korea has denied the existence of abductees, and has refused to communicate information about them or their whereabouts.”

Both the abductees themselves and their families have been subject to indescribable suffering caused by the abductions and to financial difficulties.

In truth, the armistice talks which began in July 1951 could have become an opportunity to resolve the issue of abductees.

However, North Korea flatly denied the reality of wartime abductions. Instead of the term “wartime abductees” the representatives of the UN used the neutral term “displaced civilians,” meaning persons refugee cases unavoidably occurring during the course of the war.

Because of the passive stance shown by the UN at that time, repatriation of the abductees failed.”

Attorney Kim Tae-Hun went on to put forward a proposal to file a suit at the International Criminal Court as part of an international resolution to the issue.

He proposed to put North Korea’s Kim Jong Un before the ICC.

“In order to finally resolve this issue North Korea must admit responsibility for wartime abductions, confirm whether the abductees are living or dead, and repatriate abductees (including the remains of abductees) as soon as possible. They much also take steps to allow for correspondence and reunion of divided families.

The government of the Republic of Korea by itself is not able to bring North Korea to take these various steps, and so cooperating with the international community to find a plan for resolution is important. We must also consider filing a lawsuit at the International Criminal Court.

We should examine whether it will be possible to punish the leaders of the North Korean administration including Kim Jong Un at the International Criminal Court for refusing to admit the truth of the wartime abductions or provide any information whatsoever, even though the abductions were carried out on a large scale and were done systematically according to the detailed plans of the North Korean authorities.

Various legal matters need to be considered. Despite the fact that the abductions were carried out by Kim Il-Sung, Kim Jong Un is only a leader by 3rd-generation hereditary descent, he nonethless holds supreme authority inside North Korea. He has denied the reality of abductions and refused not only to repatriate abductees but also refused to confirm whether they are living or dead. He has also refused to provide any information on them whatsoever despite being aware of the forced abductions. It will thus be difficult for him to avoid culpability.

However, during the discussion led by Jae Seong Ho, a professor at Chungang University’s Graduate School of Law, the professor expressed the opinion that the feasibility of filing a suit at the International Criminal Court was low.

He argued that considering the impact on North-South relations of the Republic of Korea filing a lawsuit, it was not desirable.

“The Korean War abductions were to first human rights issue to arise between North and South Korea, and as the beginning of North Korea’s crimes against humanity they are highly significant.

Further, as there is no statute of limitations on crimes against humanity it would be unacceptable for the case to end without assignment of responsibility or punishment.

From an international perspective, it is vital that investigate the truth of the situation and closely examine not only the legal or governmental but also the moral responsibility for the issue

In general I agree with Mr. Kim Tae-Hun’s presentation, but on one or two issues I would like to express my personal opinion.

I think that the ICC lawsuit, which many Korean NGOs are pursuing or awaiting, will be difficult to bring about for a considerable time.

The community of world citizens, including foreign and domestic NGOs involved with North Korea, needs to work together to promote the necessity of extending the term of the COI on North Korea and continuing its activities, and to promote the idea that since North Korea’s violations of human rights are not only violations of international norms but crimes against humanity punishment is not only possible but necessary.

In particular, I think it is urgent that we promote public opinion in our favor toward international officials in charge of human rights at the UN and the diplomatic stage.

As pointed out by Mr. Kim Tae-Hun, in order to file a lawsuit regarding abductions of civilians during the Korean War at the ICC, there are various human and material restrictions and requirements concerning jurisdiction.

Because of the application of veto power, in the near term a suit at the ICC by the UN Security Council seems unlikely to succeed. And considering the impact on North-South relations, a suit by the Republic of Korea is not desirable.

Considering the situation, the best choice for us is to request that the ICC prosecutor begin a preliminary investigation at the same time as we present a bill of indictment regarding North Korea’s wartime abductions.

There is a precedent for this.

Immediately after the shelling of Yeonpyeong Island in 2010, a Korean NGO submitted a bill of indictment to the ICC, and in December 2010 Song Sang-Hyeon, the head of the ICC, and Prosecutor Moreno-Ocampo announced that they would begin a preliminary investigations.

It is therefore desirable for groups concerned with the Korean War abductions to make full use of this precedent.

Pak Song Gi emphasized that North Korea has refused to repatriate Korean War abductees for the past 60 years.

“North Korea has continued to refuse to repatriate wartime abductees and this can be considered a case of ‘ongoing criminal action.’ I believe that this makes the issue a matter to be tried in the ICC.

Currently, Kim Jong Un and his regime did not lead the perpetrators of the wartime abductions, so an effort must be must to show the ICC that Kim Jong Un is acting as the leader now.

In other words, we must show that Kim Jong Un and his regime are seriously violating the right to movement of the abductees and refusing to provide information about how they were arrested, their basic information and whereabouts.

Article 12, Clause 2(a) of the Rome Conventions state that the ICC has authority over criminal actions committed in the territory of a member of the Rome Conventions. However, when linked with Article 12, Clause 1 and 3, this could be objected upon because “Countries not a member of the Rome Conventions must accept the authority of the ICC before the ICC can hold such authority.”
Ultimately, whether or not the ICC has authority of the wartime civilian abductees issue depends entirely on the judgment of the ICC.

Park Song Gi then presented a plan to cooperate with the COI.

Efforts made to include the abduction of civilians during the Korean War into a written report by the 25th Human Rights Committee next year will send a strong message to the international community and North Korean government.

It will also contribute to the oppression of wartime abductees currently suffering in the country and lead to the continuance of an investigation by the ICC into the issue.

Cooperation with the UN COI is of importance greater than the lawsuit filed at the ICC.

He also mentioned a plan to file a complaint concerning the issue to Spain or France.

“Recently, a Spanish court ordered an investigation into former Chinese Premier Hu Jin Tao in the connection between torture and massacre that occurred against Tibet when he was the Communist Party secretary there from 1988 to 1992.

Spain and France recognize general authority over genocide.

Genocide is when perpetrators kill or torture members of a particular nationality, race or religion in large numbers.

The filing of a lawsuit in a EU country that recognizes general authority over genocide could be a good way to raise awareness about the issue and pressure North Korea to act on finding a resolution.

In his final statement, Kim Tae-Hun said that the government must increase the general public’s interest in the abductee issue by place it in school textbooks, for example.

“These wartime abductions are both a violation of several international human rights conventions and a crime against humanity.

Perpetrators of the abductions should be brought to justice and reparations made to the victims despite the long period that has passed since they took place.

South Korea must work to increase the public’s interest in the North Korean human rights issue in general and make it an important agenda during North-South negotiations.

The government must also make sure the general public understands the importance and urgency of the issue by including details of the wartime abductions in school textbooks.

It would also be wise to align with internationally established NGOs to create evidence-based reports on the issue and bring a lawsuit against Kim Jong Un to warn of the consequences of not acting on the issue.

It will also be necessary to raise awareness of the issue through international conferences and human rights organizations to ensure the international community is engaged in the issue during the process of filing a lawsuit at the ICC.

Before filing the lawsuit, however, the Ministry of Foreign Affairs, KWAFU and other organizations should seriously examine the plan to submit the issue to the UN Security Council.

In cooperation with the COI, we should work hard to to submit the COI’s written report to the UN Security Council to increase awareness of the issue.

Doing this will strengthen South Korea’s identity, recover the human rights of wartime abductees and rebalance the state of international justice.”

Before the symposium ended, the participants then read aloud the “Resolution for Resolving the Abductee Issue.”