A Dangerous Precedent Set in South Korea
On July 7, 2020, the Seoul Central District Court obliged Kim Jong-un and the North Korean government to pay damages to two former prisoners of war for forced labor during the time they were held captive in the northern part of the country. This was the first case when a South Korean court declared its jurisdiction over North Korea.
Let this author explain the details. A certain Roh Sa-hong (who is 91 years old now) and Han Jae-bok (who is now 86) fought for South Korea during the Korean War. As they say, they were taken into captivity but were repatriated back to their homeland after a truce was signed, and for 33 months they were forced to work in a coal mine in the southern province of Pyongyang. History is reticent about what happened to them afterwards, but one of the former captives managed to return to his homeland in the year 2000, and the other in 2001. Unfortunately, nothing is reflected in any media outlet about substantiating either that these two elderly men are those same prisoners of war or their testimony about forced labor. This is important, and for the following reason: at the end of the Korean War, prisoners in both the North and the South were faced with the choice of being repatriated as per the accepted exchange procedures or remaining in the country where they were located. This mainly concerned South Korean citizens, who were forcibly mobilized into the North Korean Army, but there were other possibilities.
In October 2016, Roh and Han filed a lawsuit with the Seoul Central District Court, claiming that they suffered tremendous moral and physical damages, and were forced to do construction work from September 1953 to Jun 1956. In the lawsuit filed against the regime in Pyongyang, they demanded individual compensation from both the government and leader of North Korea.
According to those representing the plaintiffs, responsibility for this lies with the then North Korean leaders Kim Il Sung and Kim Jong Il, as well as with the current ruler of North Korea Kim Jong-un, who inherited their financial obligations. This process has North Korea's legal status as its foundation. South Korean legislation does not recognize North Korea as a separate country, but as an illegal antigovernment organization, and according to Article 3 in the South Korean Constitution, "the territory of the Republic of Korea consists of the Korean Peninsula and the adjacent islands" – and part of that is considered to have been wrested from it.
And on July 7, the Seoul Central District Court ordered North Korea to pay out 21 million won (17,550 USD) to each of them. It is true that the lawyers were pushing for payouts of 145,000 USD, but the district court ruled that Kim Jong-un is only partially responsible for the offenses committed by the North Korean regime, and the reprisals against prisoners of war occurred during the periods when the current North Korean leader's father and grandfather ruled. That is why the court only obliged Kim to pay the plaintiffs the amount mentioned above.
For now, it is not clear how exactly the court's ruling will be enforced. The likelihood that North Korea will recognize the court order or make restitution is extremely low, and that is why representatives for the plaintiffs proclaimed that they intend to seize North Korean assets in South Korea, which could include royalties paid out to South Korean broadcasting companies and publishers for using North Korean state-sponsored TV videos and publications.
In particular, the plaintiffs' lawyers plan to initiate the procedure to garnish that money through the Fund for Economic and Cultural Cooperation Between the South and the North. The fund was founded in January 2004, and among other things it is involved in paying out author royalties for using North Korean materials, and that includes video materials from North Korean state-run television. However, starting in 2008 those payouts were suspended due to a well-known incident when a North Korean sentry shot a South Korean tourist at the tourist resort of Kymgan. In 2009, that account was frozen, but there are still about 2 billion dollars on it.
The court order did not cause any protests. According to Yo San-gi, a representative from the South Korean Ministry of Reunification, the South Korean government respects the court's ruling on the lawsuit to pay damages to the prisoners of war. Mr. Yo stated that South Korea will continue to cooperate with the international community and North Korea to achieve real progress in resolving the problems involving prisoners of war and people who were abducted, and noted that the government is considering various "effective ways" to provide them with compensation, adding that "there are no North Korean assets present in South Korea that the government is aware of".
South Korean media outlets also hailed the court order, saying "the court exercising its jurisdiction is unprecedented", and that "the case serves as an important milestone for South Koreans to receive compensation for the damages inflicted on them by the North in the past". Seoul will have to put forth effort to hold the North accountable for the atrocities it committed against South Koreans.
The second story in this vein is an attempt to force North Korea to pay for property that it destroyed in Kaesong – the Inter-Korean Liaison Office – which was blown up by the North in the midst of a "leaflet escalation campaign". On July 16, 2020, South Korean prosecutors launched an investigation into Kim Yo-jong, North Korean leader Kim Jong-un's sister, and Pak Jong-chon, the North Korean Army's Deputy Chief of Staff of the General Staff, after Seoul lawyer Lee Kyung-jae filed a complaint against both of them with the Seoul Central District Prosecutor's Office on July 8, 2020 – and then the case was referred to the Public Investigation Department.
At the press conference, the lawyer Mr. Lee said many interesting things. For example, since the liaison office is a pseudo-diplomatic mission, blowing it up was tantamount to declaring war. And that, in accordance with the Constitution, since North Korea is under the jurisdiction of South Korea, the penalty for the willful destruction of government property can be incarceration for a period exceeding 10 years, or life imprisonment, even under North Korean criminal law. And that it would be "difficult to arrest Pak and Kim and hold them accountable, but an investigation can be conducted". "We need to let 25 million North Koreans know about the deceitful image and hypocrisy of their ruling family, and also about the rule of law in our free democracy".
The South Korean Ministry of Reunification did not appreciate the idea, as Yeo Sang-ki stated on July 20, of suing North Korea, and demanding compensation for demolishing the joint liaison office built by South Korea is not a viable option. "As far as the Inter-Korean Liaison Office is concerned, we obviously need to re-examine various methods to remedy the damage caused, and we have been involved in that for a long time." "However, due to the unique qualities in the relationship between the Koreas, problems cannot help but arise when resolving this issue through the courts, including filing a lawsuit to demand payment for damages". And Lee In-young, one candidate for the position of minster of reunification, believes that as compensation the North could allot a land plot to open a South Korea representative office in Pyongyang. According to Lee In-young, owing to the features inherent in relations between the two Koreas resolving the issue of payment for damages through litigation is virtually impossible to do.
But let us go back to the court order regarding the former prisoners of war. In the author's point of view, this ruling will cause similar lawsuits to be filed by other South Korean prisoners of war, and also by people "abducted" by North Korea. The mechanics in the process are clear and simple, taking the example of similar lawsuits for damages that the South Korean courts crank out in cases involving the forced mobilization of people during the time of Japanese colonial rule. In addition, the outcome of the case involving Han and Roh could have an impact on other cases filed against the North Korean leader that are now being reviewed by the prosecutor's office, including complaints lodged by conservative nonprofit organizations for his "crimes against humanity".
If Roh and Han do receive money, then they will be the first South Koreans to receive financial compensation for damages inflicted on them by the North. And then the crowd of career defectors, waving around tear-jerking memoirs, will run to the courts, and not so much for the fleeting chance of scoring big money but to attract attention to themselves.
So this dangerous precedent could complicate inter-Korean relations about as much as the ruling delivered by another South Korean court permitting Japanese assets in South Korea to be seized under similar lawsuits – and not only those located in the country. And, when Pyongyang wants to exacerbate the situation next time, it can grab ahold of that lawsuit.
It is true that North Korea's hands are not exactly clean when it comes to this issue, with the North Korean justice system issuing a slew of verdicts against various South Korean functionaries, including former President Park Geun-hye. But we are talking about causes, not about rationales.
By Konstantin Asmolov, Ph.D.
Source: New Eastern Outlook
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