This study is the second part of the research project on the “Criminal Justice Policy and Integration for Korean Re-Unification.” The topics of this study are historical liquidation as requirements for social integration after unification and unification criminal policy; punishing those responsible of infringing on human rights as a means of historical liquidation; formulating unification criminal law principles based on examples of major countries such as Germany and on the accomplishments of historical liquidation in Korea, and formulating principles for unification criminal law and criminal policy that are based on the universal norm of international human rights and that take feministic perspectives into account.
In relation to the ‘establishment of foundations for peaceful unification which is one of the keynotes of government administration, a continuous project for preparing unification which will not be affected by any political situations should be pushed forward in order to develop a bond of sympathy for unification and to fruitfully prepare for unification. This is due to the fact that the value and utility of investigating the process of unification and the process of social integration after the unification that once divided countries had gone through would be highly valuable in preparing for the age of unification in Korea.
Considering that the problems commonly raised in the process of unification and the following social integration process of divided countries are the judicial actions to solve the national and political crime in relation to historical liquidation and the truth, reconciliation, recovery between the assailant and the victim, it is necessary to develop a ‘Korean model’ for judicial actions against national crimes and historical liquidation that take the unification of South Korea and North Korea into account.
This study has its purpose on formulating Korea’s own model of unification criminal policy that considers the unique national situation and the relationship of South Korea and North Korea by scrutinizing the examples of unified countries or transition countries such as Germany, the Republic of South Africa and Latin American countries and, also, by referring to the implications deducted from the models of those integrated societies. Moreover, this study not only analyzes the theoretical and legal basis but also aims to examine the practical preparation plan considering the actual application and the feasibility of it. The research also aims to suggest a future-oriented, social-integrative solution of past, illegality liquidation in planning Korea’s unification criminal policy model by scrutinizing the limits and problems that appeared in the democratic process of Korea.
Unification aims for a peaceful end of the current state of unification and the persistence of the peaceful coexistence afterwards. It is necessary to further investigate keeping in mind that we have already faced the reality where it is impossible to procrastinate the process of past liquidation and the preparation process for social integration after the unification. Domestically, North Korean Human Rights Act has been legislated in 2016 after long discussion. Although the North Korean Human Rights Act itself is not a law for past liquidation, the foundation for past liquidation of the North Korea’s government and the legal basis of social integration has been established as the government started managing not only North Korean refugees but also data of North Korea’s infringement on human rights. Internationally, the UN Security Council, the UN General Assembly, UN Human Rights Council ect are consistently working on the past liquidation of human rights violations in North Korea at the international level.
International human rights norm, United Nations system for human rights and the international criminal trial policy have become crucial in the discussion for criminal policy in the era of unification with the liquidation of illegal system and human rights abus in North Korea. This paper underlines the international policies for protecting human rights with regard to North Korea’s past liquidation and the research on criminal policy for the unification era.
The real life example of Columbia’s failure in past liquidation in 2016 is a valuable example in that it shows the importance of public support in Korea’s unification, past liquidation and the social integration afterwards. It is hard to hope for a social integration only through the political peace efforts without the public support in the content and method of past liquidation. It is clear that the support of the international society and the international aid in historical liquidation are essential in Korea’s unification. Nevertheless, the most important thing is to have the national support of the people.
North Korean government is both the party directly involved in making an effort for the peaceful unification together and the party involved as the object of past liquidation. With the North Korean government being hard to grasp, veiled in rough words, the study for North Korean government’s past illegality liquidation is exceedingly difficult. With rough words being bombarded, it is even more difficult to prospect the future or continue on the effort for social integration and criminal policy in unification era by means of inter-Korean talks about human rights. However, we cannot cease the efforts to research and prepare the social integration plan and criminal policy of unification era despite such difficulties.
Among the diverse concepts of unification, this study uses the concept that includes the process of discussing and preparing for the unification. Furthermore, the aim of unification that this study understands is putting an end peacefully to the current state of unification and the persistence of the peaceful coexistence afterwards. Moreover, the process of unification and the historical liquidation afterwards are the essential prerequisites for social integration. Therefore, the historical liquidation is the most important key factor of unification criminal policy as the prerequisite for unification.
In addition, unification is not just a problem going on between South and North Korea but a task that needs to be dealt within international, regional level. Thus, international, regional principles as well as the established states should all be considered in the integration of the criminal justice system and the criminal policy.
The four specific topics of this research according to the purpose of this paper are as follows. First, historical liquidation as requirements for social integration after unification and unification criminal policy, second, punishing those responsible of infringing on human rights as a means of historical liquidation, third, formulating unification criminal law principles based on examples of major countries such as Germany and on the accomplishments of historical liquidation in Korea, fourth, formulating principles for unification criminal law and criminal policy that are based on the universal norm of international human rights and that take feministic perspectives into account.
The main methodologies used for this study are literature review and comparative law study. In other words, it aims for a joint, collaborative research with specialists in fields of humanities and social sciences that goes beyond the field of law along with domestic and international literature reviewing. Furthermore, it also collaborates with specialists in related organizations such as the International Criminal Court, research specialists in International tribunals, and Office of the United Nations High Commissioner for Human Rights.
Korean Institute of Criminology has been conducting researches with regard to Criminal law and the criminal justice system in North Korea and the criminal law or the criminal policy after the unification. The accomplishments made in the precedent studies have been organized, and were understood in regard to the links to this study. The feature of this study is in that it has set its topics as 1-historical liquidation as requirements for social integration after unification and unification criminal policy, 2-punishing those responsible of infringing on human rights as a means of historical liquidation, 3-formulating unification criminal law principles based on examples of major countries such as Germany and on the accomplishments of historical liquidation in Korea, 4-formulating principles for unification criminal law and criminal policy that are based on the universal norm of international human rights and that take feministic perspectives into account; and also in that it presents policy proposal after the following detailed discussion.
Now, the human rights issue of North Korea is a pending problem that needs to be dealt through the existing policy of UN Human Rights Office and North Korean Human Rights Act. It has become the core subject of practice including the enactment of legal system of transition and criminal law after unification. Although the North Korean Human Rights Act is first regarded as North Korean Residents Human Rights Act, the human rights violation problems of North Korean refugees, prisoners, abductees are also laid as a task for unification criminal policy, as it includes matters related to prisoners, abductees, and separated families as the objects for management in the North Korean Human Rights Records. Respect for human dignity and assuring the right to pursue one’s happiness should be the basic principles in significant liquidation of North Korean illegal infringement on human rights and the criminal policy for damage remedy. The domestic and international efforts for liquidation of North Korean illegal infringement on human rights should be made in a way that it contributes to the improvement in Inter-Korean relationship and to the peace of the Korean peninsula. If it leads to condemnation of the North Korean government under the mask of human rights or if the International Criminal Trial’s unilateral propulsion causes political conflicts or a tension in Northeast Asia, it would be hard to provide any practical help in improving the human rights situation of North Koreans or to promote the peace in Korean peninsula.
With regard to the basic plans for enhancing North Korean human rights, criminal policy can be specified into the collection and preservation of North Korea’s violation of human rights and the proceeding international criminal court procedure in the aspect of surveiling and restraining the infringement of the government, and the execution of International Human Rights Norms in Inter-Korean in the aspect of inducing and assisting the creation of the pro-human rights policies with in the North Korean society. In particular, the preservation of records of North Korean human rights and the inter-Korean conversation on human rights will become the foundation for enacting unification criminal law and criminal policy. In order to persist on the desirable inter-Korean and international conversation on human rights making sure that the consistent attention and assistance do not create a tension or a blacklash within North Korea, it needs to be based on the international norm of human rights shared between South Korea and North Korea. The most realistic approach is to induce North Korea to abide by the International Covenants on Civil and Political Rights through improvement plans in criminal policy and criminal law as a member of the international society.
The agenda appropriate for Inter-Korean conversation on human rights are the international human rights norm that both South and North Korea have ratified, in other words, the international regulation about civil and political rights, agreements for rights of the children, Convention on the Elimination of All Forms of Discrimination against Women, and the optional protocol for child prostitution and child pornography. Efforts should be made for the faithful discharge of each international norms of human rights with regard to the current criminal laws. The overall amendment in criminal law is hard to be carried out unless of a crucial politic change. Unification itself is the chance of a lifetime. That is, the unification criminal law is not just a extension of South Korean criminal law but should be a process of innovation as a advanced unification criminal law with regard to guaranteeing human rights based on the gender equality and the international norms of human rights while overcoming the limits of criminal law in both South and North Korea.
Among the international human rights norms that South Korea has ratified, North Korea has not ratified convention against torture, International Convention on the Elimination of All Forms of Racial Discrimination, optional protocol for rights of the children in relation to armed conflicts. Also, the Optional Protocol to the UN Anti-Torture Treaty, convention on the prevention of kidnappings, International Convention on the Protection of All Migrant Workers And their Families and so on are the bylaws that both South and North Korea have not ratified or signed for, yet. If North Korea volunteers to join in the International Covenants on Civil and Political Rights and the South and North Korea together expand the embracement of International Covenants on Civil and Political Rights, the principles for protecting the weak and the minority would be clearly established for the future unification criminal law. Both South and North Korea will be able to become countries to have abolished death penalty by ratifying Optional Protocol Ⅱ to the International Convention on Civil and Political Rights. It is related to the hope that the society could be unified to a place where no life should be taken away by the government power anywhere in both South and North Korea. In the future when enacting constitutional and criminal law, death penalty and the establishment of an alternative would be the main agenda in reforming the fundamental system of punishment according to the principles of guaranteeing human rights.
The current situation of South and North Korean relationship and the current situation around Korean peninsula is that little progress could be made in Inter-Korean conversation or international discussion on unification and even in the discussion of unification within the South Korean society. It is also very difficult to continue on the efforts for social integration or the criminal policies for unification era. Furthermore, this has become a matter to be concerned within the social integration aspect of South Korea since the issue of North Korea and unification has the possibility of internal conflicts within South Korean society. Nonetheless, despite the tough prospects, endeavors should be continuously made to investigate and prepare social integration plan and criminal policy in the era of unification. Especially, public sphere where researchers and executives could walk around the social integration plans through unification criminal law, criminal policy and the criminal justice system after unification should be diversely and actively held.
The research in 2017, as a conclusion of the research project over three years to prepare for the unification criminal policy and the integration of the criminal justice system, aims to contribute to establishing the groundwork for criminal judicature in the era of unification by examining the legislative theory and policy for enacting a new unification criminal penal code in preparation for the era of unification of South and North Korea.