International Legal Action for Korean War POWs in North Korea
Thomas Y. Chung,Ph.D.
Hanhwe Kim, Ph.D. and Hyunjeonjeong Soyce Roh
Korean War POW Affairs of
International Korean War Memorial Foundation
1.1 North Korea is suspected to have held thousands of South Korean POWs long after the Korean War ended
Tens of thousands of South Korean soldiers were unaccounted for during the Korean War. South Korea has charged that North Korea continued to detain many South Korean prisoners of war (POWs) even after combat had ended in 1953. For years, North Korea has denied such charges and claimed that any South Korean POW who stayed in North Korea did so voluntarily. [Oh, Yoon and Hur 2008, p. 41]. The controversy continues to this day, even though the POWs would be in their 70’s and 80’s. Today, more than 500 of those POWs may still survive in North Korea. [Oh, Yoon and Hur 2008, pp. 15-16].
1.2 Prolonged Detention of South Korean POWs is a War Crime and violates the 1953 Korean War Armistice, and the Geneva Conventions
The prolonged detention of POWs after hostilities have ceased is a war crime. It violates the Geneva Conventions regarding the treatment of POWs and the Rome Statute of the International Criminal Court. [GENEVA 1949, Art. 130; Rome 1998, Art. 8(2)]. In the case of South Korean POWs captured during the Korean War, prolonged detention would also violate terms of the 1953 Armistice, where the combatants had agreed to specific procedures for accounting and repatriating all POWs who wished to return home. [KOREAN Armistice AGREEMENT 1953, Art. III; Annex Paragraph II. ]
1.3 Testimonies from escaped POWs and declassified Soviet-era documents provide new evidence that contradicts North Korean claims
The North Korean and Chinese Communist forces never disclosed the exact number of South Korean POWs they claimed had volunteered to stay in North Korea. Nevertheless, they denied that any South Koreans were detained against their own will.
However, since 1994, 79 former South Korean POWs have escaped from North Korea. The testimonies from these men contradict North Korean claims. According to their testimony, North Koreans coerced South Korean POWs to serve in their armed forces as well as to perform dangerous and hard labor during and after the war. The North Koreans never gave the POWs an opportunity to return home.
These testimonies are corroborated by declassified Soviet-era documents that indicate North Korean leaders never intended to allow the POWs to return home. Statements in these documents indicate that North Korean leaders intentionally kept South Korean POWs from escaping or making contact with international officials monitoring the exchange of prisoners after the war.
The escaped POWs have also testified that they were restricted in their work, residence and travel throughout their lives in North Korea. Furthermore, North Korea’s State Security Ministry kept them under strict surveillance which continues to this day, even though the POWs are now in their 70’s and 80’s. The discrimination and surveillance also continues against their children.
The testimonies indicate that the North Korean authorities purposely and methodically maintained control over the POWs. North Korean authorities also have detailed records of the whereabouts of all South Korean POWs and their families.
1.4 The International Korean War Memorial Foundation advocates on behalf of South Korean POWs and their families
The International Korean War Memorial is a non-governmental organization based in Los Angeles. The Foundation’s Korean POW Affairs Committee seeks to establish contact with all POWs and their families in North Korea, and secure the release of all who wish to leave. The Foundation believes that the new evidence from testimonies of escaped POWs and newly publicized documents provides a legal case and hopes to mobilize the international humanitarian community on behalf of the POWs and their families who have suffered for over 50 years.
2. History of the South Korean POWs detained in North Korea
2.1 Korean War casualties number in the millions
The Korean War was a bloody conflict between North and South Korea from 1950 to 1953. A multinational force from 16 nations lead by the United States aided the South Koreans. South Korea and its allies fought under the United Nations (UN) Command, which had been established by a UN Security Council Resolution days after North Korea invaded the South on June 25 1950. The Communist North Koreans had been armed and trained by the Soviet Union, which continued to provide supplies throughout the war. In November of 1950, hundreds of thousands of soldiers from the Chinese Communist People’s Volunteer Army came to North Korea’s aid.
Out of a combined population of only 30 million in North and South Korea, at least 2.5 million people (including at least 1.6 million civilians from both sides) were killed. [KOREAN WAR 2010; STOKESBURY 1988, p. 21]. In spite of all those deaths, the war ended inconclusively in a stalemate and ceasefire along the current Demilitarized Zone (DMZ) between North and South Korea. [KOREAN WAR 2010].
2.2 The Communist forces never disclosed the exact number of South Korean POWs they had captured
The Korean War Veterans Memorial in Washington DC states that 92,070 UN soldiers were captured by Communist forces. [KOREAN WAR VETERANS MEMORIAL 1995]. However, only 13,444 POWs, including 8,321 South Koreans and 3,746 Americans, were returned at the end of the fighting. [Hermes 1992, Appendix B]. Out of the 79,626 UN POWs who were not repatriated, only 349 were accounted for by the Communists. These were the 347 UN POWs (327 South Koreans, 21 Americans, and 1 British) who had verified to the neutral nations representatives and the Red Cross their intent to stay with their Communist captors, and the 2 South Korean POWs who had sought asylum in India. None of the other unrepatriated UN POWs were heard from for decades after the ceasefire. Almost all the unaccounted POWs, that exceeded 79,000, were South Koreans.
The UN Command suspected that large numbers of South Korean POWs had been coerced into joining the North Korean forces. Incorporation of POWs into a captor’s military is a “grave violation” of the Geneva Conventions. [GENEVA 1949, Art. 130]. Communist negotiators denied they had violated the Geneva Conventions and claimed the large discrepancy between the number of UN POWs they had captured and the number they was because they had “released” tens of thousands of South Korean prisoners who had “recognized their crimes” at the front during combat [Heo 2002, pp. 145; HERMES 1992a]. The Communists also claimed that any former South Korean POW who stayed with them had done so voluntarily after being released. [Hermes 1992a].
For decades, North Korea continued to deny that any South Korean prisoners were held against their will. [Oh, Yoon and Hur 2008, p. 41]. However, neither the North Koreans nor the Chinese forces ever disclosed the number of South Koreans they claimed had joined their side.
2.3 South Korean POWs performed difficult and dangerous work in North Korea during the war
Aside from the legal and political controversy, we now know that South Korean POWs who were kept in North Korea lead extremely difficult lives. Some POWs were assigned to North Korean frontline combat units. Many more were assigned to labor brigades that repaired airfields and railroads. The airfields and railroads were bombed heavily by the UN air forces. Many POWs perished while clearing unexploded bombs that had been dropped on those targets. [HEO 2002, p. 150]. Later, the POW labor brigades were sent to perform hard labor, mining for coal and other minerals. The mines were usually located in the Northeastern areas of North Korea, near the Chinese border. [HEO 2002, p. 150; Oh, Yoon and Hur 2008, p. 39].
2.4 Discrimination and strict surveillance of the POWs by the State Security agents continued after the war
On June 25, 1956, almost three years after the Armistice was signed, the North Korean Cabinet issued “Order 143.” Order 143 officially demobilized the POW labor brigades. The POWs were also issued North Korean citizenship and allowed to marry and start families. However, their work was largely restricted to the same hard labor occupations in the same mines they had worked in before. Many suffered physical injuries over the decades of hard labor [OH, YOON and HUR 2008, p. 95-102].
In addition to physical hardship, the POWs also suffered from discrimination and strict surveillance from police and State Security agents. Although they were nominally North Korean citizens, they were classified as “number 43” members and part of the “hostile stratum”(Jeok-dae Kye-cheung) by the North Korean state. The number 43 designation meant that no matter how hard they worked, their advancement was limited. They were punished more harshly than other citizens. POWs were given prison sentences and even executed for minor mistakes they had made on their jobs [OH, YOON and HUR 2008, p. 103-113].
POWs were under tighter surveillance by police and State Security agents compared to other citizens as well. The POWs had to regularly report to State Security agents the details of their lives, including visits to friends and family. The POWs also knew that many of their co-workers and neighbors were assigned to secretly inform on them. Because the POWs were under stricter surveillance, their neighbors avoided befriending them because the neighbors feared that they themselves would also be subject to surveillance. Therefore, they suffered social isolation. [OH, YOON and HUR 2008, p.114-121].
2.5 The discrimination extends to the POWs’ children
The hostile stratum designation passed on to the POW’s children and discrimination extends to the children of POWs. POW children were restricted from attending University, even if they received good grades. They were also restricted from serving in the North Korean military. Restricting college entrance and military service meant that the children could not advance themselves within North Korean society and were confined to the same hard labor occupations as their POW fathers. Many of the children were resentful to their parents when they suffered discrimination because their father had been a South Korean POW. [OH, YOON and HUR 2008, p.107-111].
3. The Legal Controversy Regarding the POW Issue and New Evidence against North Korean Claims
3.1 Agreements about the exchange of POWs in the Armistice
The issue of POWs was a controversial political issue throughout the war and a major point of contention during the Armistice negotiations. Korea had been a unified nation for centuries and only in 1945 was it divided into two countries: A Communist North and a pro-American South Korea. The ideological conflict divided families and communities and both sides claimed sovereignty over the entire Korean peninsula. Neither side recognized the other’s legitimacy as a state. When North Koreans captured South Korean soldiers, they did not consider the South Koreans not as POWs protected by the Geneva Conventions they had announced they would observe. The North Koreans viewed the South Koreans either as soldiers they had “liberated from imperialist armies,” or “war criminals against the people.” [OH, YOON and HUR 2008, p.32; HEO 2002, pp. 145-46].
On the South Korean side, many of the North Korean soldiers they had captured were found to be South Koreans. They had been conscripted during the initial months of the war when North Korean forces had routed the South Korean army and controlled large parts of South Korea. These soldiers did not wish to return to North Korea. [HERMES 1992].
A substantial number of the captured Chinese soldiers were former members of the Nationalist Army and had fought against the Communist Chinese Army in the Chinese Civil War. They had been conscripted into the Communist Chinese forces when the Nationalists were defeated and the Communists took control of the Chinese mainland in 1949. Some of these soldiers wished to be repatriated to Taiwan where remnants of the Nationalist government had fled rather than to China. [HERMES 1992].
Such complexities made the ceasefire negotiations difficult. Nevertheless, both sides agreed to specific procedures for accounting and freeing POWs. [Korean War Armistice 1953, Art. III]. POWs who requested to be repatriated were to be sent home to their respective sides. The prisoners who wished to stay with their captors or who sought asylum in a third country were to be handed over to the Neutral Nations Repatriation Commission (NNRC). This commission was composed of military representatives from five countries that did not fight in the Korean War: India, Czechoslovakia, Poland, Sweden, and Switzerland. It was charged with fairly administering the politically sensitive issue of POWs who for whatever reason did not wish to be repatriated. The procedures for determining whether a POW truly wished to stay with their captors were long and strenuous involving interviews by representatives from both the UN and Communist sides. Joint Red Cross teams were to monitor and implement the actual exchanges. [KOREAN ARMISTICE AGREEMENT 1953, Art. III.51-57].
3.2 South Koreans suspect Communists illegally detained thousands of POWs after the Armistice
In the weeks after the signing of the Armistice, prisoners were either repatriated or turned over to the NNRC as had been agreed. There were many difficulties, including the death of some POWs that were in the custody of the NNRC, and numerous disputes. But eventually, processing of POWs by repatriation and the NNRC hearings worked through the rosters. Most of the POWs from the US and other UN combatants who survived the war did make it home. However, for the South Koreans this was not the case.
Over 79,000 South Korean POWs had not even been included in the rosters submitted by the Communist forces. The Communist forces reported only 8,668 South Korean POWs for repatriation and processing by the NNRC. [Hermes 1992, Ch. XXII; Appendix B]. The Communists never disclosed what had happened to the others. Some scholars estimate that 50,000 of these South Koreans may have survived the war in North Korea. [HEO 2002, p. 142].
Numerous UN Command and South Korean intelligence reports said that these South Korean POWs had been incorporated into the North Korean military against their will. North Korean and Chinese negotiators claimed that these individuals had already been “freed at the front.” [HERMES 1992; Ch. VII]. During the war and in the decades after the Armistice, North Korea continued to deny any South Korean POWs had been held against their will and even refused to discuss the issue. [OH, YOON and HUR 2008, p. 40]. For decades, the South Korean POWs were not heard from and their fate remained unknown.
3.3 New evidence contradicts Communist claims that South Korean POWs had voluntarily joined the North Koreans
New evidence since the 1990’s sheds light on the South Korean POW issue. South Korean POWs have escaped from North Korea and provided first hand testimonies of their lives in the North during and after the war. Newly declassified Soviet-era documents from the Russian Foreign Policy Archives detail communications between North Korean, Chinese and Soviet leaders. [VOLOKHOVA 2000]. Both the POW testimonies and the documentary evidence contradict North Korean claims that the South Koreans had stayed voluntarily.
3.3.1 Escaped POWs testify they were not offered repatriation.
In 1994, Lt. Cho Chang Ho, was the first South Korean POW escaped from North Korea. He had been held for over 40 years of captivity. 79 more POWs have escaped to South Korea in the following years. Their testimonies provided first hand evidence on the lives of POWs in North Korea for the first time in decades. The former POWs have testified that they were never given the opportunity to express their desires either to say or returne back to their families in the South Korea.
Contrary to claims that they had been “freed at the front,” the escaped POWs report that they were indeed incorporated into the North Korean military. The majority of South Korean POWs were assigned to labor brigades, and others (mostly who had been captured early in the war) were initially incorporated into to the North Korean Army units. [HEO 2002, p.150; HERMES 1992 Ch. VII; OH, YOON and HUR 2008, pp. 65-66]. Later, even the South Koreans who had served in the frontline units were sent to the labor brigades. Although these labor brigades were nominally part of the Interior Ministry, the POWs lived under guard in facilities isolated from the public until 1956. [OH, YOON and HUR 2008, pp. 65-93]. At no time during the war were the South Korean POWs ever freed.
Many of the POWs did not even hear about the Armistice until months after it was signed. Many POWs testified that their guards told them various reasons why they could not return home after the ceasefire. Some POWs said that their comrades who insisted on returning home to South Korea would be taken away and never to be heard from them again. Others witnessed executions of South Korean POWs who demanded to be sent home.
The POW’s testimonies are supported by North Korea’s unbending denial of meetings with the members of International Committee Red Cross(ICRC) and NNRC . If the POWs had voluntarily joined the Communists, there would be no reason for them to be denied meeting with the Red Cross and the Neutral Nations Repatriations Commission at the end of the fighting. POWs from both sides (including 325 South Koreans) had freely stated their wishes to stay with their captors.
The 3-year delay between the Armistice and Cabinet Order 143 that granted the POWs North Korean citizenship also corroborates testimonies that the South Koreans did not volunteer. If the POWs had indeed volunteered, there would not seem to be any reason to delay granting them citizenship or to keep the POWs isolated and under guard for 3 years after fighting had ended.
The discrimination, severe restrictions and extensive surveillance by State Security that continues to this day also contradict Communist claims that the South Korean POWs stayed in North Korea by choice. It makes far more sense that State Security maintains a close watch over the POWs because they had been held against their will, and therefore posed a risk of escape.
State Security’s involvement indicates that many North Korean officials were aware and had knowledge that the South Korean POWs had been held against their will. It also indicates that North Korean State Security has accurate and comprehensive information on the number and whereabouts of the POWs and their families.
3.3.2 Soviet diplomatic archives show Communist leaders purposely detained South Korean POWs
In addition to the evidence from testimonies by the POWs themselves, documentary evidence from declassified Soviet Union Foreign Ministry archives also contradicts North Korean claims. Although the Soviet Union was not officially a combatant, it supported the North Korean and Chinese forces with weapons, training and material, and secretly sent pilots to fly in combat. [O’NEILL 2000]. Soviet General Secretary Joseph Stalin was deeply involved in planning the war to the extent that North Korean leader Kim Il Sung had to obtain permission from Stalin before launching the attack. [O’NEILL 2000]. Therefore, the Soviet Union’s Foreign Ministry archives offers information on the strategic goals and planning activities of Soviet, North Korean and Chinese heads of states themselves. These memorandums show that the Communist leaders had little intention of allowing the South Korean POWs to return to South Korea regardless of their individual wishes.
The first document is a memo by Soviet Ambassador to North Korea, S.P. Suzdalev, written in May of 1953 shortly after the UN and Communist forces exchanged wounded POWs. Suzdalev writes “our Korean comrades preferred to keep a large number of South Korean prisoners of war, using them for various kinds of hard work in North Korea and ignoring their desire to return to their families…. A total of 1,300 [sic] South Korean prisoners of war were detained in North Korea and another 42,000 Southerners were recruited into the Korean Peoples Army in the South and remain in the KPA ranks to this day.” Suzdalev was concerned that the detention of such a large number of prisoners of war eligible for repatriation was not justified and most of them could have been repatriated. [VOLOKHOVA 2000, p. 85].
Another document is a memorandum by Fedorenko, head of the First Far Eastern Department in the Soviet Foreign Ministry to Foreign Minister Molotov, dated December 3, 1953 over 4 months after the Armistice had been signed. Fedorenko summarizes Ambassador Suzdalev’s reports that “13,094 prisoners of war from Syngman Rhee’s troops eligible for repatriation and 6,430 men serving in the KPA were being detained in North Korea, the others were being employed on various jobs in the Interior Ministry and the Ministry of Railways [sic].” [VOLOKHOVA 2000, p. 89].
Fedorenko reports that North Korean President Kim Il Sung had consulted with Chinese leader Mao Zedong regarding the disposition of these South Korean POWs shortly prior. Mao had told Kim not to send back these POWs since bringing up such large numbers of POWs at this late time would give the Americans and South Koreans a pretext that the Communists had violated the terms of the Armistice. Kim agreed with Mao. Kim had told Ambassador Suzdalev that North Korea would prevent the POWs from escaping or contacting the NNRC by sending the prisoners to remote Northeastern regions of North Korea. Fedorenko’s memo advises Molotov that for the Soviets “it is not advisable for us to adopt any measures on this question” regarding the prisoners. [VOLOKHOVA 2000, p. 90].
Although the numbers of South Korean POWs mentioned in Soviet documents are much smaller than other estimations of POW survivors (e.g., HEO’s[2002, p. 142] estimation of 50,000), it is still clear that Communist leaders intentionally held tens of thousands of South Korean POWs they had incorporated into the North Korean military. They also purposely hid them from the NNRC and prevented their escape. The documents also show that the decision to detain the South Korean POWs was made at the highest levels of North Korean and Chinese leadership, and that Soviet leaders were also fully aware of their allies’ decisions.
3.4 New Evidence opens opportunities for legal action
The testimonies from escaped POWs and documentary evidence from Soviet-era documents opens new clues for legal action against North Korea on behalf of South Korean POWs through the international legal system. In particular, the continued detention of POWs past 2002 is a war crime over which the International Criminal Court has jurisdiction. Other venues for appeal for international action include international humanitarian organizations including those of the United Nations. Even if the possibility of convincing the North Korean government to free the POWs is remote, legal action can bring international awareness to the issue and mobilize human rights groups. [CAMMAROTA et al. 2007].
4. Bringing a Case in the International Criminal Court
4.1 General Information regarding the International Criminal Court (ICC)
The International Criminal Court (ICC) came into force in 2002 under the Rome Statute [Rome 1998, Preamble]. After the tribunals in Rwanda and Yugoslavia in the 1990’s, the ICC was established as a permanent venue for individuals responsible for gross human rights violations, including war crimes [Rome 1998, Articles 5, 8].
CAMMAROTA et al. (2007, p. 26, 37) note that the treatment of South Korean POWs could qualify as a War Crime under the ICC’s jurisdiction but that there could be evidentiary challenges. Given the availability of testimonies from escaped POWs and the documentary evidence from Soviet archives, an appeal to the ICC Prosecutor seems feasible.
4.2. Jurisdiction of the ICC covers the continued detention of Korean War POWs
The case of Korean War POWs who continue to be held in North Korea after 2002 falls under the court’s territorial jurisdiction. The “conduct in question” must begin in the territory of a state that has ratified the Rome Statute. [Rome 1998, Article 12(2)(a)]. Here, the War Crime violations begin when South Korean soldiers were taken prisoner within South Korean territory, where South Korea has ratified the Statute. Therefore, the Rome Statute, Article 12(2)(a) grants the ICC jurisdiction over the War Crimes committed against these POWs. [CAMMAROTA et al. 2007, p. 26, 37].
The incorporation of the POWs into North Korean forces is a grave violation of the Geneva Conventions [GENEVA 1949, Art. 130], and a violation of the Rome Statute, Article 8.2(a)(v) which prohibits “compelling a prisoner of war … to serve in the forces of a hostile Power.” The ICC may have difficulty establishing jurisdiction over this specific crime because it occurred 46 years before the temporal jurisdiction of the ICC began. POWs were demobilized from the North Korean military in 1956 whereas the ICC was established in 2002. [Rome 1998, Article 11].
Other War Crimes against South Korean POWs that have continued past 2002 are within the temporal jurisdiction of the ICC. [CAMMAROTA et al. 2007, p. 26, 37]. The prolonged detention of POWs after the ceasefire violates Article 8(2)(a)(vii) which bans “unlawful confinement.” Denying the POWs contact with the ICRC of NNRCs representatives to process their repatriation, according to the terms of the Korean
War Armistice Agreement, violates Article 8(2)(a)(vi), “depriving a prisoner of war … of the rights of fair and regular trial.” Both these violations continue to this day. [ROME 1998].
The systematic discrimination of the children of South Korean POWs in North Korea is a Crime Against Humanity defined in Article 7(1)(h) “persecution of identifiable group.” Unlike the violations of Article 8 war crimes against the POWs themselves, jurisdiction of the ICC is difficult to establish under Article 12(2)(a) because this crime occurred within North Korean territory and North Korea is not a signatory to the ICC.
However, any realistic relief for the POWs must protect the families of the POWs, whom the defendants, who are powerful individuals within North Korea’s leadership, could hold hostage through their political allies. It would be impossible to bring charges in the ICC while allowing the persecution of the POWs’ family members to continue. In this case, an appeal to the Prosecutor to include the crimes against the POWs’ children in the investigation should be possible under Article 15(1) where the Prosecutor can initiate investigations on his own. [Rome 1998, Art. 15(1)].
The report by the UN’s Special Rapporteur for the Human Rights Situation in North Korea, published in 2010 states that many human rights violations within North Korea could be serious enough to warrant an independent examination by the ICC Prosecutor under Article 15. The virtual enslavement of tens of thousands of POWs and the systematic discrimination against their children would certainly seem to be such an example. Given the severity, scale, and relatedness of the violations that have continued to this day for almost 60 years, and the fact that the violations were committed against the same group of victims and their descendants, the ICC would seem justified in investigating the entire series of crimes under Article 15 rather than only those offenses that meet the jurisdictional requirements of Article 11 and 12. [Muntarbhorn 2010, para. 59-60].
The ICC prosecutes individuals who are responsible for War Crimes and Crimes Against Humanity. It will be important to find the individuals in North Korea who had direct responsibility for the detention of South Korean POWs past 2002. Such people include military leaders who had ordered that the South Koreans be kept off the POW rosters and incorporated into the North Korean People’s Army, and the military, State Security and civilian leaders who continued the detention of the POWs.
The officers in command of the Korean People’s Army (Chosun In-min-gun), which administered the South Korean POWs during the war and until 1956 either had knowledge or should have had knowledge that their POWs were detained against the conventions of war. POWs from other UN forces and a small group of other South Korean POWs had been either repatriated or turned over to the NNRC according to the protocols agreed upon in the ceasefire. It should have been evident to any officer who was involved in administering the South Korean POWs and their chain of command that any South Korean POWs who had not been directly repatriated, even by choice must be allowed to meet with the NNRC. Any North Korean officer should have known that keeping any South Korean POW without a meeting with the NNRC was a violation of the Armistice and Geneva Conventions. Therefore, Korean People’s Army officers involved in administering POWs and senior officers of the General Staff of the Korean People’s Army who knowingly continued to detain of South Korean POWs are all defendants for the Article 8 War Crimes.
The military forces of North Korea are under the leadership of the Supreme Commander of the Korean People’s Armed Forces, and the Chairman of the National Defense Committee (Guk-bang Wi-won-jang). This post has been held by Kim Jong Il since 1994. Members of the National Defense Committee and Kim Jong Il should have known about the continued detention of South Korean POWs and its illegality. Therefore, they are also culpable.
Another set of defendants are officials who were in the Ministry of the People’s Armed Forces. The Ministry exercises control of the military and its leaders should have known about the detention of South Korean POWs.
Leaders of the Central Military Commission of the Korean Worker’s Party exercised civilian oversight of the military forces and also should have known about the detention of South Korean POWs. These individuals should also be defendants.
After the POWs were granted citizenship in 1956, they were under strict surveillance by the State Security Department (Bo-wi-bu), North Korea’s anti-espionage agency. The leaders of the State Security Department had knowledge that the South Korean POWs they kept under their surveillance had been detained against their will so should also be defendants. Any North Korean official in State Security and other areas of North Korea’s government and ruling Worker’s Party who was involved in planning and executing the policies of strict surveillance against the POWs potentially share culpability in continuing the detention of POWs.
North Korean officials involved in planning and executing the discriminatory policies against the POWs and their children potentially are all potentially culpable for Article 7 Crimes Against Humanity. This would include all North Korean officials involved in executing the restrictions on work and residence of “number 43s.”
4.4. The ICC Violations
The crimes committed by the defendants are War Crimes against the South Korean POWs themselves, and Crimes Against Humanity committed against the POW’s children.
4.4.1. War Crimes against the South Korean POWs
The incorporation of POWs into North Korean People’s Army units and Interior Ministry labor brigades, the denial of contact with Red Cross and NNRC officials administering the prisoner exchanges, and the prolonged detention of South Korean POWs and violates three of the Geneva Conventions provisions specified in the Rome Statute, Article 8:
- For the purpose of this Statute, “war crimes” means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:
(v) compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) unlawful deportation or transfer or unlawful confinement;
126.96.36.199 Compelling prisoners to serve in the forces of a hostile Power
Compelling prisoners to serve in military forces is a “grave breach” of Geneva Convention III Article 130. The Geneva Convention commentaries list this crime as an “offence sui generis” (ie. a category by itself). [GENEVA 1949, Art. 130 Commentaries]. Dörmann [2002, p. 97-99] notes that the ban covers all forms of participation in military operations obtained by coercion. A defendant is guilty when they “knowingly” commit this offense.
Communist forces violated Article 130 of the Geneva Conventions and Article 8(2)(a)(v) of the Rome Statute by incorporating the POWs into military units and labor brigades during the war. The POWs did not individually volunteer to serve but were assigned to their units by the camp administrators. The camp administrators had complete control over the POWs, so it is not conceivable that an individual POW could refuse their assignments without consequences. Therefore, the POWs were coerced into joining the units.
The work that the POWs did in the North Korean Army units, and the repair work the POWs performed on bombed railroads and airfields were clearly part of the Communist military effort. While the mining for coal and iron many POW labor units could in theory be unrelated to the war effort, and therefore a legal form of POW labor according to Article 50(b), it is unlikely that this was the case. If the POWs were indeed performing lawful work, there would be no reason to keep tens of thousands of the South Korean POWs off the rosters and hide them from the Red Cross and NNRC. The pattern of behavior by the Communist forces clearly raises suspicions that all the work done by these South Korean POWs involved grave breaches of the Geneva Conventions.
The use of POWs in the Communist war effort was conducted knowingly by the Communist leadership. The measures the leaders took, including moving the POWs into the Northeast to prevent their escape and contact with the NNRC, and the strict surveillance that continued after the war clearly indicates the North Korean leadership was aware that they had unlawfully exploited these POWs.
188.8.131.52 Denials NNRC interviews constitutes a deprivation of rights of fair and regular trial
The “rights of fair and regular trial” usually concern the protection of the judicial guarantees for POWs as specified in Geneva Conventions III, Articles 82-108. [Dörmann 2002, pp. 100-105]. The repatriation interviews with the NNRC were not a trial in the conventional sense because the POWs being interviewed were not under trial for a wrongdoing. However, the interviews were an important administrative hearing in front of state representatives. The result of the interview would determine the future legal status of the individual POW. Therefore, the stakes for an individual POW were as high as any judicial process.
The interviews were also formal and explicit process. The process balanced the rights of the individual POW who was staying with his captors against the rights of his home military service to verify whether the individual was staying truly according to his own convictions.
Because of these similarities to a judicial trial, the Korean War POW’s due process right to a repatriation interview with the NNRC should be protected by the Geneva Conventions with the same gravity as it protects POWs’ rights to a fair trial in a judicial hearing. Willful denial of a repatriation interview should therefore be a “grave breach” of the Geneva Conventions and punishable under Article 8(2).
In the case of the South Korean POWs in question, none of them were allowed to have their repatriation interview. North Korean head of state Kim Il Sung himself said that the POWs were being moved into the Northeastern areas specifically to prevent them from contacting the NNRC. [Volokhova 2000, pp. 89-90]. North Korean leaders willfully denied the POWs contact with the NNRC and thus deprived the POWs of the rights to a fair and regular trial.
The denial of an opportunity for the South Korean POWs to contact international officials and express whether to return to South Korea or stay in North Korea continues to this day without a proper remedy. The defendants continue the grave breach and continue to commit an Article 8 War Crime.
184.108.40.206 Detaining POWs for almost 60 years constitutes unlawful confinement
The text “unlawful deportation and transfer, and unlawful confinement” in Article 8(2)(a)(vii) comes from Article 147 of Geneva Convention IV. Geneva Convention IV specifically concerns protections for civilians caught in combat zones but Article 8 of the Rome Statute, applies to all “persons or property protected under the provisions of the relevant Geneva Convention” and therefore includes Prisoners of War protected under Geneva Convention III as well as the wounded and sick combatants protected under Geneva Conventions 1 and II. [Dörmann 2002, p. 112].
With respect to POWs, unlawful confinement is defined by violations of Articles in Geneva Convention III defining the quality of the quarters of their internment (Articles 21-23 and 25), standards for any disciplinary punishment against them (Articles 87, 90, 91, 95, 97 and 103), regarding the repatriation of wounded POWs (Article 109), and repatriation at the end of hostilities (Article 118). In particular, Geneva Convention III Article 118 states that POWs are to be “released and repatriated without delay after cessation of active hostilities. [Dörmann 2002, pp. 118-122].
In detaining South Korean POWs for over 50 years after the Armistice was signed, North Korean leaders have failed to “release and repatriate without delay” the POWs after cessation of active hostilities. They have therefore, violated Article 118 of the Geneva Convention III and committed the Article 8 War Crime of unlawful confinement. This violation continues to this day.
4.4.2. Crimes Against Humanity against the children and bereaved families of South Korean POWs
The systematic discrimination suffered by the children of South Korean POWs violates Article 7(1)(h) of the Rome Statute:
Article 7 – Crimes against humanity
- For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
The children of the South Korean POWs were an identifiable group. The North Korean authorities designated them as “number 43’s.”
Persecution is defined as the “intentional and severe deprivation of fundamental rights.” [ROME 1998, Art. 7(2)(h)]. One form of persecution would be discriminatory restrictions imposed on individuals solely based upon the status of their parents.
The children suffered the same systematic discrimination as their POW fathers. They were restricted in their employment to similar mining and hard labor jobs as their fathers, restricted in their residence, and placed under increased surveillance based upon their “number 43” status. They were denied opportunities to attend college or join the North Korean military and thereby denied any means to improve their status. By imposing such discrimination upon the children of South Korean POWs, the defendants violated Article 7(1)(h) of the Rome Statute.
These War Crimes against the POWs are particularly outrageous because they flagrantly breach the Geneva Conventions which the North Korean leadership themselves announced that they would honor. The current leadership in North Korea has continued the violation for over 50 years. By persecuting the children the defendants have extended the virtual enslavement suffered by the South Korean POWs to their descendants.
4.5 Evidence against defendants to be presented to the ICC
Evidence against the defendants will include direct evidence in testimonies from POWs who have escaped from North Korea, and documentary evidence from declassified Soviet-era Archives.
4.5.1. Direct Evidence against defendants from POW Testimonies
The testimonies from escaped POWs to be used as evidence of War Crimes and Crimes Against Humanity include the following:
1) The denial of any contact with their families in South Korea regarding their whereabouts
2) Testimonies that POWs were denied an opportunity to return to South Korea, or to seek asylum in a third country as other POWs held by Communist forces.
3) Testimonies that POWs were denied opportunities to contact the Red Cross or Neutral Nations Repatriation Commission.
4) Testimonies regarding threats and violence against POWs (including executions) who demanded to be repatriated to South Korea.
5) Testimonies from POWs that they were kept under surveillance and restricted in their choice of work and residence after the war, especially testimonies that they were placed under stricter surveillance and restrictions than other North Korean citizens.
6) Testimonies of discrimination in education, jobs, and military service against the children of POWs solely based on their parental lineage.
The testimonies from escaped POWs provide evidence regarding whether they had freely choose to join the North Korean forces and to stay in North Korea. All of the escaped POWs have testified they were never given such an opportunity during the fighting and after the cease-fire. The fact that the North Korean leadership denied the South Korean POWs opportunities to contact the Red Cross or Neutral Nations Repatriation Commission shows that the POWs were held against their will.
Testimonies of threats and violence against POWs who demanded to be repatriated to South Korea are evidence that the South Korean POWs were kept in North Korea against their will. Some of the former POWs report that they had seen or had heard of their comrades being executed for demanding repatriation.
The denial of contacts with families in South Korea also shows that the POWs were held against their will. Beginning in 1972, there have been numerous unofficial and official contacts between North and South Korea including a number of divided families that were allowed to see each other. Although almost all the POWs were kept under close surveillance, and that they were likely to have had family in South Korea, North Korean authorities never allowed any contact between the POWs and their families in South Korea in a meaningful scale. If the POWs had voluntarily stayed in North Korea, there would be no reason to deny such contact. The denial of contacts is another indication that North Korea has something to hide about these POWs.
4.5.2. Documentary Evidence against defendants from Soviet-era Archives
The Soviet-era archives provide documentary evidence that North Korean leaders purposely denied the South Korean POWs repatriation. The documentary evidence shows that North Korean leaders were aware that they were violating the terms of the Armistice.
Soviet Ambassador S.P. Suzdalev’s memo written in May of 1953 expresses concern that North Koreans are detaining POWs that should be repatriated. This memo shows that Communist leaders were aware that the POWs were employed in “various kinds of hard work in North Korea” and that North Koreans were “ignoring their desire to return to their families.” [VOLOKHOVA 2000, p. 85].
Fedorenko’s memo dated December 3 1953 provides even clearer evidence of Communist intentions. Both Kim Il Sung and Mao Zedong recognized they were detaining large numbers of POWs that are “eligible for return.” in violation of the Armistice. Kim Il Sung also takes measures to hide this violation by preventing the POWs from escaping and contacting the NNRC. [VOLOKHOVA 2000, p. 89].
The testimonies and the documentary evidence show a pattern of War Crimes, followed by cover up that extends for over a generation. The POWs were exploited for their labor unlawfully during the war. They continued to be detained and exploited to hide the unlawful exploitation. The exploitation and cover up has continued to include their children.
4.6 Relief to be sought against Defendants
In addition to criminal sentencing of the leaders of North Korea’s military and State Security Department, South Korean POWs and their families in North Korea should be granted relief according to Article 75 of the Rome Statute. Article 75 specifies “reparation to victims” including “restitution, compensation and rehabilitation.” [Rome 1998].
The rehabilitation relief should include allowing the POWs and family members to contact relatives outside of North Korea and to leave North Korea if they wish. Many POWs have family in South Korea that they have not seen for over 50 years and many South Koreans could have relatives that were thought to have died in the Korean War who have been held in North Korea. North Korean authorities should promptly allow contact with POWs and their family members outside North Korea and allow any POW or family member to be reunited with relatives outside of North Korea if they wish.
Restitution relief that forces the North Korean military and government to disgorge their gains from exploitation of the POWs over their detention should also be sought, as well as compensation where POWs were paid unfairly for their labor.
5. Alien Tort Claims Act and Other Litigation in the United States
The Alien Tort Claims Act and the Torture Victims Protection Act are statutes in the United States that may possibly be used against North Korea in the future. The ATCA requires obtaining jurisdiction over a defendant North Korean official or other individual in the United States which is not feasible at the time. The TVPA requires the plaintiff to be a U.S. citizen and none of the escaped POWs or their family members have obtained U. S. citizenship.
5.1 Alien Tort Claims Act (ATCA)
The Alien Tort Claims Act (ATCA) in the United States allows foreign citizens to sue individuals or corporations in U.S. Courts for a “tort only, committed in violation of the law of nations or a treaty of the United States.” [CAMMORATA 2007 p. 91]. It is a statute unique to the United States.
The statute has been used against war criminals in the Yugoslavian Civil War where Croat and Muslim citizens of Bosnia-Herzegovina sued Radovan Karadzic, leader of Bosnian-Serb rebel forces. The Plaintiffs successfully alleged violations of international norms against genocide, war crimes and torture and a US jury awarded damages of $4.5 billion. [CAMMORATA 2007 p. 91].
The difficulty in charging North Korean defendants with the ATCA is establishing jurisdiction within courts of the United States. There are no former members of the North Korean regime living in the US or with enough contact with the United States to establish jurisdiction. [CAMMORATA 2007 p. 100].
Corporations have been sued for aiding and abetting violations of international law under the ATCA. The oil company Unocal was sued for aiding the Burmese government’s practice of forced labor. Currently there are few companies that do any business in North Korea but Chinese corporations are seeking mining rights in North Korea, and the use of ports in the Northeastern coast. If the mines involve forced labor there may be an argument to establish jurisdiction over such a company if it also does business in the United States. As Chinese corporate interests increase in North Korea, opportunities for such a suit may arise in the future.
5.2 Torture Victims Protection Act
Another United States Federal statute that can bring a suit on behalf of South Korean POWs would be the Torture Victims Protection Act of 1991. The statute allows U.S. citizens to sue foreign individuals for torture and extra-judicial killing. The families of the USS Pueblo, a US Navy intelligence ship that was seized by the North Korean navy in international waters off of North Korea in 1968, have successfully obtained a default judgment against the North Korean state in a US Federal Court. [Massie v. Government of the Democratic People’s Republic of Korea (2008)].
The detention of South Korean POWs and forced labor could qualify as torture under the definition of the statute. The difficulty of bringing suit under this statute lies in identifying a plaintiff with standing to sue in the United States courts. Currently, there are no identified U.S. citizens who are relatives of South Korean POWs. If there are any POWs or their children who become US citizens in the future, they may have standing to bring a suit against the North Korean state.
6. The UN Human Rights Council
The UN agency that would seem most relevant to the issue of prolonged detention of POWs is the UN Human Rights Council (UNHRC). The Council has already taken an interest in North Korea’s human rights. North Korea is under Universal Periodic Review as of 18 June 2007 under the Human Rights Council Resolution 5/1. For a period of six years, until June of 2010, Professor Vitit Muntarbhorn of Thailand was appointed Special Rapporteur for the Human Rights situation in North Korea. Professor Muntarbhorn’s final report, dated 17 Feb 2010 recommends that North Korea should immediately begin to “cooperate effectively” to address “consequences of the Korean War.” [MUNTABHORN 2010, paragraph 88 (a)(iv)]. Muntarbhorn (2010) includes both the issue of separated families [paragraph 39] and prisoners of war [paragraphs 69, 74] as consequences.
The procedure for submitting a complaint to the UNHRC is the 1503 procedure. The procedure is open ended but requires the following:
1) Factual description of the violation.
2) Be submitted by the actual victims or individuals or NGOs with reliable direct knowledge of the victims.
3) It is not based on reports already disseminated by mass media.
4) It is not about a pattern of violations already being dealt with by another UN organization.
Evidence to be used in the ICC report should also satisfy the standards for the 1503 procedure. In the case of the South Korean POWs, the testimonies and documentary evidence from Soviet archives show that the North Korean state has violated a number of rights guaranteed by the Universal Declaration of Human Rights. [UDHR 1948]:
Article 13. Freedom of Movement.
Article 9. Freedom from arbitrary detention.
Article 7. Right to equal protection
Article 4. Freedom from Slavery.
The POW’s freedom of movement (UDHR, Article 13) and freedom from arbitrary detention(UDHR, Article 9) has been violated through their prolonged detention in North Korea and because the POWs were not allowed to leave North Korea and restrictions were placed on their residence. The classification of POWs and their children into the Number 43 caste, and the increased surveillance and restrictions on Number 43’s compared to other North Korean citizens is a systematic discrimination based upon their status alone that violates UDHR Article 7’s right to equal protection. The forced labor in labor brigades and decades of hard labor amounts to a systematic form of slavery that violates UDHR Article 4. The testimonies from POWs also document human rights violations that the POWs witnessed, including summary execution and punishment without due process of other POWs.
Although Special Rapporteur Muntarbhorn has urged resolution of the prisoner of war issue and other “consequences of the Korean War,” there is no UN agency currently monitoring progress specifically on behalf of South Korean POWs and their children after the Special Rapporteur mission was concluded in June of 2010. Therefore, the case of the POWs is not being dealt with by any UN agency at this time. Therefore, the testimonies and documentary evidence should be a valid 1503 complaint to the UN HRC.
7. UN Security Council and International Court of Justice
The UN Security Council and International Court of Justice (ICJ) require a state actor to initiate action. NGOs can not by themselves bring cases to the Security Council’s agenda or file suit in the ICJ.
The UN Security Council would seem to be an obvious and appropriate forum for demanding the release of South Korean POWs. The South Korean POWs were in fact under the command of the UN Command when they were taken prisoner. The UN Command was directly authorized by a UN Security Council Resolution so the Security Council would seem to have a close interest in the welfare of the South Korean POWs.
Furthermore, China, whose soldiers fought against the UN Command and captured many of the South Korean POWs is now a permanent member of the Security Council itself. The prolonged detention of POWs for decades by North Korea should be an embarrassment to China and in its best interest to resolve the issue as quickly as possible.
Ironically, finding a state actor to speak out on behalf of the South Korean POWs has been difficult. The United States and South Korea have been careful to avoid bringing up this issue in the Security Council, perhaps because of concerns of complicating other talks with North Korea, especially regarding the nuclear weapons issue.
China has also disapproved of discussing this issue in general and has been sensitive to any “hardline” approaches to North Korea, favoring a “quiet diplomacy” approach. Therefore, it is not likely that the UN Security Council will be discussing the fate of these POWs who were captured while fighting under the UN flag.
An interesting option is to seek a state sponsor for the South Korean POWs other than the US, or South Korea to at least attempt to put the issue on the Security Council’s agenda. While it is certain that China will block such an attempt, the attempt itself will raise international awareness of the POW problem.
Member states of the European Union have been outspoken about North Korean Human rights issues in general. Several EU members were part of the multinational force that fought under the UN Command and may be interested in accounting for their own soldiers who were missing in the Korean War.
If such a sponsoring state can be found, it may also be possible for that state to file a suit against North Korea in the ICJ demanding as relief an accounting of all POWs and missing soldiers. The evidentiary material prepared for the ICC should be detailed enough for a Security Council appeal and legal action in the ICJ.
South Korea believes at least 560 of its former soldiers survive in North Korea after decades of captivity. The number of their children living in North Korea is unknown. Accurate numbers and the whereabouts of both the POWs themselves and their children are probably known to North Korean State Security which has kept them under surveillance.
Until now, North Korea has denied even the existence of South Korean POWs. But the new evidence presented from testimonies of escaped POWs and Soviet diplomatic documents shows that North Korean leaders knowingly detained South Koreans ignoring their desires to return home.
The International Korean War Memorial Foundation believes there is enough evidence to appeal to international agencies and take international legal action against North Korean individuals and the North Korean state to free the POWs. The agencies the Foundation can appeal by itself are the International Criminal Court and the UN Human Rights Council.
The ICC referral list the prolonged detention of POWs as a War Crime and the systematic discrimination against the POWs and their children as a Crime Against Humanity according to the Rome Statute. The Defendants are North Korean leaders including Kim Jong Il and others who command the North Korean military forces and the State Security forces who are responsible for the continued detention of POWs after 2002.
The complaint to the UN Human Rights Council lists violations of human rights listed in the Universal Declaration of Human Rights. The prolonged detention and discrimination violate the freedom of movement, freedom from arbitrary detention, right to equal protection and freedom from slavery.
If a state sponsor can be found, appeals can also be made to the UN Security Council and a state can bring a case in the International Court of Justice against North Korea. The evidence against North Korea in these actions will be the same testimonies and documentary evidence to be used in the other appeals.
North Korea has been criticized for many human rights violations for many years and the international outrage against the violations has not yet changed North Korea’s behavior. The chance for positive change in North Korea’s behavior towards the POWs is not any greater. However, the referrals and appeals on behalf of the POWs can increase awareness of this forgotten and unresolved consequence of the Korean War.
By mobilizing the international community, new ways to help the POWs and exploit opportunities presented by political developments not only in North Korea but also China may be devised. Few human rights activist working on behalf of East Germans in 1985, would have expected that the Berlin Wall would fall only 4 years later in 1989. The Foundation works to keep the world ready to help the POWs when the opportunities come.
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APPENDIX 1. SUMMARIZED TESTIMONIES OF ESCAPED POWS
APPENDIX 2. DOCUMENTS FROM SOVIET FOREIGN MINISTRY ARCHIVES ABOUT SOUTH KOREAN POWS
 “They remained adamantly opposed to any visit by ICRC representatives, however, and Lee made it plain that these were out of question” P. 131… W.G. Hermes “US Army in the Korean War”