1 . The Right to Life
A. Human Rights and the North K orean Penal Code Responding to international criticism concerned about the
vulnerability of human rights under North Korea’s penal code and in reaction to changing domestic realities, North Korea has revised its penal code repeatedly: on February 5, 1987 on March 15, 1995 on August 11, 1999; and again on April 29, 2004. North Korea has been restructuring its penal code to remodel it into a mechanism for crime control rather than an instrument of regime protection. For example, Article 1 of the 1999 revised penal code declared a “struggle against crimes.” But Article 1 of
99David Hawk, The Hidden Gulag: Exposing North Korea’s Prison Camps (Washington, DC: US Committee for Human Rights in North Korea, 2003), Part III.
the penal code revised in 2004 stipulates, “The purpose of this revision is to properly establish our penal system and penal responsibilities against crime.” However, the penal code has not completely escaped its fundamental design as a system developed for a class-based society.
North Korea‘s Penal Code (Criminal Code) is structured primarily on the basis of political and class (personal status) considerations.
Basically, the law enforcement authorities, including courts, are required under the law to distinguish political crimes from ordinary crimes and hand down different levels of punishment. The main reason for this strange approach is the imperative of safeguarding the socialist system, and the rationale is that political and ordinary crimes stem from fundamentally different motives. North Korea argues that political crimes are perpetrated by anti-revolutionary elements that are committed to overthrowing the socialist system and restoring a “system of exploitation,” hence the increased need to prevent and suppress political crimes by all means and with heaviest penalties.1 00 Although there is a stipulation in Article 4 that lenient sentences will be granted for those repentant of their anti-state and anti-people crimes, elements of political consideration have not been completely eliminated from the penal system. The tenor of anti-State crimes as defined in the 1987 penal code is still retained in the penal code of 2004.
In handling the criminals, class considerations are an important element. With regard to the courts’ mission, Article 156, Section 2 of the Constitution stipulates, “The court has the duties to ensure that all institutions, enterprises, organizations and citizens abide strictly by State laws and staunchly combat class enemies and all law-breakers.” In terms of basic principles for the handling of convicts, Article 2 enunciates class principles, declaring, “in dealing with criminals the State shall firmly maintain working class principles and social conventions when applying
1 00Kim Geun-sik, Criminology (Pyongyang: Kim Il-sung Univ. Press, 1986).
legal sanctions.” In addition, the class principle is reiterated in Article 2 of the Criminal Procedure Law, which stipulates, “The State shall strictly identify enemies from friend in its struggle against anti-State and anti-people criminals, subdue the leading minority and embrace the following majority. In the process, the State shall utilize social education in its struggle against ordinary crimes through an appropriate mix of legal sanctions.” In other words, the “class principle” under the Criminal Procedure Law means that the State will identify class enemies, who have committed political crimes, and strictly subdue the core leaders.
Furthermore, North Korean authorities argue that because the inter- pretation and application of the penal code is inseparable from politics, judges should understand the principles of class struggle and receive party guidance in determining proper sentencing.
In the past, North Korea’s penal code has been sharply criticized for ignoring the principle of no criminality without prescribed laws, allowing analogous legal interpretations and applications, instead. For example, Article 10 of its 1999 Penal Code had stipulated, “In the event of a crime, for which the Penal Code has not precisely prescribed, criminal responsibilities shall nevertheless be charged according to the provisions that are applicable to crimes similar to the crime committed in terms of the types of behavior and the level of danger.” Accordingly, citizens were subject to criminal punishment at any time and under any pretext. Regarding this issue, the UNHRC in its Concluding observations recommended that Article 10 of North Korea’s Penal Code was incompatible with Article 15 of the international covenant on civil and political rights, which mandated the realization of “the principle of no criminality without prescribed laws.” In the process of revising its penal code in 2004, North Korea has deleted the section allowing analogous interpretations and incorporated the principle of criminality based on prescribed laws. Article 6 of the penal code reads, “The State shall charge criminal responsibilities only in cases of crimes prescribed in the penal
code.” At the same time, the penal code is now much freer than it was from a variety of unclear and nebulous expressions that had permitted disparate interpretations. The revised code defines more specifically various acts that constitute criminal activity under the law. As a result, the total number of articles in the code was expanded from 161 in 1999 to 303 in 2004. The number of articles defining various crimes also dramatically increased, from 118 to 245, thereby delineating in more detail the criteria for determining punishable crimes. Overall, the 2004 penal code revision contains positive changes, having eliminated the opportunity for disparate interpretations and incorporated the principle of criminality defined by legal precepts. It is, however, important to continue to observe whether the penal code is actually and faithfully enforced.
Due to its emphasis on political and class orientations and in spite of its statute of limitation clauses, the North Korean penal code has been criticized for permitting human rights violations. Therefore, it is particularly noteworthy that in Article 9 of the new penal code, it stipulates that when an act was committed that was defined as a crime under the old code, but is no longer a crime under the new code, the new penal code shall apply. The North Korean penal code formerly stipulated that the legal provisions in effect at the time of the commission of a crime should be applied. Article 56 defines the statute of limitation on crimes punishable by “labor training,” “limited-term correctional labor,” or
“unlimited-term correctional labor.” However, there is no statute of limitation under Article 57 for such crimes as anti-state or anti-people crimes, or premeditated murders. As a result, anyone charged with one of these crimes is subject to punishment until the day of their death.
Under the North Korean penal code, anyone planning, conspiring or being an accomplice to commit a crime, including unsuccessful attempts to commit a crime, shall be punished the same as convicts or perpetrators. Article 19 stipulates, “Provisions applicable to convicts shall be applied in cases of preparing for or failed attempts of a crime.”
Article 22 of the North Korean penal code specifies, “in conspiracy cases the provisions applicable to the principal perpetrator shall be uniformly applied to all co-conspirators and accomplices.” In North Korea, if one is involved at any stage of the planning or commission of a crime, whether one actually takes part in the crime makes no difference.
However, Article 19 of the new penal code revised in 2004 concerning planning and preparation for a crime, stipulates, “charges of criminality shall be brought on the participants according to the nature of gravity, levels of execution and reasons for failure. Those who had simply parti- cipated in the planning would be given a more lenient sentence than those actually attempted and failed, and the latter would get more lenient sentence than those who actually carried out the crime.”
But in cases of anti-state crimes, crime-by-association is in- stitutionalized. Articles 70, 71 and 72 define the crime of “concealing anti-state or anti-people criminal(s),” “not reporting anti-state crime(s).”
and “neglecting to inform anti-state crime(s).”
Despite repeated revisions of the penal code, ordinary North Koreans are generally not aware of the existence of the penal code itself.1 01 Although they are aware of criminal provisions such as anti-state crimes, they believe that the application of the law is not impartial but depends on one’s power and wealth.1 02 One of the complaints of the international community has been that detailed contents of the North Korean penal code have not been made available to the public, excepting to some researchers with special permission and then only inside libraries. In response to this criticism, North Korea in 2004 published a legal compendium for public use. This legal compendium is also being sold in South Korean bookstores. In this matter, North Korea has responded and attempted to accommodate international criticism by removing
1 01Testimony of new settler Bae XX during an interview at KINU on Jan. 20, 2005.
1 02Testimony of new settler Kim XX during an interview at KINU on Jan. 19, 2005.
various abuse-prone human rights elements from its penal code. Yet there remains a great number of elements, including the ambiguous character of “labor training” punishment and related detention facilities, the persistent “political crime” provisions without statute of limitation, and the concept of crime- by-association, that are woefully insufficient to guarantee the basic rights of ordinary citizens. More serious is the fact that crimes are defined less in terms of the law than in terms of the policies of the supreme leader. For example, if someone were to report,
“Dear General, our youngsters are wearing blue jeans. This is a capitalist and revisionist fad imported from the United States. We must stop this,”
and the reporter received an affirmative reply; then wearing blue jeans would be banned and punished.1 03