As of December 2020, 11 foreigners involved in nine cases have been put on criminal trials in North Korea: U.S. citizens including Euna Lee, Laura Ling, Aijalon Mali Gomes, Kenneth
NKHR2016000104 2016-06-28.
NKHR2015000031 2015-02-10; NKHR2016000055 2016-05-03.
NKHR2012000184 2012-09-11.
NKHR2014000151 2014-09-23.
Bae (Korean name: Jun-ho Bae), Matthew Todd Miller, Otto Frederick Warmbier and Dong-chul Kim; South Korean citizens including Jeong-uk Kim, Guk-gi Kim and Chun-gil Choi; and Canadian citizen Hyun-soo Lim.
TableⅡ-30 Trials and Enforcement of Judgments Involving Foreigners in North Korea (as of 31 December 2019)
Name Nationality Date of Arrest Date of
Trial Charges Punishment Enforcement
Euna Lee,
Laura Ling U.S.A. 17 Mar.
2009
4 June 2009
Hostile acts against the North
Korean people, illegal border-crossing
12 years of correctional
labor punishment
Specially pardoned and released after
the trial (Aug. 2009)
Aijalon Mahli Gomes
U.S.A. 25 Jan.
2010
6 Apr.
2010
Hostile acts against the North
Korean people, illegal border-crossing
8 years of correctional
labor punishment, 70 million won fine
Specially pardoned and released after
the trial (Aug. 2010)
Kenneth
Bae U.S.A. 3 Nov.
2012
30 Apr.
2013
Conspiracy to overturn the
state
15 years of correctional
labor punishment
Specially pardoned and released while serving in prison (Nov.
2014)
Jeong-uk
Kim S. Korea 8 Oct.
2013
30 May 2014
Conspiracy to overturn the state, espionage,
instigation of anti-state propaganda,
illegal border-crossing
Unlimited-term correctional
labor punishment
Serving in prison
Matthew Todd Miller
U.S.A. Apr.
2014
14 Sep.
2014
Hostile acts against North
Korea
6 years of correctional
labor punishment
Specially pardoned and released while serving in
prison (Nov. 2014)
Name Nationality Date of Arrest Date of
Trial Charges Punishment Enforcement
Guk-gi Kim
S. Korea 1 Oct.
2014
23 June 2015
Conspiracy to overturn the state, espionage,
clandestine destruction, illegal border-crossing
Unlimited-term correctional
labor punishment
Serving in prison Chun-gil
Choi Dec. 2014
Hyun-
soo Lim Canada 2 Feb.
2015
16 Dec.
2015
Conspiracy to overturn the
state
Unlimited-term correctional
labor punishment
Specially pardoned and
released while serving
in prison (Aug. 2017)
Otto Frederick Warmbier
U.S.A. 22 Jan.
2016
16 Mar.
2016
Conspiracy to overturn the
state
15 years of correctional
labor punishment
Specially pardoned and
released while serving in prison, died after 6 days (June 2017)
Dong-
chul Kim U.S.A. 2 Oct.
2015
29 Apr.
2016
Conspiracy to overturn the state, espionage
10 years of correctional
labor punishment
Specially pardoned and
released while serving
in prison (May 2018)
Trials of foreigners in North Korea have the following characteristics:
First, as a formality, the North Korean authorities inform defendants of their right to receive legal assistance from an attorney. However, in most cases, foreigners do not appoint an attorney because they suspect that North Korean defense counsels will not provide any substantive aid. In the case of Euna Lee, North Korean officials had informed her of her right to legal
assistance. However, she declined the offer because she was convinced that no North Korean attorney would stand by her side and properly defend her.233 Kenneth Bae also declined legal assistance.234 As for the others, their choices remain unknown as related information has not been released. Putting foreigners in a situation where they have to give up an appointed lawyer is a violation of the right to freely receive defense counsel, as stipulated in Article 14, paragraph 3 (b) of the ICCPR and ultimately violates the overall right to a fair trial.
The second characteristic is the arbitrary limitation of the right of foreigners to consult a consular officer while in detention.
Article 36, paragraph 1 of the Vienna Convention on Consular Relations stipulates that when a national of a sending state is in prison, custody or detention within the consular district of a receiving state, upon the request of the national, the authorities of the receiving state shall inform the consular post of the sending state of such facts without delay, and any communication addressed to the consular post shall be forwarded without delay.
In the process of investigation and trial, the right to consultation with a consular officer is very important for protecting the human rights of individuals. The right to consular access is a right of individuals and also of a state recognized by customary international
Euna Lee, The World Is Bigger Now (New York: Broadway Books, 2010), p. 187.
Korean Central News Agency, 9 May 2013.
law.235 The International Court of Justice (hereinafter ICJ) has ruled that the Vienna Convention on Consular Relations is a codification of existing customary international law on consular relations.236
TableⅡ-31 Regulations on the Right to Consular Access in the Vienna Convention on Consular Relations
Article 36, paragraph 1
With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.
North Korea announced that consular access and treatment provided in the process of investigating Matthew Todd Miller and Jeffrey Edward Fowle, two tourists from the U.S. who were detained in 2014, were consistent with the laws of the relevant countries.237 With no established consular relations between the U.S. and North Korea, Sweden provides consular responsibilities
ICJ, “LaGrand Case (Germany v. U.S.A.),” Judgment of 27 June 2001, paras. 89, 128(3).
“Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S.A.
v. Iran),” ICJ/Reports 1980 (24 May 1980), p. 24. (para. 45) Korean Central News Agency, 30 June 2014.
as a protecting power for the U.S. North Korea allowed meetings between the Swedish ambassador and the two female American reporters, Euna Lee and Laura Ling, on 30 March, 15 May, 1 June and 23 June 2009. Representatives of the Swedish embassy in North Korea were also present at the trial for Aijalon Mahli Gomes.238 In the case of Kenneth Bae, it was said that the Swedish embassy was notified of his detention and that he was able meet with the consul.239 However, while he was detained in a prison camp (kyohwaso) for foreigners near Pyongyang and negotiations for his repatriation were carried out, there were times when the exchange of letters though the embassy was restricted and meetings with embassy representatives were restricted without notification.240 Otto Frederick Warmbier, who died in June 2017, met with representatives of the Swedish embassy once on 2 March 2016; however, subsequent meetings were not granted.
Canadian pastor Hyun-soo Lim had his first consultation with a Canadian diplomat on 18 December 2015, two days after he was sentenced to unlimited-term correctional labor punishment. Since the Kenneth Bae incident, foreigners’ right to consular access has been hampered.241 Such a right is not at all guaranteed for South
Korean Central News Agency, 7 April 2010.
Voice of America, 1 June 2013.
Kenneth Bae, 7 November 2016, interviewed in Seoul.
“Treatment of the Americans detained in North Korean worsens...The longest blocking of consular access,” Voice of America, 8 August 2016; “The U.S. Department of State failed to detect the location of Americans detained in North Korea...Consular access blocked for one year and three months,” Voice of America, 3 June 2017.
Koreans. Such restrictions on the right to consular access may ultimately violate the right to a fair trial stipulated in Article 14 of the ICCPR, which must be guaranteed not only to one’s nationals but also to foreigners.
Third, trials of foreigners are always held with the Central Court serving as the court of first instance, the decisions of which are final and cannot be appealed. The reason seems to be that there is a political intention to quickly close such cases, considering the impact such cases might have on the North Korean people.
However, concluding a case with a decision of the first instance trial violates foreigners’ right to trial because all individuals are entitled to the right to appeal (Article 14, paragraph 5 of the ICCPR).
On the other hand, for South Koreans detained in North Korea, there seems to be an infringement of the overall right to a fair trial, including the right to receive assistance from an attorney. On 12 May 2015, the National Human Rights Commission of Korea announced in a statement that North Korea should allow the communication of South Koreans detained in North Korea with the outside, including phone calls and exchange of letters, and should guarantee the right to receive assistance from defense counsel appointed by the South Korean government.242 To date,
National Human Rights Commission of Korea, “Statement by the Chairman of National Human Rights Commission of Korea to protect the human rights of citizens of the Republic of Korea detained in North Korea,” 12 May 2015.
however, North Korean authorities have not taken any measures in this regard. On 9 October 2015, international human rights organization Amnesty International pointed out in a statement that the details of the trials of South Koreans detained in North Korea were not disclosed and that showing only the scenes of them confessing to anti-state crimes, including espionage and conspiracy to overturn the state, constitutes an infringement of the right to a fair trial.243 As of December 2020, it is known that six South Koreans are detained in North Korea.