Sovereignty-Centric Perception of Human Rights
A. North Korean Laws on the Death Penalty
on April 29, 2004, it has made additional partial revisions on six occasions: April 19th and July 26th of 2005, April 4th and Octo- ber 18th of 2006, and June 26th and October 16th of 2007. Again in April 2009 North Korea made another major amendment to its Penal Code. As in previous Penal Code revisions, the revised 2009 Penal Code also lists various categories of crimes subject to capital punishment. According to this list, following crimes are subject to capital punishment: conspiracy to overturn the state, terrorism, treason against the fatherland, treason against the people, and pre- meditated murder. North Korea has expanded the category of cap- ital punishment by adding the crime of treacherous (disloyal) destruction to the list (Art. 64). In addition, the 2009 revised Penal Code stipulates a statute of limitations of 20 years for crimes subject to capital punishment (Art. 56). While the stipulation of a statute of limitations should be construed as a positive develop- ment, adding another category of crime subject to capital punish- ment is a negative sign as it constitutes a serious breach of citizens’
fundamental right to life. The required elements for crimes subject to capital punishment are listed in the following <Table II-1>:
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<Table Ⅱ-1> Required Elements for Crimes subject to Capital Punishment in North Korea’s Revised 2009 Penal Code Conspiracy to Participation in political revolt, civil disturbance,
overturn the demonstrations, or violent attacks, and conspiracies State thereof; applies to extremely serious cases.
Terrorism Murder, kidnapping, or harming of officials or citizens for anti-State purposes; applies to extremely serious cases.
Those who betray the Fatherland by fleeing and Treason against surrendering to another country; those who betray the the Fatherland Fatherland or turn over secrets to the enemy;
applies to extremely serious cases.
Treacherous Disloyal destruction for anti-state purposes; applies to Destruction extremely serious cases.
On December 19, 2007, North Korea added a unique form of law called an “Annex” to its Penal Code (involving ordinary crimes). This “Annex” is undoubtedly a very significant statute within North Korea’s legal structure, since the Presidium of the Supreme People’s Assembly has formally adopted it as a “govern- ment directive” and it functions as a complement to the North Korean Penal Code. For this reason, it carries a weight equal to that of the other provisions of the Penal Code.1 This “Ordinary Crimes Annex” consists of a total of 23 articles, and 16 of the arti- cles stipulate crimes subject to capital punishment, including smuggling and dealing in narcotics. At the time of the Penal Code revision in 2004, North Korea had a limited scope of crimes sub- ject to capital punishment, such as “conspiracy to overturn the state,” “treason against the Fatherland,” terrorism, treason against the people, and premeditated murder. The fact that North Korea added an Annex to its Penal Code in the 2007 revision is definitely retrogressive in terms of human rights protection, as it has expand- ed the scope of capital punishment for the purpose of reinforcing control over citizens and protecting the system. In particular, all 16 articles in the Annex contain highly vague expressions such as
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1_Park Jeong-won, “An Assessment of North Korea’s Recent Penal Code Revision – In Connection with the Adoption of the Annex to North Korea’s Revised Penal Code in 2007” (Seoul: 144th Monthly Seminar of the Study Group on North Korean Laws, Aug. 24, 2009).
Korean nationals who, living under imperialist rule, Treason against engaged in persecution of North Korea’s National the People Liberation Movement or the struggle for unification of
fatherland; applies to extremely serious cases.
Premeditated Premeditated murders based on greed, jealousy, or other Murder despicable motivations; applies to extremely serious cases.
“the gravest cases” or “extremely serious cases” in connection with capital punishment, which leaves room for arbitrary decisions by the authorities; by not clearly defining these expressions, the Annex permits capital punishment for various crimes as long as the authorities can determine the crime in question was “extremely serious” (See Art. 23). The crimes subject to capital punishment as codified in the “Ordinary Crimes Annex” are listed in <Table II-2>
below:
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<Table Ⅱ-2> Rules for Capital Punishment in the Penal Code Annex (on Ordinary Crimes)
Severe acts of willful destruction Willful destruction of technical combat of military facilities and technical equipment and military facilities (extremely
combat equipment serious cases)
Severe acts of plundering of Plundering of state property (extremely
state property serious cases)
Severe acts of theft of state Theft of state property (extremely serious
property cases)
Severe acts of willful destruction Willful destruction or damaging of state or damaging of state property property (extremely serious cases) Severe acts of engraving or Engraving or printing counterfeit currency printing counterfeit currency (extremely serious cases)
Severe acts of smuggling or Smuggling or black-market sales of black-market sales of precious precious metals or colored metals metals or colored metals (extremely serious cases)
Unlawful export of underground resources, Severe acts of smuggling state forest resources, or fishery resources for resources sale in other countries (extremely serious
cases) Severe acts of smuggling or
Acts of smuggling or black-market dealing black-market dealing in of
in narcotics (extremely serious cases) narcotics
Extreme instances of prisoner Cases in which a prisoner serving a heavy
escape prison term flees before serving out the
term
In its 2009 UPR report to the UNHRC,2North Korea said that capital punishment is handed out only in five categories of extremely serious crimes (Section 34 of the report). From this statement it can be surmised that North Korea’s 2009 UPR report was filed before the enactment of its revised 2009 Penal Code.
It is noteworthy that North Korea did not officially acknowl- edge various capital punishment categories contained in the Ordi- nary Crimes Annex of its revised Penal Code. Perhaps North Korea deliberately avoided any mention of this Annex for fear of international criticism that it has expanded the scope of capital punishment.
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2_UN Human Rights Council, Working Group on the Universal Periodic Review, Sixth Session, Geneva, 30 November – 11 December 2009, “National Report Submitted in Accordance with Paragraph 15(A) of the Annex to Human Rights Council Resolution 5/1, Democratic Republic of Korea,” UN Doc. A/HRC/WG.6/
6/PRK/1 (27 August 2009).
Extreme instances of Acts of gangster (hoodlum)-like behavior gangster-like behavior (extremely serious cases)
Unlawful business operation Cases in which sexual services are organized at restaurants or boarding houses Extreme instances of deliberate Taking deliberate actions which inflict infliction of serious injury serious injury to others (extremely serious
cases)
Severe acts of kidnapping Kidnapping of a person (extremely serious cases)
Severe acts of rape Acts of rape (extremely serious cases) Severe acts of theft of private Acts of theft of another person’s private
property property (extremely serious cases)
Other exceptional crimes
Cases in which a criminal has committed subject to an unlimited term
multiple crimes and displayed no remorse of correctional labor or death
(extremely serious cases) sentence
North Korea’s Penal Code stipulates, “Criminal liability shall be confined to those acts of crime stipulated in the Penal Code.”
(Art. 6, North Korean Penal Code) Despite the Penal Code’s stipu- lations, however, various forms of punishment, including capital punishment, are enforced through such means as “proclamations”
and “instructions.” For example, on Jan. 5, 2008, the Organization Bureau of the KWP Central Party Headquarters issued instructions on “making this year free of human trafficking” and disseminated them all across the border regions. This document stipulates mandatory heavy penalties for those caught trafficking humans.
For example, it proclaims that if anyone is found to have partic- ipated in human-trafficking, they shall be put to death without exception.3