Joint Letter: South Korea's Abolition of the Death Penalty

To the attn. of:

Yoon Suk-yeol

President of the Republic of Korea

Republic of Korea

March 27, 2023

Re: South Korea’s abolition of the death penalty

Dear Mr. President,

During South Korea’s fourth cycle Universal Periodic Review (UPR) on January 26, 2023, 31 countries[1] made recommendations concerning the abolition of the death penalty and/or the ratification of the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty. This again shows the international community’s growing consensus as previously expressed in the recommendations made by 26 countries during South Korea’s previous third cycle UPR cycle on November 9, 2017.[2] We therefore renew our call for South Korea to abolish the death penalty, which it has not carried out in the past 25 years since December 30, 1997, for all crimes.

We also note and welcome South Korea’s vote in favor of the UN General Assembly’s resolution 77/222 on December 15, 2022, which called upon states that maintain the death penalty to establish a moratorium on executions with a view to abolishing capital punishment and to consider acceding to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty.

The global trend towards the abolition of the death penalty is clear.[3] At the end of 1997, when South Korea carried out its last execution, there were 102 countries that had abolished the death penalty in law or practice (abolitionist for all crimes in 61).[4] By the end of 2007, when South Korea became an abolitionist country in practice, the number of countries that had abolished the death penalty in law or practice jumped to 134 (abolitionist for all crimes in 91).[5] By the end of 2021, that number further increased to 144 (abolitionist for all crimes in 108).[6]

This global trend is reflected in the voting patterns at the UN General Assembly. In December 2007, the UN General Assembly adopted resolution 62/149, the first ever resolution on the moratorium on the use of the death penalty by a 106-46 vote with 34 abstentions.[7] In December 2020, South Korea for the first time joined the growing number of countries that supported the biennial resolutions with its vote in favor of resolution 75/183, adopted by a 123-38 vote with 24 abstentions.[8] In December 2022, resolution 77/222 was adopted by an all-time high of 125 votes in favor with 37 against and 22 abstentions.[9]

We recall that the use of the death penalty is inconsistent with South Korea’s international legal obligation to respect fundamental human rights, including the right to life. With 59 persons still on the death row, including Won Eon-shik who has been under the death sentence for almost 30 years since November 23, 1993, South Korea may also be in breach of its international legal obligation to prevent torture and other cruel, inhuman or degrading treatment or punishment. UN human rights experts have recently reiterated that the “death row phenomenon” (the psychological effects on prisoners of being on the death row for a prolonged period while awaiting an imminent execution under harsh conditions of confinement) has long been characterized as a form of inhuman treatment.[10] Earlier in 1989, the European Court of Human Rights in Soering v. United Kingdom blocked an unconditional extradition request from the United States on this ground.[11]

It is important to note that no criminal justice system is perfect. The police, prosecutors and judges failed to prevent miscarriage of justice in the cases such as the murder of a taxi driver at the Yakchon five-way crossing in Iksan and the eighth of the ten Hwaseong serial murders. While an exonerated person can always be released from prison, bringing him or her from death is impossible. If it is better that ten guilty persons escape than that one innocent suffer, as Blackstone famously said, it must indeed be better that ten guilty persons escape the death penalty than that one innocent suffer the deprivation of life.

We also note that lawmakers have proposed a total of nine bills to abolish the death penalty in every session of the National Assembly, including the current one, since 1999[12] as well as a resolution supporting the accession to the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, in 2018.[13] The Constitutional Court twice upheld the constitutionality of capital punishment by a 7-2 vote in 1996 (95 Hun-Ba 1) and by a 5-4 vote in 2010 (2008 Hun-Ga 23). However, it now can declare the death penalty unconstitutional in a case pending before it (2019 Hun-Ba 59) to pave the way for its abolition.

We respectfully call on South Korea to immediately take the following steps to make progress towards the abolition of capital punishment, in keeping with its support for the UN General Assembly’s resolutions on the moratorium on the use of the death penalty:

• Declare an official moratorium on executions
• Commute all death sentences to prison terms
• Repeal or amend all laws that prescribe the death penalty for various criminal offenses, with a view to abolishing capital punishment for all crimes
• Ratify the Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty

We also urge South Korea to stop the deportation and extradition of persons to countries that retain the death penalty, including the United States[14], Japan, China[15] and North Korea[16], in violation of the principle of non-refoulement including where they would be in danger of being given a death sentence. We note the Human Rights Committee’s dictum in Roger Judge v. Canada in 2002 that “only States parties that “have not abolished the death penalty” can avail themselves of the exceptions created in paragraphs 2 to 6 [of article 6 of the International Covenant on Civil and Political Rights concerning the death penalty]. For countries that have abolished the death penalty, there is an obligation not to expose a person to the real risk of its application. Thus, they may not remove, either by deportation or extradition, individuals from their jurisdiction if it may be reasonably anticipated that they will be sentenced to death, without ensuring that the death sentence would not be carried out”.[17]

Sincerely,

Signature organizations (as of March 27, 2023)

Groups

ACAT - Belgique (Action des Chrétiens pour l'Abolition de la Torture)

ACAT - France (Action des chrétiens pour l’abolition de la torture)

ACAT Germany (Action by Christians for the Abolition of Torture)

Anti-Death Penalty Asia Network (ADPAN)

Arakan Rohingya National Organisation (ARNO)

Asia Democracy Network (ADN)

Balay Alternative Legal Advocates for Development in Mindanaw, Inc. (BALAOD Mindanaw)

Centro para la Apertura y el Desarrollo de América Latina (CADAL)

Citizens' Alliance for North Korean Human Rights (NKHR)

Commission for Disappeared and Victims of Violence (KontraS)

Cornell Center on the Death Penalty Worldwide

Death Penalty Focus

Federal Association of Vietnamese Refugees in the Federal Republic of Germany

Forum marocain pour la vérité et la justice (FMVJ)

German Coalition to Abolish the Death Penalty (GCADP)

Human Rights Watch

Human Asia

Instituto de Derecho Penal Europeo e Internacional de la Universidad de Castilla-La Mancha (UCLM)

International CURE

Italian Federation for Human Rights (FIDU - Federazione Italiana Diritti Umani)

Judicial Reform Foundation (JRF)

Legal Awareness Watch Pakistan (LAW)

Lifespark

Nessuno tocchi Caino (Hands Off Cain)

Norwegian Helsinki Committee (NHC)

Regroupement des Jeunes Africains pour la Démocratie et le Développement section Togo (REJADD- TOGO)

SALAM for Democracy and Human Rights (SALAM DHR)

Southern African Centre for the Constructive Resolution of Disputes (SACCORD)

Taiwan Alliance to End the Death Penalty

Transitional Justice Working Group (TJWG)

Witness to Innocence (WTI)

World Coalition Against the Death Penalty (WCADP)

Individuals

Lord Alton of Liverpool / Independent Crossbench Member of the House of Lords & Co-chair of the All Party Parliamentary Group on North Korea

Marzuki Darusman / Former UN Special Rapporteur/Commission on Inquiry (COI) member on the situation of human rights in the DPRK

Sonja Biserko / Former Commission of Inquiry (COI) member on the situation of human rights in the DPRK & current chair at the Helsinki Human Rights Committee in Serbia

Tomás Ojea-Quintana / Former UN Special Rapporteur on the situation of human rights in the DPRK