End of Mission Statement on the International Human Rights Monitoring to the Republic of Korea:

Freedom of Peaceful Assembly

(Seoul, 9 December 2015) – An international human rights monitoring team led by the Asian Forum for Human Rights and Development (FORUM-ASIA) conducted an investigation and monitoring mission from 4-9 December 2015.  The mission looked into any breaches of law from the authorities during the assemblies known as “the People’s Rally 2015” on 14 November 2015 and “the Nationwide Rally for the Denunciation of State Violence and the Recovery of Baek Nam-gi” on 5 December 2015 held in Seoul, South Korea.

The delegation comprises of Ms. Chiranuch Premchaiporn, the Executive Director of Prachatai online newspaper in Thailand; Mr. New Sin Yew, a Malaysian Constitutional and Human Rights Lawyer; and Ms. Pimsiri Petchnamrob, East Asia Programme Officer of FORUM-ASIA.

The delegation met with civil society organisations, journalists, lawyers, victims, a member of the National Assembly and the National Human Rights Commission of Korea (NHRCK) to assist their investigations.^[1]

The preliminary reports received by the delegation show that there were numerous human rights violations by the authorities against the participants on 14 November 2015. This is in stark contrast with the assembly on 5 December 2015 which was uneventful.

The delegation notes that the human rights violations by the authorities on 14 November 2015 took the following form: (1) Use of water cannon; (2) Use of bus barricade; and (3) Reprisal against assembly organisers and participants.

Use of Water Cannon

The delegation notes that there was a blanket, indiscriminate and unjustified use of water cannon against participants on 14 November 2015 by the authorities.^[2] Mr. Baek Nam-gi was directly shot by a water cannon despite not being a threat to the authorities. This caused Mr. Baek to suffer grievous bodily injuries. Mr. Baek remains unconscious and in critical condition to date.

The use of force against Mr. Baek was in violation of various international standards. The authorities should “use force only when necessary and to the extent required for the performance of their duty”^[3]. Further, authorities should not resort to force during peaceful assemblies and ensure that, “where force is absolutely necessary, no one is subject to excessive or indiscriminate use of force”.^[4]

The delegation considers the manner the water cannon was used against Mr. Baek as a lethal use of force, even if water cannon in its ordinary usage would not be lethal. ^[5] The use of lethal force should only be made “when strictly unavoidable in order to protect life”.^[6]

The authorities should be reminded that “states should facilitate and protect peaceful assemblies, including through negotiation and mediation”^[7] and that “isolated acts of violence committed by others in the course of a protest do not deprive peaceful individuals of their rights to freedom of peaceful assembly”^[8].

Use of Bus Barricade

The delegation notes that the use of bus barricade “can only be justifiably relied on as a last resort when there is imminent, clear and grave danger that cannot be prevented by granting conditional permission or by ordering termination or dispersal of assembly”.^[9]

Preliminary findings show that the bus barricade was deployed before the assembly on 14 November 2015. This was pre-emptive and not in conformity with the international standard that “the protest must be presumed peaceful and lawful unless it proves otherwise”^[10].

The delegation is of the view that there is still no evidence of any “imminent, clear and grave danger” which would justify the use of bus barricade. At this juncture, unless there is any evidence to the contrary, the use of bus barricade was unjustified.

Reprisals against Participants

The delegation further notes that 1,531 individuals are being investigated for participating in the assembly on 14 November 2015^[11]. The delegation considers this as a form of reprisal against those exercising the right to freedom of peaceful assembly. In order for the right to freedom of peaceful assembly to be meaningful, the state must not impose criminal sanctions on participants for exercising their right.

The United Nations Human Rights Committee had previously expressed its concerns to the Government of South Korea on the freedom of peaceful assembly including “the frequent application of criminal law to impose fines and/or arrest journalists and human rights defenders for either organizing or participating in protests without due consideration of their right to freedom of assembly”^[12].

The Government of South Korea must immediately drop all charges and stop reprisals against people who exercised their fundamental freedoms guaranteed by the Constitution and the International Covenant on Civil and Political Rights.

Conclusion

The delegation shall prepare a full and final report on this matter and submit it to the United Nations Special Rapporteur on the Right to Freedom of Assembly and Association, Maina Kiai, for the purpose of his official visit to South Korea in January 2016. In the interim, the delegation calls upon the Government of the Republic of Korea to respect the right to freedom of assembly in the future assemblies as it has done on the assembly of  5 December 2015.

^[1] The delegation requested for a meeting with the Korean National Police Agency (KNPA) and Seoul Metropolitan Police Agency (SMPA). However, the KNPA has not responded to the request while the SMPA denied the request on the basis that the delegation is fixed in their findings. The delegation regrets and disagree with SMPA’s view and maintained that they have at all times remained open minded in their objectives. The delegation continues to invite SMPA for a meeting to assist their investigations.

^[2] 182 tons of water and 441 litres of capsaicin were used.

^[3] United Nations Code of Conduct for Law Enforcement Officials, Adopted by General Assembly resolution 34/169 of 17 December 1979

^[4] Basic Principles on the Use of Force and Firearms by Law, Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba,

27 August to 7 September 1990

^[5] The Report of United Nations Special Rapporteur on extrajudicial, summary and arbitrary execution indicated that “the problem is that in some cases ‘less-lethal weapons” are indeed lethal and can lead to serious injuries. The risks will be dependent on the type of weapon, the context of its use, and the vulnerabilities of the victim or victims”.

^[6] Principle 9, United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, cited

^[7] Statement by Maina Kiai, Special Rapporteur on the rights to freedom of peaceful assembly and of association 20th session of the Human Rights Council – Agenda item 3, 20 June 2012, Geneva

^[8] Human Rights Council Resolution 25/38, The promotion and protection of human rights in the context of

peaceful protests (A/HRC/RES/25/38)

^[9] Cite 2009 Constitutional Court decision

^[10] Maina Kiai, UN Special Rapporteur (A/HRC/26/29 and A/HRC/20/27)

^[11] National Korean Police Agency Statement on 6 December 2015

^[12] Concluding observations on the fourth periodic report of the Republic of Korea (CCPR/C/KOR/CO/4), 5 November 2015