On Jan. 28 activist Park Sang-hak became the first person to be indicted in South Korea under a law that criminalizes the sending of leaflets to North Korea. The rationale for the prosecution is “harming or gravely endangering people’s lives and bodies”.
But Park does not endanger anyone’s limbs, much less lives.
One of over 33,000 North Korean defectors in South Korea, Park has for years worked with his organization Fighters for Free North Korea (FFNK) to send huge balloons across the Demilitarized Zone (DMZ), which serves as the de facto land border between the two Koreas. They carry rice, money, medicine, bibles, and most importantly leaflets and USB drives full of incendiary attacks on Kim Jong-un and his family, including some very unflattering epithets for the North Korean leader.
Activists hope that such balloons and their contents will reach people in North Korea, taking much needed supplies as well as information inside the restrictive regime.
There are questions about the effectiveness of this tactic, but the Kim regime, known for strictly controlling what its people can access, never shied away from showing displeasure at the leaflets. In 2014 North Korean border guards tried to shoot down these balloons. Bullets rained down on Yeoncheon County in the South, with the South Korean military returning fire.
After Moon Jae-in, a center-leftist, became president in 2017 promising peace and co-existence with the North, attempts were made to improve inter-Korean relations, not least at the historic April 2018 DMZ summit between Moon and Kim. While those peace initiatives have stalled, activists like Park continued the balloon campaign from South Korean soil, and the North called on Seoul to stop them.
The result is amendments to the blissfully named Development of the Inter-Korea Relations Act, which the South Korean parliament, controlled by Moon’s own Minjoo Party, passed in December 2020.
Among the changes is the law’s one and only penal provision: banning the use of propaganda speakers and the display of any visual materials about the North around the DMZ, and forbidding the distribution of leaflets as well as USBs and money—all on the ground that they may “cause harm or serious danger to Korean citizens’ lives and bodies.”
Park of course defied the ban in April 2021, leading to the indictment.
The problem with the law is clear. Many non-governmental organizations including mine, Open Net, have criticized it for restricting freedom to communicate with North Koreans, and infringing their access to information. The only way for these anti-Kim leaflets to hurt anyone is if the Kim regime responds to the words with swords or worse. But Seoul’s logic is that a peaceful critic can be criminally answerable for the violent response of the one being critiqued.
The South Korean government has justified the law as a restriction only on the means of speech, not the content. It says the law does not stop people from speaking out against North Korea and is designed to reduce the military tension that supposedly rises whenever anti-NK leafleting activities take place, and to thereby protect the people living near the DMZ.
But as Open Net has already pointed out before, the text of the law belies that claim of such intent. The law bans all “distribution of leaflets, etc.” regardless of where it takes place and what they are for. If Park floated balloons carrying leaflets from Busan at the southern end of the peninsula, without any possibility of reaching North Korea, but somehow harmed or seriously endangered Koreans’ lives or bodies, he would still be indicted under this law.
It is also revealing of the government’s censorial desire that the law bans speakers and visual displays only in the vicinity of the DMZ, but leafleting from anywhere is criminalized. In theory, even when it is from the United States!
Balloons do not have a realistic chance of crossing the Pacific, but the law targets other activities that could be conducted against North Korea from overseas. It defines “leaflets, etc.” as “leaflets and objects including advertising, print materials and memory devices, etc.”. Also departing from its strict lexiconic definition, the term “distribution” (salpo 살포) in the law is clarified as “sending to unspecified multiple North Korean people” and “transporting into North Korea (including through a third country)”.
The broadness of the law’s language means that even running a website advertising critical books about North Korea from the United States would be punishable under it. Forget about trying to get materials about, say the market economy, into North Korea through China. That, too, would be illegal and subject to prosecution in South Korea.
The ultimate effect of the law is to stop critical speech about North Korea from getting to North Koreans, no matter what the South Korean government claims.
The price of breaking the law is heavy: up to three years of imprisonment or a fine of up to 30 million won (25,000 USD). The punishment extends even to those who simply make an attempt. This is not necessary. The Supreme Court of Korea already ruled in 2016 that the authorities were justified in stopping the leafleting activity near the DMZ given what happened in 2014 with North Korean guards spraying bullets into civilian areas in the South. That judicial decision empowered the police to prevent activities that they reasonably perceive will cause immediate physical harm, making any criminal prosecution gratuitous.
Ironically, the Moon administration is dominated by democracy activists who battled the military dictatorship in the 1980s, and their biggest faction—the National Liberation or NL—made a name for themselves at the time by fighting heroically to exercise their right to communicate with and visit North Koreans. Some, such as Im Soo-kyung who later became a lawmaker, served long prison sentences for it.
Fast forward to 2020 and Moon, a former human rights lawyer, has built a reputation for himself as having no interest in North Korean human rights, not least by having his government abstain from co-sponsoring the annual resolution on the human rights situation in the North at the UN General Assembly.
And in an act of hypocrisy, those same people with the NL background in the government supported the amendment that would put Park in prison for sending messages to North Koreans, no doubt because he comes from the other side of the political spectrum and hates the Kim family.
At this rate we may soon be looking at an attempt at banning insults against the Kim regime, and it would not be such a big leap: insulting or defaming visiting foreign heads of state is already a crime under Article 107 of South Korea’s criminal code. Even Germany had a lèse-majesté law banning insults against foreign governments and heads of state until 2017.
It would be a fitting counterpart to South Korea’s existing National Security Act, which punishes praising North Korea and its leaders. That law has long been criticized by the UN Human Rights Committee and progressive political groups within the country as infringing on both human rights and freedom of speech. It also makes no sense given that the governments around the world routinely exchange pleasantries in order to build amicable relationships; why shouldn’t South Koreans say nice things about North Korea if they wanted to?
But instead of doing away with such an arcane law, the Moon administration has imposed yet one more suffocating restriction on South Koreans. Already, if they praised Kim Jong-un, they could go to prison. And now, if they try to say critical things about him to North Koreans, they can also go to prison.
Koreans on both sides of the DMZ are victims of these laws, not to mention activists like Park Sang-hak, who is facing a lengthy uphill legal fight against a hypocritical government.
Cover: Park Sang-hak holds up a blown-up copy of the leaflet that goes into his balloons in a promotional video shared by his organization FFNK.