WELL-FOUNDED FEAR : China ignores international law in its treatment of North Korean refugees
(By
James D. Seymour - Senior Research Scholar at Columbia University’s
East Asian Institute, and corporate secretary of Human Rights in China.)
When the
subjects of refugees and the People’s Republic of China come up together, it
is usually a question of refugees from China. But in fact there are many
refugees in China itself, escaping rights deprivations elsewhere even worse than
they expect to encounter in China. The first group of foreigners coming to the
PRC were people from Vietnam in the wake of the war there; they were mostly
individuals seeking to escape the turbulence and the depressed postwar economy.
Now there is a new wave of refugees, North Koreans, a phenomenon little noticed
abroad.
Of course people in the Democratic People’s Republic of
Korea (DPRK) have always suffered extreme political persecution. But in recent
years the socialist economy has also failed (declining every year from 1990 to
1998), and much of the population has been literally starving in what United
Nations experts have called a “slow-motion famine.” Estimates of how many
have died range from hundreds of thousands to 3.5 million out of original
population of about 23 million). The famine peaked in 1996-1997, when deaths by
starvation ran at about 50 per 100,000; the rate is now lower, due in part to
the natural cycle of famines (the weakest die first; after that there is more
food available for the strong) and in part to the arrival of some international
aid.
Fortunately for the refugees, the area of China north of
Korea is populated by ethnic Koreans. Known by the Chinese as the autonomous
prefecture of Yanbian (“Yonbyon” in Korean), this part of Manchuria used to
be populated by descendants of people who came from Korea in the beginning of
the 17th century. There was another influx in the 19th
century, especially after the Korean famine of 1869. All of this emigration was
in violation of Korean law, but it became legal after the Japanese took over the
country, and was especially common after the establishment of the Japanese
puppet state of Manchukuo in northeast China in 1932.
Famine
increases exodus
The latest
exodus from North Korea began even before the famine. Around 1995 most migrants
were reasonably well-nourished males. At the time China does not seem to have
viewed them as a significant problem, and did little to stem the tide. But
around 1998, the nature of the migrant population began to shift, with the
majority now comprised of women and children, often under-nourished. Over the
years, the exodus has become more and more organized. To leave the DPRK most
people have to pay bribes to Korean soldiers. (The going rate: 500 won, or
three months’ salary.) Soon, the numbers leaving seemed beyond China’s
capacity to absorb. This coincided with a period of growing unemployment caused
by the restructuring of the state-owned sector, and China’s northeast was
particularly hard hit by this trend; not a good time to have to deal with so
many immigrants, by now numbering at least 100,000 and possibly more than
200,000.
Although in recent decades the Korean portion of the Yanbian
population has slipped from a solid majority to only 40 percent (due to the
arrival in the area of many ethnic Chinese), there are still a sufficient number
of ethnic Koreans to enable the new arrivals to blend in. They go to great
lengths to do so—using makeup and dressing like locals—but they are still
always in danger of being discovered by Chinese police or North Korean agents.
Some of the immigrants are able to find work and housing in local factories run
by Christian churches. Others work on farms, earning around $70 a year. It is a
dangerous life both for the refugees and the local Samaritans. The police often
issue threats to households and churches suspected of aiding illegal immigrants.
Employers, who are subject to fines of 30,000 yuan for harboring illegals,
often make them move on. Thus the refugees transfer from safe house to safe
house, remaining indoors (often in secret tunnels or cavities) except when going
outside is absolutely necessary. The children, being unregistered, have no
possibility of attending school.
Today, more than three quarters of the refugees are women.
Female refugees have more options than do males. Many women have found
employment and shelter as domestic workers. Although the arrangements are often
exploitative, the women consider themselves lucky—compared with imprisonment
or starvation in North Korea. But many of the women are virtual sex slaves,
before leaving their country having placed themselves in the hands of
professional bride traffickers. Many North Korean parents think that it is
better to send their daughters to China than for them to remain home hungry. At
the same time, many of China’s ethnic Korean farmers often have difficulty
finding local wives (the young women being lured to the cities to work).
Sometimes the system produces happy marriages, but all too often the purchased
women are resold to other men; sooner or later they land in the hands of the
police. Whereas until recently the authorities tended to seek out the men more
than the women, that changed this spring.
China
and international law
What
obligations does China have to these people, and to what extent have the Chinese
authorities been meeting their responsibilities?
China worries about a possible flood of new refugees. “If
we grant political asylum to one refugee today, there could be thousands or
millions of North Koreans who might flood China for the same opportunity,: said
one official. Beijing claims that the only legal obligation is, pursuant to a
PRC-DPRK treaty, to return North Koreans who enter China illegally, and that it
also has political obligations to do so. Explained one official, “Lately, the
North has been stepping up demands that we repatriate the North Koreans,
especially those who are party members or political criminals.” (Christian
Science Monitor, June 9, 2000)
But of course international law overrides any such
“obligations.” Although China has not fully acceded to very many
international human rights agreements, it happens to be a party to the United
Nations’ 1951 Convention on the Status of Refugees. That instrument defines a
refugee as a person who, “owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particular social group
or political opinion, is outside the country of his nationality and…, owing to
such fear, is unwilling to return to it.” The Convention prohibits the
refoulement (forcible return) of such people to countries where they risk
serious human rights violations. Article 33 puts it bluntly: “No Contracting
State shall expel or return (‘refouler’ a refugee….”
In addition, there is the Protocol Relating to the Status of
Refugees (1967), Article Two of which obligates “the national authorities to
co-operate with the Office of the United Nations High Commissioner for Refugees
and… in particular [to] facilitate its duty of supervising the application of
the provisions of the present Protocol.” Governments must also provide the
UNHCR with information concerning the condition of refugees.
There are also human rights treaties, declaration and
instruments which, although primarily dealing with other subjects, do bear on
the issue of refugees. Very important is the Convention Against Torture, which
China ratified in 1988. Article 3 of that Convention provides that no government
shall forcibly return “a person to another State where there are substantial
grounds for believing that he would be in danger of being subjected to
torture.” (Texts and information about these instruments are available at http://www1.umn.edu/humanrts/asylum/refugee_index.html.)
Unfortunately, China has been largely neglecting its
obligations under these instruments. People’s internationally guaranteed
rights to consult with the UNHCR have been denied. Indeed, the whole body of
international law on the subject has been ignored, with large numbers of
refugees having been forced back to North Korea where they face various forms of
persecution including torture. In 1999 the number returned was reported to be
over 7,000 (about ten percent of new arrivals). Since then, and especially this
spring, the authorities have been stepping up their efforts to capture the
refugees. In March alone, China is believed to have sent back 5,000). By June it
appeared that China had saturated the frontier with guards and patrols, reducing
the number of people able to make it across.
Although the United States has expressed support for the
UNHCR’s efforts to help the North Koreans, the reaction from most foreign
governments to the problem has been muted, and even the UN High Commissioner for
Refugees, Sadako Ogata, has usually felt obliged to limit herself to “discreet
means” of dealing with the problem. Still, she has conducted talks with the
various governments involved “aimed at clarifying the position of the UNHCR in
regard to North Korean political asylum seekers and refugees, and trying to
promote a humanitarian approach to this problem in line with universally
accepted standards.” Alas, the Chinese government has not been listening.
Blaming
the victims
When captured
by the Chinese authorities, at best North Korean escapees must pay fines, which
range from 2,000 – 5,000 yuan. More likely they will be imprisoned,
pending being returned across the border. While confined in China, mistreatment
is common, but conditions are still preferable to repatriation. In mid-April,
believing they were about to be repatriated, 80 apprehensive prisoners in Jilin
Province’s Tumen Detention Center rioted, taking two guards hostage for three
days. After sending in 100 People’s Armed Police, the authorities regained
control. The prisoners’ fears proved justified; the next day most of them were
refouled to North Korea. One man whose job it is to drive such people to the
border commented: “Yes, the girls cry; of course they cry. I heard that if
they have to send a girl back, she might be tortured. Some of tehma re so
frightened that it is as though they are in shock. All the way to the border, 60
kilometers, they stare ahead saying nothing.” (South China Morning Post, May
26, 2000).
The Chinese government claims that these people are illegal
immigrants, and argues that since Western governments expel such people, China
is within its rights to do likewise. The North Koreans, it asserts, are merely
economic migrants, and as such have no rights. This argument falls when one
considers that food is a human right—it is defined as such in the
International Covenant on Economic, Social and Cultural Rights, which China
signed in 1997. Article 11 not only sets forth “the right of everyone
to…adequate food,” but asserts an international obligation of all countries
“to ensure an equitable distribution of world food supplies in relation to
need.” China has not participated in the multilateral effort to feed the North
Korean people. What little food China has sent has been on a bilateral basis,
and most of it has gone straight to the army.
Furthermore, leaving one’s country is a right enshrined in
Article 12 of the Convention on Civil and Political Rights, signed by Beijing in
1998. (China has not ratified either of the two covenants.) But in North Korea,
seeking asylum in another country may be deemed to constitute the grave
political crime of treason, so in effect the attempt to realize one’s rights
to food and to emigrate is criminalized. Indeed, under the DPRK Criminal Code
the death penalty is authorized for escapees. Thus, the UNHCR has taken the
position that “the fact that these North Koreans have refused to be
repatriated makes them refugees regardless of their motivation of escape.”
Therefore when the Chinese authorities force people back to North Korea they
violate their obligations under international law.
Returnees’
lot
What happens
when such escapees arrive back in North Korea? First they are held for
investigation by the Korean State Security Bureau, a process which lasts from
ten days to two months. A few may get off with simply a warning, and even people
considered minor offenders are sent home after a few months in jail (sometimes
to be reincarcerated there). But for those who are repeat offenders, have had
religious contacts, or simply were abroad more than a year, the outcome is
different; they are tried by either the Social Security Department or State
Security Department. If the motivation for escape is deemed to be economic, the
sentence is still relatively light: detention in a reform center (kyohwaso).
One young escapee describes what happened to him after his first unsuccessful
flight: “I was caught. They sent me to a labor training camp. There I worked
in a housing construction site. When I tried to pause and catch my breath, they
started beating and kicking me. Many people died there, but I was young enough
to survive for four months until I was released.” (South China Morning
Post, May 17, 2000)
If the motivation is seen as in any way political, however,
the sentence is heavy: sometimes execution, at best life in prison. In 1998 the
North Korean authorities began establishing prison farms for such people. These
are forbidding places, with small unheated cells. Food is wholly inadequate.
Often prisoners sleep on the cold floor. Bathing facilities are non-existent.
There are reports of prisoners being tortured. Conditions are potentially
life-threatening. Sometimes an inmate’s condition becomes so dire that the
wardens will release him or her, rather than have a prisoner die on them.
Although most North Korean émigrés seek refuge
in China, a few cross the short 16-kilometer Russo-Korean border, or go to
maritime Russia via the PRC. Russia’s ethnic Koreans, known as Kahyeretz, are
very poor, do not speak Korean, and have little sense of kinship with people
from Korea. But Russia is still usually a better place for Korean refugees than
is China. The UN High Commissioner for Refugees has a stronger presence in
Russia, and the South Koreans are also able to help them there. In the late
1990s the Russians handed over 340 North Korean refugees to the UNHCR. Alas, of
late not all have been so lucky.
In one celebrated case, a group of seven people escaped from
North Korea in November 1999. They included five adult men (Kim Kwang-ho, Chang
Ho-won, Yo Young-il, Kim Woon-chul and Lee Dong-myung), one woman (Bang Young-sil)
and a 13-year-old boy (Kim Sung-il). The group first entered China, and then
moved on to Russia. They found refuge in a home in the town of Pervomaiskoe, but
were discovered and arrested there by the Russian Border Patrol. Interviewed on
Russian television, they said they feared execution if they were returned to
North Korea, and they wanted to go to South Korea or a third country. At first
the Russians agreed to send them to Seoul, and seats were reserved for them on
an airplane. But China, which President Boris Yeltsin was about to visit,
objected, and the Russians fell into line. The Russian ambassador in Seoul
declared that Russia would not tolerate the use of its territory as a route of
passage for “illegal trespassers” from North Korea or any other country.
Thus, even though they had been certified as refugees by the UNHCR and carried
travel documents issued by the International Committee of the Red Cross stamped
with South Korean visas, on December 31 the hapless band of seven was sent back
to China. Refugee High Commissioner Ogata’s reaction was sharp: “They must
be protected against forcible return to North Korea.” However, her unusually
blunt admonition went unheeded. Chinese Foreign Ministry spokesperson Zhang
Qihua insisted that the North Koreans in China were not refugees and could be
sent back to their country. The seven were returned on January 12, with all of
the adults reportedly being sent to prison.
In this case, it is especially clear that the Chinese
authorities flagrantly violated their obligations under international law.
Informed by the UNHCR that the seven had been certified as refugees, the Chinese
authorities were explicitly asked not to refoule them, but Beijing chose to defy
the United nations, and the unfortunate people were illegally forced into
harm’s way.
See
no evil
Why has the
international community been so silent in response to this refugee problem?
Apparently, when it comes to relations with China, the West and Japan have other
priorities. But part of the hesitation stems from the fear that intervention
would be counterproductive; China might react by closing the border completely.
South Korea feels that it must tread lightly, given the
geopolitical realities. The South Korean media have been discouraged from
reporting on the problem. In 1999, only 149 North Koreans were accepted as
immigrants. True, that was more than double the number of defectors allowed to
immigrate to the South during the previous five years. However, the number is
small in comparison with how many would like to come. The government is
ill-equipped to handle incoming refugees, and there is little support among the
South Korean population for a large influx of Northerners.
South Korean non-governmental organizations (NGOs) have been
outspoken. These include Buddhist and Christian groups, the Citizens’ Alliance
to Help Political Prisoners in North Korea and Rescue North Korean People.
However, such organizations work under several constraints. This spring about 20
international charity workers were expelled from China; some others simply
disappeared. One who happened to be in Japan was murdered.
The various international NGOs have done what they can, with
Amnesty International making appeals, and the International Committee of the Red
Cross issuing travel certificates. Human Rights in China has sent a letter to
the Chinese authorities appealing for humane treatment of these refugees and
reminding China of its obligations under international law.
Although such efforts have not had a noticeable effect, the
outlook is not wholly bleak. In 1999 North Korea’s economy finally began
growing again, with the GDP up 6.2 percent. Although that still left the economy
well below what it had been in the 1980s, the arrival of foreign aid in the wake
of the improved international climate bodes well—provided that it is given to
those most in need rather than to the politically connected as in the past. But
whether the refugees now in China will be eager to return home given the still
repressive political system is more doubtful. Many are frantically trying to
save enough money to buy a Chinese residency card, which costs well over $1,000
on the black market.
Fortunately, some in the Chinese government are becoming concerned about the bad image China is gaining over the refoulement issue. Moderates are urging a rethinking of the whole problem, and arguing the Pyongyang regime should be pressed to institute Chinese-style agricultural reforms. Such voices must be heeded if China is to gain respect as an upholder of international law.