IV. GETTING BEYOND CHINA: THE INTERNATIONAL COMMUNITY AND ITS OBLIGATIONS
The Routes Out
South Korea's Ministry of Unification reports a steady increase in the numbers of North Koreans it is resettling in the South each year, with numbers roughly doubling each year since 1998.87 For the year 2002, the number of refugees accepted into South Korea stood at 629 as of July 30, 2002.88
Less than 20 percent of this inflow is due to a small explosion of incidents of North Koreans seeking refuge in foreign embassies, consulates and organizations in China in 2002.89 In the two years prior, several small groups of North Koreans managed to enter the premises of embassies and international organizations, their eventual departure for intermediate states and South Korea brokered after negotiations with China. This trickle swelled this year, as families of North Koreans broke into Japanese, Canadian, South Korean and U.S. diplomatic missions, pursued by Chinese public security officers who succeeded in some instances in arresting the refugees. A particularly tense standoff between the government of China and that of South Korea began in May 2002, as the first of what would eventually be twenty-four North Korean refugees entered the embassy. These refugees, like others who had entered foreign embassies, were released by China on "humanitarian grounds" for immigration to South Korea via a circuitous, face-saving route.
The most dramatic diplomatic incident took place on May 8, 2002, when armed Chinese police entered Japan's consulate in Shenyang and dragged away five North Koreans. China insisted Japanese officials gave the police permission to enter the compound, while Tokyo claimed they entered in violation of the Vienna Convention on Consular Relations90 and demanded an apology from Beijing. A videotape of the incident, shown repeatedly on Japanese television and internationally, showed Japanese officials doing nothing to head off the police. Subsequently, a dozen Japanese consular officials were reprimanded by the Japanese foreign ministry and the consul-general in Shenyang was recalled. Two weeks later, an agreement was reached leading to the departure of the North Koreans for Seoul on May 23 via the Philippines. At one point, the Chinese foreign minister proposed that the two countries develop a bilateral consular treaty to avoid further such embarrassments, and Japan initially agreed, but the plan was ultimately dropped when it became clear that it would take years to ratify a new treaty.91
The repeated diplomatic face-offs and negotiations have brought about a hardening of attitude on the part of the Chinese. This attitude was reflected in a diplomatic memorandum dated May 21, 2002, circulated by China's foreign ministry to all Beijing embassies, demanding that foreign governments "inform the Consular Department of the Chinese Ministry of Foreign Affairs in case the illegal intruders were found, and hand over the intruders to the Chinese public security organs."92 Some governments, including that of the United States, flatly refused to comply with China's demands. At a Senate Judiciary Committee hearing on June 21, 2002, State Department officials when pressed said the U.S. would reject any demands to turn over North Koreans. However, Arthur Dewey, Assistant Secretary of State for Population, Refugees and Migration, also warned that "there are no guarantees for North Koreans who seek refuge in third country diplomatic compounds and they are putting themselves at great risk. In a post 9-11 world, no diplomatic compound will tolerate unidentified persons breaking through security for any reason."93
Other governments, such as South Korea, have taken a more nuanced approach, or have simply ignored China's diplomatic memorandum written request. The South Korean government told Human Rights Watch that "our policy is to take measures respecting the person's wish under humanitarian principles once a North Korean refugee enters into our diplomatic offices. Therefore, when a North Korean wishes to go to the Republic of Korea, we make an endeavor to realize [this] through negotiation with the Chinese government...even though the argument of China claiming that a diplomatic office does not have the power to protect a third country citizen has some merit under in the light of international custom."94
However, the several dozen North Koreans who have gained safe passage after dashing into diplomatic compounds represent only a tiny fraction of those who ultimately leave China. Others purchase false identity papers and passports and fly out, usually with relatives in the South coordinating their quiet transit and alerting the South Korean government. Yet others are guided by brokers out of China via two main routes: either over the Mongolian border, or to Yunnan and there over the border to the Mekong River, usually transiting Cambodia, Vietnam, or Laos and sometimes Burma to eventually reach Thailand and the South Korean embassy in Bangkok.
The cost of transiting through China safely and crossing into another country varies considerably, depending on whether the refugee depends on the largesse of missionary or church groups or whether he or she has relatives who can pay and privately broker the escape. The more recent North Korean asylum seekers we interviewed estimated the total cost of bribes, false papers, and payoffs for shelter and guides to run between U.S.$10,000 to U.S.$30,000, a large enough sum to keep the number of successful departures from China relatively small.
In practice, the Chinese government has unofficially tolerated both cross-border trade as well as some migration from North Korea until the late 1990's, during the North Korean famine. But the border of the Tumen River, easy to cross when it is frozen, is heavily guarded by both Chinese guards and North Korean security forces. Enforcement efforts seem to have been most consistent against persons specifically requested by North Korean officials rather than the general migrant population. There have been periodic crackdowns on ordinary migrants, however, one taking place following the Gil-Su family's successful and highly publicized bid for asylum in UNHCR offices in May 2001. At that time, daily mass expulsions and stepped-up searches and border patrols by China were incorporated into an ongoing anti-crime "strike hard" campaign. China has also dealt flexibly with "embassy refugees." Almost all have eventually been allowed to leave China, generally through the face-saving fiction that they are headed to an immediate destination other than South Korea, though in fact the latter is where the journey almost always ends.
This situation appears to have been changing, and the crackdown on the border has only intensified since the wave of embassy asylum bids that began this past March. Humanitarian workers have reported to Human Rights Watch that the security situation on both sides of the border is more severe than they have witnessed in the past four years. Armed soldiers have replaced border police at checkpoints, and in China regular searches of taxis, buses and train stations are taking place, as well as nighttime house-to-house searches for North Koreans. People who have been hiding in the towns in Yanbian are scattering inland and to the mountainous areas where they are less likely to be detected. Large deportations are taking place frequently as well. Aid workers at the border report that migration from North Korea is down markedly even from the normally low levels of the spring planting season.96
From May 2002, the Chinese government began to focus on tightening security around foreign embassies, increasing patrols in the embassy district of Beijing, and erecting new barbed wire cordons near embassies, in addition to issuing the diplomatic memorandum warning foreign embassies against sheltering asylum seekers (see Appendix B).
South Korean Policy
The policy is embodied in the Protection of North Korean Residents and Support of their Settlement Act (law number 6474, Partial revision on May 24, 2001), which stipulates the procedure for invoking the government's protection in Article 7:
1. Any person who has defected from North Korea and desires to be protected under this Act shall apply for protection to the head of an overseas diplomatic or consular mission....
Not all North Koreans, however, may be entitled to protection. Article 9 of the same act sets forth criteria for a determination of protection. Among those who may be excluded are serious criminals, those suspected of feigning defection, those who appear to have earned a living for a considerable period in their country of domicile, and others recognized by presidential decree as unfit for protection. Article 16 provides that those who might cause serious political or diplomatic hardships to the Republic of Korea if given protection can be defined as unfit for protection. Despite these exclusions, the default position of the law is for inclusion, regardless of whether the person has a fear of persecution or is an economic migrant. South Korean law, in this respect, is more generous towards North Koreans than international refugee law.
Actual policy, however, is somewhat more equivocal. A mid-level official at the Ministry of Unification explained that in 1997 under the Kim Young Sam government, the basic policy of accepting all North Koreans who wished to migrate to the South was instituted and communicated to embassies and consulates. However, an important qualification on the "principle" of acceptance is the diplomatic mission's discretion in considering relations with the host country. The ministry official explained, "If cooperation between the embassy and the host country is smooth, then it is easy. If the country severely opposes our facilitating resettlement in South Korea, then the embassy won't accept them. If the country protests severely, we won't accept them." This would account for the lack of diplomatic initiative in countries such as Vietnam or Burma, which are disinclined to act as conduits for North Korean resettlement, and experiences such as that of Mr. Cho, who was turned over to the police by a South Korean embassy staff member on January 31, 1999.
Yet as the ministry official admitted, the policy is "evolving." South Korea protested strongly when Chinese police on June 13 burst into its embassy in Beijing, dragging out a North Korean man named Won who was attempting to take refuge there with his son, in the process injuring a diplomat and a local employee.98 In an unusual departure from its practice of "quiet diplomacy," the Foreign Affairs-Trade Ministry held a press briefing on June 27, 2002, on China's crackdown on missionaries and non-governmental organizations that aid North Korean migrants in China, likely reflecting its own frustration at trying to get China to soften its positions behind the scenes.99
Once taken to South Korea, North Koreans are required to undergo a rigorous period of interview, debriefing, and orientation by the Korean National Intelligence Service that usually lasts about three months. During this time they are housed at the Hanawon camp, which the government is planning to dramatically expand in response to the swelling numbers of migrants. It has already added services that reflect the change in its population from military defectors to increasing numbers of women and youth. The government continues to have some supervisory authority after their release, and indeed, one man we interviewed came to his interview accompanied by a Seobu police station detective, who while not present during the interview, included it in his report.
North Koreans who resettle receive generous subsidies for public housing, education, job training, living expenses over two years, and employment insurance-amounts that exceed assistance to ordinary South Koreans in poverty, and to which migrant Koreans with Chinese citizenship are not entitled. Yet even those who criticize the expenditures on North Koreans acknowledge that the transition to the highly competitive, capitalist lifestyle of the South is a difficult one. It has been politically unacceptable to call for closing the doors on brothers and sisters to the North, but there has been a movement to make migration less attractive, by reducing subsidies and delaying the transition of migrants to full citizenship.
The Resettlement Act, referred to above, was revised on June 3, 2002, and a provision was added to article 39, which deals with the subsidy. It provides that the amount of subsidy can be reduced up to half of the standard amount based on the following factors:
· the extent of the protected defecting North Korean resident's property and his or her direct family's property;
In light of the increasing arrivals, South Korea also planned to expand the Hanawon camp, with construction beginning in July 2002 and completion of a facility that will hold 1,500 people expected by the end of 2003.101
Transit and Asylum Nation Policies
A suggestion by international activists that refugee camps for North Koreans be established in Mongolia was quickly rejected by the Mongolian foreign ministry, and attacked by Beijing.102 Mongolia is not currently a party to the Refugee Convention. In early August 2002, the North Korean foreign minister, Paek Nam Sun, visited Ulan Bator and signed two treaties on economic, educational, and cultural cooperation. It was the highest level visit from a North Korean official in fourteen years, according to Mongolian officials. From press accounts and contacts with Mongolian diplomats, it is unclear whether the matter of North Korean refugees was discussed; however, one of the treaties signed promised mutual legal assistance in consular, civil, and criminal matters.103
Thailand treats North Koreans as it does other asylum seekers, leaving status determination to the local office of the United Nations High Commissioner for Refugees. UNHCR's Bangkok office regularly receives North Koreans referred by church groups and the South Korean embassy, and conducts detailed interviews. According to a source who did not wish to be named, in 1998 UNHCR considered three cases and approved three persons as refugees; in 1999 UNHCR handled ten cases and approved eleven persons; in 2000 it handled twenty-six cases and approved thirty-two persons; in 2001 UNHCR handled fifty-four cases, approving eighty-two persons, and in 2002 up to May 15 it had considered sixty-one cases and approved ninety-two persons. It is not known whether UNHCR has rejected any North Koreans who have presented themselves, or if so, what happens to such people.
87 The figures provided by the Ministry of Unification are: 1993: 8; 1994: 51: 1995: 41; 1996: 56; 1997: 86; 1998: 71; 1999: 148; 2000: 312; 2001: 583.
88 Letter to Human Rights Watch, August 1, 2002, from Hee-Yong CHO, Political Counselor, South Korean embassy, Washington, D.C.
89 The number arriving via embassies as of July 2002 stood at 121, or somewhat over a sixth of the 2002 total to that date. See footnote 3 above.
90 Article 31(2) of the Vienna Convention on Consular Relations states that "[t]he authorities of the receiving State shall not enter that part of the consular premises which is used exclusively for the purpose of the work of the consular post except with the consent of the head of the consular post or of his designee or of the head of the diplomatic mission of the sending State."
91 "Japan, China to Draft Consular Treaty," The Japan Times, June 21, 2002; "Government to Scrap Plan to Sign Consular Treaty with China," Daily Yomiuri, June 27, 2002; "Five Asylum Seekers Talk to Officials from Japan," The Japan Times, June 26, 2002; "Is the (Shengyang) Case Settled?" editorial, Ashai Shimbun, July 6, 2002.
92 "(2002) Lingsizi No. 694," translation provided in Appendix B.
93 Dewey said the U.S. State Department was urging China to adhere to its obligations under the Refugee Convention and to cooperate with UNHCR in providing protection to North Korean migrants who might qualify for refugee status. The State Department also announced a U.S. policy review on North Koreans in China, which, as of mid-October, had not yet been concluded.
94 Letter to Human Rights Watch, August 1, 2002, from Hee-Yong CHO, Political Counselor, South Korean embassy, Washington, D.C.
95 According to the South Korean government, in August 1986, China and North Korea concluded a protocol on security in the border area; its contents have never been made public, but China maintains it is obligated to repatriate North Koreans back to North Korea under the protocol. Ibid.
96 Human Rights Watch interview with unnamed aid worker, via telephone, June 20, 2002.
97 Translation of the act provided by the South Korean Ministry of National Unification Humanitarian Affairs Bureau.
98 China ultimately allowed twenty-four refugees sheltering there, as well as two others who entered the Canadian embassy, to depart to third countries from whence they continued on to South Korea. Oh Young-hwan and Yoo Kwang-jong, "26 defectors sent to third countries," JoonAn Ilbo electronic edition, June 23, 2002, available at http://english.joins.com/article.asp?aid=20020623235737&sid=300.
99 Shim Jae-yun, "Seoul Shifts Policy on NK Defectors," Korea Times online edition, June 28, 2002, available at http://www.hankooki.com.
100 Letter to Human Rights Watch, August 1, 2002, from Hee-Yong CHO, Political Counselor, South Korean embassy, Washington, D.C.
102 "Mongolia Denies Reports of Refugee Camps for North Koreans," BBC, June 26, 2002; "China Rejects Refugee Camp Proposals," Reuters, June 22, 2002.
103 "Mongolian Premier Meets North Korean Foreign Minister," BBC, August 8, 2002; Human Rights Watch correspondence with Mongolian embassy, Washington, D.C., September 6, 2002.