I. SUMMARY AND RECOMMENDATIONS
This invisible exodus from the Democratic People's Republic of Korea (North Korea) entails human rights violations at almost every step. Some, though not most, migrants, leave because of political oppression or a desire for political freedom denied them in North Korea. Once in China, all migrants are vulnerable to abuse and unable to call on the Chinese government for protection. Problems range in severity from extortion to rape and trafficking in women to torture in Chinese prisons. Migrants who are caught crossing repeatedly, who stay for a prolonged period, or have any contact with South Koreans or other non-Chinese foreigners, including missionaries and humanitarian workers who enter this area, are liable to severe punishments, even including death, if discovered and returned to North Korea. China is party to the 1951 U.N. Convention on the Status of Refugees and its 1967 Protocol (the "Refugee Convention"),1 but refuses to protect North Koreans, regardless of their reason for leaving, and regardless of the factors that may make them subject to persecution on return. Other countries of the region have varying practices with regard to North Korean refugees who transit through China, with some providing them asylum and access to the United Nations High Commissioner for Refugees (UNHCR) and others returning them to China, and often to peril.
This report presents a comprehensive overview of this human rights disaster, grounded in first-hand accounts of North Koreans who escaped to the South, and humanitarian workers who aided them and many less fortunate. It examines the complex and harrowing decision of migrants to leave, an illegal act often deemed tantamount to treason; the months and even years of hiding in China; the desperate circumstances that lead women to sell themselves as sexual companions; and the vulnerability these migrants have that open them to every and any abuse. Their fear of return is based on the well-known system of penal camps and labor colonies, consignment to whose horrific conditions was described to us repeatedly as a fate "worse than death." We conclude with a review of the national policies of key players in this crisis, and propose a coordinated international effort 1) to get North Korea to cease punishing returnees and allow access to monitors and humanitarian agencies, 2) to persuade China to grant humanitarian status to all such migrants in the meantime, and 3) to provide China with material assistance for such migrants and third-country options for their resettlement.
No one can gauge the present dimensions of this exodus because the migrants remain hidden for fear of discovery, repatriation, and harsh punishment in North Korea. China additionally limits access to this area by international agencies, such as the UNHCR, and humanitarian organizations. Estimates by governments and private assistance or religious groups vary enormously, from the low official estimate of 10,000 long-term migrants resident in China by the Ministry of Unification in the Republic of Korea (South Korea), to as many as 300,000 estimated by non-governmental groups who extrapolated results from large-scale surveys of villages in the border region.
There is general agreement that the collapse of the North Korean economy in the 1990s, and particularly agricultural disasters that led to severe famine beginning around 1994-1995, provoked the greatest outpouring-starvation and despair prompting hundreds of thousands to seek help across the border. It is estimated that hundreds of thousands-or even millions-of North Koreans died in their homeland of sickness and hunger during the most acute phase of the food crisis, which is far from over.2 The acute crisis led to some deterioration of the system of tight social controls in place. Workplaces ceased to give out food distributions; control over internal movement as well as cross-border movement loosened; an underground economy emerged as people scrambled for any way to survive.
In the year 2001, it appeared that despite periodic crackdowns on Korean migration by China and slightly improved food conditions in North Korea, migration continued steadily. The taboo on leaving North Korea, once breached, was difficult to re-establish once routes and prices on the "underground railroad" became known. While many migrants of the food crisis years waited three or five years to make it to South Korea, we also heard of migrants in 2001 transiting in a matter of weeks or even days. The invisible exodus appeared to have gone from crisis proportions to a chronic state.
This situation may have changed once again, as the year 2002 brought an unprecedented number of North Korean asylum seekers rushing into diplomatic missions in Beijing and elsewhere in China.3 China responded with tightened security around diplomatic compounds, demands that embassies and consulates hand over North Koreans, much-heightened security measures at the border, and arrests and prosecutions of those who were helping North Koreans escape. North Korea also appears to be tightening its border controls in cooperation with China, and there are initial reports that suggest more punitive measures against returnees are in force. As of mid-year, humanitarian workers reported the impression that migration had fallen off sharply, although it is likely to increase once the Tumen river freezes over and food conditions worsen, later in the year.
The desperate conditions that provoke this migration are the symptoms of a profound human rights disaster. The famine, while due in some part to environmental factors, is deepened and perpetuated by the North's social, economic, and political policies, and its unwillingness to allow the monitoring of distribution of international humanitarian aid.4 Draconian policies of discrimination and punishment based on a family's political background have marginalized many of those who try to flee to sustain their lives. North Koreans who are expelled from China are under North Korean law liable to punishment in horrific labor camps, some for prolonged periods of time, or even to the death penalty if their "crime" of leaving is interpreted as treason.
China's policies towards North Koreans compound these human rights violations and show a particular disregard for international law. North Koreans flee for a number of reasons, including fear of political persecution or discrimination that amounts to persecution. A well-founded fear of persecution is the hallmark of a refugee, entitled to protection and asylum under international law. But once abroad, even those motivated by other reasons such as simple hunger may face imprisonment upon return, including harsh terms if it is suspected they had contact with South Korea and the West, usually through encounters with missionaries or aid workers. This transforms many North Korean migrants into refugees sur place, or persons who, while abroad, become entitled to protection as refugees because of the risk of political persecution should they return. The injunction to never return refugees to territories where their life or freedom is threatened, also known as the norm against refoulement, is articulated in Article 33 of the Refugee Convention and has become recognized as a rule of customary international law, binding on all states regardless of whether they have signed that treaty. China is not only a party to the Refugee Convention, it is also a member of the Executive Committee of the United Nations High Commissioner,5 and as such has supported a wide array of rules that strengthen and elaborate refugee protection, many of which it has flouted in the case of North Koreans.6
All of the states involved in the crisis fear that a worsening of the already dire economic and social conditions in North Korea could easily turn the current migration of thousands into millions. Yet there is little serious effort by North Korea and the international community to address the underlying humanitarian and human rights problems in a way that produces effective policy.
The discourse on North Korean refugees has been enmeshed in politics, both domestic and international. Historically, incidents of "defection" have been used in South Korea as a measure of "victories" over the North, in the context of the goal of the collapse of the North's government and eventual unification. Invoking the desperation of the asylum seekers has thus been used as a cudgel against President Kim Dae-Jung's "sunshine" policy of rapprochement with the North. Yet the Kim Dae-Jung government has actually taken the most generous position on accepting and supporting North Korean asylum seekers of any previous government in the South. The small but swelling numbers of asylum seekers that are making it to the South have in turn caused anxiety, even among proponents of the sunshine policy, as to the South's ability to absorb these Koreans from a radically different society and sustain the high resettlement subsidies it provides.
Human Rights Watch believes that addressing North Korea's political and economic isolation, and the human rights violations that such isolation has hidden from view, is key to both staunching the flow of migrants out of the country and eliminating persecution and abuse of these persons in the long run. In the immediate term, it is essential that China cease deporting North Koreans without providing them the opportunity to have their claims to asylum fairly considered in accordance with international law.
To this end, China should immediately grant access to the United Nations High Commissioner for Refugees (UNHCR) to the border region and give the UNHCR a role in refugee status determination. UNHCR'S role has thus far been extremely limited, and UNHCR is not present on the border.7
It is incumbent on the international community, including countries in the region and the major aid and trade partners to China and North Korea, to collectively press for a comprehensive policy on North Korean migrants that will protect refugees and the rights of migrants. A key step in this direction will be for North Korea to repeal all laws, decrees, rules, and practices of punishing residents who exercise their fundamental right to leave their own country,8 and to allow international verification that returnees are no longer subjected to punishment.
As an interim measure, the international community should urge China to grant all North Koreans an indefinite humanitarian status that would allow them to remain in China without facing the risk of detention and refoulement until a durable solution is devised that fully protects their internationally recognized rights. This should not be seen as a substitute for a mechanism for asylum seekers to apply for legal status and recognition, or a way for China to escape its international responsibilities under the U.N. Refugee Convention. But such an interim measure would at least provide some relief from the immediate threat of deportation and other abuses Human Rights Watch has documented in this report.
China should also be urged to end the harassment and arrest of either Chinese or foreign aid workers assisting migrants, and should allow humanitarian aid groups access to the border area for the purpose of providing them with food, medical aid, and other humanitarian assistance. A formal or informal agreement to allow aid groups space to operate is especially important in advance of winter.
Recommendations on the Refugee Crisis
· North Korea should immediately cease its practice of punishing persons who leave its territory, and repeal all laws, decrees, rules and orders that authorize imprisonment, detention, forced labor, restricted residence, official discrimination, or any other sanction on this account. It should allow for international verification that this practice has ceased. All persons detained on this basis should be immediately released;
· North Korea should cease the practice of collective punishments generally, and in particular should cease the practice of punishing family members of persons who leave North Korea for China or for third countries;
· North Korea should release any non-residents it has detained in connection with activities aimed at assisting migrants and refugees from North Korea.
· China should immediately halt any efforts to forcibly return North Koreans that are in violation of its international human rights and refugee protection obligations;
· China should begin a high level dialogue with the U.N. High Commissioner for Refugees on the establishment of refugee screening for North Korean asylum seekers, conducted with the assistance of the UNHCR, including a presence on the border;
· As an interim step, China should grant all North Koreans in China an indefinite humanitarian status that would protect them from harassment, threats of extortion of arrest or forcible repatriation to North Korea, until a durable solution is devised that fully protects their internationally recognized rights;
· The Chinese government should allow international humanitarian aid groups, including non governmental and private agencies, access to border areas to provide assistance and should not subject aid workers to harassment, arrest, or intimidation;
· China should cease any efforts to forcibly enter diplomatic compounds in Beijing to detain North Koreans, and should allow UNHCR access to North Koreans on diplomatic territory or elsewhere who may seek screening and protection.
To the International Community:
· All governments engaged in bilateral human rights dialogues with China, including the U.S., Japan, the European Union, Canada, and Australia, should ensure that the specific recommendations outlined above regarding North Korean migrants and asylum seekers are prominent on the agenda for all dialogue meetings, and also meetings between foreign ministers and heads of state and senior Chinese officials. The results should be shared with UNHCR, and an informal working group of concerned governments should be established with the goal of increasing assistance for North Koreans in China;
· Members of parliament should also be active. In August 2002, Japanese members of parliament established in Tokyo an "International Parliamentary Members' Forum on the North Korea Refugees and Humanitarian Issues," and planned joint initiatives with South Korean MPs, members of the U.S. Congress and the European Parliament such as joint parliamentary delegations to assess humanitarian needs on the Chinese border. Resolutions adopted by parliaments are also helpful to increase the pressure on China to comply with its international refugee obligations;9
· Countries affected by North Korean migrant flows, including Russia, Mongolia, Vietnam, Burma, Cambodia, and Thailand, should grant asylum. They should also ensure that North Korean migrants are not prevented from seeking permanent asylum in third countries;
· North Korea's neighbors should refuse any requests by North Korea to arrest asylum seekers or forcibly return them to North Korea where they would be at serious risk of torture, ill-treatment, arbitrary detention, or execution;
· Countries with embassies, consulates, or other institutions in China to which North Koreans have fled seeking asylum should request the services of the UNHCR in determining their status, and take steps to prevent their forced return to North Korea if there is any risk thereby of persecution.
General Human Rights Recommendations
· As its seeks to widen relations with its neighbors and with Western governments, North Korea must be vigorously pressed to fully comply with its obligations as a state party to both the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social and Cultural Rights.
In May 2000, North Korea submitted its first report to the U.N. on compliance with the ICCPR in 16 years; it was due in 1987. North Korea ratified the covenant in 1981. Its detailed, rather legalistic thirty-nine-page submission claimed that torture was prohibited by North Korean law, that remedies were in place for those whose civil rights have been violated, that forced labor "is never used as a means of political coercion or of social and religious punishment," and that North Korea's Criminal Procedures Act strictly limits detentions and arrests.10 Years of defector testimony have contradicted this picture, and indeed, the interviews on which this report is based produce a portrait of a society organized on the basis of political, birth, and social discrimination, where forced labor is widespread, and where arbitrary arrest and detention and torture and other mistreatment is endemic. These severe abuses too often form a backdrop to the outflow of North Koreans, who have either suffered some of these abuses directly, or fear they will be subjected to them if returned.
· As minimal first steps, North Korea should be urged to grant access to the U.N. human rights special rapporteurs and working groups on arbitrary detention, torture and other ill-treatment, religious freedom, violence against women, and freedom of expression to visit North Korea to assess compliance with its U.N. human rights treaty obligations. The U.N. should seek to visit reeducation camps and prisons to assess conditions generally, and to determine the fate of North Koreans forcibly returned from other countries.
All discussions of economic, trade or political relations with North Korea by high level foreign government delegations-especially those aimed to expanding or opening relations with North Korea-should make reference to this key demand.
· A resolution on human rights in North Korea should be introduced and adopted at the 2003 session of the U.N. Commission on Human Rights in Geneva, condemning North Korea's severe human rights violations and calling on North Korea to grant the U.N. human rights mechanisms complete access, without restrictions or limitations of any kind.
Notes on Methodology and Terminology
It is important to be clear about the limitations of this preliminary research. Our small base of interviews with North Koreans requires us to be cautious when extrapolating from their experiences. All of the North Koreans we spoke with had been interviewed multiple times: by South Korea's intelligence service, some also by UNHCR, some also by missionaries, and some also by journalists. Many had first left North Korea around 1997, when the food crisis in that country was most acute, although others had left more recently. North Koreans are resettled into the South after a series of security interviews and a three-month "quarantine" in a camp named Hanawon that is operated by the South Korean Ministry of Unification to prepare them for integration into the South Korean economy and society. Human Rights Watch requested access to Hanawon to interview recent arrivals but was declined on the basis of unspecified security reasons. The South Korean government, in addition to its concern with security and potential espionage, has been sensitive to the political and diplomatic tensions caused by North Koreans who have publicly denounced the Democratic People's Republic of Korea. Many of those we interviewed had been given a general warning by the government not to speak publicly about their experiences in North Korea, and many were subject to periodic checks by internal security agents. However, the South Korean government was cooperative in allowing us to interview freely and privately, and in a few cases referring persons to us for interview.11 Rather than interviewing a random sample of refugees, because of limitations of time and the difficulty in locating refugees once they were released from the Hanawon facility, we sought to focus on persons who had the experience of multiple escapes from North Korea. Our interviews, therefore, are not a representative cross sample of experiences, and we have drawn on the observations of humanitarian workers and government officials for balance.
Within these limitations, we found our subjects willing to tell their stories, yet frank about their concerns with both security in South Korea and the security of relatives remaining in the North. Many had adopted pseudonyms in South Korea, or requested that we refer to them by pseudonym. The interviews relied on here were conducted between the refugee and the Human Rights Watch team without any third parties present. Relatives were interviewed individually. Although we were introduced to refugees by both governmental and non-governmental sources, we made clear that the refugee had the option not to talk to us, or to forbid us to share any or all of what was said, either with the general public or any third party.
For the most part, we found our informants credible, and quite forthright in criticizing not only the North Korean government but often the South Korean government as well. Although we were not able to verify certain details of their particular stories of escape and flight, we found that the broad outlines of their experiences tended to match, and reflected previously published studies of North Korean migrants from information gathered in both South Korea and China. Much greater and more systematic research is required to present an authoritative account, yet the material we gathered merited publication as a sketch of the contours of the problem, and potential solutions.
In this report, we use both the term "migrant" and the term "refugee," the former denoting persons who leave their country for economic or other reasons, and the latter denoting those migrants who are entitled to protection from repatriation because they have a well-founded fear of persecution in their homeland. We have termed North Koreans who were attempting to seek asylum in South Korea "refugees" because of the policy of the North Korean government to persecute those who attempt to move to the South as traitors, regardless of their motive in seeking to migrate. We have also used the term "asylum seeker" to denote migrants who do not intend to return to their country; some of this subset of migrants may also be refugees under the terms of international law. Persons who have succeeded in migrating to the South are also often referred to as "defectors," regardless of whether they had a political motivation in doing so, as they are considered by both sides to have made a change in political allegience by migration. Those who "defect" from the North to the South thereby put their family members remaining in North Korea at risk of punishment. The Republic of Korea is referred to as "South Korea" and the Democratic People's Republic of Korea as "North Korea" throughout. Chinese or Korean names and place names in this report were transliterated into English according to the common usage in the region; for both languages, surnames occur first, given names follow.
1 Convention Relating to the Status of Refugees,189 UNTS 150, 1951, entered into force April 22, 1954. In 1967 a Protocol was adopted to extend the Convention temporally and geographically. Protocol Relating to the Status of Refugees, 19 UST 6223, 606 UNTS 267, 1967, entered into force October 4, 1967. China became a part of the 1951 Refugee Convention and its Protocol in 1982.
2 According to the World Food Program, annual production of rice and maize in North Korea fell from eight million metric tons in the 1980s to 2.9 million in 2000. It also estimates that approximately 57% of the population is malnourished, including 45% of children under five. As of April 30, 2002, less than 10% of the U.S.$258 million called for by U.N. agencies for humanitarian aid had been pledged by the international community. WFP Press Release, April 20, 2002, "Democratic People's Republic of Korea's `Already Severe Humanitarian Crisis' will Dramatically Worsen without Immediate Aid say U.N. Heads." Available at the Korea-DPR page of http://www.wpf.org/country_brief/index. See also John Powell, Regional Director, Asia Region WFP, "Testimony before the Subcommittee on East Asia and the Pacific House International Relations Committee," May 2, 2002.
3 From March-September 2002, a total of 121 North Koreans reportedly gained asylum in South Korea. Among them were twenty-five North Koreans who got into the Spanish embassy in Beijing in March then later flew to Seoul via Manila; in September, two groups arrived in Seoul: twenty one who had trickled into the South Korean consulate in Beijing since June, and a group of sixteen who had jumped a wall into a German school. "North Korean Asylum Cases Since 1996," Reuters, September 12, 2002.
4 An excellent discussion of the development of the famine is Andrew Natsios, The Politics of Famine in North Korea, A USIP Special Report (Washington, D.C.: U.S. Institute for Peace, August 2, 1999) available electronically at http://www.usip.org/oc/sr/sr990802/sr990802.html.
North Korea's self-enforced isolation, authoritarian repression of speech, religion and political pluralism, and horrendous penal practices have often been noted by political defectors, but now are being articulated by more ordinary migrants and even the expert bodies that consider human rights compliance in the U.N. system. For example, North Korea, a party to the International Covenant on Civil and Political Rights, submitted its second periodic report under the Covenant to the Human Rights Committee, the party which reviews compliance of states parties. In 2001, the Committee flagged the limited access of internal and international monitors to the country, the many consistent and substantial allegations of torture; cruel, inhuman and degrading treatment; forced labor; and lack of judicial independence; as well as severe restrictions on leaving and entering the country as continuing violations. (Concluding Observations of the Human Rights Committee: Democratic People's Republic of Korea, August 27, 2001, CCPR/CO/72/PRK [Concluding Observations/Comments]. See also, Concluding Observations of the Committee on the Rights of the Child: Democratic People's Republic of Korea, June 5, 1998 [Concluding Observations/Comments] [expressing concern at the increase in the child mortality rate during the famine and the government's failure to allocate resources to children's humanitarian needs to the maximum extent available and within the framework of international assistance].) The U.N. Sub-Commission on Human Rights has also issued general resolutions that were designed in part with North Korea in mind, stressing the importance of non-refoulement and cooperation with the UNHCR. (International protection for refugees and displaced persons, United Nations High Commissioner for Human Rights, Sub-Commission on Human Rights resolution 2001/16, 16 August 2001, and Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-fourth session, Agenda item 6 E/CN.4/Sub.2/2002/L.19, 9 August 2002.)
5 The Executive Committee (ExCom) is the governing body of the United Nations High Commissioner for Refugees. Since 1975, the ExCom has adopted a series of "Conclusions" at its annual meetings, which are intended to guide states in their treatment of refugees and asylum seekers and in their interpretation of existing international refugee law. ExCom Conclusions are not legally binding on states, but they are widely recognized as representing the view of the international community and carry persuasive authority as they are adopted by consensus by ExCom members states.
6 For example, ExCom Conclusion No. 22 addresses the need to fully protect refugees who arrive in a host country as part of a large-scale influx, as does No. 85; No. 81 reiterates the importance of UNHCR's protection mandate and the primary responsibility of states in protecting refugees within their territories; and No. 91 emphasizes the importance of refugee registration.
7 In a handful of cases involving refugee seekers in Beijing, for example when North Koreans entered the Spanish embassy this past March, UNHCR was able to conduct screening and determine refugee status. In June 2001, a family of seven North Koreans entered the UNHCR office in Beijing to request asylum. Another seven made it to Russia and were determined to be refugees by UNHCR in 2000, but they were ultimately sent back to North Korea. UNHCR strongly protested the move, but had no information on their fate once back in North Korea. UNHCR press statement, Geneva, June 26, 2001.
8 This right is enshrined in the Universal Declaration of Human Rights, article 13(2): "Everyone has the rights to leave any country, including his own, and to return to his country."
9 The U.S. House of Representatives passed a resolution on June 11, 2002, and the U.S. Senate Committee on Foreign Relations enacted a similar measure on June 13, 2002, urging China to halt repatriations of North Koreans to allow the UNHCR access to "all North Korean asylum seekers and refugees residing in China."
10 U.N. Human Rights Committee, CCPR/C/PRK/2000/2, May 4, 2000.
11 We did not find the few persons referred to us by the government to have characteristics or experiences substantially different than those we identified through private channels.