The Problem of North Korean Refugees in China and Possible Solutions

2^nd KINU Chaillot Human Rights Forum 2012 on

“International Cooperation to Improve North Korean Human Rights Conditions under the

Kim Jong-Un Regime”

Lotte Hotel Seoul, June 14, 2012

By Phil Robertson

Deputy Director, Asia Division, Human Rights Watch[1]

First of all, let me thank KINU President Kim Tae-Woo and his team at KINU for organizing this conference and inviting Human Rights Watch to participate.  It’s a great pleasure and an honor to be here.

Conducting research on human rights violations in North Korea for organizations like Human Rights Watch is a consistent challenge to gain access to North Korean refugees in a way that comports with our methodology while also ensuring refugees are protected.  North Koreans who have fled their country are literally a moving target – not just for human rights groups like us, who wish them well and want to help them tell their story, but also for many others who wish to arrest them and/or profit from them.  There are scores of North Korean officials trying to prevent departures and punishing those caught leaving; border officials on both sides extorting refugees to let them pass; Chinese police and other agencies rounding up and returning the refugees to certain punishment in North Korea; human traffickers delivering North Korean women into the hands of Chinese men seeking wives; and people smugglers prepared to profit by delivering them to Thailand and ultimately, a chance to come to South Korea.    

In this past year Human Rights Watch has managed to interview over 60 North Koreans who have fled the country in 2010, 2011, and the first quarter of 2012.  We’re still analyzing the interviews so I cannot offer a comprehensive analysis at this stage, but will rather offer some snapshots of some of the things we’ve found and promise that you’ll see more in the coming months.

Overall, what our research shows is that private market activities, corruption of North Korean officials and new information and communication technologies are increasingly combining to facilitate heretofore restricted activities, permit greater internal movement, break down government propaganda, and enable flight from North Korea.  These trends in turn make it ever more critical for UNHCR and the international community to persuade China to comply with its international human rights obligations and recognize North Koreans.  And not as “escapees” or “defectors” or “economic migrants” but rather what they really are, as “refugees” eligible for protection and durable solutions such as third country resettlement to South Korea, the US, or other countries prepared to receive them. 

Many North Koreans who have fled their country have done so because they have been classified as among the “wavering” classes or even “hostile” class, and faced discrimination, harassment, arrest, and imprisonment for a wide variety of so-called crimes that involve legitimate rights and activities protected under the International Covenants on Civil and Political Rights, and on Economic, Social and Cultural Rights, both of which have been ratified by Pyongyang.  But there are others, such as farmers and laborers, or government officials from the so-called more loyal classes and their relatives who would have, at first glance, apparently less reason to flee but still have decided to do so.  China tries to maintain that all these persons fleeing North Korea are “economic migrants” and defies its commitments to respect the 1951 Convention on the Status of Refugees and its 1967 Protocol -- both which were ratified by China in 1982 -- by denying North Koreans the right to seek protection from UNHCR and seek determination of their refugee claims.  The bar to refoulement is a matter of customary international law and China’s action belies its claims to be a country that respects rule of law.     

In this paper, I was not only asked to address the plight of the refugees, but also asked to suggest ‘how to solve this problem.’ A difficult question indeed.  There is no magic solution to China’s failure to recognize North Koreans as refugees in China beyond doing what has taken place in South Korea earlier this year, which is a mixture of public pressure, media attention, large rallies and protests, and government-to-government engagement to seek to compel China to follow the standards that they have voluntarily signed up to respect.  The fact that China has quietly allowed some number of North Korean refugees long holed up in South Korean consulates to depart China for Seoul shows that applying pressure works.  The people of South Korea, and their government, should continue to publicly pressure China not to force North Korean refugees back to North Korea.

However, what is clear is all North Koreans who illegally fled to China should be considered refugees sur place because of the severe punishments they face if they are forced back to North Korea.  The 1951 Refugee Convention sets out in article 1 that a refugee is 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 is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”  “As the United Nations High Commissioner for Refugees Handbook makes clear, persecution that arises as a result of, or after fleeing one’s country also fulfills this qualification.”[2]

The key point is whether they are former government officials or  farmers, they will be persecuted and tortured when forced back to North Korea.  The Ministry of Public Security adopted a decree in 2010 making defection a crime of ‘treachery against the nation.’  And not surprisingly, a senior officer of the North Korea Security Department (bowibu) who defected told Human Rights that “every captured defector [in my area] was sent to me” and described torture during interrogations of defectors.  He said “psychological suffering is the first…they are put in solitary confinement and minimum food given, only enough for surviving… A person saying nothing will be beaten.  Depending on the reaction, beating will be different.”  Of course, those suspected of links to South Korea face harsher punishments, including possibly being sent to the kwan-li-so or kyo-hwa-so. This is certainly understood by those fleeing who repeatedly told Human Rights Watch that even if they were intending to go to South Korea they would claim they were only doing trading in China if they were caught.  But even those who the security forces determine were only intending to go to China face physical beatings, forced labor and others abuses at the jip-kyul-so (the so-called “collection centers”) or the ro-dong-dan-ryeon-dae (the so-called “so-“labor training centers.”   

Sadly, China disregards a 1995 agreement with UNHCR to allow UNHCR personnel unimpeded access to asylum seekers, not only with the North Koreans but also more recently with the Kachin from Burma in Yunnan state.  Instead, it reportedly continues to follow a 1986 bilateral agreement with North Korea to forcibly return North Koreans found in China.  Yet because China is a powerful country in the UN, it continues to serve as a member of the Executive Committee of the High Commissioners’ Program of UNHCR.  UNHCR should raise concerns about this, and other governments on that Committee should also be raising strong concerns about China’s actions towards North Korean refugees.  Those governments should make it clear to Beijing that they expect China will fully respect refugee rights in line with its legal commitments to fulfill international standards, and that doing so is absolutely necessary for a member government of this important Committee.

The abuses faced by North Korean refugees have been recognized most recently by a resolution passed by the European Parliament which called on China to “honor its obligations under international law, in particular the 1951 Convention relating to the Status of Refugees and the 1967 Protocol thereto, along with the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and to stop deporting North Korean citizens back to the DPRK, as returnees and their families are at great risk of abuse and even execution…”[3]

China’s actions are particularly egregious when matched up against their commitments under the Convention against Torture, which Beijing ratified in 1988.  Article 3(1) of that Convention provides in no uncertain terms that “no State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”  The article continues that “for the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”

In his final report before stepping down, former Special Rapporteur on the situation of human rights in the DPRK, Vithit Muntarbhorn clearly identified that such a pattern of gross human rights abuses, including torture, exists when he called North Korea human rights abuses “system and pervasive”, “harrowing”, “horrific” and sui generis (in their own category).   UN Human Rights Council and UN General Assembly resolutions have continuously cited North Korean human rights violations as being ‘systematic’ and ‘pervasive’. Current UN Special Rapporteur Marzuki Darusman recently pointed out in remarks prepared for delivery to a conference in Washington on April 10 that egregious human rights violations were occurring in North Korea and that it would be “timely to undertake a comprehensive review…to assess the underlying patterns and trends and consider the need for setting up a more detailed method of inquiry such as a Commission of Inquiry.”  Human Rights Watch fully concurs and we have joined other organizations, like Amnesty International, in an international alliance called the International Coalition to Stop Crimes against Humanity in North Korea (ICNK) to press for a UN Commission of Inquiry. He also prioritized the need for further engagement with China, which he sees as possibly playing an important mediation role in pressing reforms in Pyongyang.  Agenda point one of that engagement should be pressing China security agencies to cease handing refugees sur place back to North Korea. 

Human Rights Watch’s research found that a wider swathe of so-called ‘new’ crimes connected with private markets, information and communication, and movement.  As more of these activities are criminalized, it raises the possibility that more will be compelled to flee North Korea. In terms of communication and information, North Korean refugees repeatedly told us about difficulties with police when they were suspected of having or using a mobile phone.  A 23-year old man who police informants said was seen using a mobile phone and fled North Korea in August 2011 said “I said I do not have a mobile phone…they didn’t believe me. That’s why I got thrown in prison and beaten with a wooden club…They were beating me for two hours every day…I felt frustrated because I think I’m not guilty.  I just talked to my aunt [outside of North Korea] as a family member talks to another…they finally released me because they couldn’t find the phone.”  Others who did admit using a phone had to persuade police they were calling China, not South Korea, with one woman explaining how it was the testimony of relatives and neighbors in her village that convinced the police she was not seeking to go to South Korea.  Ultimately a bribe was accepted for her release, showing the new flexibility of administering punishments when money is available.  

But with mobile phone technology seeping into North Korea, there are new possibilities of coordination between families to leave North Korea, and arrange payments and schedules with brokers to move people out.  The fact that HRW could meet in Thailand some North Koreans who had left the country several weeks before indicates the efficacy of these new coordination tools when refugees or their families have the financial means to pay to use them.  Interestingly, a number were still in touch with relatives back in North Korea, who were hiding the refugee’s disappearance through a combination of obfuscation and bribing local officials – again, showing how the situation may be changing in some areas.    

Similarly, smuggling of CDs and DVDs containing Korean-language content from the China border is also a new crime that is facing a crackdown.  North Koreans are copying discs in China and bringing them in, opening new avenues of information and cracking Pyongyang’s propaganda lock on people’s views about South Korea and the wider world.  Risks are high, two women refugees told Human Rights Watch, and they were forced to flee the country when police arrested a person to whom they had recently sold 300 CDs.  One said “most young adults sell the CDs and DVDs…almost all of them are doing that…[we] don’t want to go against the law, but without that, it is hard to earn money…” Another two women spoke about young people in their village being arrested for watching CDs of South Korean TV programs, were several got three years, another person received a seven year term, and the owner of the house was ‘sent to the mountains’, banished to a prison camp.  They said “if you are caught while you watch the drama, you would go to prison immediately.”  A different woman trader who was caught selling CDs said she was punished because the “North Korean government will never let the people see the outside world, that’s how they can keep their own system.”

Trading in markets and moving back and forth to the China border requires either establishing a so-called ’83 company’ and/or paying bribes to be absent from assigned work-places, and for being able to move from area to area without papers.  Human Rights Watch found that while these activities were potentially criminalized, money again was a potential solution but that its efficacy only went so far, and those engaged in these activities could still be punished or forced to flee.  A woman operating her own business said that “an unemployed person is supposed to go to a forced labor camp…so I constantly paid a certain amount of money to the company and secretly ran a business.”  But when she and her daughter were arrested for trading CDs and DVDs of Korean TV shows, they were arrested, tortured and sent to a labor camp.  When they were released, they fled the country.

While CDs would earn the offender a jail term, it usually didn’t rise to the level of a crime that a person would be executed for.  However, HRW did hear about other economic crimes that do, such as theft of materials from factories or theft of a piece of glass from a Kim Il-Sung picture, or for engaging in ‘human trafficking’ which is what the North Korean government refers to when discussing people guiding others to the border to leave North Korea.  One trader who witnessed executions said “people who were involved in human trafficking were mostly executed…but others with Korean CDs and DVDs were usually not…unless there were too many cases happening and officials thought it was necessary to show people” that such actions were not tolerated.  Another woman involved in people smuggling who had just paid 2 million South Korean won for her five year old child to be smuggled directly to the South told Human Rights Watch that “We told him [son left behind in North Korea] to not care whether we are caught or not – I told him that if there is no contact [from us] he should consider us dead…Going to the concentration camp is not any different than execution.”  Across the board, when asked about public executions they had witnessed and the crimes that were committed to receive that sentence, the so-called crime of “human trafficking” was mentioned.   North Korea authorities frequently conflate “human trafficking” and “people smuggling”, which are defined internationally as two different crimes. 

Our interviews with North Korean women found that many women are trafficked to China to marry Chinese men, but since time is short, there is no time to cover that today – but this human trafficking is a serious concern that merits attention and action. 

The DPRK government has clearly recognized that private markets and itinerant trading puts increasing numbers of North Koreans outside government control systems, like mandatory employment placements, and of course the reliance on the food public distribution system (PDS)  is a thing of the past for most North Koreans.  The government has thus created a set of penal offenses that effectively criminalize a wide variety of private economic activities and set out provide wide discretion to officials to interpret how and when to apply those crimes.  Specifically, these are the provisions in the criminal code classified under the rubric of “Offenses against Management of the Economy” that criminalize “virtually all aspects of economic activity – commerce, financing, hiring of labor, foreign trade, and acquisition of foreign exchange…”[4] However, it is precisely the enforcement of these provisions of the criminal code are being undermined by rent-seeking by local North Korean officials.  One woman trader succinctly summed up the situation in her view - “the rich won’t be arrested even though they committed a crime.  But the poor people get arrested even though they are innocent.”

Importantly, while there are limits to what money can facilitate, in many cases it is possible to pay bribes to seek release from police stations, soften punishments, or avoid arrest.   The result is a degree of fraying of systems of DPRK control and the possibility that absent any significant change to permit economic reform and increase role of private markets and trading, a plausible presumption that this loosening may permit more North Koreans to escape, regardless of periodic clamp downs on the border.  But nothing in Human Rights Watch research indicated that the relative atomization of North Korea action has been reduced, or that there has been any rise of any organized resistance to the regime. 

The prospect of more mobility, better communications, and more coordinated efforts for North Koreans to flee their country is bringing interesting results and unusual refugees, like the wife of a police general; the daughter of a well-connected Pyongyang trader; former soldiers; and last but not least, a senior Security Department cadre.  Are those with connections and resources starting to think about getting out?  That some North Korean elites may also be taking this opportunity to get out is an interesting development for consideration by the Chinese authorities as they contemplate their policy of forced return of refugees.  

But for the time being, North Koreans will continue to flee to China, evade arrest and forced return, and with resources brought with them or earned while in China, find their way to Thailand.  Like China, Thailand does not recognize the arriving North Koreans are refugees.  As they cross the Mekong River to river-districts in Chiang Rai province, North Koreans immediately seek to turn themselves into the nearest Thai police authorities, sometimes even approaching them with ‘hands up’, that you got us.  They are held for several days in northern Thai police lock-ups, and then taken into the Thai courts and prosecuted for illegal entry, and sentenced to ten days (in lieu of paying a fine) in a Thai prison (which refugees told us was like paradise compared to North Korean prisons).  Following their release from prison, they are handed over to Thai immigration police, and transported to Bangkok for deportation.  And then they are deported into the hands of the South Korean embassy which arranges onward travel to Korea.  So in what is the ultimate irony, a journey that starts in China avoiding police and fearing deportation ends in Thailand with a willing deportation and the prospect of a new life. 

Thank you for your attention and I look forward to your questions.