THE CASE FOR REFUGEE STATUS FOR NORTH KOREANS IN CHINAThe 1951 Convention Relating to the Status of Refugees, to which the People’s Republic of China is a state party, defines a refugee as follows: “[An individual 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; or who, not having a
nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such fear,
is unwilling to return to it.”30
Because few North Koreans crossing into China have experienced direct, targeted persecution as specified in the Convention definition, China considers all North Koreans to be illegal economic migrants and, as already noted above, prohibits the staff of UNHCR from visiting Yanbian to determine the refugee status of particular individuals.There is a compelling case, however, for the majority of North Koreans in China to be considered refugees. It rests on two pillars: 1. The nature of the North Korean political system and its inherent restrictions on access to public goods, especially food; 2. The North Korean treatment of those arrested and deported from China as mandated by the country’s Criminal Code. In North Korea access to public goods — food, education, health care, shelter, employment — cannot be separated from the all-pervasive system of political persecution. Based on an original registration conducted in 1947, the North Korean population is divided into three classes: core, wavering, and hostile, with the latter constituting 27% of the total. There are more than 50 subcategories.31 The class status of each family is for life and transfers from generation to generation. Members of the hostile class are the last to receive entitlements, which is disastrous when a comprehensive welfare regime such as that established in North Korea collapses, as it did from 1994 onwards. Thus, an entire class of individuals is persecuted through the functioning of North Korea’s political system. In this context, there is no meaningful way to separate economic deprivation from political persecution. In addition to the fundamental discrimination within the North Korean political system, the government further limits access to food and the economic means of survival through a variety of policies that control the lives of North Korean citizens. The government controls movement within the country by requiring travel passes to move outside one’s community of origin. Since foraging for food or looking for employment wherever it can be found are essential survival strategies at times of food shortages, limits on travel further prevent North Korean citizens from meeting their basic needs. Until very recently the government blocked access to markets where income might be earned through barter and trade. The government restricts the activities of international relief agencies, declaring certain areas of the country off limits and preventing independent monitoring of the relief supplies provided. Taken together, these measures constitute violations of internationally-recognized human rights embodied in covenants to which the DPRK is a state party.32 Based on Refugees International’s interviews, and the testimony collected by other human rights organizations, most North Koreans crossing the border into China are fleeing state-sponsored denial of their human rights. Members of the “hostile class” and residents of areas deliberately cut off from international food assistance have an especially strong case to be considered refugees in the sense of fleeing targeted persecution. But the denial of basic rights extends more broadly, and the hunger that drives people to flee is the direct result of the political system that has been created by the leaders of the North Korean government. Not since Cambodia under the Khmer Rouge has a government succeeded in creating such an all-encompassing reality of oppression and restrictions on the basic rights of the majority of its citizens. North Koreans fleeing their country, therefore, have a case for refugee status as compelling as those fleeing Cambodia from 1975 to 1978. The second pillar of the case for considering North Koreans in China for refugee status is the treatment they receive upon being arrested and deported. This treatment has been described above and needs no further elaboration. Almost all North Koreans face severe punishment upon deportation, regardless of their original motivation for leaving their country. In its November 2002 report on North Koreans in China, Human Rights Watch argued that the very fact that the punishment for deportees was universal qualified North Koreans in China for the status of refugees sur place. Even if these individuals had not previously been the object of persecution in North Korea, they “would now probably face a high risk of abusive punishment if returned on account of their experiences in China, which have cast a light of presumed disloyalty upon them. ... [T]he United Nations High Commissioner for Refugees (UNHCR) has a longstanding understanding that such persons are entitled to the protections of the Convention and its Protocol.”33 Both aspects of the case for refugee status for North Koreans in China have received international recognition. In April 2004, at the Sixtieth session of the Commission on Human Rights, the Commission overwhelmingly endorsed a resolution on the Situation of human rights in the Democratic People’s Republic of Korea which expressed “deep concern” regarding “[s]anctions on citizens of the Democratic People’s Republic of Korea who have been repatriated from abroad, such as treating their departure as treason leading to punishments of internment, torture, inhuman or degrading treatment or the death penalty, and infanticide in prison and labour camps,” among other serious human rights violations.34 For its part, UNHCR has formally designated North Korean asylum seekers in China as persons of concern. According to its report to the 29th meeting of the Standing Committee in March 2004, “UNHCR remains deeply concerned that such individuals do not have access to a refugee status determination process and are not protected from refoulement [forced return.]”35 |
Executive Summary Introduction The Scope of the Problem The Motivation for Leaving The Situation in China Treatment Upon Deportation The Case for Refugee Status for North Koreans in China Protection for North Koreans in China South Korean Policy United States Policy and the North Korean Human Rights Act of 2004 Recommendations ----------- Notes Appendix: Interviews between Refugees International and North Korean Refugees Acknowledgments |
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Acts of Betrayal: The Case for Refugee Status
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