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Activist Sang Hung Kim
Questions that China Must Answer

China is Condemned for Its Defiance of the Rule of Law and the Principles of Humanitarianism

Over the years, human rights NGOs, international organizations and foreign governments have made a number of appeals and asked legal questions to the government of China on the issue of North Korean defectors in China.

Nevertheless, China has ignored these appeals, not bothered even to respond and continued to forcibly return North Korean refugees to their most atrocious persecution in North Korea. China has thus been content to employ a strategy of silence that simply ignores appeals and does not respond. In fact, China is saying "Who do you think you are? I said "No" and therefore it is no! Forget about it!" - a straightforward case of Chinese arrogance and defiance of the rule of law and of the principles of humanitarianism and the international community. Our question today is "Are we going to tolerate it?" Tolerance of defiance of humanitarianism by China today will no doubt invite the 2nd and 3rd Hitlers, Stalins and Kim Jong-ils to emerge tomorrow.

Frankly, we wonder why China chooses to be on the wrong side of history by supporting a regime, a North Korean version of the Shanghai gang of 4 during the Cultural Revolution in China. Why does China support North Korean regime that has been starving millions of its own people to death? When North Korea under its current form of leadership and government no longer exists in the near future, how does China expect history to remember China, a global champion of humanity or in association with crimes against humanity and terrible horrors of the past century?

China stumbled in the 19th century by attempting to resist modernization with its blue dragon sword. Is China going to stumble again by resisting the rule of law and human rights, the inalienable value of the humanity today?

We have one very specific question today: Kim Hee Tae, a South Korean student and a humanitarian aid-worker, has now been detained over 4 months without any charge. The Chinese Criminal Law, Article 318, punishes "organizer" and "ringleader" of the people secretly crossing the national boundary (border) Dr. Vollertsen, a German Emergency doctor, Sang Hun Kim, a South Korean human rights volunteer and other international volunteers have "organized" to help the groups of North Korean refugees to enter foreign embassies in Beijing. Kim Hee Tae only carried out the operation in the field on their request He was at no time involved in organizing the operation. What is your charge against him to detain him for such a long period?

China is once again urged to answer the attached questions, which have long been bluntly ignored.

Our Questions:

We demand that the government of China explain and clarify the following questions that are crucially relevant to its international obligations:

Is the status of North Korean defectors in China subject to international law or national law?

It is our firm belief that the question of refugee status is an international issue and therefore should be governed by relevant international laws (ie. 1951 Convention Relating to the Status of Refugees and the Protocol thereto of 1967) and not to be determined by Chinese national law or any political or economic considerations.

Furthermore, your government has accepted that "an international human rights agreement "is binding under Chinese law and China must honour the corresponding obligations". In the event of discrepancies between domestic law and an international human rights agreement "the international agreement will take precedence". (Report of China - HRI/CORE/1/Add.21/Rev.2, 11 June 2001).

Please explain on what basis the defectors are denied the right to even substantiate their claims as refugees.

Very regrettably, the Chinese Government is applying national law to an international issue that is to be governed by customary international law. Accordingly, if the Chinese Government should punish the defectors under the national law, it must first explain why the defectors are not eligible for refugee status under customary international law. Arresting defectors without this explanation and without granting them the benefit of fair and efficient asylum procedures makes the Chinese government's decision appear highly arbitrary, and defiant of human rights principles and international justice. In the name of fundamental human rights and humanity, the international community has the right to request the Chinese Government to first publicly articulate why the defectors in question have not been found eligible for refugee status.

Can the Chinese Government justifiably charge the defectors with 'Illegal Entry?' Without fair and efficient asylum procedures, the Chinese authorities charge all the defectors with "illegal entry" for their presence in China. It must be indicated that this is in violation of the 1951 Convention, Article 31, which prohibits the Contracting States from imposing "penalties, on account of their illegal entry or presence, on refugees". Illegal entry, therefore, does not preclude defectors from being refugees they claim to be. All individuals who commit desperate acts, such as illegal entry, should be granted the opportunity to substantiate their claims in accordance with the international refugee laws that were established to protect them. (Technically, the defectors in question are "illegal border crossers" at the very outset. In essence, no concept of 'refugee' could exist anywhere in the world and no refugee laws could be in place if defectors are unconditionally arrested solely based on their illegal entry or presence, as in China.)How does the Chinese Government justify punishing aid workers who help "Illegal Immigrants" when they act on humanitarian grounds?

All governments have the sovereign right to deal with illegal immigrants. However, the Chinese Government punishes not only those it labels 'illegal immigrants', but also anyone helping them based on humanitarian grounds. Such ill- advised actions are inconsistent with the prevailing norm of behavior consistent with international community membership. By so doing, isn't the Chinese Government forcing innocent citizens and international aid-workers to deny fundamental human rights to people in distress? Is the Chinese interpretation of humanity at odds with the rest of the world?

Are the defectors economic migrants and, therefore, not refugees?

On the basis of abundance of information documented and available to us, we believe that none of the North Korean defectors was in China with the intent to pursue business or seek gainful employment. A migrant enjoys the protection of his or her home government; a North Korean defector does not.

Ironically, and to further illustrate this point at issue, many defectors have been arrested while attempting to leave China for a third country. We are compelled to raise the question: If the defectors are economic migrants, pursuing business and/or seeking gainful employment in China, why then would they attempt to leave China at the first opportunity, bound for a third country wherein lies far less economic opportunity than China (e.g. Mongolia, Myanmar, Laos)? Their continuing attempts to leave China betray the Chinese Government's allegation of their motives as "economic migrant" and clearly manifests their purpose to seek freedom.

One very recent case in point: On January 18, 48 North Koreans, including children, who were about to leave China by sea and seek asylum either in South Korea or Japan, were arrested by the Chinese security services in Yantai City, Shandong Province. If they were indeed ecnomic migrants? Why would they attempt to leave China at the very first opportunity?

Mr. Sang Hun Kim, a former UN official, is now a voluntary human rights worker on behalf of North Korean refugees