1. International Issue

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

Very regrettably, the Chinese Government is applying national law to an international issue that should be governed by customary international law. Accordingly, if the Chinese Government punishes the defectors under its 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 absolutely arbitrary and the government of China defiant of human rights principles and international justice. In the name of fundamental human rights and humanity, the international community has the right to know that the Chinese Government first publicly articulate why the defectors in question have not been found eligible for refugee status.

2. Defiance of Humanitarianism by China

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

The Chinese government 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. This is unquestionably a clear case of blunt defiance of humanitarianism and of the international community by the Chinese government.

As disturbing as such diplomatic insults may be, more grave by far is the Chinese Government’s continued callousness in systematically returning the refugees to North Korea and to a fate of detention, intimidation and even summary execution.

This is clearly a case of Chinese arrogance and defiance of the international community’s accepted rule of law and of the principles of humanitarianism - not a simple case of a difference of opinion. The question today is “How long will the international community tolerate such defiance?” The international community’s continued turning of a blind eye to China’s contempt for humanitarianism today can only serve to incubate the tomorrow’s aspiring Hitlers, Stalins and Kim Jong-ils.

3. Lessons to Be Learned

The North Korean defectors who gain entrance to foreign embassies are permitted to leave China. Foreigners are strong. The same defectors are arrested and treated like beasts if found on the streets. North Korean defectors are weak by themselves.

The lesson to be learned here is that China responds only to a strong show of force and China is submissive to the stronger, but shows no mercy to the weaker. The Chinese view the UNHCR, humanitarian NGO’s, and the South Korean government as being “weaker,” when they are diplomatic and appeal for humanitarian consideration. This is why we must stop making appeals to the Chinese government for humanitarian consideration.

4. Main Actions Urged

a. Strong Protest

In view of the above, it must be urged that appeals for humanitarian considerations or quiet diplomatic approaches be discontinued in favor of protest in the strongest possible terms and actions in dealing with the Chinese government. The observation is supported by the modern Chinese short story, “The True Story of Ah Q” by Lu Hsun (1881-1936), which has been recognized by both the Chinese themselves and by foreigners as being “an excellent description of Chinese national characteristics.”

b. Open Confrontation

The government of China must be strongly condemned for and confronted with its defiance of the 1951 Geneva convention at all levels and opportunities. As a first step, the government of China must be urged, not appealed, to answer the attached questions, which have been put forward to the government of China for years and which the Chinese government has bluntly ignored.

It is proposed that at the end of this conference the attached questions are put forward to the Chinese government for answer in the name of the Life Funds for North Korean Refugees (LFNKR) and the participants of this conference today. Repeated reminders will be made through a short announcements in the leading international news media making reference to the unanswered questions to be found in the LFNKR web site. The announcement to appear in the leading international newspapers regularly, for example, may read as follows:

“On 19 July 2004, the Life Funds for North Korean Refugees (LFNKR) and the participants of the Tokyo Conference on 18 July, 2004, have asked the Chinese government questions on the issues of the legal status of North Korean defectors in China and China’s arbitrary detentions of humanitarian aid workers. As of this date we have received no response. (The questions to be found at: http:www.asahi-net.or.jp/~fe6h-ktu/). This is our reminder to the Chinese government.”

c. Documentation of Information.

It is important to attract greater attention and support from the international community on this issue of Chinese arrogance and defiance of rule of law. Crucial information will have to be collected and documented for this purpose. Attached is an example. All participants are urged to make greater efforts to collect testimonies and evidence of North Korean defectors who are executed in North Korea after forcibly returned to North Korea by the Chinese authorities.

Our Questions

We demand that the Chinese Government 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 (i.e., the 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 even to substantiate their claims as refugees.

Very regrettably, the Chinese Government is applying national law to an international issue that should be governed by customary international law. Accordingly, if the Chinese Government punishes the defectors under its 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 know that the Chinese Government 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 arbitrarily charge all the defectors with “illegal entry” for their presence in China. It must be recognized 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 the 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 were unconditionally arrested solely based on their illegal entry or presence, as it is 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? Isn’t the Chinese interpretation of humanity at odds with the rest of the world?

Are the defectors economic migrants or refugees?

Based on the abundance of information documented and available to us, 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.

Moreover, many defectors have been arrested while attempting to leave China for a third country. Thus, if the defectors are indeed economic migrants pursuing business and/or seeking gainful employment in China, why then would they attempt to leave China at the first opportunity for a third country that provides far less economic opportunity than China (e.g., Mongolia, Myanmar, Laos or Vietnam)? Any attempts to leave China undermines the Chinese Government’s “economic migrants” allegation and clearly demonstrates the real purpose seeking freedom.

One case in point: On January 18, 2003 48 North Koreans, including a group of children, were about to leave China by sea and seek asylum either in South Korea or Japan. They were arrested, however, by the Chinese security services in Yantai City, Shandong Province. If they were indeed economic migrants, why would they attempt to leave China in the first place?

Are Chinese Law Not the Same for Everyone?

North Korean defectors are given humanitarian considerations and are allowed to leave China by the Chinese Government if they were in the compound of any foreign embassies in China. The same North Koreans are brutally treated and returned to North Korea against their will if they were found outside foreign embassies. What kind of law enforcement is this?

South Korean humanitarian aid workers who have been arbitrarily detained without court verdict for an extended period, including those who have been in detention over a year without court verdicts for the exactly same charges for which it is seven days or 3 weeks for the Japanese aid workers. Are the law of China different by nationality?

Attachment

Economic Migrants? Nonsense!

My name is Shin Jong-ae. I was born in Japan on 3 March 1945. In September 1961, as a 16-year-old orphan heavily affected by North Korean propaganda, I joined a group of ethnic Koreans who were going to North Korea.

I attended Nurse College for 3 years after my arrival in North Korea. I had been a nurse at the city hospital in Nampo for 3 years when I married a railway factory worker, with whom I later had 2 boys and a girl.

My husband died in January 1999. With him, as the bread earner, gone, I needed help from my sister in Japan.

First Defection

Therefore, I defected to China in August 1999 to meet my sister, who had flown in from Japan. After 3 months in China, I sneaked back to North Korea, but was arrested by North Korean authorities. Consequently, for the “crime” of defecting to China, I was forced to serve a total of 17 months in detention: 5 months of tough interrogations at the State Security Agency (SSA) and 12 months at the Yodok Detention Camp.

At the SSA detention camp it was common practice for guards to push dirty floor rags into the mouths of prisoners, and to kick and beat prisoners with bars. At Yodok, all the prisoners were badly malnourished. When I was released in April 2001, I could not walk and my sons had to carry me home on their shoulders from the police station.

Second Defection

Disillusioned by the North Korean system of oppressing innocent people like myself, I defected to China for the second time in August 2001, but was immediately arrested in China. This time, I was soon released in North Korea after bribing a North Korean interrogator.

Third Defection

On 10 October 2001, about 2 months after my release, I defected to China for the 3rd time. After a week or so in China, I was again arrested and sent back to North Korea. I spent about 40 days this time in various detention camps.

4th Defection

On 17 November 2001, I defected to China for the 4th time and, this time, along with my daughter, her husband and their one-year old girl, safely arrived in South Korea via Vietnam and Cambodia on 13 October 2002.

My Children Under Severe Interrogations for Defection from North Korea

My first son was a doctor and second son a clerk at a tuberculosis hospital in North Korea. On 29 March, 2003, they, along with my second son’s wife and two boys, aged 7- and 2-years old, and my 35-year old niece defected to China. Alas, they were among the seven North Korean defectors who were arrested in Shanghai by Chinese authorities on 7 August 2003 while attempting to enter the Japanese school in an effort to seek freedom in South Korea. This incident received full coverage by the world news media at the time.

Incredibly, the very next day after their arrest, my son’s wife and two children were repatriated to North Korea via Dandong, China. My two sons and my niece were repatriated to North Korea via Dandong on 28 September 2003, almost two months later. The Chinese Government denied their refugee status, calling them illegal economic migrants. But in North Korea they were considered political prisoners and, as such, were sent to the Pohang District SSA in Chongjin on 15 October 2003. Around the end of January 2004, they were sent to the North Hamkyong Provincial SSA as serious political prisoners, where they remain — assuming they have survived the notorious ordeal to this date and not yet been sent to one of the secret concentration camps.

I want to condemn the Chinese authorities for repatriating North Korean defectors to certain and severe persecution in North Korea under the pretext that North Korean defectors are economic migrants. Would China still call my children economic migrants? I also want to challenge the North Korean regime for their treatment of North Korean defectors from China as political prisoners. Finally, I wish to appeal to the international community for help confronting the North Korean regime and ask them to explain why my children are still detained.

Please help my children! God save my children!