Let the Escapees Escape: A Report on the Ongoing Human Rights Crisis of North Korean Escapees and International Human Rights Law
By Damian Reddy, HRNK Legal Counsel and Project Development Associate
Edited by Eric Ryu, former HRNK Research Intern & Raymond Ha, HRNK Director of Operations and Research
May 23, 2022
The Democratic People’s Republic of Korea (DPRK), also known as the “hermit kingdom” because of its extreme isolation from the rest of the world, is notorious for its human rights violations. According to the 2014 report of the UN Commission of Inquiry (hereafter “Report”), its human rights record is “without parallel in the contemporary world.”
Under the Kim family’s rule, the North Korean regime has terrorized its people for over seventy years. Those who attempt to cross the border are seriously punished if caught. Those who successfully escape are at risk of suffering from another evil: forcible repatriation. While this issue of forcible repatriation has previously been addressed, very little has been done on the ground. This essay seeks to not only serve as a reminder of this vital issue, but also urge relevant countries to act. Simply condoning forcible repatriation is a major violation of international human rights law.
International Human Rights Violations by the North Korean Government under the Kim Family
The DPRK has ratified significant international human rights treaties: the International Covenant on Civil and Political Rights (ICCPR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW); the Convention on the Rights of the Child (CRC); and the Convention on the Rights of Persons with Disabilities (CRPD). Despite being bound by these treaties, the North Korean regime is notorious for ignoring the rules. To date, there has regrettably been little progress in improving the human rights situation in the DPRK.
After extensive investigation, the 2014 Report of the UN Commission of Inquiry concluded that “the North Korean government systematically violated human rights including freedom of thought, expression and religion; freedom from discrimination; freedom of movement and residence; and the right to food.” It further concluded that the DPRK had committed all crimes against humanity as listed in Article 7(1) of the Rome Statue of the International Criminal Court, except for the crime of apartheid. The government vehemently denies having any part in the ill-treatment of its people and refuses to comply with international human rights standards. The Report is well-documented, however, and provides sufficient evidence detailing the North Korean government’s continued violations of international human rights law.
The North Korean regime’s human rights record has been a regular topic of discussion at the United Nations (UN). Since 2005 and 2003 respectively, the UN General Assembly and Human Rights Council have passed annual resolutions condemning the DPRK for its human rights record. There has been an emphasis on pursuing accountability, especially after the 2014 Report of the Commission of Inquiry. Furthermore, in 2019, the North Korean regime underwent its latest Universal Periodic Review at the UN Human Rights Council, where it only accepted 132 out of 262 recommendations. This is a clear indication of the government’s indifference to international law and human rights mechanisms, which has been the North Korean regime’s attitude towards human rights since 2009, when the DPRK underwent its first review and did not accept any recommendations. While the most recent review shows some willingness to respond, it is important to remember that accepting recommendations does not necessarily mean that the regime implements them.
Since 2019, the North Korean regime has increased measures to prevent its citizens from leaving the country. North Korean law criminalizes the act of leaving the country without official permission. People who are caught trying to leave are apprehended and subjected to punishment, including, inter alia, public forms of punishment, imprisonment, and sometimes death. The government has also encouraged the Chinese government to thwart the ability of North Koreans trying to escape by repatriating them to the DPRK. Such repatriation is followed by harsh consequences. This is an egregious violation of the principle of non-refoulement, a sacred tenet of international law.
It is the harsh treatment by the North Korean regime that forces citizens to leave, even when the risks are high and life-threatening. Food shortages, a failing economy, and severe consequences for not obeying the regime are among the many reasons driving people to escape. It is unfortunate that tighter border control and the emergence of Covid-19 have resulted in a drop in the number of escapees in recent years. However, based on publicly available information, there seems to be a trend of higher-ranking officials who are attempting to escape. The continued attempts to escape are a clear indication of the North Korean regime failing to meet its responsibilities and duties to the people under international human rights law. People would not risk their lives to escape if they were truly happy.
International Human Rights Violations by China
Most North Koreans attempting to escape the tyrannical rule of the Kim regime first attempt to enter China en route to South Korea, the United States, or other destinations. However, the Chinese government has been cracking down on North Korean escapees, capturing and forcibly repatriating them to the DPRK, where they are subjected to harsh consequences. The Chinese government argues that North Koreans are not seeking asylum or refuge but are simply looking for economic opportunities. The government terms them as economic migrants. However, the lack of formal assessments for the escapees and such arbitrary repatriation are violations of international human rights law.
China is notably a member of the Refugee Convention and the Protocol Relating to the Status of Refugees, having acceded to the convention and Protocol in 1982. A cornerstone of the Refugee Convention is the principle of non-refoulement in Article 33, which states that “no Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” This means that a refugee should not be returned to a country if he or she faces serious threats to life or freedom. The term refugee is given a wide interpretation and includes asylum seekers. The UN Human Rights Council refers to asylum seekers as prima facie refugees and affords them the same treatment as that of formally recognized refugees.
China is failing to uphold its obligations under the Refugee Convention by arbitrarily labelling North Korean escapees as economic migrants and simply sending them back while knowing the consequences these individuals could face. The Refugee Convention calls for a proper assessment to be conducted before an individual is repatriated, which the government is failing to do. The submission to the principle of non-refoulement is especially important for North Koreans because repatriation results in severe punishment and even death. China’s current practice of violating the principle of non-refoulement directly undermines the principles of the international refugee protection regime enshrined in the Refugee Convention.
In addition, China ratified the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) in 1988. The CAT is clear when it references the principle of non-refoulement by stating in Article 3 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.” It goes further to implore governments to consider all relevant circumstances and propensities of human rights abuses before deciding whether or not an individual is to be repatriated. The scope of CAT is wider than the Refugee Convention, as it applies the principle of non-refoulement to all human beings, making no distinction between refugee and asylum seeker.
Furthermore, CAT refers to torture and ill-treatment as reasons for providing protection. These terms, especially ill-treatment, carry a wide and all-encompassing interpretation. In effect, this lowers the legal threshold for the Chinese government to comply with its responsibilities and duties under CAT when protecting North Korean escapees, who are escaping severe and harsh treatment by the regime. The term ill-treatment can refer to any justified form of serious fear to life or freedom as envisioned by the Refugee Convention and the CAT.
China is a member to several other international treaties, all of which advocate for non-discrimination and the protection of all persons. CAT aptly mentions that all people are “members of the human family.” Therefore, such arbitrary repatriation by the government is a clear violation of international human rights law, for which China has been reprimanded on numerous occasions. The Chinese government argues that it enjoys bilateral agreements with the DPRK that allows it to return North Korean escapees. However, when governments subscribe to treaty law, they are under a duty to put into place domestic measures and legislation compatible with their treaty obligations and duties. This means that bilateral agreements contrary to international law and standards are, in principle, invalid. Therefore, the government cannot simply rely on its relationship with the DPRK.
It is important to note that the 2014 Report of the UN Commission of Inquiry assigned liability on the Chinese government for aiding in crimes against humanity by its forcible repatriation of North Korean escapees. The Report highlighted evidence of Chinese officials being fully aware of the treatment of escapees, especially pregnant women who were—and still are—subjected to forced abortions by the North Korean regime. The Report condemned the government for such inhumane violations of international human rights law.
The Chinese government’s tendency to flout international law is not only a violation on its part, but consequently aids and abets the North Korean government in continuing to violate the human rights of North Koreans. China’s own human rights record has been far from commendable, especially since it has been preventing UN human rights officials from entering the country. The Chinese government could bring immense, positive improvement to the plight of North Korean escapees by providing protection instead of returning them to a tyrannical regime. China should not rely on relationships or bilateral agreements to evade its international law responsibilities and duties. As rightly said by former UN High Commissioner for Human Rights, Navi Pillay, loyalty should not be a reason to violate human rights.
International Human Rights Violations by South Korea (2019)
In 2019, the South Korean government shockingly repatriated two North Korean fishermen who were discovered by the South Korean navy. According to official statements from Seoul, these two men were suspected of murder. The South Korean government’s decision to arbitrarily repatriate the two men was a violation of its domestic laws and international human rights law. Moreover, it called into question the integrity of the South Korean government and its commitment to upholding human rights.
The government argued that the two men were serious criminals and were not eligible for protection. This, however, violates South Korea’s Constitution, which extends its domestic laws to all Koreans on the Peninsula. By this standard, the two men should have undergone due process for their alleged crimes. Furthermore, South Korea’s refugee laws explicitly prohibit the refoulement of persons who seek refuge, even if he or she is not immediately identified as a refugee. The principle of non-refoulement was clearly violated under the Refugee Convention and CAT. South Korea is a member state to both instruments. While the provisions of these treaties do not extend to non-political, serious criminals, such allegations must first be proved, and the treaties still do not condone repatriation in such circumstances when there is a serious fear to life and freedom.
The South Korean government was criticized for its improper conduct. Besides the shame of violating domestic and international law, it was condemned for allowing diplomacy and bilateral relations to guide its decision-making at the expense of human rights. Many experts cautioned the Moon administration against allowing the pursuit of inter-Korean diplomacy to hinder honoring its human rights obligations. Again, fostering loyalty cannot be reason enough to flout the imperative to preserve human rights.
Recommendations & Conclusion
Human Rights Watch (HRW) suggested in 2002 that the North Korean government immediately stop its practice of punishing those who wish to leave the country, but to no avail. HRW has appealed to the government to repeal all laws, decrees, rules, and policies that result in any form of reproof. International verification has also been suggested to confirm that the government has indeed implemented these reforms. Furthermore, all detained persons are requested to be released with immediate effect, including non-residents who have been detained for assisting North Koreans to escape.
These recommendations remain valid, even more so as the situation seems to be worsening. HRW continues to make such recommendations, together with other international human rights organizations, including the Committee for Human Rights in North Korea (HRNK), which continues to submit practical and specific measures for advancing human rights in North Korea. Some of these measures and recommendations include the following.
The Chinese government is strongly urged to comply with its duties and responsibilities under international law. The government is requested to immediately stop the detainment and forcible, arbitrary repatriation of North Korean escapees until a proper and full assessment of the escapee has been conducted. The government is also advised to allow access to and work with the UN High Commissioner for Refugees (UNHCR) to design and implement a workable process of assessing those persons escaping into China and to grant interim protection to North Korean escapees while due processes are conducted. The Chinese government must bear in mind that it is an executive member of the Executive Committee of the High Commissioner’s Programme which advises the UNHCR, so they are expected to maintain the standard in terms of its treatment of asylum-seekers and refugees according to international human rights law.
Governments around the world are encouraged to become more involved in issues that pertain to the repatriation of North Korean escapees, especially those who attempt to escape to China. Governments who enjoy bilateral agreements with the DPRK and China are urged to monitor and ensure that human rights standards are realized and upheld. In addition, this issue can be addressed at governmental meetings, forums, and conferences to ensure awareness and to discuss possible solutions. All suggestions should be relayed to the UNHCR for potential implementation. It is important that constant pressure is applied on China, and a constant spotlight is shed on China’s human rights record. Any positive appeals and proposals made by the UNHCR must be supported by governments around the world to increase pressure on the Chinese government.
The United States can, together with other countries—including South Korea, Japan, and EU member states—engage with China to discuss resettlement strategies, especially since most North Korean escapees resettle in South Korea or the United States. It is important to adopt a multilateral approach in the attempt to protect human rights. While this may require complex bargaining and compromise, the result can be better if other governments can show a willingness to admit North Korean escapees instead.
The South Korean government is called upon to adopt a more robust approach to human rights issues in the DPRK and to be more active in admitting and assisting North Koreans with resettlement. South Korea, as a country that accords constitutional rights to all Koreans in the entire Peninsula, should adopt legislation and policies to alleviate the human rights abuses faced by North Korean escapees. This is a recommendation of the 2014 UN Commission of Inquiry Report, which is yet to be fully realized by the South Korean government. There is much hope in the new Yoon Suk-yeol administration to advocate for human rights in the DPRK. Yoon has promised to make a greater effort to promote freedom and human rights around the world, including in the DPRK.
International human rights law was put into place to guide governments in protecting people against human rights abuses. Individual governments have the responsibility to honor their obligations under international human rights law. The issue of repatriating North Korean escapees has been an ongoing matter since the late 1990s, and it has still not been resolved. We should not forget that this is a serious human rights issue and strive to remember North Korean escapees in our efforts to defend human rights.
Damian Reddy is a Law graduate of the University of KwaZulu-Natal, and he is also an admitted attorney in South Africa. He is currently completing his Master of Laws degree in human rights.
 UN Human Rights Council, “Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea,” accessed March 25, 2021. https://www.ohchr.org/en/hrbodies/hrc/coidprk/pages/reportofthecommissionofinquirydprk.aspx.
 UN OHCHR, “UN Treaty Body Database: Democratic People’s Republic of Korea,” accessed May 23, 2022. https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=47&Lang=EN.
 UN Human Rights Council, “Report of the Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea.”
 The Universal Periodic Review (UPR) is a unique process which involves a review of the human rights records of all UN Member States and provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations. See https://www.ohchr.org/en/hrbodies/upr/pages/uprmain.aspx for further details.
 “Resolution adopted by the Human Rights Council on 23 March 2021: 46/17. Situation of human rights in the Democratic People’s Republic of Korea,” Relief Web, accessed June 29, 2021. https://reliefweb.int/report/democratic-peoples-republic-korea/resolution-adopted-human-rights-council-23-march-2021-4617.
 Article 63 of the Criminal Law of the DPRK (2015) refers to escaping the country as treason against the state.
 U.S. Government Publishing Office, “China's Repatriation of North Korean Refugees: Hearing before the Congressional-Executive Commission on China,” March 5, 2012, accessed June 29, 2021. https://www.govinfo.gov/content/pkg/CHRG-112hhrg74809/html/CHRG-112hhrg74809.htm.
 See, for instance, the South Korean Ministry of Unification’s statistics on recent escapee arrivals at https://www.unikorea.go.kr/unikorea/business/NKDefectorsPolicy/status/lately/.
 “North Korea’s Elite Defectors,” The Diplomat, accessed April 2, 2022. https://thediplomat.com/2020/10/north-koreas-elite-defectors/.
 Joel R. Charny, “North Koreans in China: A Human Rights Analysis,” International Journal of Korean Unification Studies 13, no. 2 (2004): 75-97. https://www.refworld.org/pdfid/47a6eba2o.pdf.
 “China responsible and supportive on refugee issues: UNHCR representative,” Global Times, accessed July 3, 2021. https://www.globaltimes.cn/content/1201133.shtml. China is one of the first countries in Asia to accede to these instruments.
 Article 33 of the Refugee Convention relates to the prohibition of expulsion or return (https://www.unhcr.org/3b66c2aa10).
 UNHCR, “Asylum-Seekers,” accessed July 3, 2021. https://www.unhcr.org/asylum-seekers.html.
 Article 32(2) of the Refugee Convention indicates that a decision of expulsion must be made in accordance with the due process of law. The article allows for evidence to be adduced, representation to be made and appeals to be lodged against decisions.
 Escaping North Korea is viewed as treason against the regime and is punishable by North Korean Criminal Law.
 UN OHCHR, “UN Treaty Body Database: China,” accessed May 23, 2022. https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=36&Lang=EN.
 Article 3(1) of the CAT.
 Article 3(2) of the CAT states that the competent authorities shall take into account all relevant considerations including the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.
 See introduction of the CAT which states that the convention recognizes the equal and inalienable rights of all members of the human family.
 United Nations, “The Foundation of International Human Rights Law,” accessed July 3, 2021. https://www.un.org/en/about-us/udhr/foundation-of-international-human-rights-law.
 Congressional-Executive Commission on China, “UN Report Criticizes China for Treatment of North Korean Refugees Amid Worsening Situation,” accessed July 3, 2021. https://www.cecc.gov/publications/commission-analysis/un-report-criticizes-china-for-treatment-of-north-korean-refugees.
 Human Rights Watch, “UN: Governments Should Urge Xinjiang Inquiry,” accessed July 3, 2021. https://www.hrw.org/news/2021/05/12/un-governments-should-urge-xinjiang-inquiry.
 Judge Navi Pillay, “South Africa's Engagement with International Human Rights Law,” 15th Annual Human Rights Lecture to Celebrate the Centenary of the Law Faculty, University of Stellenbosch, May 20, 2021.
 Article 3 of the Republic of Korea’s Constitution of 1948, with amendments through 1987.
 Article 3 of South Korea’s Refugee Act (Act No. 14408) relates to the prohibition of compulsory repatriation, including those persons not yet recognized as refugees. See this link for an English translation of the law provided by the Korea Legislation Research Institute: https://elaw.klri.re.kr/eng_service/lawView.do?hseq=43622&lang=ENG.
 Human Rights Watch, “The Migrant's Story: Contours of Human Rights Abuse,” accessed July 5, 2021. https://www.hrw.org/reports/2002/northkorea/norkor1102.htm.
 U.S. Government Publishing Office, “China's Repatriation of North Korean Refugees: Hearing before the Congressional-Executive Commission on China.”
 This is referred to as prima facie refugees.
 UNHCR, “UNHCR Representation in China,” accessed July 5, 2021. https://www.unhcr.org/hk/en/about-us/china.
 U.S. Government Publishing Office, “China's Repatriation of North Korean Refugees: Hearing before the Congressional-Executive Commission on China.”
 Choe Sang-Hun, “In Korea, a New President in the South Vows a Harder Line on the North,” The New York Times, May 11, 2022. https://www.nytimes.com/2022/05/10/world/asia/south-korea-yoon-president.html.
HRNK staff members and interns wish to dedicate this program to our colleagues Katty Chi and Miran Song.