Joint Open Letter | Open Letter to Chinese President Xi Jinping Regarding the Non-Refoulement of North Koreans and Refugee Status

Your Excellency President Xi Jinping,

We write to express our deep concern regarding the resumption of forced repatriations of North Koreans apprehended in the People's Republic of China (PRC) back to the Democratic People's Republic of Korea (DPRK, also known as North Korea)—a practice that had been suspended since 2020 due to the COVID-19 pandemic. We note the reports of North Korea reopening its borders, alongside the registration of over 200 athletes, coaches, and officials to participate in the 19th Asian Games held in Hangzhou, China (September 23 to October 8, 2023)^[1], while your government reportedly prepares to resume the forced repatriation of approximately 2,000 North Koreans detained in China^[2].

In its 2014 report, the United Nations Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea (COI) concluded that the North Korean government has committed crimes against humanity against individuals forcibly repatriated from China^[3]. The COI documented that North Roreans who flee abroad and are forcibly repatriated face a high risk of torture, sexual and gender-based violence, arbitrary detention, enforced disappearance, execution, forced abortions, and infanticide^[4]. However, although China is a state party to the UN Refugee Convention and its Protocol, as well as the Convention against Torture—instruments in which the principle of non-refoulement is explicitly codified—the Chinese government continues to arbitrarily detain and hold North Korean escapees pending the opening of North Korea's borders for their forced repatriation^[5].

The COI recommended that "China and other States" must "respect the principle of non-refoulement" and "not force any person to return to the Democratic People's Republic of Korea, where there are substantial grounds for believing that they would be in danger of being subjected to torture, [unless] the treatment in that country has been verified by international human rights monitoring bodies as having significantly improved."^[6] To date, there has been no record of any such improvement in treatment in North Korea. On December 16, 2013, the COI wrote to the Chinese government outlining its "concerns regarding China's policy and practice of forcibly repatriating citizens of the Democratic People's Republic of Korea, [including] the specific concern that Chinese officials provide specific information about such individuals to the North Korean authorities," urging Beijing "to warn relevant officials that if such repatriations and exchanges of information are directed specifically at crimes against humanity in the Democratic People's Republic of Korea, or are conducted with the purpose of assisting in the commission of such crimes, they may constitute aiding and abetting crimes against humanity."^[7]

Nevertheless, the Chinese government's policy and practice of forcibly repatriating North Koreans have persisted. During the height of the COVID-19 pandemic, the UN Special Rapporteur on the situation of human rights in the Democratic People's Republic of Korea, the Working Group on Arbitrary Detention, and the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment jointly wrote to the Chinese government, drawing attention to information that "at least 1,170 individuals from the Democratic People's Republic of Korea have been arrested, detained, and threatened with repatriation by the Chinese authorities," having already been held in detention for over a year due to the border closures implemented by both countries in 2020^[8]. The communication also noted that "on 14 July 2021, [the Chinese government] repatriated over 50 North Koreans who had been detained in Shenyang for over a year."

On September 7, 2023, at a conference in Seoul titled "Response to the Forced Repatriation of North Korean Escapees in China," James Heenan, Representative of the UN Human Rights Office (OHCHR) in Seoul, stated: "Reliable reports indicate that a large number of North Koreans have been detained by Chinese authorities over the past three years, but North Korea refused to accept their return due to border closures and other COVID-19 prevention measures. As North Korea gradually reopens its borders, these individuals may be repatriated at any time. For those among them who do not wish to return, this constitutes forced repatriation."^[9]

UN special procedures (including the Special Rapporteur on the situation of human rights in the Democratic People's Republic of Korea and the Working Group on Enforced or Involuntary Disappearances) and treaty bodies (notably the Committee against Torture and the Committee on the Elimination of Discrimination against Women) have repeatedly called upon the Chinese government to respect the principle of non-refoulement with respect to North Korean escapees^[10]. Numerous States made similar recommendations to the Chinese government during its Universal Periodic Review cycles^[11].

The Chinese government claims to handle the issue of North Korean escapees in accordance with its domestic law, international law, and humanitarian principles. However, the Chinese government has failed to implement a "screening" procedure for North Korean asylum seekers pursuant to Article 46 of the Exit and Entry Administration Law enacted in 2012, nor has it provided them with "temporary identity certificates issued by public security organs."^[12]

The Chinese government frequently cites bilateral treaties between China and North Korea as the legal basis for repatriating North Koreans. For instance, Article 4, Paragraph 1 of the Agreement on Mutual Cooperation for the Maintenance of National Security and Social Order (July 1998) stipulates that "failing to hold valid documents or using crossing points not specified in the documents shall be deemed illegal border crossing," and Paragraph 2 of the same article states that "those who cross the border illegally shall be repatriated to the other party along with their identity and specific circumstances and other information." Nevertheless, such bilateral treaties are insufficient to legalize the forced repatriation of North Korean refugees because the latter violates the principle of non-refoulement enshrined in Article 33 of the Refugee Convention and Article 3 of the Convention against Torture.

Furthermore, regardless of any humanitarian considerations, North Korean escapees should be granted legal status to halt their repatriation to North Korea, where they face torture, sexual and gender-based violence, forced abortions, imprisonment in brutal labor camps, or even execution. We note that the UNHCR designated North Korean escapees in China as "persons of concern" entitled to humanitarian protection in 2004, and we recommend that the Chinese government establish a special humanitarian status, provide temporary documents and services for them, and repeatedly urge the Chinese government to guarantee that they are not refouled^[13].

The official slogan of the 2022 Asian Games in Hangzhou was "Heart to Heart, @Future." As Martin Luther King Jr. articulated, we will not only win freedom for ourselves, but we will appeal to your heart and conscience so that we will win you in the process, and our victory will be a double victory. In this spirit, we urge you to officially terminate the policy of forced repatriation of North Korean escapees and implement individual screening procedures for refugee status.

Thank you.

 

List of Endorsing Organizations and Individuals (As of September 21, 2023)

Organizations

• ACAT - Belgique (Action des Chrétiens pour l'Abolition de la Torture) / Belgium
• ACAT - France (Action des Chrétiens pour l’Abolition de la Torture) / France
• ACAT Germany (Action by Christians for the Abolition of Torture) / Germany
• ACAT UK (Action by Christians for the Abolition of Torture) / UK
• Advocates for Human Rights / USA
• Anti-Death Penalty Asia Network (ADPAN) / Malaysia
• Asian Federation Against Involuntary Disappearances (AFAD) / Philippines
• Asociación Pro-Búsqueda de Niñas y Niños Desaparecidos / El Salvador
• Association of Family Members of Disappeared (AFMD) / Sri Lanka
• Balay Alternative Legal Advocates for Development in Mindanaw, Inc. (BALAOD Mindanaw) / Philippines
• Centro para la Apertura y el Desarrollo de América Latina (CADAL) / Argentina
• Christian Solidarity Worldwide (CSW) / UK
• Citizens' Alliance for North Korean Human Rights (NKHR) / South Korea
• Commission for Disappeared and Victims of Violence (KontraS) / Indonesia
• Committee for Human Rights in North Korea (HRNK) / USA
• Death Penalty Focus (DFC) / USA
• Desaparecidos Pilipinas / Philippines
• Disarmament and Non-Violence / Georgia
• Families of the Disappeared (FoD) / Sri Lanka
• Federal Association of Vietnamese Refugees in the Federal Republic of Germany / Germany
• Free Jonas Burgos Movement / Philippines
• German Coalition to Abolish the Death Penalty (GCADP) / Germany
• HanVoice / Canada
• Human Rights Hub / Sri Lanka
• Human Rights Watch (HRW) / USA
• Human Rights Without Frontiers (HRWF) / Belgium
• Ikatan Keluarga Orang Hilang Indonesia (IKOHI) / Indonesia
• Improving North Korean Human Rights Center (INKHR) / South Korea
• International Coalition Against Enforced Disappearances (ICAED)
• International Coalition to Stop Crimes against Humanity in North Korea (ICNK)
• International Lesbian, Gay, Bisexual, Trans and Intersex (ILGA) Asia
• Italian Federation for Human Rights (FIDU - Federazione Italiana Diritti Umani) / Italy
• Taiwan Association for Judicial Reform (JRF)
• Justice For North Korea / South Korea
• Karapatan Alliance Philippines (KARAPATAN) / Philippines
• Korean War POW Family Association / South Korea
• Legal Literacy / Nepal
• Liberty in North Korea (LiNK) / USA
• Madres de Plaza de Mayo - Línea Fundadora / Argentina
• Mulmangcho / South Korea
• Network for North Korean Democracy and Human Rights (NKnet) / South Korea
• No Chain / USA
• Non-Violence International / Canada
• North Korea Freedom Coalition (NKFC) / USA
• Peace and Hope International
• Safeguard Defenders / Spain
• Save North Korea / South Korea
• Stepping Stones / UK
• Taiwan Alliance to End the Death Penalty (TAEDP)
• THINK / South Korea
• Transitional Justice Working Group (TJWG) / South Korea
• UK All-Party Parliamentary Group on North Korea / UK
• Viet Tan
• World Coalition Against the Death Penalty (WCADP)

Individuals

• David Alton / Independent Crossbench Member of the House of Lords & Co-chair of the All Party Parliamentary Group on North Korea
• Sonja Biserko / Former Commission of Inquiry (COI) member on the situation of human rights in the DPRK & current chair at the Helsinki Human Rights Committee in Serbia
• Roberta Cohen / Co-Chair Emeritus of the Committee for Human Rights in North Korea (HRNK)
• Marzuki Darusman / Former UN Special Rapporteur/Commission on Inquiry (COI) member on the situation of human rights in the DPRK
• Lee Yanghee / Former UN Special Rapporteur on the situation of human rights in Myanmar & Former Chairperson of the UN Committee on the Rights of the Child
• Tomás Ojea-Quintana / Former UN Special Rapporteur on the situation of human rights in the DPRK
• Suzanne Scholte / Seoul Peace Prize Recipient & President of Defense Forum Foundation (USA)

---

Footnotes

1. Kyodo News (English), "North Korea eyes sending 200-strong delegation to Asian Games in China," May 13, 2023, https://english.kyodonews.net/news/2023/05/3b8211a3706a-n- korea-eyes-sending-200-strong-delegation-to-asian-games-in-china.html (accessed September 5, 2023).

2. Report of the UN Special Rapporteur on the situation of human rights in the Democratic People's Republic of Korea submitted to the General Assembly (October 13, 2022), A/77/522, para. 9 ("The Special Rapporteur has received information that up to 2,000 persons who fled the Democratic People's Republic of Korea are currently detained in China as 'illegal immigrants' and are at risk of being forcibly returned once borders reopen."), https://undocs.org/A/77/522 (accessed September 5, 2023).

3. Report of the detailed findings of the commission of inquiry on human rights in the Democratic People's Republic of Korea (February 7, 2014), A/HRC/25/CRP.1, paras. 1098–1114, https://undocs.org/A/HRC/25/CRP.1 (accessed September 5, 2023).

4. Ibid., paras. 380–434.

5. Ibid., paras. 435–477.

6. Ibid., para. 1221(a).

7. Ibid., para. 1197.

8. Joint allegation letter sent by Tomás Ojea-Quintana, Special Rapporteur on the situation of human rights in the Democratic People's Republic of Korea; Miriam Estrada-Castillo, Vice-Chair of the Working Group on Arbitrary Detention; and Nils Melzer, Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, to the Chinese government, JAL CHN 8/2021, August 23, 2021, https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26571 (accessed September 5, 2023).

9. Liu Yu-an, "UN Seoul Human Rights Office Head Urges China Not to Repatriate North Korean Defectors," Yonhap News Agency, September 7, 2023, https://www.yna.co.kr/view/AKR20230907054551504 (accessed September 10, 2023).

10. Concluding observations on the ninth periodic report of China by the Committee on the Elimination of Discrimination against Women (May 31, 2023), CEDAW/C/CHN/CO/9, para. 29, https://undocs.org/CEDAW/C/CHN/CO/9 (accessed September 5, 2023); Concluding observations on the fifth periodic report of China by the Committee against Torture (February 3, 2016), CAT/C/CHN/CO/5, paras. 46–48, https://undocs.org/CAT/C/CHN/CO/5 (accessed September 5, 2023); Concluding observations on the fourth periodic report of China by the Committee against Torture (December 12, 2008), CAT/C/CHN/CO/4, para. 26, https://undocs.org/CAT/C/CHN/CO/4 (accessed September 5, 2023).

11. Report of the Working Group on the Universal Periodic Review: China (including Hong Kong, China and Macao, China) (December 4, 2013), A/HRC/25/5, paras. 186.66, 186.241, 186.242, 186.243, https://undocs.org/A/HRC/25/5 (accessed September 5, 2023).

12. Exit and Entry Administration Law of the People's Republic of China (Adopted at the 27th Session of the Standing Committee of the 11th National People's Congress on June 30, 2012), https://www.nia.gov.cn/n741440/n741547/c1013311/content.html (accessed September 5, 2023).

13. UNHCR, News Release, "UNHCR chief calls on States to respect non-refoulement after North Koreans deported," May 30, 2013, https://www.unhcr.org/news/news-releases/unhcr-chief-calls-states-respect-non-refoulement-afternorth-koreans-deported (accessed September 7, 2023); Shin Hyon-hee, "UNHCR steps up protection for North Korean defectors," The Korea Herald, March 2, 2014, https://www.koreaherald.com/view.php?ud=20140302000452 (accessed September 7, 2023).