Blog post by Naoko Hashimoto, a Research Affiliate of the RLI. Naoko has a number of years’ practical experience in refugees and forced migration issues, as a staff of UNHCR, IOM, and the Government of Japan. She is currently undertaking a PhD research focusing on refugee resettlement at the School of Law, Politics and Sociology of the University of Sussex, as an International Fellow of Nippon Foundation. She holds Master of Studies in Forced Migration from the University of Oxford, and LLM in International Human Rights Law from the University of London.
A crossroad between international refugee law, international humanitarian law, and international criminal law
Serious and systematic violation of fundamental human rights by the regime in the Democratic People’s Republic of Korea (DPRK, hereinafter North Korea) is, regrettably, not new. What is new, however, is the increasing possibility of a direct military clash between North Korea and the United States (US) Government (and its allies), arising from the escalated missile developments by North Korea and the unpredictability of the Trump administration.
In the case of a direct military attack against the North Korean territory by the US Government, the border control capacity of the North Korean regime might be weakened, which would facilitate the exodus of North Korean citizens to neighbouring countries. How should China, the Republic of Korea (RoK or South Korea), and Japan respond to a potential largescale influx of North Koreans, and on what legal basis? I shall consider two separate scenarios: one in which Kim Jong-un remains in power even after a military clash; the other in which a regime change occurs following the clash.
Scenario I: Kim Jong-un remains in power during and after a military clash
In the case of a military attack which would weaken the border control of the North Korean regime, the likelihood is that a significant number of North Koreans would flee to South Korea. The two countries are connected via land across the Demilitarised Zone (DMZ) and have a lot in common in terms of language, culture, history, and family ties. What is more, in accordance with Article 3 of the Constitution and domestic laws of the RoK (such as 1997 Law No.5259 Protection and Settlement Aid for North Korean Defectors), North Korean defectors are regarded in the RoK as ‘compatriots’ (dongpo) and are conferred South Korean citizenship almost automatically as soon as their identity as a North Korean is confirmed. In fact, the RoK Government already provides a variety of remarkably generous integration assistance packages for North Korean defectors. The RoK is therefore the most rational destination for the majority of North Korean emigrants to head to.
China is also connected to North Korea via the Yalu River, but the Chinese military has apparently strengthened its border control and surveillance measures in recent months due to the deteriorating security prospect in the Korean peninsula. Even if North Koreans manage to enter the Chinese territory, it is widely known that Chinese law enforcement agencies regard them as ‘illegal entrants’ and deport them to North Korea. Their deportation to North Korea would be a violation of the principle of non-refoulement, since any North Korean who attempted to leave North Korea in an unauthorised manner would face serious risk of persecution by the North Korean authorities, including imprisonment, torture, forced labour, and possibly even execution upon return, thereby making them a refugee sur place. China is a State Party to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) and the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT). Thus, the Chinese Government has treaty-based legal obligations not to deport anyone to a place where s/he might face the risk of persecution and/or torture, i.e. North Korea in the present case. However, practice on the ground appears to contravene China’s legal obligations in this respect.
Japan is separated from North Korea by the Sea of Japan (or East Sea) and is less accessible for North Koreans as compared to the RoK or China. However, North Korean ‘fishermen’ in small boats have occasionally reached the Japanese territorial sea, and the number of arrivals might well increase in the case of a weakening of the North Korean regime. Japan has been a State Party to the Refugee Convention since 1981, as well as CAT since 1999, and should not deport North Korean defectors for the reasons already mentioned. The Japanese Government is also under the domestic legal obligation to provide protection and assistance to North Korean victims of human rights abuse by the North Korean regime under the so-called ‘North Korea Human Rights Act’. The same treatment should be extended even in the case of a largescale influx. Besides, such arrivals from North Korea may well include Japanese nationals who were abducted by the North Korean regime, Japanese spouses of North Korean citizens who ‘voluntarily’ migrated from Japan to North Korea under the ‘Promotion of Repatriation to North Korea’ campaign between 1959 and 1984, and their descendants. Since Japan’s nationality law adopts the doctrine of jus sanguinis only (rather than jus solis), i.e. nationality is determined by citizenship of the parents rather than place of birth, Japanese abductees, emigrants, and their descendants should all be regarded as Japanese nationals even if born in North Korea, and assisted in reclaiming their national registration and treated accordingly.
Furthermore, Japan has recently promulgated a new series of so-called ‘Security Laws’ which effectively made it significantly easier for Japan’s Self-Defence Force to assist its allies (most notably the US) through military measures conducted abroad. If, based upon the Security Laws, Japan becomes involved in the international armed conflict (mainly fought between the US and North Korea) as a Party to the conflict, then International Humanitarian Law will become applicable to Japan, in particular Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War (12 August 1949), and Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (8 June 1977), as Japan is a State Party to the Convention (since 1953) and the Protocol (since 2004). This is all the more relevant because North Korea is also a State Party to the Fourth Geneva Convention and Protocol I. Japan should treat North Korean civilians within the territory and/or under the ‘effective control’ of Japan in a humanitarian manner in accordance with the relevant provisions of the Fourth Geneva Convention and Protocol I, at least temporarily while the armed conflict continues.
In sum, were Kim Jong-un to remain in power following a military clash, the neighbouring states of South Korea, China, and Japan would owe various legal obligations to those fleeing North Korea. For China and Japan this includes the non-refoulement obligations under the Refugee Convention and CAT, and in the case of South Korea and Japan protection under domestic laws which recognise North Koreans or Japanese citizens and their descendants (respectively) as nationals of the host State. In the case of one of these countries, e.g. Japan, becoming party to the conflict, International Humanitarian Law would also come in to play.
Scenario II: A regime change occurs in North Korea during or after a military clash
A regime change in North Korea may occur in various forms and it is not practical to discuss every possible scenario in this short blog post. Generally speaking, the RoK’s practice of granting South Korean citizenship to North Korean defectors is unlikely to be changed following any regime shift in North Korea, particularly given the pro-engagement policy of the new President Moon Jae-in. Granting equal Korean citizenship to North Koreans would only strengthen the legitimacy of the RoK government in the entire peninsula and make nationality issues less complicated if the long-yearned-for unification between North and South materialises. The Government of Japan should also ensure humanitarian treatment for North Korean civilians within the Japanese territory or under its effective control as provided under the Fourth Geneva Convention and Protocol I, while an armed conflict continues and Japan is engaged with the conflict as a Party to the conflict (although such an armed conflict is likely to cease if there is a radical regime change in North Korea).
Meanwhile, the obligation under the Refugee Convention and the principle of non-refoulement would be considerably affected by the kind of regime shift in North Korea. In the case of any positive radical change in which the oppressive military totalitarianism dissolves and severe punishment for unauthorised emigration halts, North Korean defectors may no longer have well-founded fear of persecution upon return, and thus it is unlikely that there would be a legal obligation for China or Japan to protect them as refugees sur place. Furthermore, if a regime change in North Korea leads to accelerated unification between North and South, and if it becomes possible for North Koreans in China and in Japan to acquire their Korean nationality through (South) Korean Embassies or Consulate-Generals, they cease to be refugees under the Refugee Convention. These possibilities are well provided for under the Cessation Clause (Article 1C) of the Refugee Convention.
At the same time, there may be some groups of North Koreans who newly face a well-founded fear of persecution under a new political system, i.e. those who were or are regarded as being supporters of the Kim Jong-un regime. While it is earnestly hoped that any new political system promotes reconciliation, it is not unusual in any radical political shift that previous regime sympathisers face retaliatory measures or discrimination in a new political climate, the severity of which might well amount to persecution in the sense of refugee law. Such individuals facing a new phase of persecution should be granted asylum in accordance with the Refugee Convention. What makes the matter more complicated, however, is that such previous regime supporters may include perpetrators or those otherwise responsible for the commission of international crimes under the Kim Jong-un regime (e.g. by ordering, soliciting, inducing, aiding, abetting). Such crimes may include those listed in the Exclusion Clause to the Refugee Convention, particularly Article 1F(a): crimes against humanity (including murder, extermination, enslavement, imprisonment, torture, persecution, enforced disappearance, and other inhumane acts), war crimes, and aggression (see the 2010 Kampala Conference definition). In that case, the Exclusion Clause should be applied in principle, unless a defence can be established, and these previous regime sympathisers should not enjoy the protection of the Refugee Convention.
Furthermore, those who played any leadership roles in the commission of such crimes, most notably Kim Jong-un, should be brought to justice before the International Criminal Court (ICC), the jurisdiction of which can be employed when the state with certain jurisdiction (including universal jurisdiction) is unable or unwilling to carry out the investigation or prosecution. Although neither North Korea nor China is a State Party to the ICC Rome Statute, the RoK and Japan are, and a United Nations Security Council resolution under Chapter VII would be sufficient to form a legal basis for all UN member states including China, North Korea (and its subsequent government), the RoK and Japan to refer the situation in North Korea to the ICC and surrender or transfer suspects if found within their territory to the Hague (in light of the Al-Bashir logic).
Meanwhile, what is trickier in the case of North Korea is how to distinguish between (principal) perpetrators of international crimes who should be prosecuted, on the one hand, and those accessories who were compelled to participate indirectly in international crimes, for example under duress, on the other. The distinction is particularly challenging under such an oppressive totalitarian dictatorship under Kim Jong-un, which may arguably be regarded as a ‘joint criminal enterprise’ in its totality. In the context of the Refugee Convention, it is often suggested that some of the crimes mentioned in the Exclusion Clause can only be committed by high-ranking officials due to the nature of the crimes (‘a crime against peace’ for instance), and that ‘mere membership’ in a criminal group is not sufficient to invoke the grounds for exclusion. However, how high should the ranking be and how active does such membership need to be? For instance, should members of Kippumjo (the so-called ‘Pleasure Squad’) be denied refugee status if they have voluntarily joined the Squad with the intent and knowledge to facilitate or contribute by way of instigation or incitement to the commission of crimes against humanity by Kim Jong-un (in light of Article 25 of the Rome Statute)? International criminal law does not provide an automatically applicable formula in analysing superior / subordinate or principal / accessorial responsibility, and the existing jurisprudence at both international and national levels is not necessarily consistent.
In the case of any significant regime change in North Korea, therefore, careful individual assessments need to be made to determine whether such North Koreans perceived to be (ex) Kim Jong-un followers should be provided asylum abroad under the Refugee Convention, or excluded under its Exclusion Clause and brought to justice in accordance with the international criminal law before either national or international courts. Such individual assessments, due to the seriousness of the consequences and the expected volume of cases, should be conducted in an internationally standardised manner and facilitated through international burden-sharing (e.g. relocation and distribution of asylum seekers). Whatever the results of such individual assessments, it must be stressed that exclusion from refugee status should not lead to deportation to face persecution. If the individual cannot safely be returned to North Korea, exclusion from refugee status should lead to at least temporary residential permits under other humanitarian or criminal justice measures, and to prosecution, punishment (if so warranted) and rehabilitation.
- D. Akande, “ICC Issues Detailed Decision on Bashir’s Immunity (… At long Last..) But Gets the Law Wrong”, EJIL Talk, Blog of the European Journal of International Law, 15 December 2011, available at https://www.ejiltalk.org/icc-issues-detailed-decision-on-bashir%E2%80%99s-immunity-at-long-last-but-gets-the-law-wrong/ (last visited 9 August 2017).
- G. Gilbert, ‘Current issues in the application of the exclusion clauses’ in E. Feller, V. Turk and F. Nicholson (eds.) Refugee Protection in International Law, Cambridge University Press, 2003: 425-487.
- G. Goodwin-Gill and J. McAdam, The Refugee in International Law, Oxford, Oxford University Press, 2011.
- Korean Minjok Leadership Academy, International Program, South Korea’s Government Policy on North Korean Defectors, Research Paper Fall 2009, available at https://www.zum.de/whkmla/sp/0910/yes/yes4.html#iv2 (last visited 9 August 2017).
- H. Kwan-soo, ‘Refugee Scenarios of North Korea’s Sudden Regime Change’, The Korean Journal of Defense Analysis, vol. 29, no.2, June 2017: 213-230.
- Rome Statute of the International Criminal Court, available at https://www.icc-cpi.int/NR/rdonlyres/ADD16852-AEE9…/RomeStatutEng1.pdf (last visited 9 August 2017).
- O. Tara, ‘The Integration of North Korean Defectors in South Korea: Problems and Prospects’, International Journal of Korean Studies, vol. XV, no. 2: 151-169.
- UNHCR, Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees, 4 September 2003, available at http://www.unhcr.org/uk/publications/legal/3f7d48514/guidelines-international-protection-5-application-exclusion-clauses-article.html (last visited 9 August 2017).
- P. Zambelli, ‘Problematic Trends in the Analysis of State Protection and Article 1F (a) Exclusion in Canadian Refugee Law, International Journal of Refugee Law, 2011, 23(2): 252-288.
Photographs: 1) Panmunjom, Wikipedia; 2) The Defector: Escape from North Korea
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