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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
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