The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

Worse Than “Chinese Water Torture:” The Second Step in Straightening out North Korea May Include Pressuring China to Stop its Repatriation Campaign of North Korean Refugees
By Kevin Zickterman

Since the death of the “Dear Leader,” Kim Jong-Il, in December of 2011 and the rise of his youngest son Kim Jong-Un as the newest leader, North Korea has found itself in the news repeatedly. Launching ballistic missiles,[1] threatening South Korea,[2] and recently hinting that it may return to the Six-Party talks,[3] the Democratic People’s Republic of Korea (DPRK) is by far no amateur showman. As is popularly known, North Korea has remained defiant in its dealings with the Western world and the East Asian region altogether, especially regarding its nuclear program. Also popularly known are the numerous droughts, floods, and other natural disasters that have rocked the northern part of the Korean Peninsula since the mid 1990s and the massive starvation that followed such events.

However, what seems not to be widely known, or otherwise has been ignored, is what lies within the territory of the DPRK and north of the most heavily-guarded border in the world: the worst human rights situation in the world.[4] Along with North Korea’s brutal caste system that has left much of the nation starving, its daily practices include crimes against humanity, such as extermination, torture, crimes of association, and collective retribution found both inside and outside of its large system of concentration and labor camps.[5] While its people starve and die both in and outside these camps, North Korea spends billions of dollars on making its military one of the largest in the world.[6] But do not take such assertions from this author; such human rights abuses are widely reported by not only defectors and refugees, but also international human rights groups and numerous bodies of, and reports from, the United Nations.[7]

At the height of the famines in the 1990s, the solution to the starvation and many times political persecution was to simply cross the border into China.[8] And for several years, this solution worked, as the Chinese and North Korean governments turned a blind eye to these “defectors,” many of which merely returned to North Korea after obtaining food, money or other goods for their families.[9] After the early 2000s, however, China had a change of heart and began to envision these defectors as a threat to the region’s already weakened regional job market and political well-being.[10] Some scholars claim this change was induced from the international attention brought on by the storming of foreign embassies within China by these North Korean citizens seeking asylum.[11] Others claim that it may have been a result of the beginning of a Chinese “‘clean-up’ campaign” in preparation for their hosting of the 2008 Olympics in Beijing.[12]

Regardless of the reasons for doing so, China began rounding up around 2,000 of these defectors to send back to North Korea every month.[13] Initially, as the DPRK’s criminal code has always sanctioned those for illegally leaving the country, punishments were relatively mild (at least by North Korean standards) [14] and up until recently, were also centered on the motivation of the defector/s. [15] Even more recently, however, defectors have found themselves receiving much harsher punishment, in some cases formal execution or even being shot on site.[16] This crime of leaving the country, or “treason against the fatherland,” is now more frequently punishable by several years of hard labor in a concentration camp and/or various forms of torture.[17] The Chinese government understands the return of such persons could mean more than just a slap on the wrist for them, yet Chinese officials forcibly repatriate these North Korean citizens anyway and show reluctance only when under the international spotlight.[18]

With the thought of such punishment, North Korean defectors understand that getting caught before, at, or over the Chinese border can be just as lethal as starving back home. The result has been pure desperation. North Koreans walk for days through dangerous terrain to avoid the numerous armed guards and barbed wire on the border to reach passable rivers to cross.[19] Numerous human rights organizations have facilitated these defectors’ escapes and an “underground railroad” of sorts has been established.[20] South Korean, Chinese, and other foreign brokers charge thousands of dollars to “escort” these individuals to freedom in countries like South Korea, the United States, or Japan.[21] Human traffickers gobble up thousands of these border-crossers, an over-whelming number of which are women, and sell them into slavery or forced marriages to Chinese men,[22] while China rewards those that turn-in these defectors so that they can be forcibly repatriated to the starving abyss that is North Korea.[23]

One might ask why? Without peering into any international legal obligations, it is not very difficult to understand China’s repatriation policy looking at the historical aspects of the region and China’s relationship with the DPRK. After the fall of the Soviet Union, China became the largest supporter of North Korea, both politically and economically.[24] Looking at a couple statistics, it is clear that China has remained a major crutch for North Korea and is a key player in the stability of the region. China is North Korea’s largest supplier of oil presently, and they provided over a half million tons of food grain to the region in 2005.[25] Just a few years ago, China “account[ed] for roughly 40 per cent of the North’s trade – double South Korea and more than six times Japan.”[26]

Along the high amount of Chinese investment in the DPRK, China has also signed a few important treaties with North Korea that play a role in the politics of the repatriation issue. In addition to the Mutual Cooperative Protocol Between China and North Korea for National Security and Social Order and Maintenance Surrounding Its Border Region, a treaty that allows for mutual cooperation between China and North Korea to prevent entry of illegal aliens but does not require repatriation of North Korean migrants,[27] there also exists a more secretive treaty:  the People's Republic of China-Democratic People's Republic of Korea Escaped Criminals Reciprocal Extradition Treaty.[28] Although not all the contents of the latter treaty are popularly known, at least one commentator claims that China’s repatriation appears to be more voluntary than obligatory under this treaty.[29] And even looking at China’s domestic extradition laws, China also appears to have the option to reject an extradition request “if the person has been or will be subject to cruel, inhuman or humiliating treatment or punishment in the State of origin.”[30]

Regardless of China’s obligations under these bilateral treaties, they have used this treaty law and the principle of pacta sunt servanda to justify their repatriation campaign under international law.[31] As many commentators and scholars point out, China needs to come to the realization that by continuing to supposedly “abide” by these two treaties, they are in turn likely violating several other widely important multilateral treaties in which they have ratified as well as principles of customary international law.

The most relevant treaty that opposes such repatriation actions by China, which China is a party to, is the 1951 U.N. Convention Relating to the Status of Refugees (“Refugee Convention”). Article 33 of this convention states that signatories shall not “expel or return 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.”[32] Although there is widespread debate on whether most North Korean defectors qualify as “refugees” under the convention, primarily due to their economic as opposed to political motivation in crossing the Chinese-Korean border, there is evidence that at least some of these defectors qualify as refugees and are entitled to special protection under the convention.[33] And because repatriation could mean persecution on return to North Korea for most of these individuals, many of them may qualify as “refugees sur place” and would again deserve protection.[34] China, however, labels them “economic migrants” to avoid the refugee issue altogether and does not allow the United National High Commissioner for Refugees (UNHCR) near the border to screen these individuals to determine their status.[35]

China is also a signatory to the Protocol Relating to the Status of Refugees, which requires that states cooperate with the UNHCR in its functions.[36] Additionally, China specifically signed an agreement in 1995 with the UNHCR to ensure more cooperation with that international body and put in place measures for interpretation and application of the Refugee Convention.[37] Even the General Resolution adopting the UNHCR statute requires states to cooperate with the UNHCR in performing its functions under the Refugee Convention.[38]

In addition to the Refugee Convention and these other agreements, China is also a party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”). Article 3 of this convention prohibits China from returning North Korean defectors if there “are substantial grounds for believing that [t]he[y] would be in danger of being subject to torture.”[39] Because this threat of torture when returned back to North Korea is well documented and the Torture Convention’s protections are broader in various ways, these defectors may very well be protected under this convention, if not under the Refugee Convention, presenting China with more international law compliance problems.[40]   

Further, China is a party to the Convention on the Elimination of All Forms of Discrimination Against Women and the U.N. Convention on the Rights of the Child and its relevant protocols, which require states to create preventative measures against human trafficking.[41] Moreover, as has even been noted by the UNHCR, the principle of “refoulement” has elevated to the level of customary international law,[42] adding to the idea that China’s obligations under international law may trump their bilateral treaties obligations with the DPRK.

As alluded to above, one of China’s major fears in allowing a steady flow of these North Korean defectors to cross the border is that of jobs and employment in regions like Yanbian and Tonghua.[43] Additionally, another major fear relates to the very collapse of the Kims’ regime in North Korea. Similar to disintegration of the East German state after Czechoslovakia and Hungary opened their borders to East German migrants and refugees, China fears that opening their border with North Korea would allow an influx of migrants, a quick collapse of North Korea, and massive instability in the region.[44] Although this concern does have some legitimacy, the threat of repatriation does not seem to be deterring many North Korean defectors, considering that around 40% percent of them returned to China in 2004 after initial repatriation in an attempt to re-cross the border.[45] Moreover, because China’s already large economy continues to grow and political reform is presently at a minimum, commentators have suggested that a collapse of North Korea could shift the power in Eastern Asia but would not threaten China’s existence.[46]

China has resisted changing their policy, however, and they have shown resentment in the past with the West’s continued scrutiny of their treatment of minorities and religious/political dissenters, especially during the 2008 Olympics.[47] China is also concerned that a strong unified Korea after a collapse could possibly lay claim to certain portions of Eastern China and place U.S. troops very close to or on the Chinese border.[48]

Conversely, and especially before, during, and after Beijing’s hosting of the 2008 Olympic games, China has been more sensitive to its international image and has specifically responded to international criticism related to human rights issues such as this one.[49] This image has become ever more crucial for China as its trade relations with South Korea increase, it liberalizes its economy, and memories of the Korean War fade.[50] In fact, the majority of the embassy and consulate incidents involving North Korean defectors has resulted in China coming to the table for lengthy bilateral negotiations with the involved nation and an eventual agreement to let the defectors quietly leave for Seoul.[51] China might find itself continuing this trend, considering that it may want to avoid any growing resentment forming in its large ethnic Korean regions near the border.[52]

What China needs to understand, and the international community needs to communicate, is that China may have a lot more to gain from actively solving this humanitarian issue rather than resisting any sort of change. Now that China is under the international spotlight, working to solve this repatriation issue could help this rising nation improve its relations with the Western nations, the U.N., NGOs, and nations in the region.[53] In fact, working openly on this issue would divert attention away from China’s other human rights concerns, for example, regarding Tibet or social media censorship.[54] It could help secure future trade with South Korea and let China “claim the high ground on international legal compliance.”[55]

In 2004, the United States Congress passed the North Korea Human Rights Act (NKHRA), which not only provided the first step in recognizing the human rights crisis in North Korea, but also provided the first step in addressing it.[56] The NKHRA allowed North Korean refugees to seek asylum in the U.S. as a “Priority 2” group, allowed them to apply for this status without UNHCR approval, and authorized up to $24 million for NGOs to promote human rights in North Korea,[57] among other things. Japan passed a similar act in 2006, and South Korea has debated doing the same for years.[58] The significance of the NKHRA is not the amount of refugees it actually has helped seek asylum in the U.S. (which has been minimal),[59] but its service in promulgating the crisis and its positional use in eventually solving the crisis.           

As one commentator has evaluated, passing the NKHRA, because it brought attention to the repatriation problem, was the first step in constructing a concrete policy on North Korea.[60] The second step should be putting pressure on China to actually abide by international law and stop repatriating North Koreans, in the hope that it will facilitate China’s reevaluation of its support for North Korea and their slow withdrawal as North Korea’s final political and economic crutch.  The way this could be possible is by providing China with a simple, inexpensive system of relocation of North Korean refugees.

Coming up with an agreeable strategic plan may not be as difficult as imagined. The UNHCR could set-up various screening facilities for North Korean defectors in Eastern China to determine their status and whether asylum is necessary under the circumstances.[61] The UNHCR could then line up potential sponsor nations to pay for traveling and resettlement of these individuals.[62] In addition, China could consider putting together a voluntary deportation system where defectors could apply for deportation to South Korea or other nations via the UNHCR centers.[63] This would be made simpler by the fact that South Korean domestic law already deems these defectors as South Korean citizens[64] and under the NKHRA, funds to accept these individuals on U.S. soil can more easily be authorized. The effect would be a stream of defectors reporting to the UNHCR centers and little time or money would be needed from China for hunting down these individuals as is currently done. The UNHCR would not necessarily have to establish the facilities near the China-Korean border if China was uncomfortable with the idea. Instead of spending time and resources on rounding up North Korean defectors, China could just escort North Korean defectors to the UNHCR sites and focus on preventing and addressing the human trafficking problem under its treaty obligations.[65]

If China follows this or a similar procedure, North Korea would likely attempt to tighten its own border security to avoid a collapse, but that could help to relieve China’s major fear of instability in the region. Regardless of the number of North Koreans that react to this option, for potential freedom outside the DPRK and their flow across the border, it would create enormous pressure on North Korea to rethink its human rights position and nuclear standpoint. Watching China change this repatriation policy would in turn pressure North Korea to return to the Six-Party Talks and rethink its repeated defiance in the region and the international arena. More importantly, setting forth such a concrete plan and increasing pressure on China to adopt it could be the beginning of a sustainable policy on North Korea that could be maintained through more than one U.S. or South Korean Presidential administration.[66] Both the North Korean security and human rights issues should be dealt with simultaneously, and pressuring China to solve the repatriation issue has the potential to be a great starting point.[67]

More international awareness and a larger spotlight on China’s behavior, along with a solid policy standpoint, should be at least the United States’ next step. Similar to the international community and United Nations pressure via the UN Security Council that helped bring Muammar Qadhafi’s regime in Libya to its knees,[68] such international attention, support and select actions could be used to compel China to change its repatriation policy or otherwise work to protect North Korean refugees.

With the rise of Kim Jong-Un, it does not appear that the human rights situation within the DPRK and the nuclear threat outside of the DPRK has seen any progress. Indeed, he has tightened the border between China and the DPRK.  The first step has been made in recognizing North Korea’s defiance under international human rights law in passing important legislation like the NKHRA, [69] but the second step in addressing it needs to be openly compelling China to abide by international law to solve the repatriation issue and let North Korea second guess its own noncompliance of applicable international law. Consequently, the international community has a duty to start this next step. As the International Crisis Group stated in a report on this issue years ago, “[i]t is time for the international community to put its money where its mouth is.”[70]

[1]  Calum MacLeod, North Korea's missile launch puts focus on China, USA Today (Apr. 13, 2012 10:56 AM),

[2] Choe Sang-Hun, North Korea Threatens South With Military Action, NY Times (Apr. 23, 2012),

[3] N Korea ready to resume nuclear talks: Cambodia, Daily Times (July 15, 2012),

[4] Morse H. Tan, A State of Rightlessness: The Egregious Case of North Korea, 80 Miss. L.J. 681 passim (2010) (outlining the numerous documented human rights violations presently occurring within North Korea).

[5] See generally id.

[6] See Bureau of East Asian and Pacific Affairs, Background Note: North Korea, U.S. Dep’t of State (Apr. 4, 2012),

[7] For just a few examples of the dozens of reports and documents supporting this assertion, see the latest report given to the Human Rights Council by the Jubilee Campaign, The human rights situation in the Democratic People’s Republic of Korea (DPRK), Written Statement Submitted by the Jubilee Campaign, a Non-Governmental Organization in Special Consultative Status to the Human Rights Council, U.N. Doc. A/HRC/20/NGO/15 (June 7, 2012), or the latest Human Rights Council Resolution H.R.C. Res. 19/13, U.N. Doc. A/HRC/RES/19 (Apr. 3, 2012).

[8] See Elisa Gahng, Note, North Koran Border-Crossers in Yanbian: The Protection Gap Between the Economic Migrants and Refugee Regimes, 24 Geo. Immigr. L.J. 361, 363-65 (2010).

[9] Id. at 365. Up to 66% of these border-crossers were returning to North Korea after obtaining food and money from China. Id.

[10] Benjamin Neaderland, Quandary on the Yalu: International Law, Politics, and China's North Korean Refugee Crisis, 40 Stan. J. Int'l L. 143, 172-73 (2004).

[11] See Gahng, supra note 8, at 366-67. 

[12] Perilous Journeys: The Plight of North Koreans in China and Beyond, International Crisis Group, 23 (Oct. 26, 2006), [hereinafter Perilous Journeys].

[13] Alison Carrinski, Note, The Other North Korean Dilemma: Evaluating U.S. Law Towards North Korean Refugees, 31 Suffolk Transnat'l L. Rev. 647, 652 (2008). These numbers are estimates from 2002 and could be higher today. Id. at n. 24.

[14] Gahng, supra note 8, at 366. 

[15] Kyu Chang Lee, Protection of North Korean Defectors in China and the Convention Against Torture, 6 Regent J. Int'l L. 139, 151 (2008).

[16] See, e.g., id. at 156; Richard Shears & Daily Mail Reporter, New leader but still no mercy: Three North Korean defectors shot trying to cross frozen river to reach the Chinese border, Mail Online (Jan. 3, 2012),

[17] Lee, supra note 15, at 155.

[18] See, e.g., Neaderland, supra note 10, at 150-55 (giving numerous examples of the Chinese allowing North Koreans to proceed to South Korea after finding their way into foreign embassies throughout China).

[19] See Perilous Journeys, supra note 12, at 8-9.

[20] See, e.g., Carrinski, supra note 13, at 664-65; Perilous Journeys, supra note 12, at 19-20.

[21] Carrinski, supra note 13, at 664-65; Perilous Journeys, supra note 12, at 15-16 (providing the prices for certain trafficking and escort services for defectors).

[22] See Albery Suh, Note, First Steps Are Better than None: Distinguishing the Practical from the Rhetorical in the North Korean Human Rights Act of 2004, 37 Rutgers L.J. 585 (2006) (stating that 70-90% of these women fall into human traffickers’ hands).

[23] E.g., Carrinski, supra note 13, at 652; Perilous Journeys, supra note 12, at 15-16 (quoting rewards as high as $630 and fines as high as $3,600).

[24] China’s “two-billion-dollar annual bilateral trade and investment with North Korea” is large by any nation’s standards, and this trade relationship with China was by far North Korea’s largest in 2004. China and North Korea: Comrades Forever?, International Crisis Group, (Feb. 1, 2006),

[25] Id. at 8.

[26] Id.

[27] Lee, supra note 15, at 140-41; Yeo Hoon Julie Park, Note, China’s “Way Out” of the North Korean Refugee Crisis: Developing a Legal Framework for the Deportation of North Korean Migrants, 25 Geo. Immigr. L.J. 515, 522 (2011).

[28] Lee, supra note 15, at 139; Park, supra note 27, at 522.

[29] Park, supra note 27, at 522 & n.3.

[30] Id.

[31] Neaderland, supra note 10, at 156-57. Loosely translated, pacta sunt servanda means “treaty obligations must be met” in Latin. Id. at 157.

[32] Convention Relating to the Status of Refugees, art. 33, opened for signature July 28, 1951,189 U.N.T.S. 150 (entered into force Apr. 22, 1954).

[33] See, e.g., Gahng, supra note 8, at 373-74 (presenting statistics from a 2004 South Korean study that found that only about 9% of these defectors left North Korea solely because of political repression).

[34] Id. at 375.

[35] E.g., Suh, supra note 22, at 606.

[36] Protocol Relating to the Status of Refugees, art. 2, opened for signature Jan. 31, 1967, 189 U.N.T.S. 150 (entered into force Oct. 4, 1967).

[37] Perilous Journeys, supra note 12, at 35.

[38] G.A. Res. 428 (V), ¶ 2, U.N. Doc. A/RES/428(V) (Dec. 14, 1950).

[39] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3, opened for signature Dec. 10, 1984, 1465 U.N.T.S. 65 (entered into force June 26, 1987).

[40] See Lee, supra note 15, at 141-43 (comparing Article 33 of the Refugee Convention and Article 3 of the Torture Convention).

[41] Convention on the Elimination of All Forms of Discrimination Against Women, art. 6, opened for signature Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3, 1981) (“States Parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and exploitation of prostitution of women.”); Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, opened for signature May 25, 2000, 2171 U.N.T.S. 227 (entered into force Jan. 18, 2002) (generally requiring states to create preventative and criminal prosecution measures to relieve and deter the human trafficking of children).

[42] Gahng, supra note 8, at 371. The UNHCR promulgated this in a Guidance Note on Extradition Treaties and International Refugee Protection released in April of 2008. Id.

[43] See Neaderland, supra note 10, at 147.

[44] See, e.g., id. at 143-45. China is more comfortable with North Korea in the region as a buffer to South Korea for both ideological and geographical reasons. Morse Tan, The North Korean Nuclear Crisis: Past Failures and Present Solutions, 50 St. Louis U. L.J. 517, 520-22 (2006).

[45] Perilous Journeys, supra note 12, at 23.

[46] See Neaderland, supra note 10, at 176.

[47] Id. at 169.

[48] Id. at 168-69.

[49] Park, supra note 27, at 525.

[50] Carrinski, supra note 13, at 672.

[51] Neaderland, supra note 10, at 152, 171.

[52] Id. at 174.

[53] Id. at 171.

[54] Id. at 172.

[55] Id. at 176.

[56] See generally Carrinski, supra note 13 (giving an extensive discussion on the NKHRA, its affects, successes and failures).

[57] Id. at 665-67.

[58] The Disgraceful Fate of the N.Korea Human Rights Bill, The Chosunilbo, (Feb. 15, 2012),

[59] Carrinski, supra note 13, at 648 (“Despite legitimate human rights concerns, the United States has resettled only a handful of North Koreans refugees.”).

[60] Suh, supra note 22, at 593.

[61] Neaderland, supra note 10, at 176.

[62] Id.

[63] See Park, supra note 27, at 526-29 (setting forth a proposal in which China could offer North Korean defectors an option for deportation to South Korea).

[64] Id. at 526-27.

[65] Perilous Journeys, supra note 12, at 36. As an additional step toward encouraging this deportation, South Korea and China could also adopt the individual complaint procedures under the Torture Convention. Lee, supra note 15, at 168-69.

[66] Suh, supra note 22, at 619-20.

[67] Id. at 620.

[68] For a discussion of the pressure tactics used by the UN and the Security Council, including asset-freezes, arms embargoes, and traveling restrictions, see the final report submitted by the Panel of Experts on Libya to the Security Council. Panel of Experts on Libya, Final report of the Panel of Experts established pursuant to Security Council resolution 1973 (2011) concerning Libya, U.N. Doc. S/2012/163 (Mar. 20, 2012), available at

[69] The current North Korea Human Rights Act is codified at 22 U.S.C. § 7801 et seq. (2006), whereas the original act can be found easily via a quick LexisNexis or Westlaw Search (“North Korean Human Rights Act of 2004”). A copy can also be supplied by the author. Since the time of the original Act’s passage in 2004, Congress has repeatedly amended and reauthorized its findings about North Korea’s situation, the necessity to report on the situation, and its provisions appropriating much-needed aid to the country. See e.g. Ambassador James R. Lilley and Congressman Stephen J. Solarz North Korea Human Rights Reauthorization Act of 2012, Pub. L. No. 112–172, 126 Stat 1307 (to be codified at 22 U.S.C. §§ 7801-7845). Unfortunately, the appropriations for such aid have dropped to $5 million, 25% of the original amount, which could be troubling for some proposals to solve this refugee issue. § 9 (to be codified at 22 U.S.C. § 7833(c)(1)).

[70] Perilous Journeys, supra note 12, at 36.

Kevin Zickterman received his Bachelors in the Social Sciences from Governors State University in 2010. He expects to receive his Juris Doctor Degree from Northern Illinois University College of Law in May of 2013. Kevin has interned for Chief Judge James F. Holderman of the United States District Court for the Northern District of Illinois, worked as a Public Interest Law Initiative intern at Chicago Volunteer Legal Services, and is currently a research assistant to Professor Morse Tan of NIU’s College of Law, who writes extensively on international law and North Korea. Kevin is also the current Symposium Editor for the NIU Law Review and a Legislative Fellow for the Office of Lieutenant Governor, Sheila Simon.

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