Since its inception, the government of North Korea has been dominated by the Workers' Party of Korea (WPK). They have shown little respect to the human rights of their political opponents, and there is no guarantee of civil rights. There is no legitimate rule of law in the country.
In order to escape from torture, enforced disappearance, extrajudicial executions, and forced hard labour, many North Koreans have had to flee the country and live as escapees in neighboring countries. How fair and justified is it for the host countries to send the escapees back to North Korea, knowing their potential persecution?
According to Human Rights Watch “the government does not tolerate pluralism, bans independent media, civil society organizations, trade unions, and systematically denies all basic liberties, including freedom of expression, peaceful assembly, association, and freedom of religion and belief. North Korean authorities routinely send perceived opponents of the government to secretive political prison camps (kwanliso) in remote regions where they face torture and other ill-treatment, starvation rations, and forced labour. Collective punishment is also used to silence dissent.”
It is clear from these reports on the situations of human rights in North Korea, that there are many North Koreans who escaped and took shelter in neighboring States, and are at risk of repatriation. The repatriated North Koreans would almost certainly be persecuted upon their return, as the WPK has always been very harsh to the escapees as well as their family members within North Korean borders.
According to the Committee for Human Rights in North Korea (HRNK) (LIVES for sale), “regulations under North Korea's 2004 penal code appear to have codified this practice of differential treatment between economic reasons and those deemed political. A defector sent back to North Korea is now subject to interrogation and investigation by a Security Agency. If the Agency concludes that the defector crossed the border for economic reasons, the new code stipulates sentences of up to two years of ‘labour correction.' If the Agency decides that the defector crossed the border for political reasons, he will be charged with the crime of treason, and susceptible to longer-term detention. Under Article 234 of the criminal code, an official with the ‘frontier administration' who helps ‘someone to violate a frontier' more than once or in exchange for property faces stiff penalties: A sentence in a kwalliso for a period of two to five years. In practice, individuals assisting refugees have been executed in public. Changes in the legal code specify lesser treatment for pregnant women, though in practice these protocols are breached, and in some cases forced abortions have been inflicted. The reason given for this atrocity is that babies of mixed Chinese-Korean ancestry are a living symbol of the mother's betrayal of her homeland and must be killed.”
Let us inspect the rights of the “escapees” through the lens of international legal instruments, and check the non-refoulement obligations of the host States towards them. Article 33(1) of the 1951 Convention relating to the status of refugees (1951 Convention) provides that “no Contracting State shall expel nor return (refouler) a refugee in any manner whatsoever to the frontiers of territories where their life or freedom would be threatened on account of their race, religion, nationality, membership of a particular social group or political opinion.”
As per the Judgment of International Court of Justice (ICJ) in North Sea Continental Shelf case (1969), there are two elements to form customary international law: State practice and opinio juris -- ie the understanding held by States that the practice at issue is obligatory due to the existence of a rule requiring it.
Since the 1951 convention there have been many international human rights laws where rights of refugees were confirmed. Which means the rule relating to the non-refoulement obligations to refugees has attained the customary norms satisfying the required elements mentioned above. Thus, it is binding State parties to the 1951 Convention, and to those that are not parties yet.
With regard to the non-refoulement obligations to all individuals under the international human rights law, I would like to mention some relevant provisions from the relevant instruments, for example, articles 6 -- right to life -- and 7 -- right to be free from torture or other cruel, inhuman or degrading treatment or punishment -- of the International Covenant on Civil and Political Rights (ICCPR), and Article 3 of the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).
Article 3(1) of CAT provides 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 is important to note that the Human Rights Committee in its General Comment No 20 (para 9) interpreted article 7 of the ICCPR in the following words, “in the view of the Committee, State parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement."
It has been settled by the international courts that the prohibition of torture has already attained the norms of jus cogens. Derogation from such standards is not permitted, and it produces obligation erga omnes to the international community.
Two relevant cases, namely, Prosecution v Furundzija (International Tribunal for former Yugoslavia, 10 December 1998) and Advisory Opinion OC-26/20 (Inter-American Court of Human Rights, IACtHR, 9 November 2020) where the prohibition against torture was recognized as the norms of jus cogens.
To come to a conclusion, it is not fair, justified or legal for the host countries to forcibly send or return the escapees back to North Korea knowing their potential persecution. Based on article 53 of the Vienna Convention on the Law of Treaties (VCLT) 1969, which provides “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law,” I would further argue that any attempts taken by States to bypass the jus cogens relating to torture would be, in principle, null and void. This is the case even when repatriation agreements exist between the host State and North Korea.
Muhammad Muzahidul Islam is a Barrister-at-Law, a Human Rights Activist and an Advocate at the Supreme Court of Bangladesh.
