By Christine Chung
Christine Chung is a Senior Advisor to the Committee for Human Rights in North Korea and the former Political Advisor to the Commission of Inquiry on Human Rights in the Democratic People's Republic of Korea. As a human rights officer for the Office of the United Nations High Commissioner for Human Rights, she managed the Office's technical cooperation program with China, supported the Special Rapporteur on the situation of human rights in Myanmar, and served desk functions for Northeast and Southeast Asia. Before joining the UN, Ms. Chung established and headed the China field office for the National Democratic Institute for International Affairs.
In an interactive dialogue on November 17 and 18, 2015 at the Palais des Nations in Geneva, members of the Committee against Torture (CAT), the treaty body charged with overseeing implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”), reviewed China’s fifth periodic report. The members who noted that the government had not responded, or had responded only partially, to specific questions when they had been posed earlier in the List of Issues raised many core human rights concerns. Among these issues was China’s forcible return of fleeing North Koreans. The Chinese government sent a 40-person delegation from 21 departments (an exceptionally large delegation as noted by one of two Committee Rapporteurs) to represent the country, to respond to members’ questions, and to present its own narrative of China’s adherence to these legally binding obligations it voluntarily and willfully signed onto so many years ago.
Included in China’s obligations as a State party to the Torture Convention are stipulations that apply to China’s treatment of North Korean refugees and asylum-seekers. Article 3 of the Torture Convention states: “1) 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;” and “2) For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”
In February 2014, the UN Commission of Inquiry on Human Rights in the Democratic People’s Republic of Korea (DPRK) found that there was a pattern of gross human rights violations that were both systematic and widespread and reported in detail the high likelihood that those North Koreans captured in China would be subject to torture or cruel and degrading treatment upon their repatriation. The Commission of Inquiry also highlighted China’s complicity in human rights violations committed against those North Koreans who were forcibly returned.
CAT questions China on North Koreans
The review of the People’s Republic of China (PRC), the Hong Kong Special Administrative Region, and the Macao Special Administrative Region took place over two days in two sessions scheduled for three hours each. China’s head of delegation, Ambassador Wu Hailong, Permanent Representative of the PRC to the United Nations Office at Geneva and Other International Organizations in Switzerland, gave an opening statement highlighting “major new developments” since the last report. He focused on various legislative accomplishments, such as amendments to the criminal and administrative procedure laws and joint promulgation of provisions legally safeguarding the right of lawyers to practice law by the Supreme People’s Court, the Supreme People’s Procuratorate, as well as the Ministries of Public Security, State Security, and Justice. The irony of such claims in the context of an unprecedented crackdown on human rights defenders, particularly defense lawyers, was, as usual, lost on Chinese officials. The Ambassador did not mention the refoulement of North Koreans in his opening statement.
Nevertheless, one of the two rapporteurs given 25 minutes each to pose questions immediately after the opening statement, George Tugushi, asked for the number of North Koreans who were forcibly returned to North Korea, noting that many people from North Korea have a well-founded fear of persecution or were refugees sur place, including pregnant women who could be subject to forced abortion or infanticide. He asked whether the bilateral agreement between China and the DPRK (mentioned in China’s response to the List of Issues, see below) took precedence over the Torture Convention. Referring to measures the Commission of Inquiry reported China had taken to apprehend North Koreans, including punishing people who aided North Koreans or offering monetary rewards to those who assisted in their capture, Mr. Tugushi inquired whether China regards fleeing North Koreans as economic migrants.
After the two rapporteurs had posed their questions, Committee Chairperson Claudio Grossman allowed other CAT members eight minutes each to make their queries. Felice Gaer—Vice-Chair of the CAT and Director of the Jacob Blaustein Institute for the Advancement of Human Rights—followed up on Mr. Tugushi’s questions by noting that China had claimed that illegal border crossers caused harm and did not fall under the auspices of Article 3 of the Convention. Ms. Gaer pointed out that fleeing North Koreans were not subject to a refugee status determination process. Further, she asked the State Party to clarify this issue. Since 2008, more than a hundred testimonies of forcible repatriation have been received by UN entities, but China continues to return North Koreans despite mounting evidence of their being subjected to torture and ill-treatment. Ms. Gaer asked how many of these refugees have been subject to refoulement per year and how many are women. She further questioned why the UN High Commissioner for Refugees (UNHCR) is not allowed at the border, despite China’s agreement with the agency. Furthermore, she asked why there is no monitoring at the border. As the 2013 Exit and Entry Law allows people to remain in China during the refugee status determination process, how many North Koreans have been allowed to stay? What is the total figure, and what is their status? She asked the delegation members if they believed that North Korea’s criminalization of the right to leave the country is in line with international human rights standards? If not, she asked, then why does China collude with them? If so, then will China agree to international monitoring of their return?
China’s responses to the CAT on North Koreans
While most of the first day’s session was taken up by CAT members posing questions, Wednesday’s session was broken down to 90 minutes for the States parties’ responses to the previous day, then 45 minutes for the CAT members to ask follow-up questions, and finally 40 minutes for the State parties to reply. The State parties were also given two days to provide further written responses to questions.
Ambassador Wu started by emphasizing that his delegation was taking a responsible and open attitude in its response to the CAT’s questions. This may or may not have been a deliberate nod to China’s contrasting attitude in its earlier review (see below). He assessed that the problem with providing insufficient data would need to be addressed in order to better showcase China’s efforts towards ending torture and ill-treatment. Various members of China’s delegation then answered clusters of questions.
On the issue of refoulement of North Koreans, Xu Hong, Director-General of the Department of Treaty and Law, Ministry of Foreign Affairs, responded that China had already replied on the issue of illegal immigrants and that they were handled according to relevant international and domestic laws and humanitarian principles. Some of the “illegal immigrants” were coming to China for economic reasons with no evidence that Article 3 of the Torture Convention applied to them. He noted that some CAT members had cited the Commission of Inquiry’s findings, but many UN Member States, including China, had expressed reservations about the establishment of the Commission. He recommended that the CAT members read an October 13, 2015 article in The Guardian entitled, “Why do North Korean defector testimonies so often fall apart?” While acknowledging that State parties should be committed to non-refoulement, he said that the principle should not be abused by “criminals” who are trying to escape punishment. Another delegate responded on the point about the Exit and Entry Law that the refusal of entry to some persons was under the responsibility of the border inspection guards and not under the competence of the CAT.
During the posing of additional questions by the CAT members, Mr. Tugushi asked Macao about the small number of refugees processed there (since 2005, only nine refugee cases involving 14 people with only four people receiving asylum), and in particular whether any applicants were from North Korea. The translation of the response from Chu Lam Lam, Director of the Law Reform and International Law Bureau of the Macao Special Administrative Region, was unfortunately a bit garbled but seemed to imply that Macao cooperates with the UNHCR to determine if asylum applicants face any risk of torture.
Recent background on the issue of North Koreans in China and the CAT
The only reference that Chinese authorities made to North Korea in their current state report is in the list of 19 countries with which China has a treaty of mutual legal assistance in civil and criminal matters. However, refoulement of North Koreans was subsequently raised by the CAT in the List of Issues it transmitted to China in June 2015:
According to information before the Committee, approximately 29 persons, including a one-year-old baby, were allegedly forcibly returned to the Democratic People’s Republic of Korea in August 2014. Please confirm this information and inform the Committee about their fate upon return. Are there post-return monitoring arrangements in place to ensure that those returned to the Democratic People’s Republic of Korea are protected from the danger of being subjected to torture? In this regard, please comment on the findings of the commission of inquiry on human rights in the Democratic People’s Republic of Korea, according to which illegal immigrants in China, including victims of trafficking, are forcibly repatriated, and then subjected to persecution, torture, prolonged arbitrary detention and, in some cases, sexual violence or forced abortions at ‘gathering centres’, detention centres or prison camps in the Democratic People’s Republic of Korea.
China’s response to the List of Issues was submitted to the CAT in Chinese on October 1, 2015. (About one week before the review, the government provided an unofficial translation. In the meantime, the nongovernmental organization Human Rights in China had provided its own translation; the latter is used below. ) On the North Korea-related question, the Chinese government responded:
In July 2014, China’s public security organs, on the basis of notifications from the Democratic People’s Republic of Korea, investigated and captured 13 individuals from the Democratic People’s Republic of Korea who have unlawfully entered Chinese territory. Upon examination, the Chinese side handed the aforementioned persons over to the Democratic People’s Republic of Korea, on the basis of a bilateral agreement between the two countries. Since the 1990s, influenced by factors such as the slow development of domestic economy and food shortages in the Democratic People’s Republic of Korea, some citizens have unlawfully entered China’s territory, causing harm to law and order in regional communities along China’s borders. These illegal border crossers do not meet the refugee requirements set out in the UN Convention and Protocol Relating to the Status of Refugees, and there is no conclusive evidence that they fall within the circumstances set forth in Art. 3 of the Convention. The exit and entry departments of public security organs have always carefully and properly handled [cases] of illegal immigrants from the Democratic People’s Republic of Korea, especially women, children, and unaccompanied minors, in accordance with international law, domestic law, and humanitarian principles, protecting their legitimate rights and interests to the maximum extent.
China has long argued that North Koreans in its territory are not refugees but economic migrants, and are therefore not entitled to protection under international human rights law. In fact, some North Koreans traveling to China may have started as economic migrants, or in other words, they were not fleeing North Korea “owing to a well-founded fear of persecution for race, religion, nationality, membership of a particular social group, or political opinion.” However, given North Korea’s restrictions on leaving the country without permission, these persons subsequently become refugees sur place; a refugee sur place is person who was not a refugee when he/she left his/her country, but who becomes a refugee at a later date, in this case due to a well-founded fear of persecution upon repatriation to North Korea. Chinese authorities indicated to the Commission of Inquiry that exceptions to this categorical refusal to consider North Koreans as persons of concern requiring protection were sometimes made on humanitarian grounds.
China’s response to the List of Issues further details the general right to receive asylum and the application of the Exit and Entry Administration Law, including procedures for appealing decisions by the courts. The Chinese government explains, “With regard to the number of recorded requests for asylum, as of August 31, 2015, the number of refugees in China is 173 people, with 588 asylum-seekers.” Reference is also made to the UNHCR, with the elaboration that refugees determined by UNHCR’s Regional Office in Beijing who have proof of their status issued by the Regional Office are permitted to stay in China for the effective period of time specified in these documents. Unsurprisingly, no mention is made of the de facto restriction on UNHCR from going to the northeastern areas of China where North Korean asylum-seekers are concentrated.
The CAT previously considered China’s compliance with the terms of the Torture Convention in December 2008. That review was a more heated affair. It would be an understatement to say that the Chinese authorities exhibited an extreme sensitivity to questions about the whereabouts of the Panchen Lama or the treatment of Falun Gong practitioners in detention.
During that session, Felice Gaer, one of two CAT members who were the rapporteurs for China (the Committee appoints two of its members to act as country rapporteurs for each report), addressed the status of North Koreans in China:
Turning to article 3 of the Convention, she noted that the State party indicated in its written replies that no refugee or asylum seeker had ever claimed that he or she risked being tortured on expulsion to another neighbouring country. Additional information concerning the procedure in place for determining refugee status, as well as an explanation of why the Chinese Government refused to allow UNHCR access to the border with North Korea, where the estimated number of North Korea refugees varied between 30,000 and 300,000, would be welcome. In that connection it would also be useful to know on what grounds the State party referred to all the North Korean citizens in the Chinese border area as “clandestine immigrants”- a stigmatizing description – and claimed that they did not meet the criteria for obtaining refugee status, as they were all economic migrants. Persons who left the People’s Democratic Republic of Korea were exposed to criminal prosecution if they returned to their country of origin, and thus became “real” refugees. Did the State party recognize the concept of “refugee sur place”?
In its concluding observations on China’s review, CAT did not relent on the issue of North Koreans in China and the problem of refoulement:
The Committee is greatly concerned by allegations that many individuals have been forcibly returned to the Democratic People’s Republic of Korea, without any examination of the merits of each individual case, and subsequently been subjected to torture or cruel, inhuman or degrading treatment or punishment by the authorities. The Committee notes with concern that these individuals are referred to by the State party as “illegal immigrants” or “snakeheads” and that such labels presume that these individuals are not deserving of any protection. Similarly, persons extradited to and from neighbouring States do not benefit from legal safeguards against return despite the risk of torture. The Committee is further concerned by the failure of the State party to clarify how it includes in its national laws or practice the prohibition on returning a person to a country where he or she faces a substantial risk of torture, and hence how the State party ensures that its obligations under article 3 of the Convention are fulfilled (art. 3).
CAT made the following recommendation:
Under no circumstances should the State party expel, return or extradite a person to a State where there are substantial grounds for believing that the person would be in danger of being subjected to torture. When determining the applicability of its obligations under article 3 of the Convention, the State party should establish an adequate screening process for status determination in order to determine whether persons subject to return may face a substantial risk of torture, particularly in view of the fact that it is reportedly a criminal offence to depart unofficially from the Democratic People’s Republic of Korea, and should provide the Office of the United Nations High Commissioner for Refugees with access to the border region and persons of concern. In the light of the large numbers of citizens of the above State who have crossed into China, the State party needs to be more active in ensuring that the obligations of article 3 are fully met. The State party should also ensure that adequate judicial mechanisms for the review of decisions are in place and sufficient legal defence available for each person subject to extradition, and ensure effective post-return monitoring arrangements. The State party should provide data on the number of persons expelled or returned to neighbouring States. The State party should pursue its efforts to adopt appropriate legislation to fully incorporate into domestic law its obligation under article 3 of the Convention, thereby preventing any persons from being expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would be in danger of being subject to torture.
The response by China to its review by CAT was a rare formal attack on the rapporteurs alleging bias and politicizing of consideration of the country’s report.
Despite China’s attempts to characterize its CAT review as a distortion by biased rapporteurs, it is important to recall that concerns about the treatment of North Korean refugees and asylum-seekers in China and their refoulement have been raised not only by the CAT but by other treaty bodies and special procedures, such as the Committee on the Elimination of All Forms of Racial Discrimination and the Committee on the Elimination of Discrimination against Women, which expressed “particular concern at the situation of North Korean women, whose status remains precarious and who are particularly vulnerable to being or becoming victims of abuse, trafficking, forced marriage and virtual slavery.” In October 2013, the Committee on the Rights of the Child recommended that China stop arresting and repatriating North Korean citizens and enable children of North Korean mothers to claim their fundamental rights. In June 2014, the Working Group on the Issue of Discrimination against Women in Law and in Practice recommended that China protect and humanely treat all North Korean women in China, respect the principle of non-refoulement, and provide access for UNHCR to the provinces bordering North Korea. The issue of refoulement of North Koreans was also raised in both of China’s Universal Periodic Reviews.
Given these long-running and consistent recommendations to China to revisit and remedy its approach to North Korean asylum-seekers, one can hope that a day will come when China is ready to live up to its international obligations by providing North Koreans protection. CAT members raised difficult issues spanning a broad range: ensuring judicial independence; guaranteeing lawyers the full freedom to practice law; providing redress after investigating and disclosing information on events in Tiananmen in 1989; establishing fully independent monitoring mechanisms for places of detention; and detailing information on endangering state security, including applicable offenses and safeguards for those accused of these crimes. Given the extent of China’s outstanding issues before the CAT, it would seem that providing protection to North Korean refugees would be one of the easier ways for Beijing to demonstrate to CAT its commitment to addressing torture and ill-treatment.
The response by the Chinese delegation to the various questions on forcible repatriation of North Koreans was deeply unsatisfying and mostly evasive. The recommendation to read The Guardian article is an odd one, perhaps more desperate than well thought through. The article essentially posits that some North Korean refugees exaggerate their stories for various reasons and that the international community should not rely too heavily on their testimony, but that the bigger picture of the human rights situation in North Korea remains.
Two weeks ago, the CAT directly asked why the UNHCR has not been provided access to the border areas where North Korean asylum-seekers are likely to be found. In the concluding observations that should be released on December 9, 2015, it would be a solid first step if the Committee recommends that the government facilitate the UNHCR’s presence in the relevant parts of Liaoning and Jilin provinces and permit the UNHCR to operate there without restrictions or limitations on visas for key personnel and with security guarantees for staff as well as for vulnerable persons seeking protection. If those persons applying for refugee status are not really eligible under international refugee and human rights law, then UNHCR could affirm the position of the Chinese government. If they are eligible, UNHCR could provide China with the technical assistance and support it needs to provide them protection. Either way, this would be an enormous boost to China’s credibility on efforts to address torture and its human rights commitments more broadly. It is difficult to imagine a reasonable argument explaining why the UNHCR has been denied access to the Yanbian Autonomous Korean Prefecture or other areas populated by ethnic Koreans. In reality, none has ever been given. In the follow-up mechanism of the CAT, several recommendations are selected for particular attention over the coming year. Perhaps CAT members should consider making the plight of North Koreans in China the subject of one of those recommendations.
 In 1988, the People’s Republic of China ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, thereby committing itself to preventing torture within its territorial jurisdiction through all necessary measures. In June 2013, the Chinese government submitted China’s fifth periodic report, which had been due in November 2012.
 As part of the review procedure, the Committee against Torture at the session that precedes the review draws up a list of issues “intended for States parties to clarify and update certain questions and issues as well as to focus, without restricting, the dialogue with the States on matters of particular interest for the Committee.” See CAT, “List of issues in relation to the fifth periodic report of China*,” 15 June 2015, CAT/C/CHN/Q/5/Add.1.
 UN General Assembly, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, United Nations, Treaty Series, vol. 1465, p. 85, available at http://www.refworld.org/docid/3ae6b3a94.html [accessed December 4, 2015].
 UN Commission of Inquiry on Human Rights in the DRPK, “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.
 Jiyoung Song, “Why do North Korean defector testimonies so often fall apart?,” The Guardian, October 13, 2015, http://www.theguardian.com/world/2015/oct/13/why-do-north-korean-defector-testimonies-so-often-fall-apart.
 Treaty between the People’s Republic of China and the Democratic People’s Republic of Korea on Mutual Legal Assistance in Civil and Criminal Matters, signed in November 2003 and entered into force 2006. Committee against Torture, “Consideration of reports submitted by States parties under article 19 of the Convention, Fifth periodic report due in 2012, China,” 3 April 2014, CAT/C/CHN/5.
 Committee against Torture, “List of issues in relation to the fifth periodic report of China*,” 15 June 2015, CAT/C/CHN/Q/5/Add.1.
 Available at http://www.hrichina.org/sites/default/files/english_translation_of_the_chinese_reponse_to_cat_loi_by_hric_tw_mt_v8.pdf.
 Available at http://www.hrichina.org/sites/default/files/english_translation_of_the_chinese_reponse_to_cat_loi_by_hric_tw_mt_v8.pdf.
 According to the UNHCR’s country fact sheet, the population of concern in China as of August 2015, comes from: Viet Nam 300,895 *, Somalia 182, Nigeria 86, Iraq 52, Liberia 45, Others 362, Total 301,622. *Indo‐Chinese refugees in Mainland de facto integrated pending Government regularization. Available at http://www.unhcr.org/5000187d9.html.
 Committee against Torture, “Forty-first session, Summary Record of the 844th Meeting, Held at the Palais des Nations, Geneva, on Friday, 7 November 2008, at 10 a.m.,” 27 April 2009, CAT/C/SR/844.
 Committee against Torture, “Consideration Of Reports Submitted By States Parties
Under Article 19 Of The Convention: Concluding observations of the Committee against Torture, China,” 12 December 2008, CAT/C/CHN/CO/4, para 26.
 “Regrettably, the Committee members designated as country rapporteurs, displaying a strong bias against China, paid no heed to the facts and disregarded the detailed and accurate information and thorough explanations provided by the Chinese Government.” CAT, “Consideration of Reports Submitted By States Parties Under Article 19 of the Convention, Comments by the Government of the People’s Republic of China* to the concluding observations and recommendations of the Committee against Torture (CAT/C/CHN/CO/4),” 17 December 2008, CAT/C/CHN/CO/4/Add.1. As an interesting commentary on the “detailed and accurate” nature of information provided by the Chinese government, Felice Gaer, in her capacity as the Rapporteur on Follow-up and Conclusions of the Committee against Torture, wrote in her letter of October 29, 2010, that while the Committee appreciates China’s promises to “work harder” to improve statistics regarding efforts to combat torture, it remains dissatisfied with continued failure to provide requested information that would be needed to fully assess China’s compliance with the CAT’s follow-up procedures. Available at http://tbinternet.ohchr.org/Treaties/CAT/Shared%20Documents/CHN/INT_CAT_FUF_CHN_11989_E.pdf.
 CEDAW, Report of the Committee on the Elimination of Discrimination against Women - Thirty-fourth session (16 January-3 February 2006), A/61/38(SUPP), para. 449, http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=A%2f61%2f38(SUPP)&Lang=en.
 It is useful to recall that the Commission of Inquiry on Human Rights in the DPRK found that China disregards its agreement with UNHCR to allow UNHCR personnel unimpeded access to asylum seekers including those from the DPRK.
 According to the Permanent Mission of the People's Republic of China to the United Nations Office at Geneva and Other International Organizations in Switzerland, the UNHCR started assistance to Indo-Chinese refugees in late 1979, and set up its task office in China. In 1982, China acceded to the 1951 Convention on the Status of Refugees and the 1967 Protocol. China has made donations to the UNHCR Programs every year, and has provided other material or financial support within its means to refugees assisted by the UNHCR worldwide. China has maintained a friendly relationship with the UNHCR. The High Commissioner for Refugees has visited China several times. On December 1, 1995, the UNHCR Task Office in China was upgraded to its Mission in China. In May 1997, UNHCR further upgraded its Mission in China to its Regional Office, responsible for China and Mongolia affairs. Available at http://www.fmprc.gov.cn/ce/cegv/eng/rqrd/jblc/t85094.htm.
 At its 30th session in May 2003, CAT adopted a procedure for follow-up to concluding observations on reports of States parties submitted under article 19 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (see A/58/44, para. 12). The procedure consists of the Committee identifying, among the recommendations in the concluding observations, those for which implementation is a priority and requesting additional information from the States parties, as established under rule 72, paragraphs 1 and 2, of the Committee’s rules of procedure. That follow-up procedure has become an important means of assessing the degree to which compliance with the Committee’s recommendations has had an impact. It has also become an integral part of the reporting cycle. Committee against Torture, “Guidelines for follow-up to concluding observations,” 17 September 2015, CAT/C/55/3.