The Ongoing Problem of Refoulement



Pivotal to the Refugee Convention is the principle of non-refoulement: that refugees—defined as those with well-grounded fear of persecution on the basis of race, religion, nationality, membership of a particular social group or political opinion—will not be returned to their prosecutors. (The broader principle also holds with respect to repatriating those fleeing war zones and even natural disasters; the issue has thus become part of the European and American refugee/migrant debates).

But it has also been an ongoing point of friction with respect to China and North Korea because of concerns about torture and abuse, and unfortunate new examples have also surfaced. A petition is now circulating about the possible repatriation of several Chinese by the military government in Thailand, both of whom had apparently been granted refugee status: Jiang Yefei 姜野飞, a political cartoonist who claims he was tortured for his critique of the government's handling of the Sichuan earthquake; and Dong Guangping 董广平, who was imprisoned for taking part in an event to commemorate Tiananmen. According to the petition, Thailand has also expelled 100 Chinese Uighurs, although their status as migrants or refugees is not clear.

At the Committee on Human Rights in North Korea, Christine Chung outlines a recent dialogue between China and the members of the Committee against Torture, the treaty body charged with overseeing implementation of the Convention Against Torture (CAT). These dialogues provide opportunities for countries to outline their policies and to be queried by other members of the Committee. China sent an unusually large delegation to the meeting, and the issue of North Korean refugees came up because the principle of non-refoulement is also inscribed in the CAT (Article 3). A legal wrinkle with respect to North Koreans is the concept of refugees sur place. Not all North Koreans who flee necessarily fall under the protected categories, despite the country’s dismal human rights record. But even if a North Korean is not a refugee at the time that they leave, they become a refugee sur place once they do leave because exit is criminalized and they thus subsequently have a “well-founded fear of persecution” upon repatriation to North Korea.

China was queried repeatedly on a variety of issues having to do with North Koreans, including its agreement with North Korean security forces on repatriation and whether it superseded CAT commitments, the absence of a refugee determination process, the numbers who had actually been returned and the ample evidence among the refugee record of forced repatriation and subsequent abuse. China generally stuck to its guns: that those that it had apprehended were either criminals or economic migrants not covered under the refugee convention. From Chung’s account, it appears that China did not address the issue of whether any border crossers had become refugees sur place. In addition, the Chinese response contained a classic Catch 22: that their administrative procedures do in fact allow for a refugee determination process. But as Chung notes drily, this process extends to “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.”

A particularly worrisome aside in these exchanges has to do with the ongoing effort to dismiss or refute refugee testimony. I took a hard line on the Shin case: that it is crucial that these testimonies be accurate. But Jiyoung Song, an Assistant Professor of Political Science at Singapore Management University, has gone farther on Crawford School’s Policy Forum, arguing that much refugee testimony is fundamentally flawed. A longer version is posted on Song’s blog. And a highly visible version of the argument made it into The Guardian. In Geneva, The Guardian piece was thrown back at China’s questioners. Song’s investigative efforts—whatever the substantive merits in any given case--risk confusing the particulars with broader patterns that are beyond dispute and thus provide ammunition in support of China’s ongoing policy of refoulement.

There may be a glimmer of hope. China conceded little, but Chung describes the most recent meetings as somewhat more business-like than earlier reviews. A likely outcome of the meeting will be a repeat of recommendations that the UN High Commissioner gain access to the Northeast in order to confirm China’s judgment. If this were to occur, it would be a large step forward that could open the wedge to more public review of particular cases that are now in the shadows. But given what is going on in China itself, it is doubtful that Beijing is likely to shift course on North Korean refugees any time soon.

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