As tensions heighten around the Korean peninsula Naoko Hashimoto, Nippon Foundation Fellow and PhD candidate at the University of Sussex, examines the legal basis for how South Korea, China and Japan should respond to a potential largescale influx of North Koreans.

The tension and unpredictability in and around the Korean peninsula has heightened over the past several months. In case of a direct military attack against North Korea by the US, which may well lead to an exodus of North Koreans to neighbouring countries, how should South Korea, China and Japan respond to a potentially largescale influx of North Koreans, and on what legal basis?

First, a significant number would try to flee to South Korea, as the two countries are connected via land and have a lot in common in terms of language, culture, history and family ties. In accordance with South Korea’s Constitution and domestic laws, defectors would be regarded as compatriots and conferred South Korean citizenship as soon as their North Korean identity is confirmed.

To facilitate their rehabilitation and integration process, the South Korean government already provides a generous assistance package for North Korean defectors. Such a policy also reinforces the basis for the government to claim legitimacy over the entire Korean peninsula. Thus, South Korea is the most rational destination for most North Korean emigrants, and its government has domestic legal obligations as well as the strategic rationale to provide them with protection and assistance.

Second, China, which is connected to North Korea via the Yalu River, cannot legally deport North Korean entrants under the Refugee Convention and the Convention against Torture. It is widely known that any citizen attempting to leave North Korea in an unauthorised manner face serious risk of persecution, including imprisonment, torture, forced labour and even execution, thereby making them a refugee sur place. Thus, their deportation from China to North Korea would violate the principle of non-refoulement.

Third, Japan, although geographically less accessible, has the same treaty-based legal obligations as China to admit North Koreans. In 2006, Japan also promulgated the North Korean Human Rights Act under which its government is bound to protect and assist North Korean victims of human rights abuse perpetrated by the North Korean regime.

Furthermore, the influx may well include Japanese nationals (or their descendants) who may have been abducted by the North Korean regime, or who immigrated to North Korea between 1959 and 1984. They would be given support to reclaim their national registration, if lost.

If, under the recent Security Laws Japan becomes involved in an international armed conflict between the US and North Korea, the International Humanitarian Law – particularly the Fourth Geneva Convention and Protocol I – would become applicable. This means that as long as the armed conflict continues, Japan will be legally obliged to treat North Korean civilians within its territory and/or under its effective control in a humanitarian manner.

However, should any radical and positive regime change occur in North Korea such as the dissolution of the oppressive totalitarian dictatorship during or after a military clash, these legal obligations will change significantly. In the event of this happening, neither China nor Japan would be duty bound to protect North Koreans as ‘refugees sur place’ if their fear of persecution upon return dissipates. If a regime change leads to accelerated unification between North and South and it becomes possible for North Koreans to acquire (newly unified) Korean nationality and enjoy full protection from a new government, they cease to be refugees under the Refugee Convention (Article 1C).

At the same time, depending upon how the regime shift evolves, those who were or are regarded as being (ex) supporters of Kim Jong-un might face retaliatory measures or discrimination in a new political climate. If the severity of such measures amount to persecution they should, in accordance with the Refugee Convention, be granted asylum.

Having said that, previous regime sympathisers may well include perpetrators or those responsible for the commission of international crimes under the Kim Jong-un regime, such as crimes against humanity, war crimes and aggression. In that case, not only should the Exclusion Clause of the Refugee Convention (particularly Article 1F(a)) be applied, but those who played any leadership role in the commission of such crimes should be brought to justice before the International Criminal Court (ICC), when the state with certain jurisdiction is unable or unwilling to carry out the investigation or prosecution.

It would be extremely difficult to distinguish between principal perpetrators of international crimes who should be prosecuted on the one hand, and accessorial participants who were compelled to commit the crimes (under duress for instance) on the other, particularly in such an oppressive totalitarian dictatorship under Kim Jong-un.  Careful individual assessments would need to be made to determine whether such North Koreans perceived to be (ex) Kim Jong-un followers should be provided asylum due to the new form of persecution, or excluded under the Exclusion Clause.

Whatever the results of such assessments, exclusion from refugee status should not automatically result in deportation to face persecution. It should lead to consideration of prosecution, punishment (if so warranted), and rehabilitation.

A full version of this article is available on the Refugee Law Initiative blog.

About the author
Naoko Hashimoto is a Research Affiliate of the Refugee Law Initiative at the School of Advanced Study, University of London. She has a number of years’ practical experience in refugees and forced migration issues, as a staff of the United Nations High Commissioner for Refugees (UNHCR), IOM, and the Government of Japan. She is currently undertaking a PhD research focusing on refugee resettlement at the School of Law, Politics and Sociology of the University of Sussex as a Nippon Foundation Fellow. She holds a MA in Forced Migration from the University of Oxford, and LLM in International Human Rights Law from the University of London.