CHINA AND DEMOCRATIC PEOPLE’S REPUBLIC OF KOREA: ARBITRARY DETENTION AND FORCIBLE REPATRIATION OF NORTH KOREAN NATIONAL KIM CHEOL-OK

The International League Against Arbitrary Detention urges the governments of China and the Democratic People’s Republic of Korea (DPRK) to take all necessary measures to implement Opinion No. 37/2024 of the United Nations Working Group on Arbitrary Detention concerning Kim Cheol-Ok, urging her immediate and unconditional release and provision of an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Kim Cheol-Ok (China and DPRK): Opinion 37/2024.

ARRESTED AS PART OF AN OPERATION TARGETING HUMAN TRAFFICKING AND WOMEN ATTEMPTING TO REACH THIRD COUNTRIES

Kim Cheol-Ok, born on 18 August 1983, is a citizen of the Democratic People’s Republic of Korea (DPRK). In the 1990s, she was trafficked to China, where she married a Chinese man and gave birth to a daughter. Ms. Kim never obtained legal status despite residing in China for over two decades. As an undocumented migrant, she was required to pay up to 2,000 yuan annually to local police in Yushu city to avoid deportation and was regularly summoned and questioned to prevent her from fleeing to the Republic of Korea.

On 5 April 2023, Ms. Kim was arrested in Dehui, Changchun, Jilin Province, alongside two other DPRK nationals and their Chinese driver by agents from the public security bureau of Changbai County. The source indicated that her arrest occurred as part of an operation targeting human traffickers and women attempting to reach third countries, including the Republic of Korea as Ms. Kim was reportedly trying to reunite with a family member who had settled in a third State. Following her arrest, Ms. Kim was detained at Baishan city detention centre. Her family was not informed of her detention until 16

April 2023, when they learned of her arrest from eyewitnesses.

On 9 October 2023, Ms. Kim, along with over 500 other DPRK nationals, was forcibly repatriated to the DPRK. Since her return, Ms. Kim has allegedly been subjected to enforced disappearance and held incommunicado.

The DPRK authorities have declined to confirm the arrest or detention of the individuals

repatriated from China, including Ms. Kim. Both governments have submitted late replies to the source’s allegations, which were therefore not accepted by the Working Group.

ARRESTED WITHOUT A WARRANT AND HELD INCOMMUNICADO

At the time of her arrest, Chinese authorities did not present Ms. Kim with an arrest warrant, nor did they promptly inform her of the reasons for her detention, which the Working Group found to be in violation of article 9 of the Universal Declaration of Human Rights.

Moreover, Ms. Kim was held incommunicado and subjected to enforced disappearance on two occasions: the first between 5 and 17 April 2023, and the second since her forced repatriation on 9 October 2023. During both of these periods, her family was not informed of her whereabouts, and she was denied communication with the outside world. The Working Group found that these periods of incommunicado detention constituted a severe violation of article 9 of the Universal Declaration of Human Rights and article 9 of the Covenant. The Working Group also found that this enforced disappearance placed Ms. Kim outside the protection of the law and violated her rights to be brought before a judge within 48 hours of her arrest, challenge the legal basis of her detention and her right to an individualized determination that pretrial detention was reasonable and necessary, all protected under article 9 of the Universal Declaration of Human Rights.

Similarly, the DPRK authorities failed to present Ms. Kim with an arrest warrant upon her forced repatriation and to bring her before a judge within 48 hours of her arrest, depriving her of the right to know the legal grounds for her detention and to challenge its legality.

Additionally, the absence of legal counsel and representation throughout her detention, both in China and in the DPRK, contravened her fair trial rights under articles 9, 10 and 11 of the Universal Declaration of Human Rights. In fact, without legal assistance, Ms. Kim was unable to prepare her defence, increasing her vulnerability to abuse and unfair treatment.

In light of the cumulative impact of these violations, the Working Group concluded that Ms. Kim’s detention was arbitrary under Category I, as it lacked a legal basis.

DETAINED FOR EXERCISING HER RIGHT TO FREEDOM OF MOVEMENT AND SEEKING ASYLUM

According to the source, Ms. Kim was detained while attempting to reunite with a family member in a third country, exercising her rights to freedom of movement, to seek asylum, and to leave any country, including her own, and to return to her country. On the basis that Ms. Kim was reportedly attempting to reunite with her family member who had settled in a third country, the Working Group found her arrest to be in violation of articles of the Universal Declaration of Human Rights.

The Working Group also referred the case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment for consideration as it found that the return of Ms. Kim to the DPRK by China was inconsistent with its non-refoulement obligations.

Consequently, the WGAD concluded that her detention was arbitrary and fell under Category II, as it resulted from the exercise of her fundamental rights.

DENIED HER RIGHT TO A FAIR TRIAL AND DUE PROCESS

According to the source, Ms. Kim was denied her right to a fair trial and due process both in China and in the Democratic People’s Republic of Korea. In China, she was not provided with a trial before a competent and impartial tribunal, and her forced repatriation occurred without a due process or an individualized judicial determination. In the DPRK she was also not brought before an independent tribunal and did not have access to legal counsel. Thus, this violated her rights to a fair trial and due process protected under articles 10 and 11 of the Universal Declaration of Human Rights and article 14 of the Covenant.

In conclusion, the Working Group considered that the violations of Mrs. Kim's right to a fair trial were of such gravity as to render her detention arbitrary under Category III.

DEPRIVED OF HER RIGHTS ON DISCRIMINATORY GROUNDS

The source submitted that Ms. Kim’s detention and forced repatriation were presumably based on her nationality as a North Korean in China and her status as an escapee from the Democratic People’s Republic of Korea. In its late reply, the Government of China responded that citizens of the DPRK who cross the border into China illegally for economic reasons are not considered refugees but instead to have violated entry and exit administration laws and regulations of China. In light of the source’s allegations and the Chinese government’s late reply in which it does not state whether the procedure applied to people from the DPRK is also applicable to any national of any country, the Working Group considered that Ms. Kim's arrest was based on discriminatory grounds, namely her nationality which is contrary to articles 2 and 7 of the Universal Declaration of Human Rights and article 26 of the Covenant.

As a result, the Working Group considered her detention to be arbitrary under Category V.

CONCLUSIONS OF THE UN WORKING GROUP ON ARBITRARY DETENTION

In light of the above, the United Nations Working Group on Arbitrary Detention concluded that the detention of Kim Cheol-Ok was arbitrary and fell under Categories I, II, III, and V, as her deprivation of liberty violated articles 2, 7, 8, 9, 10, 11 and 13 of the Universal Declaration of Human Rights and articles 2, 9, 12, 14 and 26 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the governments of China and the DPRK take all necessary steps to remedy the situation of Ms. Kim without delay and bring it into conformity with relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release Ms. Kim immediately and accord her an enforceable right to compensation and other reparations, in accordance with international law.