NORTH KOREA

Urgent action

Save Kim Hee Tae, a South Korean humanitarian aid worker,
to be tried in China on 15 May 2003

13 May 2003

Save Kim Hee Tae from the Chinese prisons
Your urgent help is crucial. Show the Chinese authorities he is not forgotten

Kim Hee Tae is to be tried in the city of Yanji, Jillin Province, China, on Thursday, May 15. He was arrested in Changchun, Jillin Province on August 31, 2002 together with 7 or 8 North Korean refugees. He has been detained without trial by the Chinese authorities for over 8 months. He is charged under the Chinese Criminal Code Article 318 which is related to the crime of illegal border crossing. He is accused of helping 25 North Korean refugees enter the Spanish Embassy in Beijing in March, 2002. There are some indications that the Chinese court will consider entering a foreign embassy for the purpose of seeking assylum is similar to illegal border crossing.

There is no doubt that this issue is subject to the 1951 Convention and therefore should not determined by Chinese national law.

The Chinese authorities think that Mr. Kim Hee-Tae has now been forgotten by the world community and might therefore sentence him to the maximum prison term of 7 years in order to deter all the other humanitarian workers helping North Korean refugees in China.

It is absolutely vital to make China understand that he is not forgotten and his trial will be closely watched. This is why your help is so crucial.

Send a fax TODAY to the Chinese authorities:

Appeal for the release of Kim Hee Tae, a South Korean student imprisoned in China

Mr. Hu Jintao

President

People`s Republic of China

Your Excellency,

Kim Hee Tae, a South Korean citizen, is to be tried in the city of Yanji, Jillin Province, China, on Thursday, May 15. He was arrested in Changchun, Jillin Province on August 31, 2002 together with 7 or 8 North Korean refugees he was assisting on humanitarian grounds. He has been detained without trial by the authorities of your country for over 8 months. He is accused of helping 25 North Korean refugees enter the Spanish Embassy in Beijing in March, 2002, which is not true as the real masterminder of that operation claimed the full responsibility of it in a recent issue of the TIME Magazine. He is charged under the Chinese Criminal Code Article 318 which is related to the crime of illegal border crossing. There are some indications that the Chinese court will consider entering a foreign embassy for the purpose of seeking assylum is similar to illegal border crossing.

These refugees are eligible for refugee status under the 1951 Convention relating to the Status of Refugees as they have a well-founded fear of persecution for their political views against oppression of freedom. China is a signatory to the Convention and is obliged to meet its obligations to refugees seeking protection in its territory. Kim Hee Tae has only tried to help them on humanitarian grounds. I would be very grateful if you would communicate my request for the release of Kim Hee Tae to the appropriate authorities in Beijing.

Best regards.

Name and signature

Permanent Representative of the People's Republic of China to the United Nations

350 East 35th Street, New York, N.Y. 10016

U.S.A.

Telephone: (212) 655-6100

Telefax: (212) 634-7626

Permanent Representative of the People's Republic of China to the United Nations in Geneva

Chemin de Surville 11

Case postale 85, 1213 Petit-Lancy 2

Geneva, Switzerland

Telephone : 792 25 48 - 792 25 43 - 793 35 91

Telefax : 793 70 14

E-mail: mission.china@itu.ch

Permanent Mission of the People's Republic of China to the United Nations in Vienna

Geroldgasse 7

1170 Vienna, Austria

Telephone: 486 16 35

Telefax: 484 16 33

- Embassy of the Peoples Republic of China in Belgium

Av. de Tervuren 443-445

B-1150 Brussels

You are also encouraged to send appeals to the Chinese Embassy in your respective country.

Pleading for North Korean defectors at Chinese courts

The following defence speech was prepared by a humanitarian worker in Seoul and presented to the Chinese lawyer for the defense of Rev. Choi Bong-il in the Chinese court. The trial was held on December 5, 2002. The Chinese lawyer, however, did not present the statement to the Chinese court. He feared that such pleading will harm the position of the defendant in the Chinese court. The same line of defence could be used for Kim Hee Tae .

Throughout the history of mankind, there have been always a number of groups of peoples seeking in other countries asylum for one reason or another and, consequently, living in other countries without protection. Inspired by the Universal Declaration of Human Rights, Article 14, Everyone is entitled to the right to seek and to enjoy another countries asylum from persecution, the conscience of mankind was finally resolved to protect these refugees internationally by adopting the Convention Relating to the Status of Refugees in Geneva in 1951. The objectives of the Convention are to internationally protect those owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and prohibit Contracting States from expelling or returning a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened

The Peoples Republic of China acceded to this Convention and the 1967 Protocol thereto on September 24, 1982.

On the occasion of the 50th Anniversary of the Convention in Geneva on 12 December 2001, Mr. Wang Guangya, Vice Foreign Minister of the Peoples Republic of China, applauded the Convention Magna Carta of International Refugee LawThe Convention is candle light of hope in the dark to the helpless refugeesserves as a guide to action to people who are engaged in humanitarian work of protecting and assisting refugees.

Not only the UN Charter, Article 103, but also the above Convention, Article 8 and Article 50, 1, explicitly stipulates that in the event of a conflict between the obligation of UN membership and the obligation under any other international agreement and national law, UN conventions shall prevail.

In an official report of the government of China to UN, the government of China has declared that an international human rights agreementis binding under Chinese law and China must honour the corresponding obligationsIn the event of discrepancies between domestic law and an international human rights agreementthe international agreement will take precedence (Report of China C HRI/CORE/1/Add.21/Rev.2, 11 June 2001).

Furthermore, Mr. QIAO Zonghuai, a member of the delegation of China, stated at the 24th CAT session in Geneva on Friday, 5 May 2000, China adhered to the principle of pacta sunt servanda. Under the Chinese legal system, the international instrumentswere considered part of Chinese law and legally binding. In the event of conflict between an international instrument and a domestic law, the provisions of the international instrument took precedence (CAT/C/SR 419, 12 May 2000)

It is also noted that the Constitution of the Peoples Republic of China, Article 32, Para 2. states the Peoples Republic of China may grant asylum to foreigners who request it for political reasons. Nevertheless, North Koreans have been prevented from requesting such protection by the unconditional and arbitrary arrest of them by the Chinese authorities.

North Korean defectors in China have risked their lives fleeing starvation, oppression and destitution to seek freedom. They are invariably subject to detention facilities inadequate for a human being by any civilized standard and brutality. Some of them are sent to prisons or concentration camps or openly or secretly executed under the North Korean criminal code, Article 47 which categorizes defectors from North Korea as political prisoners and makes the act of defection punishable by capital punishment or a minimum prison term of 7 years.

The Chinese government alleges that North Korean defectors are economic migrants and therefore they are not refugees under the 1951 Geneva Convention. A migrant enjoys the protection of his or her home government; a North Korean refugee does not. North Korean defectors have come to China not for gainful employment or for business. Some defectors are engaged in some kind of labor for marginal income survival. If the defectors are economic migrants, pursuing business and/or seeking gainful employment in China and not for freedom, why then would they attempt to leave China at the first opportunity, bound for a third country wherein lies far less economic opportunity than China?

The Government of China imposes penalties on North Korean defectors for their illegal presence. There are over one million refugees under international protection in the world today. They were illegal migrants at the very outset. Exactly for this reason, the 1951 Convention, Article 31, prohibits the Contracting States from imposing penalties, on account of their illegal entry or presence, on refugees No refugees would exist anywhere in the world if they are punished solely based on their illegal entry or presence, as in China. For example, there are several hundreds of thousands Afghanistan refugees in Pakistan who entered Pakistan illegally. Nonetheless, no one of them was arrested and repatriated for illegal entry or no one was arrested for helping them as in China.

Exactly for these reasons, the United Nations High Commissioner for Refugees has officially declared that there are refugees among the North Korean defectors in China, the latest UN Resolution, 2002/23, on August 14, 2002, expresses its concern over the fate of persons who have risked their lives fleeing fromstarvation or destitution, US congress has unanimously adopted resolutions in support of North Korean refugees in China and international community have been asking, officially and unofficially, the Chinese government to reconsider its policy of unconditional repatriation of North Korean defectors. The fact that North Korean defectors are protected once they are inside any foreign embassies or consular offices in China is a proof that their status is recognized by the world as refugees. Which Embassy in the world would dare to protect criminals?

The crucial issue here is whether or not North Korean defectors are refugees. Because this is a subject that cannot be determined by any national law anywhere in the world, an international Convention is adopted to determine whether or not a person is a refugee. Therefore, the Chinese Government cannot punish the defectors under the national law. If it does, it must first explain, through fair and efficient asylum procedures, why the defectors are not eligible for refugee status under customary international law. The Chinese government is arbitrarily arresting and unconditionally repatriating them without such procedures. This is hardly justifiable. This is why the eyes of the world are on this court.

We plead that the authority and dignity of the Chinese court are upheld by releasing North Korean defectors and aid workers and showing to the world that China is a respectable member of the international community.