North Korean worker demands accountability for slave labour in supply chain

On 8 November 2018 a North Korean overseas worker who had worked in slavery-like conditions for a Polish shipyard, a supplier of a Dutch shipbuilding company, filed a criminal complaint at the Dutch prosecution office against the Dutch firm (the name of company is being withheld to avoid potentially undermining prosecution efforts). Article 273f (6) of the Dutch Penal Code criminalises the act of ‘profiting’ from labour exploitation, targeting not the direct perpetrators in the labour exploitation, but the ones profiting from it.

This unique case aims to hold the company at the top of the chain accountable for forced labour further down the supply chain. And in the case of shipbuilding, this chain is rather short: the buyer subcontracts the core business of building the complete hull cheaply abroad.

The exploitation of North Korean workers in two separate Polish shipyards was brought to light in two reports, one published in 2016 and another published in 2018, both by the LeidenAsiaCentre, a research institute affiliated with Leiden University in the Netherlands. The research demonstrated how well-documented the maltreatment of North Korean workers in Poland is. Due to EU-mandated record-keeping and frequent labour inspections, a very precise picture was obtained of: how the workers work and live; how they are or are not paid; the circumstances under which they work; and who their ‘paper’ and actual employers were.

In both reports it was established that the working and living conditions of North Korean workers in Poland meet the criteria for labour exploitation. What makes their case particularly interesting is that the rights of migrant workers in the EU are quite well established – at least on paper. But possessing legal rights as a labour migrant does not guarantee those rights in practice. So this case offers some interesting angles to explore concrete legal routes to seek justice for exploited workers in the context of the EU legal arena.

How the exploitation happens

North Korean workers are recruited at home to work overseas, in estimates that range from 50,000 workers worldwide to 200,000 in China, Russia, Africa, the Middle East and the Gulf. Overseas workers are an important source of income for the North Korean government and the selection criteria ranges from being a loyal party member to being married and preferably having children to minimise the risk of defection. Only shortly before departure do the workers receive information on the country they will go to; the travel is mostly arranged by North Korean embassies abroad. Upon arrival the workers hand in their passports and start working right away without ever receiving a working contract, a bank account or a briefing on their working conditions or salary.

In Poland, the workers are mostly employed by a North Korean company registered in Poland or a Polish-North Korean joint venture. They are then ‘posted’ to other companies, a practise that is often illegal according to the terms of their work permits.

As contractors, the North Korean companies or joint ventures receive payment for the assignment. A fraction of that amount is paid to the workers. There is a formal monthly payment, of which payslips with falsified signatures are included in labour inspection reports – and then there is the actual payment that the workers receive. These payments are irregular, sometimes once a month, most of the time less frequently. And the amounts they receive vary wildly between a few dollars a month to a few hundred dollars. Arbitrary fees for everything – including food and housing as well as also compulsory donations and payments to the ruling Korean Workers’ Party– are also deducted. The labour inspectorate has often reported on hazardous working situations, and at least one fatal accident where none of the required safety measures were met has occurred.

Workers also live in too-cramped quarters that are damp with mould and lack washing facilities. Excessive overwork is also common with the workers: they are denied sufficient rest or days off, work long, irregular hours, often six or seven days a week. And being North Korean citizens, they have no chance of leaving the worksite or the country.

Who will be held to account?

All in all, it is safe to conclude that the situation of North Korean workers in Poland can be labelled as ‘forced labour’. This was also confirmed in the 2016 Vice documentary Cash for Kim, as well as the findings of the UN special rapporteur on North Korea and the US report on human trafficking. The question then is: who will be held accountable for violating labour and human rights experienced by North Korean workers and the profits that are made as a consequence of these violations? North Korea, which offers this supply of workers? The direct or indirect employers as the perpetrators, subsidiaries or business partners giving the orders and gaining the profit? Or all of them? The issue of liability then shifts its focus from fault-based liability towards strict liability, which could be justified by the fact that the parties profited from unacceptable, cheap labour.

In the two LeidenAsiaCentre reports on North Korean labour in Poland, it was made clear that Polish shipbuilding companies work closely with their Dutch shipbuilding partners on financing vessels, supplying parts, project management, technical know-how, securing and obtaining quality certificates, and sharing EU funding. This offers sufficient proof of close partnership and cooperation.

An interesting question is whether in the case of proven abuse and labour exploitation, the Dutch legal framework is sufficiently equipped to hold the partner companies accountable.

Companies could be held accountable for criminal offenses if the exploitation proves to be a case of severe labour exploitation, as laid down in Article 273 of the Dutch Penal Code, and specifically the aforementioned Article 273f (6).

It is now up to the Dutch Prosecution Office to see whether they will take up the case and prosecute the suspected perpetrator of ‘profiting’ from labour exploitation, but that decision will take months. As well as various legal arguments, there are other considerations that will be taken into account such as whether there is sufficient capacity at the Dutch prosecution office (which is severely understaffed), or possible pressure from politicians and businesses who might prioritise financial and trade perspectives. It is an interesting case to follow, particularly as it could open the door of justice for other cases where labourers are exploited to benefit end-users at the top of the supply chain.