By Jerome A. Cohen
Mark Swidan, an American detained in China since 2012.
This is an excellent, if disconcerting, Guardian report on the case of American Mark Swidan, who was detained in China in 2012 and sentenced to death for drug trafficking. Although the UN has declared that Swidan was arbitrarily detained in violation of international law, consular visits do not appear to have been denied in his case. As I pointed out last week in discussing the case of Australia’s Cheng Lei, video consular visits are de rigueur in China during the virus crisis. I don’t think the refusal to allow in person consular visits is a reasonable ground for protest in the current circumstances under either the Vienna Convention or the bilateral US-China consular agreement as long as credible video visits are provided. As in Cheng Lei’s case, they are not as satisfactory as in person visits, if only because of the more limited basis for close personal observation of the detainee. But, and this should be emphasized, the health restriction is recognized as acceptable as long as it seems genuinely required and not an implausible excuse.
For Cheng Lei, I wonder whether it would be possible for groups to ventilate PRC action against her in a way that might lead to her release before Christmas or at least Chinese New Year, by which time the initial RSDL detention limit will have almost been reached. When Ai Weiwei was detained under RSDL in April 2011, before it was legislatively authorized in cases like his and now Lei’s, his many friends and admirers made several PR efforts of various kinds that helped secure his release after a bit over two months of unpleasant confinement. But that was just before Xi Jinping’s ascension, and Ai was not the national of a government at odds with the PRC, as Lei is. I assume someone has retained an experienced Beijing lawyer for Lei, not that much can be done at the moment by even the best criminal lawyer in China. Of course, after many RSDL detentions have expired, the suspect is not released but sent for the start of the usually much longer, conventional criminal process detention. That may or may not permit identification of the suspect’s location, the anticipated basis for prosecution and eventually even the first restricted contact with a defense lawyer.
Regarding consular visits pre-Covid, in the Chinese practice, which has allowed consular visits even for the two Canadian Michaels, what is unacceptable is the narrow scope permitted to each visit. It is generally brief, and the visitor is not allowed to discuss the case that landed the hapless detainee in detention! In the Swidan case – another self-inflicted black-eye for the PRC’s reputation for non-consular reasons – the mother has a lot more to worry about than possible closure of the Guangzhou US Consulate, which is not yet on the cards, since, even if it were closed, video and eventually in person visits will continue to be possible, with diplomats sent as necessary from some other US post including the embassy in Beijing.
I admire John Kamm, the chairman of Dui Hua, for his persistent and outspoken efforts in Swidan’s case, as in so many, but wonder why Trump’s State Department is not making more of a fuss in public. Kamm and Swidan’s mother have criticized the US government for its lack of action on the case. Of course, we don’t know about the merits of the PRC accusation against the detainee, but the PRC criminal procedures against him have been a cruel scandal. We should note, however, that the mother, but not the brother, has had phone contacts with her detained son, at least on occasion.
The PRC’s use of criminal justice and other excuses for detaining foreigners, even some civil cases in various ways, is a topic that deserves extended analysis, especially since arbitrary detention now is frequently in vogue in Beijing in order to gain international relations leverage. Foreign relations often affect a country’s justice system. In my youthful prosecutor days, I saw how American juries could be affected by headlines about relevant international crises. But Hostage Diplomacy, as practiced by any state, is beyond the pale.