Thoughts about Brittney Griner's case in comparison with criminal prosecutions of foreigners in China

By Jerome A. Cohen

The US has lumped Griner’s case together with those of other Americans “wrongfully” detained abroad including in China. The USG has recently said Griner is being held in “intolerable circumstances”. Yet I have seen no explanation why Griner’s detention has been deemed wrongful. Was it politically motivated? Are others who bring in cannabis, as she admittedly did, usually exempted from detention and prosecution? Is it because she has unreasonably been denied bail pending trial? Is it because she has indeed been subjected to intolerable conditions in detention? The US Deputy Chief of Mission in its Moscow Embassy, even while repeating the “wrongful” accusation, has reported that Griner has been reading and doing well in detention.

Observers of Chinese criminal justice must be interested in comparisons with the Griner trial. A US diplomat who can attend the trial and chat with the accused and hand her a letter from President Biden? Media that report on the trial and statements of the accused? Defense lawyers who can discuss the case with the media? A trial that drags on for many days in the kind of case that Chinese courts – and most others – would dispose of in a couple of hours, especially when the defendant pleads guilty?

It would be good to hear more from the US State Department and specialists in Russian criminal justice in order to enhance our appreciation of what is going on. Specialists in Chinese criminal justice should also feel provoked to comment on the need for more facts and on how the same case might be handled in China.

The sensational police detention of famous pianist Li Yundi on charges of soliciting a prostitute

By Jerome A. Cohen

Li Yundi

There are obviously so many unanswered questions at this early stage of learning about the most recent manifestation of Xi Jinping’s New Era. The release by the Beijing police of the news that they have detained someone – anyone – by the shabby method of unofficially posting and reposting broad “hints” on Weibo must be nauseating to disinterested observers of comparative criminal justice. I assume there will soon be a formal official announcement clarifying the degree of punishment to be imposed on the hapless pianist. The reference to “administrative detention” suggests that Mr. Li may “only” be charged with a violation of the supposedly “non-criminal” Law for the Punishment of Violations of Public Order, which enables the police alone to punish minor offenders without the need to obtain approval from the procuracy and the court and without any significant guarantees of fair treatment. That would subject world famous Li  to a fine and a maximum of 15 days in a very unpleasant police detention cell. It is also possible, yet unlikely, that he could be prosecuted for a formal “crime” that could result in a prison sentence as well as a long period of pre-trial police detention. If he proves as cooperative in responding to the accusation as reports suggest, no “criminal” charge may be brought, especially since enough has already been done to damage his reputation and perhaps end his career in China.

But why has he been singled out for detention on a prostitution charge when huge numbers of prostitutes’ customers are not pursued? Did he offend a leader by some remarks of a political or personal nature? Was he “set up” for this charge? Can one be confident that the facts alleged are true?  Is this the use of the police as an instrument of revenge by some powerful person? Is this simply a part of the current campaign to transform and “purify” the entertainment and other industries? Will Li be allowed to leave the country after serving his punishment to pursue his career abroad? That seems unlikely.

Prostitution is such a time-honored Communist Party claim against political opponents that one has to be suspicious of this case. In any event, the manner by which the police have made the matter public only adds to the unsavory story.

Can foreign journalists curb arbitrary detention in China?

By Jerome A. Cohen

Usually, media reports on “disappearances” such as have been suffered by well-known people as diverse as Xiao Jianhua and Gao Zhisheng, and on arbitrary use of the formal criminal process as in the case of the two Michaels, do not provide sufficient pressure to effect release of the victims or even produce a credible explanation from PRC officials. But Red Roulette, the new “tell all” book by Desmond Shum, lays the groundwork for what could become a persistent barrage of questions to MOFA press conferences and the Q&A following the speeches of high Chinese officials that might eventually yield some response.

MOFA spokespersons usually dust off the initial question about a fresh detention by assuring the assembled journalists that the case of the person in question is being processed by “the judicial organs in accordance with law”. This is a misleading answer since it evokes the falsely reassuring image of Chinese courts, while the actual situation is even worse. The detainee is normally in the custody of the police. Unless, of course, the detainee has been kidnapped and is therefore indefinitely, lawlessly held by special Party or military minions. 

Yet sometimes journalistic efforts, including op eds, can make a difference, as they did in the release of Ai Weiwei in 2011 after his 81-day incommunicado confinement in the guise of “residential surveillance”.  What belatedly and briefly smoked out the missing Whitney Duan after four years of enforced silence was the imminent publication of her ex-husband Shum’s book. I hope that PRC officials will be peppered with questions about Ms. Duan’s mysterious case since she is still obviously being secretly detained.

Red Roulette gives readers vivid insight into PRC corruption, Beijing politics and much else

By Jerome A. Cohen

Here is an excerpt from Red Roulette. It is a “must” read on China for many reasons. Publicity in the London press on Friday stimulated a secret PRC response that, having quickly been revealed by the book’s author, will enhance its prominence. As I have previously noted, the book’s scheduled publication today (Sept 7) required some sort of response from Beijing, one that would reluctantly confirm the continuing existence of the “disappeared” Ms. Whitney Duan. The ex-wife of author Desmond Shum was kidnapped in Beijing by Communist Party agents four years ago. Shum’s courageous determination to finally expose this important story will now be tested as he awaits further PRC reactions, secret and public. In view of obvious concerns for the safety and welfare of his family, his ex-wife, his friends, and himself, this could not have been a simple decision. The second of the two phone calls that he just received from his suddenly-emerged ex-wife, still a captive of the Chinese secret police, was especially sinister in explicitly threatening the harm that may occur to Shum, his ex-wife and even their 12-year-old son if Shum failed to stop publication of the book, an obviously impossible task on the very eve of publication.

The oddest thing about ex-wife Whitney Duan’s emergence to make two last-minute phone efforts to stop publication of Shum’s book is indeed its timing.  What might this tell us about elite politics in China? Was this a mere pro forma protest? An advance reader’s edition of the book has been circulating for weeks. Moreover, Shum has been a person of interest to PRC security people for some time, at least for almost five years since his business partner and former wife was first banned from leaving China and then kidnapped. Undoubtedly, he was long under scrutiny by PRC security agents, and his communications must have been sufficiently monitored to indicate that he was seriously at work on a tell-all book. Why, then, did the security people wait to intervene until the day before the book’s formal publication?

A second question worth pondering is why the ugly explicit threats to harm Shum, his son and the ex-wife were made and why not until the second phone call. The callers (Ms. Duan was obviously not alone and apparently in the hands of captors who dictated the bulk of the script) must have anticipated that the sinister threats would be made public, enhancing the current Chinese Communist Party leadership’s foreign image as a band of ruthless thugs.

It seems appropriate that The Wire should publish an excerpt of the book since Shum describes the impact on China’s elite politics of the remarkable reporting by David Barboza before he left the NY Times for The Wire. 

This book may well be regarded as one of the very best popular accounts ever to be published about the PRC in English. (Recall Robert Loh’s “Escape from Red China” of the 1950s; Jean Pasqualini’s “Prisoner of Mao” in the ‘60s; and Chen Guangcheng’s more recent memoir of escape from arbitrary imprisonment almost a decade ago). It not only gives a vivid, detailed picture of the corrupt nexus between business and the Communist Party’s ruling class, but also offers a persuasive interpretation, backed by facts, of how Xi Jinping ruthlessly moved to eliminate all rivals to his exclusive power. In addition, it provides real insights into upper class contemporary Chinese social life and the complex human relations of a high-powered married couple bent upon manipulating the system to their greed. I also especially appreciate both the book’s eloquent condemnation of a regime grounded in blatant resort to lawless arbitrary detention and its requiem for the now dead Hong Kong freedoms that benefited many of Shum’s formative years. His story reeks of authenticity and is a wonderful read, thanks in part, as the author makes clear, to the skillful cooperation of the distinguished journalist-scholar John Pomfret. 

Beijing has a lot to answer for, and Shum has made it impossible for the PRC to continue keeping silent.

"Trial-Centered Justice" in PRC Political Prosecutions

By Jerome A. Cohen

It is not surprising that, after more than two years of holding the two Michaels in incommunicado detention, the PRC, under increasing international pressures about these cases, has decided to bring the accused to trial.

Yet there is more to the question of timing of the trials.  Ms. Meng’s Canadian extradition case, to which the prosecutions of the Michaels are linked, is finally moving toward a preliminary outcome. Moreover, behind the scenes, there have been some as yet unsuccessful attempts to negotiate a trilateral compromise among the US, the PRC and Canada that could terminate this excruciating extradition/criminal justice/hostage diplomacy dilemma. And it is unclear what policies the US and the PRC will want to pursue toward each other following today’s first meeting of the highest foreign policy officials of the two superpowers in Anchorage. 

Concluding the trials of the two Michaels now will maximize the PRC’s flexibility for responding to the needs of the current situation, whatever is deemed to be the desirable reaction.

Contrary to what some observers have recently opined, the forthcoming conviction and sentencing of the two Michaels, rather than terminating prospects for their release, can, in light of practice, be interpreted as possibly preparing the grounds for their release.

The PRC is more likely to release them after vindicating its judicial sovereignty by convicting them than by interrupting the judicial process prior to conviction. The defendants may receive harsh sentences, such as ten years in prison, but they will also be sentenced to deportation to be carried out at the conclusion of their imprisonment. This will not preclude the possibility of prematurely terminating their prison sentences  and carrying out deportation soon after sentencing has been imposed, for example on the ground of medical necessity due to serious health problems.

I have been involved in extracting prisoners from China via this technique. In one case, involving a Chinese permanent resident of the United States, Ms. GAO Zhan, there was a deal made between the US and the PRC before trial that within days of her sentencing to heavy punishment she would be released on medical grounds. After an anxious 48-hour wait, she was deported despite having also been sentenced to ten years behind bars.

Also worth noting is the issue of whether a Canadian consular official will be allowed to attend the trials even if they are declared to be closed to the public because state secrets are said to  be involved. The bilateral PRC-Canada Consular Agreement clearly authorizes such attendance in all prosecutions. This agreement is even clearer in this respect than the PRC-Australia Consular Agreement that the PRC failed to honor in the Stern Hu-Rio Tinto case of many years ago. I published an op-ed  together with Yu-jie Chen criticizing the PRC’s conduct in that case regarding this issue, and the PRC never sought to repudiate our condemnation.

Also of great interest in the cases of the Michaels will be their legal representation. Will they be defended by Chinese counsel of their own choice? Will counsel have been given meaningful opportunities to prepare their defenses? To present their cases, cross-examine prosecution witnesses, introduce their own witnesses and offer concluding arguments?

At least we learned something from Bo Xilai’s public trial, however truncated it was. I doubt that the Communist Party will stage a similar show for these cases.

The Detained Canadians Need More Than Christmas Cards

By Jerome A. Cohen

I’m sure that the detained Canadians, Michael Kovrig and Michael Spavor, will be bolstered by the moral support they will feel from any holiday greetings and sympathy they might receive. But I would like now to focus on trying to think of practical ways of freeing them. 

There has been no word in the past few days about reported meetings between US authorities and Ms. Meng of Huawei’s lawyers. Supposedly the US extradition proceedings in Vancouver can be dropped in favor of “deferred prosecution” if Ms. Meng admits to the offense charged. She apparently is reluctant to admit to the charge, leading to further stalemate.

If this is indeed the situation, it occurred to me that the case might be resolved by President Trump granting her a pardon. This would require no admission or agreement on her part. Pardons are political acts in the US, Trump has made outrageous use of them, with more to come, and this case, implicitly involving as it does the PRC’s hostage diplomacy re Canada as well as the American initiation of the prosecution itself, is plainly political as well as legal.

Ms. Meng might be reluctant to be regarded as in a class with Trump’s felonious friends, but Huawei may welcome the opportunity to end the case, as might the PRC. Of course, any pardon would have to be preceded by an agreement between Canada and the PRC, as well as the US, that the pardon would be followed, after a brief “decent interval”, by the release and deportation of the two Michaels. Probably, to vindicate the appearance of justice in the PRC, each Michael would be required to plead guilty to what indeed might be termed a Trumped-up charge.

Complicated? Yes, but not unrealistic. I have taken part in negotiations somewhat analogous that led up to the release by the PRC of alleged offenders accused of serious crimes. The notorious Ms. Gao Zhan, for example, who turned out to be what might be called a “triple agent”, was, as a result of a quiet agreement between the US and the PRC, sentenced to a long prison term by a PRC court, but released within 48 hours on ostensible medical grounds.

I briefly floated this idea in an interview with David Wertime in Politico the other day, but thus far there has been no reaction. Is it zany? Can we come up with other ways to free two unfairly treated captives?  Christmas cards won’t do the trick. 

Free Speech in Hong Kong is Further Eroded

By Jerome A. Cohen

Activist Tam Tak-chi was arrested in September of this year

Here is an important Hong Kong Free Press essay on the case of activist Tam Tak-chi who was arrested in September of this year on a sedition charge. It is by Tom Kellogg and a Georgetown colleague who feels the need to adopt a pen name. Several points strike me as worth emphasizing.

One is how difficult it will be to maintain public attention and understanding as these HK prosecutions proliferate. Publicity about one case obscures developments in others. Joshua Wong, Agnes Chow, and Ivan Lam were sentenced the same week that information about Tam’s case came out, and those cases drew attention away from Tam’s. 

Moreover, as the Kellogg essay points out, it is increasingly difficult in practice to observe a distinction between prosecutions brought under regular Hong Kong laws and those now emerging under the new National Security Law. The Tam case is shocking in this respect. Tam is not being tried under the NSL. Yet the judge assigned to try his case is one of those judges on the tiny list of those sufficiently government-minded to be eligible to try NSL cases.

The denial of bail to Tam for the eight months before his scheduled trial means that he is already being severely punished for “crimes” for which he has not been convicted. Even the judge who inspires government confidence will have to contend with the presumption of innocence at trial and the further requirement that proof of conviction must be “beyond a reasonable doubt”.

It is troubling that Hong Kong criminal trials have distant trial dates while the accused are required to remain in jail. Jimmy Lai is also surely being punished during the long period before his trial, even though he too, at least in principle, may not be found guilty.

It is encouraging to see that some Hong Kong magistrates, despite the immense pressures that now descend on them, are still strictly putting the prosecution to its proof in accordance with the law. They undoubtedly will not be added to the list of approved national security judges.

Sadly, it is pathetic that pure speech, unlinked to acts or threats of violence, is now being punished in the name of “national security”, even if the speech is on college campuses. A Communist Party that used to preach the virtues of “criticism and self-criticism” is ridiculously fragile.

What Is the Significance of Sun Dawu's Arrest?

By Jerome A. Cohen

Chinese billionaire Sun Dawu

Here is an interesting account of how the criminal process has been used to clip  the wings of another important PRC businessman and his business. Billionaire Sun Dawu and more than 20 of his family members were arrested on November 11 and accused of “provoking quarrels and disrupting production.” Authorities also seized control of his company, Hebei Dawu Agricultural and Animal Husbandry Group, which was once of the largest private enterprises in China. Coming soon after the recent last minute blocking of Jack Ma and his hugely profitable Hong Kong IPO for Ant, and the harsh sentence meted out to the outspoken business mogul and critic of the Party Ren Zhiqiang, this could begin to look like a new central campaign to curb the political and economic power of major private entrepreneurs who refuse to follow the central Party line in every respect.

Yet this new Sun case may be more typical of local practices that have existed for decades in the PRC, where one side in a business struggle, having more local political power than the other, calls in the local police to detain its unyielding opponents in the public security detention house or some less supervised coercive environment in order to continue the business negotiations in a setting more likely to produce the desired outcome.

I have been consulted about such cases and gave a talk about this phenomenon at a University of Hawaii-based conference over a decade ago. Locking up such a large number of people in this instance does seem a bit unusual, however. Now that this case has been publicized widely abroad, whether and how the central authorities will attempt to resolve the matter remains to be seen.  

Cases like this sometimes sensitize rising entrepreneurs to the failings of the PRC justice system and the importance of human rights that they have long ignored. Occasionally their lawyers get drawn into the human rights struggle through experiences like this. 

The Ongoing Detention of Lawyer Li Yuhan

By Jerome A. Cohen

Lawyer Li Yuhan, image taken from Front Line Defenders.

Recently, Lawyers for Lawyers wrote a letter calling for the release of Li Yuhan, a Chinese human rights lawyer who was detained three years ago for “picking quarrels and provoking trouble.” The letter cites urgent medical conditions and calls for her immediate release. The case of Li Yuhan is another sad example of how in the PRC the Communist Party, police, prosecutors and judges continue, despite various legislative reforms and Xi Jinping’s frequent orders to “do everything according to law,” to act “as a single fist” in coercing confessions, even from human rights lawyers. In every political system, vigorous lawyers are sometimes thought by some people to “provoke trouble.” This is what happens to them in the PRC.

I don’t know Ms. Li Yuhan but she is apparently among the many courageous Chinese lawyers who, despite severe health disabilities and massive physical and psychological pressures, has persistently sought to resist being coerced into false “confessions.” What seems to be unique about this case is the reported promise – made not by Party, police or prosecution but by the very court scheduled to determine guilt or innocence in a supposedly impartial public trial – that, if only she would finally “confess,” they would restore her right to practice law again after her release. I have never heard of this mode of coercion before, a new addition to the repulsive bag of tricks that the PRC has perfected into an art form. How and why Ms. Li has managed to hold out against these horrendous pressures remains a mystery, of course, and I wonder how much longer she can do so, with what consequences. One reason why she has not succumbed to this promise may well be an understandable skepticism that the promise would be fulfilled.

Also notable about this case, although certainly far from unique, is the length of time she is being detained prior to “trial,” far exceeding the maximum prescribed in  the Criminal Procedure Law unless special approval has been obtained from the highest national government authority. I wonder whether evidence of such approval exists. Here one also has to wonder about the restrictions imposed on the lawyer allowed to represent her, who apparently has finally had access to her and learned about the unsuccessful judicial coercion almost a year ago.

Perhaps the only recourse available to Ms. Li’s family and others seeking her freedom is to invoke the ancient Chinese legal tradition of seeking to block the emperor’s procession in order to have him hear their cries of injustice. But, as they well know, this would only lead to the endless detentions of those engaged in the effort. So much for the vaunted “trial-centered justice” that current reforms claim to implement!

I assume (and hope), because of the publicity surrounding the detention of the “Hong Kong 12,” that they will not receive similar treatment to Ms. Li’s.

Updates on the Case of the Hong Kong 12

By Jerome A. Cohen

Here is the SCMP’s rapid reporting on the case of the Hong Kong 12. Mainland Chinese authorities have accused them of illegal border crossing and organizing crime. This is just the closing of the first phase of the long criminal process that lies ahead. We now know at least a few things about the case.

The “HK 12” were apparently not subjected to “residential surveillance at a designated location” on suspicion of national security violations. That could have kept them in incommunicado detention for up to six months before the regular criminal process began. Indeed, as the charge approved by the procuracy confirms, they are not being charged with national security violations under either PRC national law or the new NSL for HK, as some had speculated they might be and as a Wolf Warrior of the Ministry of Foreign Affairs seemed to suggest would be appropriate. That would have raised legal complexities of a controversial nature as well as international political temperatures.

Instead, the case seems en route to being treated as a regular criminal case of illegal border crossing, a crime, to be sure, but not ordinarily a major one. Of course, after up to seven more months or so of police investigation, the police, when they seek the procuracy’s approval of indictments, may decide to change the charges to harsher offenses or add further offenses to the current charge of illegal entry. The procuracy might or might not agree or may, on its own volition, change or add to the charges. But it is unlikely that this will happen, especially since the local Party political-legal committee, under central Party guidance, has undoubtedly arranged matters between police and procurators (prosecutors) so far as the evidence has been revealed.

At this stage, it is likely that ten of the twelve will receive one-year sentences after conviction by the local district or even intermediate court, with the sentence running from the date of detention. That sentence can be suspended or reduced, however, depending on a variety of circumstances including the extent of the defendant’s confession, contrition and cooperation with the investigation as well as the defendant’s health and willingness to forego an appeal.

The two accused of organizing may well draw three-year sentences and possibly longer ones, although, again, much depends on their post-detention behavior and physical and mental condition. The most immediate challenge for the PRC is how to deal with the embarrassment created by the denial of access to defense lawyers chosen by the families of the suspects. Further steps may be taken to silence the lawyers chosen by the families. Those can range from detaining the would-be lawyers, threatening them with disbarment and closing of their law firms as well as harm to their families etc. The authorities will surely attempt to deny the would-be lawyers further access to the families and the media. The Party may decide to have the lawyers chosen by the police put on a show designed to create a more favorable impression than usual. Possibly the families may be allowed a visit or a representative of the HK government might even be permitted to visit, but the latter seems unlikely. Too many departures from the usual practice might be seen as setting unfavorable precedents for future cases and not establishing sufficient deterrent against future offenses of this type. 

At this point there is not much that any defense lawyer can accomplish in a case of this nature except to perhaps reduce the likelihood of any further torture and coerced confessions by meeting with and observing the suspect, if only in the circumscribed circumstances allowed. Eventually, if permitted, defense lawyers might prove helpful at whatever type of “trial” is allowed, and this will be another challenge for the Party. 

China's Criminal Justice System Again Takes Center Stage

By Jerome A. Cohen 

I just published an article in The Diplomat discussing many of the questions that are raised by the Chinese criminal justice system. The recent detentions of Professor Xu Zhangrun and Ms. Geng Xiaonan and her husband, the continuing repression of mainland Chinese dissidents and minorities, and the plight of the “Hong Kong 12,” detained while fleeing to Taiwan, illuminate some of the system’s many problems. You can read the article here.

China's Troubling Limitations on Consular Visits

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.

As Tensions Rise, Australian Citizen Cheng Lei is Detained in Beijing

By Jerome A. Cohen

On August 14, the Australian government was notified that Cheng Lei, an Australian citizen working as a TV anchor for China Global Television Network, was detained in Beijing and is being held under “residential surveillance at a designated location” (RSDL). Although Australian scholarship on comparative law and politics relating to China is impressive, no learned books, law review articles or op-eds can do as much to alert public opinion to criminal injustice in China as recent arrests of Australian citizens who were formerly PRC nationals. They highlight the regime’s resort to RSDL, which vitiates the ordinary protections prescribed in the PRC’s Criminal Procedure Law for up to six months by authorizing the incommunicado detention that has so often fostered torture and coerced confessions. Good luck to those who seek to organize legal assistance for Ms. Cheng Lei!

On August 27, Australian officials held an initial consular visit over videoconference with Cheng. It would be interesting to learn details of the consular visit remotely allowed. Did Australia press for an in person visit but was rebuffed? Was the remote visit different in substance from the usual in person visit? Still the same restrictions against discussing the case that landed the suspect in detention? Generally, one of the few benefits of the PRC’s restricted consular visits is the opportunity for the visiting diplomat to closely observe the physical and mental condition of the suspect and to detect any gestures or reactions that might reveal the true conditions of the suspect’s plight. To what extent was the remote interview satisfactory in this respect or others? I have never been happy with the refusal of the protecting foreign government, the US included, to reveal information about detention of its nationals by invoking rules against violating the detainee’s privacy. My experience in seeking to aid detainees held in China suggests that they often need and want publicity in order to generate public pressure for their release or at least the improvement of the conditions of confinement.

The Case of Chinese Public Intellectual/Lawyer/Activist Xu Zhiyong Raises Questions About PRC Police Discretion to Detain Suspects

By Jerome A. Cohen

Xu Zhiyong speaks during a meeting in Beijing in 2013. Xiao Guozhen via Reuters

The recent formal arrest of Xu Zhiyong raises questions about the relationship of the notorious Residential Surveillance at a Designated Location (RSDL) to the regular criminal process and other forms of Communist Party-police coercion. Xu has been held incommunicado since his February 15 detention. He was formally arrested for “inciting subversion of state power” last week and has now been reportedly placed under RSDL. 

I have been under the impression that, under China’s Criminal Procedure Law, supposed “national security” suspects have often first been subjected to up to six months of RSDL. Then the police decide what the next step should be. That could be release with no further criminal processing, or the granting of the PRC equivalent of “bail”, or formal “arrest” followed by continuing detention while the case undergoes further investigation in preparation for the decision whether to indict and prosecute the suspect. “Bail” can also be granted after “arrest”. Whether granted before or after “arrest”, “bail” usually means that the case will be dropped quietly if the suspect does nothing objectionable to the police within the next year.

AMNESTY’s report on the fates of various lawyers detained by the police after their informal December 2019  meeting in Xiamen is worth reading. Although the bail for lawyers Dai and Zhang and the continuing detention of lawyer Ding for apparent prosecution seem consistent with what I know of the usual practice, I wonder about Xu’s case. Is he only now being sent to RSDL and after, not before, formal arrest? If that’s the case, under what authority was he held for the months since February 15? 

The Public Order Administration Punishment Law only allows maximum police detention for 15 days for each minor offense. Might Xu have initially been held under RSDL and is he now being sent back for a second time after arrest? Such a maneuver would be a disturbing extension of police power.

Might Xu have been initially detained in accordance with the 2018 National Supervisory Law’s “liu zhi” sanction? Nominally, ”liuzhi” is not supposed to be “detention” but in fact it is another type of incommunicado confinement, one that is outside the Criminal Procedure Law. It is the successor to the Party’s long-feared “Shuanggui” that the Supervisory Law has authorized for applications far beyond those who are Party members. 

Has anyone seen any details that might help explain Xu’s detention process and how the various sanctions available to the Party-state relate to each other? I have seen no indication that Xu might have been held under other supposedly non-criminal administrative provisions authorizing detention for prostitution, drug or other anti-social behavior or because of severe mental illness. Might the Amnesty report have simply made a mistake about Xu being sent to RSDL after arrest instead of being transferred now for likely indictment and trial?

What’s Next for Xu Zhangrun?

By Jerome A. Cohen

Although Professor Xu Zhangrun, a leading and outspoken scholar of Chinese law, society, politics and history, was released after six days of detention by Beijing police, he’s now been dismissed from Tsinghua University and any public office. I wish Xu hadn’t returned from Japan and perhaps now he does too. His next move? One option is to go on occasionally publishing in China or, more likely, abroad and get locked up much more seriously like Xu Zhiyong and so many other able, outspoken reformers. Another is to try to keep silent, do serious research and contemplation to the extent extensive “non-release release” restrictions permit, and wait for a better day. The third is to leave the country at least for the immediate IF he and his family are allowed to do so. Will the Party let him go?

Former Chinese law professor Teng Biao, whose academic career followed a similar downward political spiral and who was three times actually kidnapped by PRC police in China, happened to be in Hong Kong with one of his children when the Party’s final blow landed on his career in the country. But it took his wife and their older child a year to escape and only after a harrowing 26-day trip from Beijing to Boston, including a secret motorcycle rescue via Southeast Asia.

Xu Zhangrun

China’s ADD: Arbitrary Detention Deficit

By Jerome A. Cohen 

Cao Shunli, Courtesy of openDemocracy

Year after year Chinese Human Rights Defenders has done a marvelous job of flagging the PRC’s human rights violations. This most recent report, 5 Years After Death in Custody of Cao Shunli, Human Rights Defenders in China Continue to Face Same Pattern of Abuse, taking off from the anniversary of one of many infamous instances of arbitrary detention and coming on the eve of next week’s UN Human Rights Council session (the Ides of March!), is long but definitely worth the time. 

Canada’s just begun extradition proceeding in Vancouver illustrates what the antidote to arbitrary detention should be — a fair and public judicial hearing. The embattled Prime Minister Trudeau was surely right in condemning the PRC for its arbitrary detention of the two Canadians in retaliation for Canada’s civilized legal process. The PRC and every other country that engages in systemic arbitrary detention give new definition to ADD, which should stand for Arbitrary Detention Deficit! For this the PRC should be brought to account in the media as well as in international legal institutions. In our interdependent world, extradition and its functional kin, whatever the label employed such as rendition, repatriation, deportation, removal etc, is intimately related in many ways to ADD, as currently illustrated in the PRC’s relations with not only Canada but also the United States, Sweden, Hong Kong, Taiwan and other jurisdictions. (See my article co-authored with Yu-Jie Chen on how the two questions are closely connected in the context of Taiwan-China cooperation as an example.)

Xinjiang Initiative

From today’s South China Morning Post [click to view in browser]

Muslims in Xinjiang are facing human rights abuses: time for China scholars to break the silence

By Kevin Carrico and Jerome A. Cohen

Since 2016, Xinjiang’s ongoing “re-education” campaign against local Muslims has expanded into a vast system of concentration camps, currently estimated to hold nearly 10 per cent of the area’s roughly 11 million Uygurs, as well as many of the smaller Kazakh minority. Prisoners are detained not because of any crime, but because of their ethnicity, their Muslim faith, their seemingly irreconcilable difference from China’s ethnic Han majority.

Countless lives have been destroyed, as people are held indefinitely in these camps, without due process. Detainees are pressured, under the watchful eyes of guards, to abandon their religious beliefs, and sing songs and repeat slogans praising the Communist Party of China and President Xi Jinping. Families have been torn apart. In some cases, they have no idea where relatives are held: people simply disappear.

At this intersection of indefinite arbitrary detention, political indoctrination, family destruction and forced eradication of customs, an entire culture is being erased. These are horrific developments that should have no place in the 21st century.

What can be done? The silence of most China specialists is disturbing, yet also unsurprising. Those of us who know China best have many reasons to rationalise not speaking out. Doing so risks the wrath of a rising power that is determinedly hostile to criticism, and that closely monitors what scholars say and write about sensitive topics. Yet, none of these reasons should be sufficient to warrant silence in the face of crimes against humanity.

To encourage greater awareness and discussion of the ongoing abuses in Xinjiang, with more than a hundred other scholars, authors, artists, and other public speakers, we have begun a “Xinjiang Initiative” – pledging to use our public platforms to speak for those who suffer but cannot be heard.

Participants pledge to use every public event in which they appear to remind their audiences that roughly a million people are being held in extra-legal internment camps, and that these detentions are solely due to detainees’ ethnicity or religion. Participants are also encouraged to share personal stories of detainees to put a human face on these inhuman policies.

If you have a public platform to raise awareness of this appalling repression, please join us. Information about the Xinjiang Initiative, how to join and a list of signatories to date is at www.xinjianginitiative.org.

Kevin Carrico, lecturer, Macquarie University, and Jerome A. Cohen, director, New York University US Asia-Law Institute

Xinjiang & the Global Magnitsky Act

By Jerome A. Cohen

Here is a terrific, comprehensive explanation from SupChina of helpful reports and articles about Xinjiang’s “re-education camps” . While China tries hard to conceal information, the materials currently available should prompt the United Nations and its human rights regime—including human rights treaty bodies, the Human Rights Council and its Special Procedures—to investigate and to condemn with confidence these atrocities in Xinjiang.

The outside of a newly built internment camp in Turpan, Xinjiang. Picture by Wall Street Journal reporter Josh Chin.

It also makes one ask: what evidence is necessary under the Global Magnitsky Act in the United States to apply sanctions not only against those who are actually carrying out these abuses, starting with Chen Quanguo, the Party chief in Xinjiang, but also against those in Beijing who are instructing Chen to do so? We all know who runs China today!

This reminds me of the time in 1964 that I had an opportunity to have coffee in Hong Kong with Zhang Guotao (Chang Kuo-tao), one of the founders of the Chinese Communist Party who later split with Mao and remained in exile. I wanted to understand why Communist leaders had such mistrust of law and a genuine legal system. Zhang said that, while he did not know much about law and neither did Mao, perhaps he could give me an example that might help answer my question. In effect he then said: “If A kills B, no system would have trouble punishing A. But what if A merely tells B to kill C and B does it, how could a legal system punish A?” That, Zhang said, was probably the kind of thinking that underlay Mao’s mistrust!

The U.S. legal system usually is not troubled by such a simplistic challenge!

How to describe what's happening in Xinjiang?

By Jerome Cohen

Earlier this month, Josh Rogin wrote in the Washington Post­, Ethnic cleansing makes a comeback — in China, which provoked quite a lot of discussion, especially with regard to Rogin’s use of “ethnic cleansing” in describing China’s continuing campaign to abuse hundreds of thousands of Uyghurs in “re-education camps“ in the Xinjiang region as well as other efforts to destroy the social and religious life of Uyghur communities.  

Police patrolling the old town in Kashgar, Xinjiang. Photograph: Tom Phillips for the Guardian

Should we use ethnic cleansing to describe this horrendous situation? It is important to “rectify names” (zhengming), but there are so many aspects to this repression that it is not possible to find words that can adequately encapsulate it. What, for example, about reports that large numbers of Uyghurs from certain areas are being displaced and sent elsewhere outside of Xinjiang?

I personally believe, despite the views expressed otherwise, that we should not confine “ethnic cleansing” to its past notorious uses, for what is taking place is the attempted destruction of an ethnic group. This attempt has about as good a chance of success as the attempts to “convert” LGBT people to heterosexuals, and perhaps that is where we should look for better vocabulary!  

What can be done regarding Xinjiang’s mass detentions?

By Jerome A. Cohen

I have discussed Xinjiang’s horrific detentions on my blog. There should be more investigative reporting that looks into various important questions. We do not know all the types of detention resorted to. They may include: simply lawless detentions, i.e., not based on any regulations or laws; detentions authorized by some written document even if issued only by low level police; detentions based on special legal provisions under the new Supervision Law; detentions based on the usual Criminal Procedure Law; and detentions based on special provisions of the Criminal Procedure Law, i.e., residential surveillance.

It would be difficult to convincingly argue that these detentions are consistent with the PRC Constitution if such arguments could be made before an impartial tribunal, which, of course, does not exist in the PRC. These detentions are very similar to those imposed for decades under “re-education through labor” (RETL), which, like several other notorious administrative detention procedures, finally had to be abandoned by the regime, at least in name. Yet similar detentions still take place under various rubrics such as “re-education” for drug offenders, prostitutes and their customers and political offenders who continue to be given “black jails” and other types of confinement.

We are purposely being kept in the dark about the unique, massive detentions in Xinjiang, which have confined many hundreds of thousands of closely-settled people on many specious charges. Perhaps the last time so many people have been detained outside the formal criminal process was in the 1957-59 “anti-rightist” campaign where RETL was first used.

Given the Communist Party’s domination of the judicial system, the legal impossibility of getting the courts to consider constitutional claims and the refusal of the National People’s Congress Standing Committee, which, unlike the courts, is authorized to interpret the Constitution, to consider such claims, there is no prospect for challenging the Xinjiang measures domestically. It is worth noting, however, that what is being done should be understood as violating procedural rights under Article 37 of the Constitution as well as various freedoms enshrined in the Constitution, not to mention relevant provisions of China’s Criminal Procedure Law and other national legislation.

To be sure, the Xinjiang measures also violate public international law in many respects. China has signed but not ratified the International Covenant on Civil and Political Rights, which plainly prohibits arbitrary detentions. The PRC has ratified the Convention Against Torture and the International Covenant on Economic, Social and Cultural Rights, and the Xinjiang actions are clear violations of these international treaties in many respects. Other international human rights violations can also be established. Relevant treaty bodies, such as the Committee Against Torture and the Committee on Economic, Social and Cultural Rights, should review the Xinjiang detentions in their dialogues with China, ask the Chinese government to provide accurate information and condemn violations in Xinjiang.

Additionally, other UN human rights agencies are the obvious fora in which to move, including the UN Human Rights Council, the UN independent human rights experts such the Working Group on Arbitrary Detention and other special rapporteurs, and the Office of the High Commissioner for Human Rights. Unfortunately China has moved skillfully to dominate the UN Human Rights Council and the U.S. Government has certainly not risen to the challenge of effectively opposing China’s maneuvers. The departure of Mr. Zaid, the energetic and courageous High Commissioner for Human Rights, is greatly to be regretted.

Individual countries, of course, can take actions, which is why I recommend that the U.S. Government adopt Magnitsky Act sanctions against those responsible for Xinjiang, starting with Xi Jinping.

Various concerned countries can also act in concert outside the UN, for example excluding China from major economic and political meetings. It is a particular disgrace that Turkic, Muslim countries and their organizations have done so little to condemn China for what it is doing to their kinsmen.

There should also be many public protests by ordinary citizens, i.e., NGOs and popularly-inspired meetings in free countries whose people support human rights.