Is there a quiet pre-Olympics crackdown on human rights lawyers?

By Jerome A. Cohen

I was tempted not to post this report of the official disappearance of another human rights lawyer, since events like this occur so often perhaps they no longer constitute “news” and attract public interest. Yet some observers believe that a special, below-the-radar effort may have begun to prevent the PRC’s continuing harsh repression from being exposed to the media as the Winter Olympics approaches. The long-anticipated last month “trial” of the well-respected and long-confined lawyer-activists Xu Zhiyong and Ding Jiaxi may have been postponed until after the Olympics or after the 20th Party Congress at year’s end (or even the 2049 100thanniversary of the PRC’s establishment!). There has been much PRC silence about many other long-pending cases. This week’s detention of lawyer Xie Yang may be designed “merely” to remove him from society until after the Games or, unlike his previous detentions, he may this time be permanently lost to life like the famous human rights lawyer Gao Zhisheng who, after repeated formal imprisonments failed to halt his protests, has simply not been heard about for several years. Like many, Gao is a victim not of Xi Jinping’s vaunted “rule by law” but of lawlessness. What should the International Olympics Committee be doing in response to this situation? The Amnesty report cited here is especially worth reading.

The Forthcoming Trials of Ding Jiaxi and Xu Zhiyong

Xu Zhiyong (left) and Ding Jiaxi

By Jerome A. Cohen

I recently received a sad message from Shengchun Sophie Luo, the wife of human rights and commercial lawyer Ding Jiaxi. Ding and the terrific legal scholar and political reformer Xu Zhiyong are set to be prosecuted soon, but neither the lawyers nor family members have received any information regarding the trial dates. December 6-7 will mark the second anniversary of the Xiamen meeting in which they and about twenty other activists met for a couple of days of discussions reviewing the human rights situation in China. That led soon after to a wide scale roundup of as many of the group as could not evade arrest. Xu and Ding seem to be regarded as ringleaders of a subversive effort and are finally expected to be brought to separate trials before the year’s end. Two recent letters summarizing their plight are linked here and here and reveal the realities of the PRC criminal process, including extended and harsh incommunicado detention, persistent torture, long-delayed access to defense lawyers and illegal restrictions on defense lawyers activities.

Here are summaries of the indictments (Ding Jiaxi here and Xu Zhiyong here) and an excellent analysis of the cases by China Change.

I admire the continuing optimism that reportedly sustains the defendants’ will to resist injustice, but do not share it. Nevertheless, I hope others will do all that they can to protest these tragic abuses by the PRC even if, to borrow the traditional Chinese simile employed by the disappeared tennis star Ms, Peng Shuai, “it’s like throwing an egg against a stone!”

What price martyrdom?

By Jerome A. Cohen

Recent events should make us reflect again on the costs of voluntary martyrdom. Ms. Zhang Zhan, the Shanghai lawyer-journalist who is serving a sentence of four years in prison for reporting on Wuhan’s early mishandling of the Coronavirus, is currently hospitalized and approaching death as a result of the determined hunger strike that she hopes will inspire further protests against dictatorship. Professor Xu Zhiyong has again recently been indicted for another supposedly subversive offense that may ensure his continuing imprisonment and torture, this time for perhaps twelve years.

On the other hand, the distinguished journalist and author Stephen Vines has wisely decided to leave Hong Kong for London rather than risk prosecution, like so many other critics have already suffered, for exposing the Handover that has now become the Takeover.  Just before leaving, he published an excellent book entitled “Defying the Dragon; Hong Kong and the World’s Largest Dictatorship”. One of the distinguished observers who have endorsed this book is Joshua Wong, whom the book’s publisher rightly identifies as “Hong Kong’s most famous democracy advocate”. Joshua, sadly, seems destined to spend the coming years in prison.

Wouldn’t Zhang Zhan, Xu Zhiyong and Joshua Wong do more for human rights if they were free and abroad rather than silenced in prison? Was Liu Xiaobo right in believing that political martyrdom would inspire future generations sufficiently to warrant the loss of his further contributions, if only from exile?

I had this kind of conversation with the famous Chinese human rights lawyer Gao Zhisheng in 2005. He chose martyrdom rather than the less heroic, more practical path that I suggested. Tragically, he has long since been “disappeared” and joined the forgotten.

What are the implications of China's lawsuit against Adrian Zenz?

By Jerome A. Cohen

Adrian Zenz

U.S-based academic Adrian Zenz

Here is a recent article by Eva Dou on a lawsuit against U.S.-based academic Adrian Zenz for his work on exposing human rights abuses in Xinjiang. I assume this is a civil lawsuit for defamation. It is probably an effort to reinforce propaganda throughout the country to convince the Chinese people that foreign stories about Xinjiang are demonstrably false. Defamation can also be a crime in China. Zenz has nothing to worry about as long as he does not set foot in China, unless some effort is made to enforce a PRC judgment in the courts of a country where he resides or has assets, which could be the United States, Germany or elsewhere. In such case, he might well benefit from the pro bono services of local lawyers who oppose this form of PRC oppression. Otherwise, legal defense fees could prove costly even if, as I assume, he defeats the attempt at enforcement of the foreign judgment and the court does not require the plaintiffs to reimburse his fees.

Similarly, Singapore’s Prime Minister Lee Kuan Yew made good use of defamation suits to crush local political opponents by persuading his courts to award huge damage verdicts against the opponents. They would also have to pay court costs and lawyers’ fees, perhaps even for the lawyers who sued them! The defendants had no place to hide.

Perhaps Zenz should contemplate bringing suit outside China against the Chinese companies who seek to harass him in China if they have a presence in relevant jurisdictions. He can probably find lawyers to help him pro bono, and this would not only cause the companies to incur expense but also harm their reputations in markets of importance.

Jiang Tianyong's Continued House Arrest

Jiang Tianyong (image via Frontline Defenders)

Jiang Tianyong (image via Frontline Defenders)

By Jerome A. Cohen

Here is the latest report on the continuing police detention of disbarred lawyer Jiang Tianyong, whose home, like that of many others ostensibly released from prison, has been turned into his prison. This, as the report indicates, is a classic example of the widespread but little-recognized practice that I long ago termed “Non-Release Release” (NRR). Although Jiang still has another year to serve of the three-year “deprivation of political rights” (DPR) to which he was sentenced in addition to his formal two-year prison sentence, there is no way that his continuing NRR can be justified as falling under DPR, and I have seen no serious attempt to legally support that claim. This is simply another instance of arbitrary police action against which there is no appeal. It is, of course, a blatant violation of Jiang’s rights under both international law and China’s domestic laws. 

I am especially aware of the tragic injustice that Xi Jinping’s Communist Party is inflicting in this case. I have known and admired Jiang for over fifteen years since he made his career change from public school teacher to human rights lawyer because he believed that would enable him to do more to promote democracy, freedom and human rights for the country. We cooperated in 2004-05 in the vain effort to protect the famous blind “barefoot lawyer” Chen Guangcheng. Jiang proved to be an able and fearless colleague. He and his family have long suffered as a result of his many similarly courageous efforts.

Much more should be done to expose, condemn and prevent such blatant injustices.

Case of Chinese Lawyer Qin Yongpei Submitted to Seven UN Offices

By Jerome A. Cohen

Lawyer Qin Yongpei

Lawyer Qin Yongpei

Here, to mark the first anniversary of the incommunicado detention of the valiant and imaginative Chinese defense lawyer Qin Yongpei, is the remarkable submission of his plight to no fewer than seven UN human rights offices by the Chinese Human Rights Defenders. CHRD has written a communiqué outlining the timeline of Qin’s arrest and alleging subsequent arbitrary detention and torture.

Qin’s case has followed what by now is a familiar course. First, like many HR lawyers, he was picked up, held, intimidated, warned and released in 2015. When he persisted in carrying out his lawyer’s obligations, in 2018 he was disbarred from law practice and his law firm dissolved. After ingeniously forming an ostensible business consultancy in order to continue their work, he and some disbarred colleagues added to their challenges to the police-prosecutors-judges triumvirate by establishing a “Disbarred China Lawyers Club” that exposed official corruption and abuses of power as well as the environmental depredations of a local mining company. That proved to be the last straw for the targets of his public efforts, and he was then “disappeared” by the targets in 2019. There is as yet, one year later, apparently no further news of him.

What a tangle it must be now for the seven different UN groups, including the Working Group on Arbitrary Detention and several Special Rapporteurs, to decide how best to reconcile their overlapping jurisdictions in order to vigorously pursue their duties. Their inquiries may evoke a PRC response and speed up the processing of this typically sad case. Surely it should not continue unnoticed by the world community.

The Ongoing Detention of Lawyer Li Yuhan

By Jerome A. Cohen

Lawyer Li Yuhan, image taken from Front Line Defenders.

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.

Law, Justice, and Human Rights in China Seminar

By Jerome A. Cohen

On September 16, we held the first session of a New School-sponsored seminar “Law, Justice, and Human Rights in China,” co-taught with Teng Biao, a famous but exiled Chinese law professor, lawyer, law reformer and human rights activist, and moderated by Katherine Wilhelm, executive director of the U.S.-Asia Law Institute at NYU Law School. The seminar introduces the legal system of the PRC with a focus on constitutional law, legal institutions, criminal justice, and human rights. The first session covered pre-Communist legal history in China, and the recording can be heard here. The seminar will take place every Wednesday from 2pm-4pm EST through November 18, 2020. You can register here.

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.

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.

 

How Will the Prosecutions Against Michael Kovrig and Michael Spavor Unfold?

By Jerome A. Cohen 

Michael Spavor (L) and Michael Kovrig

Michael Spavor (L) and Michael Kovrig

After 557 consecutive days of incommunicado interrogation and incarceration, China has finally indicted two Canadians, Michael Kovrig and Michael Spavor, with varieties of espionage. The Globe and Mail has a good article on these terrible cases. The SCMP has also published an article on the charges. Both articles raise more questions than the PRC is prepared to answer, and these questions relate to today’s focus on the content of the forthcoming National Security Law for Hong Kong, especially the hot issue of foreign and external “collusion.”

One basic question is the extent to which the cases of the “two Michaels” are linked. Last year, China’s powerful Central Party Political-Legal Commission claimed that Spavor, the businessman, had provided intelligence to Kovrig, the International Crisis Group researcher. That might well be plausible since Kovrig would obviously want to be in contact with all sorts of people, particularly ones who knew a lot about North Korea and its relations with China. Yet their relationship does not appear to be an important part of either case, so far as we can tell. The two cases do not appear to be legally linked at this point. They are not being prosecuted together, the charges seem to be somewhat distinct so far as news accounts discern, and they are not even being prosecuted in the same city. Intriguingly, Spovar may be charged with sending secrets to the DPRK as well as Canada, which may be why his case is now based near the Korean border.

Yet it is obvious from the circumstances of their common connection to Sino-Canadian relations and the US attempt to extradite from Canada Huawei’s CFO, Ms. Meng, as well as from some PRC diplomatic statements and publicity, that the cases are politically linked to each other and to the extradition case. This is not simply the usual PRC practice of illegal arbitrary detention that violates both Chinese and international law but it is also a more extraordinary example of international “hostage diplomacy.” 

Of course, the two cases are both being legally processed in a similarly unfair fashion. Now that indictments have been handed down, the defendants are likely to finally have Party-approved lawyers appointed for them, not chosen by them. Until now, they reportedly have been denied the right to see any lawyer. Until the coronavirus pandemic, they did have monthly very brief visits from a Canadian consular official, but these have inevitably been of limited assistance since PRC rules ridiculously do not allow any discussion of the case that is the cause of the visit!

I strongly disagree with the statement by Gordon Houlden, a former Canadian diplomat quoted in the Globe and Mail article, to the effect that indictment makes it more difficult, but not impossible, for the Chinese leadership to intervene in the judicial process. In defense of the reputations of both the Party and the courts, I can confirm, from many personal experiences assisting in similar human rights cases in China, that the power of the Party over the courts never diminishes, even in the final stages of death penalty cases, as indeed the current Schellenberg case illustrates. In the infamous Gao Zhan case, for another example, the US State Department and the PRC Foreign Ministry quietly agreed that, immediately after her sentence to 10 years in prison, she would be released, allegedly for medical treatment in the US. Her husband and I waited an anxious 48 hours before the deal was carried out.

Schellenberg’s Chinese lawyer, Zhang Dongshuo, also quoted by the Globe and Mail, offers a more accurate version of how the two Canadian cases will secretly unfold, predicting that it “won’t proceed openly, there will be no observers and the verdict and case information won’t be made public.” Actually the verdict, in the sense of the court’s sentence, will very likely be made public, but the court’s opinion will be withheld, in order to deny observers insight into the judicial process and the facts. The future timelines of the cases and the fates of the two ill-fated hostages are still incredibly uncertain. Evidently, the current PRC leadership has no shame when it comes to human rights and international law.

Memories of Bob Bernstein, June 25, 2019

Jerry Cohen

Certain extraordinary people symbolize important aspects of American life. Some stand out in politics, government or law, others in industry, finance, education, culture or sports. Bob Bernstein was a superstar. He was an emblematic figure in not one but two major fields – publishing and human rights. A person of unusual vision and energy determined to make the most of every available moment, Bob insisted on two for the life of one.

I can only speak about Bob’s great accomplishments in the human rights area, which led to a friendship of almost four decades. Yet even in this aspect Bob was a double-header. Not only was he a founder of the leading global human rights organization — Human Rights Watch, but he was also a founder of the leading human rights organization focused on China — Human Rights in China, often referred to as HRIC.

It was Bob’s perceptive preoccupation with China that brought us together, thanks to introductions by the distinguished Columbia political scientist Andrew Nathan and the indomitable scholar-activist Sharon Hom, who has long served as HRIC’s executive director. Together with the able colleagues they recruited for HRIC, this outstanding threesome, Bob, Andy and Sharon, who in China might be dubbed “the three representatives”, have enlightened the world about one of its major human rights challenges.

Robert L. Bernstein (1986). Credit: Don Hogan Charles/The New York Times

Robert L. Bernstein (1986). Credit: Don Hogan Charles/The New York Times

I loved the New York Times obituary about Bob, including the wonderful photos of him. Yet I felt that it didn’t give his work with HRIC its due. With Bob’s prodding and support, HRIC has not only informed the world about the Communist Party’s latest repression of freedoms of expression and arbitrary detention of Chinese who seek to exercise those freedoms, but has also courageously fought to hold the Chinese Government and the Party accountable for their transgressions before the United Nations and other international organizations.

Moreover, Bob was not simply concerned with human rights at large and in the abstract. He cared deeply about the individuals involved, the victims and their front line defenders and also their families. He would often call many of us to ask for ideas about how to find a job for newly-released Chinese dissidents who managed to reach this country or a college opportunity for their children.

Bob’s fierce determination to give voice to the necessarily voiceless was a regular feature of New York’s many China programs. He made sure that the PRC’s  increasing economic development, diplomatic influence and military prowess would not divert us from also considering the human, social and legal costs of its violations of the political and civil rights of its citizens.

I will never forget the lunch at the Council on Foreign Relations where, after listening to a comforting speech by the then Chinese ambassador to the United States, Bob, who was seated directly in front of the speaker, immediately and prominently shot his hand in the air to ask a question that the audience, knowing Bob, anticipated would shatter the harmony. The presider, however, a well-known member of the financial community, kept ostentatiously ignoring Bob’s hand. Finally, Les Gelb, then the Council’s president, to the evident satisfaction of the audience, eased the tension via a stage whisper to the presider: “You’ve got to recognize him!”, at which point Bob did the expected.

Bob was also a tireless human rights advocate behind the scenes. One day, for example, he insisted that I join him in calling on the then president of the Ford Foundation in a final attempt to persuade him to fund the work of HRIC. As Bob knew, Ford, which has done so much to aid China’s modernization, including the development of its legal system, was a reluctant dragon because the Beijing regime has always branded HRIC a “counterrevolutionary” organization. Ford, which has generously supported our NYU US-Asia Law Institute’s law reform projects in China, was concerned that funding HRIC might prejudice Ford’s many ongoing activities in the People’s Republic. I remember three things about that meeting: Bob’s passionate perseverance despite the odds, the respect with which Ford’s president treated him and the grace Bob demonstrated in receiving our inevitable disappointment.

We recovered soon afterward at one of our periodic breakfasts at the University Club, which Bob hosted and knew I enjoyed and which he effectively used as a vehicle for involving me in yet another human rights controversy with the Central Realm. Every time Bob invited me there I knew I would be risking the rice bowls of my law firm colleagues devoted to China and our NYU research associates and perhaps forfeit my next visa.

I could rattle on with other anecdotes but want to end with a tribute to Helen and Bob and their children, who are carrying on his human rights traditions. Bill has recently served as chairman of HRIC and, like the loyal NYU alumnus he is, was instrumental in establishing our comprehensive and innovative NYU Law School Robert L. Bernstein Institute for Human Rights in which Sharon Hom and our US-Asia Law Institute take part. Tom is  Co-chair of another dynamic and international human rights organization, Human Rights First, is Chair Emeritus of the United States Holocaust Memorial Museum and was instrumental in establishing the groundbreaking Bernstein program on human rights at his alma mater, Yale Law School. Peter, with whom I have had the pleasure of cooperating on some publishing projects, has taken a page from each of his father’s two careers and played an invaluable role in bringing to publication many excellent books relating to China and human rights that might have otherwise been still-born. Helen has presided over this energetic menagerie with apparent, if occasionally bemused, equanimity.

Bob was understandably proud of his sons’ perpetuation of his work and indeed proud of all the young people who have flourished and contributed to it, thanks to the foresight and support of the programs in Bob’s honor at Yale and NYU. I feel especially privileged to benefit even today from the continuing help of several of those NYU law students who went on to enjoy the Bernstein fellowships that enabled them to learn the ropes of human rights advocacy at HRIC.

I only came to know Bob toward the end of his impressive publishing career, at a time when he might well have rested on his laurels but instead went on to further achievements in the human rights field. I always told him that I hope to be like him when I grow up! His accomplishments and friendship during the marvelous second phase of his career make me want to recall a few words from Robert Browning’s “Rabbi Ben Ezra”:

“Grow old along with me, The best is yet to be, The last of life for which the first was made. Our times are in His hand, Who saith ‘A whole I planned.’ ……. Let age approve of youth and death complete the same.”