Growing international protest against China’s "Non-Release Release" of rights lawyer Wang Quanzhang

This may be a rare opportunity to press the PRC to make a humane human rights decision. Will the world seize it?

By Jerome A. Cohen

While striving mightily to overcome the blow that its handling of the Coronavirus has dealt its aspirations for “soft power”, the Chinese party-state is now confronted by a new dilemma — the rising tide of international protests against the continuing confinement of famous human rights lawyer Wang Quanzhang following his formal release from almost five years in prison on Sunday.

The PRC’s now customary modus operandi is to ostensibly release Chinese human rights lawyers after completion of their long terms of wrongfully-imposed criminal punishment, but then immediately deprive them of their freedom forever via the application of comprehensive secret police measures, including total disappearance, that assure their enduring silence. This is what I have long called the “Non-Release Release”, what has until recently been a low visibility, low political cost, extralegal procedure that has done less damage to the PRC’s public image than a formal criminal sentence to life in prison or the death penalty might occasion.

But the current Wang case presents a challenge to this horrendous practice. The PRC’s too clever resort to the excuse of needing to shelter Wang for a post-release 14-day Coronavirus testing period has begun to focus international attention on what his gallant wife Li Wenzu has rightly condemned as its shameful NRR practices. This has given world opinion a rare chance to influence a PRC human rights decision.

What will the PRC do with Wang at the end of 14 days? Announce that he needs yet another 7 days of further surveillance? He had already tested negatively five times for the virus before his departure from prison! And how will it justify the continuing prohibitions on his electronic as well as personal contacts after that period? Will it claim that his sentence to a five-year deprivation of his political rights following prison release requires his total exclusion from all society? Given the gradual mobilization of public opinion, both inside and outside China, against disgraceful persecution of a courageous lawyer and human rights, what will be the calculation of PRC propagandists and leaders?

Wang Quanzhang (left) and his wife Li Wenzu with their son in 2015. Photo: AP

Wang Quanzhang (left) and his wife Li Wenzu with their son in 2015. Photo: AP

Suing China for Internationally Wrongful Acts?

By Jerome A. Cohen

Here is an interesting, imaginative piece by Professor James Kraska, China is legally responsible for COVID-19 Damage and claims could be in the trillions. Prof. Kraska is an able and somewhat nationalistic scholar of international law and politics. He not only articulates a basis for potentially holding the PRC internationally liable for damages related to China’s cover-ups of the virus but also deals with the broader problem of how to mobilize realpolitik measures to oppose and perhaps terminate other PRC violations of international law, a challenge that keeps popping up re Xinjiang, suppression of human rights lawyers and their clients, kidnappings and other more conventional arbitrary detentions, and other misbehavior. Of course, the PRC can play at this game and seek to mobilize world pressures and sanctions against the US for its invasion of Iraq, its abuse of would-be immigrants and other mischief that might be characterized as international law violations.

Kraska quickly dismisses attempts to sue the PRC in the International Court of Justice for the simple reason that the PRC has not accepted and would not accept ICJ jurisdiction in such a case. Nevertheless a very highly-publicized effort to initiate such a case may be useful in promoting public awareness, for example regarding Xinjiang atrocities. The current suit against Myanmar because of its mistreatment of its Muslim minorities is an example. The case is far from over but the opening phase put Myanmar in the dock including its vaunted Nobel Peace Prize winner.

Why Has China Claimed the Detained Bookseller Gui Minhai Restored his Chinese Nationality? An International Law Innovation???

By Jerome A. Cohen

A few colleagues and I have had some discussion on Gui Minhai’s case, in particular why the Chinese government forced Gui to regain Chinese nationality in 2018. In fact, as a colleague pointed out, Gui’s is not the first case of this kind. His fellow bookseller Lee Bo, who was disappeared from Hong Kong and reappeared in Mainland custody in December 2015, also supposedly renounced his British citizenship while in detention.

As China does not allow dual nationality, the Chinese government claims that Gui gave up his Swedish citizenship when regaining Chinese nationality. But this tactic is abusive and also contrary to international law (Read also Tom Kellogg’s excellent article on “News of a Kidnapping: The Gui Minhai Case and China's Approach to International Law“ here). Below is my colleague Yu-Jie Chen’s take, with my own response following.

Regarding Gui's citizenship, Sweden's Ministry of Foreign Affairs has said that “Swedish citizenship can only be renounced after an examination and a decision by the Swedish Migration Agency,” so it seems that from the Swedish point of view, Gui is still a citizen despite China's claim otherwise.

China's tactic of coercing Gui into restoring Chinese nationality is apparently to deflect international criticism and to also bypass its obligations towards Sweden under the Vienna Convention on Consular Relations (consular visits & the arrangement of legal representation etc). I think the Swedish government should argue that China has violated international law and Sweden's sovereign rights in this case. Given Beijing's expansive notions of sovereignty, it'd be interesting to see its response, but I wouldn't hold my breath.  

There's also a bigger issue for the international system — if China could keep doing this, the Vienna Convention on Consular Relations will be undermined. Obviously, what's the use of having China's commitment to facilitating consular protection if there's a cunning way to exclude its application in the first place?

Yu-jie has identified the general implications of the PRC actions against Gui and Sweden for implementation of the Vienna Convention on Consular Relations. Let’s think for a moment. The PRC’s innovative rationale and practice purporting to erase the foreign nationality of a former PRC national, if acquiesced to by the world community, are easily capable of extension to all foreign nationals, whatever their backgrounds. If, for example, I should be permitted to return to China again, the PRC might detain me and then announce that I have applied for PRC nationality while in custody and that my application has been accepted, with the consequence, according to PRC law, that I have surrendered my American nationality!

This novel technique would render meaningless not only the PRC’s obligations — and other countries’ rights — under the Vienna Convention but also the respective obligations and rights under all of the PRC’s many bilateral treaties concerning consular matters! Foreigners who enter China would then have no protection against arbitrary detention and their governments would be deprived of one of their basic sovereign rights. This should hurt the feelings of all foreign people! Caveat traveler!! And this heinous practice could be further extended to apply to anyone whom the PRC kidnaps from outside China, like Gui, and secretly transports to the PRC!

Chinese Government’s Injustice against Hong Kong Book Seller Gui Minhai

By Jerome A. Cohen 

Hong Kong book seller Gui Minhai has just been sentenced to ten years in prison. China’s official press release concerning Gui’s harsh sentence claimed that Gui “applied to restore PRC nationality in 2018.” This alleged application to regain PRC nationality while in grievously coercive PRC incommunicado detention cannot possibly be deemed legitimate in international law. The PRC press release’s implication, of course, is that his PRC nationality has been restored and that this automatically cancelled his Swedish nationality, at least in PRC eyes. But Sweden’s Ministry of Foreign Affairs confirmed that Gui is still a Swedish citizen because “Swedish citizenship can only be renounced after an examination and a decision by the Swedish Migration Agency.

We do not have access to a complete record of PRC police/judicial/diplomatic practice, of course, but I am confident that similar types of abuse have taken place in the case of other foreign nationals who had previously abandoned PRC nationality. However, although my memory may dim, I do not recall the PRC so brazenly and briefly alluding to the issue in a public statement.

Of course, if the PRC would publish the abominable court decisions that purport to justify criminal convictions such as Gui’s, we might learn a bit more. Unfortunately, although the PRC now publishes millions of other court judgments, it still — understandably — often refuses to reveal court decisions in “sensitive” matters where universally respected norms of justice have been violated.

Gui’s continuing mistreatment should be deemed to violate both PRC domestic and international law. The Swedish Government, other nations and the world community should not allow this matter to rest, and it should be of especial interest to the many ethnic Chinese who enjoy non-PRC nationalities, particularly those who formerly were PRC nationals.

China’s continuing attacks on intellectual critics

By Jerome A. Cohen

Today tells the sad tale of two leading democratic figures named XU, each an important figure in China’s legal world and each now confined in different ways in the PRC.

I had hoped that Xu Zhiyong might escape from the PRC via an underground railway, but, having been caught yesterday, he may now be destined for a second long prison term.

Xu Zhangrun, the courageous Tsinghua University law professor, is suffering another form of detention — what is in effect solitary confinement at home, cut off from both his immediate surroundings and the world while nominally not formally detained.

Each recently issued a bold and scathing attack on the repression of the Xi Jinping years. One hopes that amidst the current turmoil their calls for freedoms of expression, democracy and establishment of a constitutional system might have been heard at home as well as abroad before being extinguished by the regime.

Xu Zhiyong in Beijing in 2009. Credit: Greg Baker/Associated Press

Xu Zhiyong in Beijing in 2009. Credit: Greg Baker/Associated Press

Xu Zhangrun (photo: ChinaChange)

Xu Zhangrun (photo: ChinaChange)

Latest PRC detention of a Japanese national

By Jerome A. Cohen

Here is a good analysis of the latest PRC detention of a Japanese national, Why Did China Detain a Japanese History Professor?. The Japanese history professor, Iwatani Nobu, was invited to Beijing by the Chinese Academy of Social Sciences for a conference and was then detained for allegedly possessing “illicit material,” which appears to have been old books and journals that he had purchased at a second-hand bookstore in Beijing. He was eventually released in November 2019.

It reminds me of the case of Song Yongyi, the Dickinson College librarian and Cultural Revolution expert, who was detained early in this century in China for collecting “state secrets” that were actually wall posters from the Cultural Revolution that had been publicly posted in China three decades earlier. I served as pro bono counsel in Song's case. Huge American pressure, especially from the academic community, finally led to his freedom after six months of incommunicado secret police detention but before prosecution.

In the Iwatani case, it would be important to interview him about the details of his detention. He cannot have “pleaded guilty,” as the report says, since he was apparently never brought to court. It is not clear what he allegedly “confessed” to. What were the “Illicit activities” – buying old books in a public book store? What form of detention did he receive? Apparently, he was allowed brief consular visits every month or so but what was he permitted to discuss with the consul? I think an earlier report suggested that he never saw a defense lawyer. Was he indicted? Is he, although released, free to be interviewed or does he feel obligated to adhere to a commitment to post-release silence extracted as part of the release bargain? Has the Japanese Government admonished him to keep silent? Did the GOJ assure the PRC that Iwatani would keep quiet for the first year?  These questions come up in the many similar cases involving foreign nationals’ detention in the PRC. 

 

Eliminating arbitrary detention in China: a Whac-A-Mole game

By Jerome A. Cohen

China has reportedly eliminated the formal administrative detention system for sex workers (see BBC report), which was never successful in “reforming” the offenders. This is, of course, good news for other reasons as well. This sanction was sometimes used for political purposes to ensnare the alleged customers of sex workers, men who allegedly patronized prostitutes but whose real offense was conduct disliked by the regime. As the report indicates, prostitutes are still subject to up to 15 days of detention in a Public Security Bureau detention cell for violation of the Security Administration Punishment  Law, which is also administered by the police. This constitutes a minor offense that in China is technically not a “crime”. Yet detention cell conditions are often extremely unpleasant in comparison with prison conditions for those who are formally convicted of “crimes”.

I wonder whether there is any support for formally eliminating long-term administrative custody for drug offenders, who used to constitute the majority of persons detained under “reeducation through labor.”  To be sure, as Xinjiang’s massive administrative detentions demonstrate, trying to eliminate arbitrary police detention in China is a Whac-A-Mole game—just as you think a form of detention is gone, others keep popping up again under slightly revised names.

Time to come to the point on Hong Kong

By Jerome A. Cohen

If there is going to be further movement toward progress in reaching a viable, if temporary, solution, focus must be on the demand for an independent investigation of police activity and the instructions given to the police by higher authority in the Hong Kong Government and the masters in Beijing. Insistence on all five demands is unrealistic. But this week’s resignation of the entire group of foreign police experts hired last September in an attempt to give credibility to the Hong Kong Government’s “Independent Police Complaints Council” (IPCC) and its anticipated report offers renewed opportunity to press for a truly independent investigation.

Such an investigation must have credibly independent and respected commission leadership and members, a scope broad enough to examine relevant government policies and overall instructions as well as individual incidents of police misbehavior, power to subpoena witnesses and documents, a vigorous, competent staff and an adequate budget. This is not rocket science but the Hong Kong Government police system has steadfastly resisted the initiatives that have been taken over many months to implement the proposal.

The current attempt by the Hong Kong Government to smear the foreign experts they invited by claiming that they fail to “understand Hong Kong laws” is disgraceful. Three months of experience attempting to cooperate with the IPCC convinced the experts that they had been invited merely to serve as decorations to conceal the toothlessness of the so-called “police watchdog”.

National Human Rights Institution in Taiwan - A stimulus for Hong Kong??

By Jerome A. Cohen

While the PRC continues to crush human rights in many respects and in many places, on December 10 the Republic of China (ROC) Government in Taiwan marked International Human Rights Day by finally establishing a National Human Rights Institution. As a leading Taiwan NGO, Covenants Watch, emphasizes, this is merely the first step in a very long march, but a significant one called for by many within and outside Taiwan. Much more must be done to create a truly independent and competent institution.

This latest Taiwan accomplishment is significant for many reasons. One is the similarity between the issues involved and those involved in Hong Kong, where a massive demand for the establishment of a truly independent investigative commission has been steadfastly resisted by the Hong Kong Government. The Taiwan government’s imaginative establishment of various panels of foreign human rights experts to periodically critique its progress in accordance with international human rights standards was, as Covenants Watch recognizes, a significant factor in spurring this new but insufficient progress.

It would be very valuable for scholars and journalists to inquire into the nature of the complex political and legal compromises within the ROC executive and legislative branches and between them that were required to reach the limited but encouraging result. I personally have long opposed important participation by the Control Yuan in the supposedly independent human rights investigation process that is needed. I hope that the anticipated details regarding implementation will provide some assurances about the new organization’s independence.

The Many Forms of Arbitrary Detention in China

By Jerome A. Cohen

Yesterday was International Human Rights Day. As we look back at Beijing’s human rights record this past year, one of the most troubling abuses in China continues to be arbitrary detention (I’ve written about this subject with Yu-Jie Chen, SSRN here).

Rights lawyers are often the target for such abuses. Persisting prominent examples are lawyers WANG Quanzhang and YU Wensheng, who remain in detention. Foreign critics and activists are not spared. YANG Hengjun, for example, a famous Australian-Chinese blogger, has been detained on the charge of espionage since January. Policy experts like Michael Kovrig and business people like Michael Spavor, the two Canadians detained in China after Canada arrested Huawei’s CFO in accordance with the U.S. extradition request, have been in detention for a year. Just to name a few.

The victims often suffer prolonged detention in a non-transparent process. While China’s Criminal Procedure Law provides some legal time limits on holding detained and arrested persons, there are exceptions to these limits that the police and procuracy have the liberty to invoke in practice. For example, the National People’s Congress Standing Committee (NPCSC) can approve unlimited extensions of time for a criminal investigation! What is less clear is whether the NPCSC, when approving extensions, is supposed to issue a public notice to this effect as it does with other actions. Has the NPCSC ever done so?

Another technique for exceeding the prescribed criminal procedure time limits is for the police to restart the clock on the ground that investigation of the suspect has revealed the need to investigate another major crime that the suspect may have committed. My impression is that this has frequently been done in practice but with no systematic reporting of such important decisions to the outside world. Papers are processed within the police bureaucracy, and perhaps the procuracy is informed if it has inquired.

If police officials deign to acknowledge inquiries from a defense lawyer or family member, they might well release this often spurious “new crime” rationale for extending the detention time of a suspect whose case has been delayed for political or other meretricious reasons. But there is no way in practice for such a decision to be effectively challenged. When the case finally comes to trial, the rationale for the delayed detention might often be mentioned in the indictment and would be in the appended police documentation of the case and usually mentioned in the account of procedure rendered in the court’s judgment. Yet these are formalities, not protections.

Of course, it is important to bear in mind that in practice people are often detained in the criminal process in blatant disregard of prescribed limits (Think Gui Minhai, the Swedish national who was kidnapped from Thailand and now disappeared in the arms of Mainland police).

Moreover, with the recent introduction of the “supervision commission” process, suspects can be detained for 6 months before a decision is made about whether to turn the victim over to the formal criminal process or some other sanction.

Finally, there are also other supposedly “non-criminal” detention procedures such as those still existing for drug and prostitution offenders. Others are also detained wholly outside the formal criminal process and even outside the formal police short-term administrative detention process that annually punishes many millions of people for up to 15 days in jail. Of the more than one million Chinese Muslims who have been detained in Xinjiang’s re-education camps, only a minority have been detained under formal criminal procedures.

This is not an exhaustive list. The PRC has mastered many forms of arbitrary detention.

 

Cardinal Zen’s call on the Vatican to speak out

By Jerome A. Cohen

Cardinal Zen, who has done so much over the decades to alert the world to religious persecution in China and the plight of Hong Kong, has once again tried to stimulate a response from the Vatican. His op-ed in the Washington Post, What’s behind the Vatican’s silence on Hong Kong?, is the most recent effort by one of the most dynamic, feisty and far-sighted human rights activists.

This, of course, is not merely a Hong Kong issue. It makes me wonder why the Pope does not speak out about the abominations of the Chinese Communist Party in Xinjiang (or have I missed something among all the increasing condemnations from others who proclaim moral principles?). Instead of secretly, endlessly and abjectly negotiating with the Party in the hopeless cause of obtaining religious freedom in China, the Vatican might grasp the opportunity to begin the long march toward recovering some of the moral authority it has so dramatically lost in recent years.

Hong Kong Human Rights and Democracy Act: Why Should Americans care?

By Jerome A. Cohen

We live by symbols, and enactment of the Hong Kong Human Rights and Democracy Act would be a strong expression of American support for the protesters in Hong Kong. The United States Government is limited in its capacity to influence events in Hong Kong. We cannot go to war to “save” Hong Kong’s democratic protesters, but adoption of this new law would be one of several peaceful steps that the U.S. Government can take to deter the PRC from further oppression in Hong Kong.

Of course, it would be a sad step if the U.S. Government ever had to cancel Hong Kong’s special status, but the newly-authorized capacity to do so would be a powerful incentive for the PRC not to take steps to further shrink Hong Kong’s declining autonomy. Hong Kong’s current special privileged status rests upon the assumption that it enjoys a high degree of autonomy, as solemnly promised by the PRC in the Joint Declaration with the UK and the PRC’s Basic Law for Hong Kong.

If it does not, the basis for the special treatment disappears. I believe the President is likely to sign the bill, which gives him broad discretion in how to apply it. If he refuses, the Congress will override his veto. He would then be under great political pressure to implement its provisions, however cautiously, and Congress itself, of course, will have continuing freedom to react.

PRC Ministry of Foreign Affairs spokesperson should read human rights treaties China has ratified

PRC Ministry of Foreign Affairs spokesperson should read Human rights treaties China has ratified

By Jerome A. Cohen

 I’ve been following the case of Yang Hengjun, an Australian blogger detained in China since January this year. Here’s the latest excellent Guardian piece on Yang’s case.  It vividly brings home the millions of individual, unfair tragedies inflicted by PRC criminal justice. 

Once again, the PRC has issued a preposterous response to the Australian Government’s condemnation of the terrible abuse of one of its nationals. Can the Ministry of Foreign Affairs spokesperson not realize how ridiculous his statement makes his government appear? To say that Australia is interfering with China’s “judicial sovereignty” by protesting the PRC’s violation of the international human rights to which the PRC has freely committed itself in the exercise of its sovereignty is nonsense. Perhaps PRC spokesman Geng should be reading the UN Convention against Torture in addition to the latest words of Xi Jinping. To say that Yang has been treated in accordance with Chinese law is a shocking, frank indictment of the PRC legal system before the world. It is good to have a recently-published retranslation of DARKNESS AT NOON, since the Chinese Communist Party’s daily actions illustrate how it perpetuates the tradition of endless incommunicado detentions and coercive interrogations. What a perfect way to celebrate the PRC’s 70th anniversary!

Communist China’s Painful Human Rights Story

By Jerome A. Cohen

On the eve of the PRC's celebration of the Oct. 1 National Day, I wrote this piece at the invitation of the Council on Foreign Relations, "Communist China’s Painful Human Rights Story." I hope, after the Chinese government celebrates this holiday, it will genuinely seek to improve its soft power by ending the many human rights abuses that have outraged the world.  

China’s detention of a Hong Kong employee of the UK’s Hong Kong Consulate: a preliminary explainer

By Jerome A. Cohen

The news that a Hong Kong employee of the UK’s HK Consulate (Guardian story) has already been detained by the Shenzhen police for 10 days is alarming and makes one wonder why it has taken so long to become public. The answer probably lies in the common reaction to such events in the Chinese context—the hope that quiet negotiations might resolve the problem while publicity might exacerbate it.

The Guardian story seems to be understandably confused by the use of the term “administrative detention” (AD) to characterize this deprivation of freedom and its possible link to “national security”. AD traditionally has referred to detention, now for a maximum of 15 days for each suspected offense, in accordance with China’s Security Administration Punishment Law. That law, the origins of which go back to the Anti-Rightist Campaign of 1957-58, allows the police to detain and punish anyone for a very broad range of possible offenses that are considered too minor to be deemed “crimes”. Police often resort to it as a preliminary processing device that allows them to interrogate and investigate a suspect for up to a couple of weeks before deciding whether to release the person or whether further steps may be necessary, usually prosecuting the suspect for a crime.

If they decide on the latter, they may choose to bring the prosecution under the usual criminal process or under the special provisions for prosecuting certain cases, often suspected of violating “national security”. If they choose the latter, the suspect can be transferred to “residential surveillance at a designated location” (the now notorious RSDL), under which the Criminal Procedure Law permits the police to hold someone incommunicado for up to six months before deciding whether to process the case further as a regular criminal case. In either case this further detention should be called “criminal detention” rather than AD.

Yet the Guardian’s reference to “national security” makes one wonder what is the status of this HK employee of the UK Consulate. Undoubtedly those who are seeking to assist him know the answer to this question, since visitation rights, access to counsel and other issues turn upon the status.

Chinese employees of foreign governments are especially vulnerable to suspicions of serving as foreign espionage agents since in practice the PRC applies a very broad and flexible definition of “espionage”, and it only takes a mere suspicion of such conduct to justify in PRC law a criminal detention of up to 6 months in RSDL before the regular criminal procedures (themselves deficient) come into place.

Let’s hope that this case is genuinely AD at this point, and that the detained person will be released today. AD detention itself is generally very unpleasant, even if often coercive interrogation techniques are not applied, since cells are crowded, conditions “basic” and the many companions not those one might choose.

“The Bravest Lawyer in China” – Gao Zhisheng

By Jerome A. Cohen

Here is reference to a moving and informative tribute to the great but now almost forgotten human rights lawyer Gao Zhisheng, by Professor/lawyer TENG Biao, himself a great human rights activist now living and working for the cause in exile in the U.S. Teng confirms that there has been no news of Gao for two years. Gao has been subjected to unspeakable tortures since first detained in 2006 and, when last heard from, had been transformed from one of China’s leading business lawyers into a pathetic human vegetable.

Gao Zhisheng (source: RFA)

Gao Zhisheng (source: RFA)

As I have written here before, in March 2005, in a Beijing discussion with about a dozen human rights lawyers who were debating how to respond to attempts to restrict their defense efforts in court, Gao boldly favored open opposition to Party violations of the PRC’s Constitution and criminal procedure legislation. He argued forcefully that true law reform would never be effective in China so long as the Party monopolized power. I said that I agreed with him but that, if he continued to voice those views in public, he would soon lose his freedom and be of no use to anyone.

Sadly, we were both right. We should be grateful to Professor Teng for recalling the sacrifice of this great person.

More Thoughts on the Open Letter “China is not an enemy”

By Jerome A. Cohen

The Open Letter “China is not an enemy” (Washington Post link) has generated much debate and disagreement since publication. I have been asked why I signed the letter.

I joined this important effort because I am worried that the current toxic anti-PRC atmosphere and confusion in Washington might lead to a major deterioration in Sino-American relations that could have dangerous political, diplomatic, military and economic consequences. I hoped the letter, endorsed by so many able and prominent observers of the world scene, might alert people in America, China and elsewhere to give the current situation higher priority and greater thought. Of course, if writing the letter alone, I might have handled certain issues somewhat differently, but in a large collective effort one has to focus on its main thrust. I think the impact of the letter and the debate it has provoked demonstrates its value.

The four decades of pre-Trump policies by the U.S. and the “Western” democracies toward China succeeded in many ways. Most Chinese are enormously better off today than in 1972 or 1979, as I can attest from personal experience. China has become part of the world in manifest ways that did not exist forty years ago and there is a huge amount of international cooperation. We need to solve many difficult and serious issues between China and the democracies but should address them one by one while getting our own domestic “Western” houses in better order.

I can cite many examples, good and bad, of how China has been influenced by official American conduct in international affairs. For example, China’s disappointing rejection of the 2016 United Nations Convention on the Law of the Sea (UNCLOS) Philippine arbitration decision concerning many issues of proper interpretation of the Convention undoubtedly was influenced by the egregious failure of the United States even to ratify UNCLOS as well as President Reagan’s scorn for the decision of the International Court of Justice in the Nicaragua case in the mid-‘80s. Also, the cynical U.S. resort to secret CIA actions designed to undermine the new Communist Government in China in the 1950s and 1960s had to have an impact on PRC perceptions about how the international relations game is covertly played.

On the other hand, the major post-World War II roles the U.S. played in establishing the main international organizations and shaping their constructive actions has stimulated increasing PRC efforts to emulate these roles and to rival American influence regarding many crucial areas relating to economics, the environment, international security and even those human rights emphasized by Beijing.

I think the U.S. Government should begin to take a more robust approach towards China’s human rights abuse, especially the Xinjiang atrocities the PRC is now committing. Its Xinjiang record warrants the strongest possible denunciations of the PRC and the application of sanctions, including the Global Magnitsky Act, against those who are directly responsible.

In assessing the current situation, we should recognize that the Xi Jinping government confronts many obstacles at home and will eventually be confronted abroad by a policy that may be summarized as containment, competition and cooperation. Moreover, Xi Jinping will not rule forever.

Another tale of cruelty: how the Chinese government crushed rights lawyer WANG Quanzhang

By Jerome A. Cohen

The case of human rights lawyer WANG Quanzhang (my Washington Post op-ed) is one more tale of PRC cruelty toward a leading lawyer and his family but deserves special further scrutiny from several points of view.

When finally allowed to see him after more than 1,400 days into his detention, his wife Li Wenzu discovered the reason why the regime delayed so long and resorted to so many ridiculous ploys to deny her and any defense lawyers access to him. Like some other well-known professional colleagues, Wang has been reduced to a vegetable through a combination of tortures, physical and mental, as this brief account makes clear.  

Yet there are still unsolved mysteries about the case that render it unusual among the many similar examples of the crushing of the right to defense in violation of China’s Constitution and legislation and the PRC’s international human rights commitments. Why, contrary to standard practice even in “sensitive” cases, has no court judgment confirming and supposedly explaining his long-delayed conviction and sentence been issued to his wife and the public? Is it yet known when his anticipated prison release will occur? Has he, like others, been forcibly subjected to unnecessary and unwanted “medical” treatment that weakened his extraordinary resolve to resist his lengthy incommunicado interrogation?

What will be the terms of his release? Will it be another illustration of what I have often called the “non-release release” (NRR) because the victim is in effect illegally transferred from one mode of loss of personal freedom to another involving less financial and reputational cost to the regime? So many valiant human rights lawyers have been neutered in one way or other after ostensible “release” from their years of futile resistance to unspeakable forms of detention.

I hope many journalists will pursue these inquiries.  

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.”