Why the world should care about Taiwan’s exclusion from the WHO

By Jerome A. Cohen

My colleague Yu-Jie Chen and I have just published a piece in the Council on Foreign Relations’ IN BRIEF on “Why Does the WHO Exclude Taiwan?”. We discuss how Taiwan has done so well in dealing with the pandemic, why the world’s health body continues to exclude Taiwan, what the US government’s position is on Taiwan's WHO participation and why Taiwan’s exclusion is a problem for the world.

This is not a minor issue, nor is it limited to Taiwan. It involves a broader, important conversation about China’s improper influence over the international system and the accountability of international organizations such as WHO. It deserves our greater attention and vigilance as the fight against the pandemic continues.

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

Li Wenzu shaved her head in 2018 in protest at the jailing of her husband Wang Quanzhang AFP

Open letter: Saving Lives in America, China, and Around the World

By Jerome A. Cohen

In light of the ongoing global crisis, I’ve joined an important letter initiated by Kurt Campbell, Steve Hadley, Susan Shirk, and Orville Schell: Saving Lives in America, China, and Around the World.

Like similar statements this letter is inevitably the product of compromises amid time pressures, but I hope it is widely read given its significance and urgency. It should also make interesting material, especially in comparison with yesterday’s statement by 100 Chinese scholars, for what the French call an explication de texte.

The Many Faces of “Non-Release Release” in China

On April 5, Chinese rights lawyer Wang Quanzhang, the last lawyer of the group convicted during China’s 2015 infamous “709” crackdown, will be released from prison since his detention in July 2015. He is unlikely to be a free man, however.

I’ve used “Non-Release Release” (NRR) to describe the phenomenon of individual rights activists and lawyers in China often being released from prison into other, nominally “free” forms of what amounts to detention, such as de facto house arrest or enforced return and restriction to their native village. But NRR can also be used for large numbers of ordinary people, such as Muslims in the Xinjiang region. Many Uyghurs and other minorities there have reportedly been released from “re-education center” prisons, only to be forced to work in factories in various places.

NRR is nothing new in China. It came into use as a system at least as early as the Communist Party’s infamous “anti-rightist campaign” of 1957-58 when the government promulgated regulations that formally authorized the notorious, supposedly non-criminal, punishment of “reeducation through labor” (RETL). In providing for eventual release from RETL’s forced labor camps, the regulations permitted the police to keep on the labor camp premises, after their formal release, those prisoners who had no fixed abode, job or family awaiting them.

I knew, for example, an Indonesian Chinese who had studied law in China in the mid-1950s, served briefly as one of the new Soviet-style lawyers that Beijing had introduced during a brief liberalizing experiment, and was then rounded up for RETL in remote Xinjiang in 1958. He was “released’ in 1961 at the end of his three-year sentence but forcibly kept for another two decades at the same isolated work camp where he had been confined, ostensibly because he had no family in China to which to return. Although he was paid slightly more than when detained under RETL, he was actually forced to provide the regime with cheap labor in a part of China where most people did not want to work. Obviously, this arrangement was also a type of stability maintenance, political control.

The  NRR system has evolved continuously, of course, over the years despite the formal termination of RETL in 2013. By then the police had acquired a lot of experience keeping under continuing control people who had been formally released after completing criminal sentences or even after being detained by the criminal process without ever being convicted or after having been “merely” detained under RETL or similar supposedly “non-criminal” sanctions. One could even say that former Party chief and Premier Zhao Ziyang became a victim of NRR, since, after being toppled just before the massacre of June 4, 1989, he was informally but effectively confined outside of prison — in the Party leadership’s comfortable living quarters — for the last 16 years of his life!

In the past decade NRR has been customized to suit the Party’s needs for effectively suppressing human rights lawyers on a more individualized basis than a formal system might allow, and also for a longer time than formal criminal or administrative sanctions might seem suitable. To the public, NRR looks better than sentencing a lawyer to life in prison, but it can nevertheless amount to a more discreet form of stifling someone forever. For example, whatever became of the great, courageous lawyer Gao Zhisheng? While repeatedly subjected to the formal criminal punishment system, his resistance generated periodic bad publicity for the Party and government. Since his last “release”, however, which forced him back to his native village, he has disappeared. Do people still remember him? Many wrongly assume he has happily been “reformed”.

Think blind “barefoot lawyer” Chen Guangcheng, who, after four years in prison, was “released” to his rural farmhouse with a couple of hundred thugs guarding him around the clock until his miraculous 2012  escape to the American embassy.

What will Wang Quanzhang’s “release” on April 5 amount to? It might have been more appropriate to release him on April Fool’s Day!

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.

Removal of local Chinese assistants from American news bureaus: what does it mean for China?

By Jerome A. Cohen

It is not clear to me how broad the swath is here. What about the Chinese assistants to non-American journalists still working for American newspapers in Beijing? What about the situation in Shanghai? To what extent is there still American reporting based in other places in Mainland China such as Guangdong Province and Tianjin?

As Jane Perlez has noted, this latest measure heavily strikes at the ability of foreign journalists to learn about Chinese developments. It hinders them from gathering news and views that are often favorable to China and the Chinese Government as well as unfavorable, and it denies those Chinese contacted by foreign media of an opportunity to make their lives and opinions known abroad.

There is another cost to the PRC in imposing this sanction. Service Bureau personnel may be reporting to the Party everything they observe while assisting the foreigners. Their absence not only reduces what foreigners can accomplish but also reduces what the Party can learn about the activities of those foreign journalists remaining in China. Non-American journalists who are fluent in Chinese and working for American papers will undoubtedly have to work harder if they too are denied Chinese assistants but they may also be a bit freer in their efforts. When I operated a foreign law office in Beijing many years ago, our Service Bureau assistant was always annoyed by having to spend every Saturday afternoon reporting to the Party on our activities of each week!

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.

"The Real Sick Man of Asia" conundrum

By Jerome A. Cohen

The February 3 Wall Street Journal opinion piece entitled “China Is the Real Sick Man of Asia” and the PRC’s consequent ouster of three WSJ China correspondents, calling the Journal “racist” have surely stimulated one of the more interesting debates encountered lately by those concerned with China. The topic is full of issues and ironies. Did the WSJ op-ed headline editor go too far in invoking an imperialist phrase from the distant past and giving it a catchy new meaning in the contemporary setting? Might the impact have been reduced had the title been recast as a question? Might the title have been less subject to attack if the underlying essay had discussed the coronavirus crisis now emanating from China rather than the fragility of the nation’s economy? How great would be the outcry over the perceived offense if the PRC had not chosen to mobilize its media at home and abroad to focus on this question rather than the immediately preceding United States government action requiring PRC  reporters to register as foreign government functionaries or the rising criticisms of PRC handling of the virus crisis or the world’s growing worries over PRC political, economic and military influences? Is the PRC’s angry reaction an effort to divert national and international attention away from such substantive problems? To what extent was the PRC waiting to pounce on the WSJ, as well as other American media,  for previous prohibited exposures of the financial dealings of the families of PRC leaders? How can the PRC and its supporters credibly invoke “racism” as the underlying motive for the offending headline? Can the WSJ’s support for the people of Hong Kong, Taiwan, Xinjiang and Tibet against PRC oppression be said to reflect “racism”? Are the heinous PRC efforts to “transform” many millions of Xinjiang Muslims “racist”? Are Han Chinese a “race”? Are they as “racist” as white Americans? Would it have been unwise self-censorship for the WSJ to refrain from a clever headline out of deference to a PRC that is increasingly seeking to repress freedoms of expression in other countries? Such questions deserve further discussion.

Coronavirus and Chinese Governance: You Bet the Police are Dangerous!!

By Jerome A. Cohen

Here is Charles Parton’s article in yesterday’s Financial Times on “What the coronavirus crisis tells us about Chinese governance,” in which he lists the dangers that have been revealed by China’s treatment of the crisis (spoil alert: “The police are dangerous,” among others).

We did not, of course, need the virus to tell us the PRC police are dangerous, but it has certainly provided yet another occasion for vividly demonstrating that proposition. The whistleblowers, the late Dr. Li Wenliang and his colleagues, got off easy. They could have been “disappeared” indefinitely like the missing independent journalists covering the crisis. They could have been sentenced to four years in prison like legal scholar/activist Xu Zhiyong, who has just been recaptured after criticizing Xi Jinping’s handling of the crisis and now faces a much stiffer punishment. They could have been spirited away for six months of incommunicado detention by the local “supervisory commission” before even being handed over to the formal criminal process (note that a more senior National Supervisory Commission posse was subsequently sent down to Wuhan to dole out harsh sanctions as needed, with no participation of prosecutors, defense lawyers or judges required). Or Dr. Li and his colleagues could have been “released” by the police but neutered at home under severe restrictions and stigma that would have assured their permanent de facto “non-release” (but that would, ironically, have saved his life). 

This lawlessness is not new. Many of us can recite examples over the decades. I remember years ago the explanation given me by the Shanghai police when, in the courtyard of his apartment building, I asked what authority they had for preventing me from visiting the apartment of disbarred lawyer Zheng Enchong, who had recently been “released” from prison after a three-year term for sending a message to a foreign human rights organization. The several public security officers simply kept repeating “we are police” (women shi jingcha), plainly implying that this was all the authority needed to justify their interference with legitimate human contact!  

Important Cases in Taiwan’s Transitional Justice

By Jerome A. Cohen

Taiwan’s Transitional Justice Commission’s newly-released report discusses the most infamous murder case committed during the long Kuomintang White Terror era – the 1980 killing of the mother and twin daughters of the courageous human rights activist Lin Yi-hsiung while Lin, Annette Lu and six others were being prosecuted for their December 10, 1979 Human Rights Day protest rally in Kaohsiung. The TJC notes that the destruction of evidence by the National Security Bureau of the Ministry of National Defense makes it difficult to reach firm conclusions about who was responsible for the murders (full report here).

Here it is important to recall the 1984 assassination of Henry Liu (劉宜良), whose pen name was Jiang Nan (江南), in San Francisco by Bamboo Union Gang leaders. That led to prosecution of the actual killers in Taiwan’s civilian courts and court martial of the military officials from the Ministry of National Defense who directed the assassination. I was among the auditors at the court martial and heard the defense of Admiral Wang, the head of the National Security Bureau and principal accused. He shocked the audience by his defense when he said, in effect: “You know, your honors, we didn’t do this thing. If we had, you would not have known about it. Ten or twenty years ago we used to do this kind of thing all the time and no one discovered it.”

The defense failed and Wang was convicted and sentenced to life in prison, but, being a longtime favorite of the Chiang Kaishek family, he was well-treated and later released. (My memoir video about the case is available here.)

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 Zhangrun (photo: ChinaChange)

Freedom from Arbitrary Detention in Asia: Lessons from China, Taiwan and Hong Kong

By Jerome A. Cohen

In 2018 I co-authored an article with my colleague Yu-Jie Chen on "Freedom from Arbitrary Detention in Asia: Lessons from China, Taiwan and Hong Kong" (in Oxford Handbook of Constitutional Law in Asia, David Law, Holning Lau and Alex Schwartz eds., forthcoming). In light of the Hong Kong protests since last June, we have accordingly updated the article and added discussion of police arrests and detention in Hong Kong. The revised article can be downloaded here.

It's good to write about a subject highly relevant to what's going on, but it can also be nightmarish to try to stay up-to-date in a multi-year book project! We hope the Handbook can be published as soon as possible. 

Implications of the Coronavirus crisis for China's legal system

By Jerome A. Cohen

Thus far the focus is appropriately on the health challenges and the extent to which they have been exacerbated by the repression of free speech, publication, assembly and demonstration. Less attention has been given to the relevance of the legal system that is called upon to enforce health regulations and associated government orders. Indeed thus far we only get occasional glimpses of the role of law and legal institutions in the unfolding drama.

The summoning, humiliation and intimidation of Dr. Li Wenliang and presumably seven colleagues by the Wuhan Public Security’s neighborhood police station turned attention to the frequent but usually low visibility means by which police enforce the minor offenses law, the Security Administration Punishment Law (SAPL, zhian guanli chufa-fa). It authorizes the police alone to suppress a broad range of vaguely defined offenses that are not deemed to be “crimes” and therefore not subject to the formal protections of the Criminal Procedure Law that involve the procuracy (prosecutors) and the courts. The SAPL, which accounts for many more punishments each year than the criminal process, is a major vehicle for low level, low visibility police oppression. Its maximum penalty, 15 days of detention (juliu) for each offense, is usually very unpleasant since shared with many others in uncomfortable and unsanitary conditions.

Nevertheless, as Dr. Li’s case demonstrates, actual formal detention is often unnecessary since an informal “chat”, a stern warning and insistence upon the summoned suspect’s signing a statement of apology and vow to reform is the condition for release. As Dr. Li told the NY Times: ”I felt I was wronged, but I had to accept it.”

It is interesting that Xi Jinping himself, in responding to his felt need finally to respond to Dr. Li’s death, not only did not dispatch another top notch medical team to investigate but also did not send down the type of joint law enforcement team composed of police, prosecutors and judges that the central Party apparatus has traditionally relied on to investigate local abuses. Instead, Xi invoked the resources of the new and all-powerful Supervisory Commission established in 2018, an agency unlike any other in contemporary Communist systems that is not subject to the legal constraints of the traditional criminal justice agencies. Although the media continue to describe it as an “anti-corruption” committee, its jurisdiction ranges far and wide to embrace any violations of what may be deemed to constitute “Party discipline”, whether or not those investigated may, like Dr.Li, be Party members. 

Hemp and Chinese-foreign joint venture negotiations: “too complicated”!

By Jerome A. Cohen

Here is an interesting report on the progress in the U.S.-China trade deal, China Must Import More Hemp From U.S. Under New Trade Deal. How times have changed re Chinese and American official attitudes toward hemp and its potential. About 25 years ago a Dutch company owned by Americans who found Holland a more congenial environment for hemp production than America asked me to help them establish a joint venture in China for the production of hemp. They had found an eager partner in Dongping county, Shandong Province. Having never at that time been to the interior (neidi) of Shandong, I was delighted to accompany this group for negotiations with the local government, which was eager to conclude the county’s first Chinese-foreign joint venture. Unfortunately, the PRC central authorities, fearing this might be the first step toward expanded cannabis production, refused to approve the venture. But it was a memorable trip. One feature was the delicious restaurant lunch offered the group by the local Party secretary, an enterprising woman who even invited several attractive local young women to lead us to an adjacent dance floor that had a small band. Fortunately, my wife was there to keep me in line. Another feature was the group’s Danbury, Conn. general counsel, who begged me to teach him just one Chinese phrase that he could use to respond to people he would meet. Somehow we agreed on the phrase “too complicated” (tai fuza), which made him the life of the party. A new Chinese friend, for example, would be puzzled when, starting the conversation with “Nice weather today”, the counsel would reply “too complicated”!

Happy Chinese New Year to all. The Year of the Rat has got to be better!

The intensifying struggle within Hong Kong's legal system

By Jerome A. Cohen

The annual opening ceremony for the year’s litigation in Hong Kong was held Monday, January 13. It revealed important tensions involving some basic issues relating to criminal justice for protesters. Chief Justice Geoffrey Ma felt obliged to defend the courts against charges of being too slow in handling the unusually large number of cases being brought against protesters, and he lectured the public to understand that it cannot judge the quality of justice on the basis of the results reached by the courts for or against people they favor. He emphasized the importance of defending judicial independence and conducting fair trials, even if they did not always appear to be speedy. I wish he had been more critical of the slowness of decisions to grant bail.

Most interesting are issues identified by Hong Kong barristers (trial lawyers). In one case, on behalf of a 22-year-old photographer, it is being argued that magistrates courts have been granting the authorities search warrants that are broader in scope than the local constitution permits.

Even more challenging is the issue raised by Philip Dykes, chairman of the Hong Kong Bar Association, who argued in his speech at today’s ceremony that the Secretary for Justice, in deciding whether to bring a prosecution, must take into account not only whether the government evidence of commission of a crime is technically sufficient to justify conviction but also whether prosecution and conviction would meet “the public interest”.

This raises the question, necessarily confronted by every legal system, of the scope of the prosecutor’s discretion and the factors that the system permits to be taken into account in the exercise of prosecutorial discretion. Without taking into account these factors, Dykes maintains there can be no “rule of law”. Others, obviously favoring more prosecutions of violent protesters rather than fewer, are resisting by claiming that the “rule of law” requires a more mechanical application of the standards for prosecution.

The speeches made yesterday and the government, lawyers, media and other responses they are evoking deserve careful analysis. Some legal observers believe that, while Hong Kong’s judges continue to be independent, some judges themselves, for whatever reasons, may take too mechanical a view in their decisions, failing to take account of “the public interest”. Even more observers believe that the Secretary for Justice, a faithful instrument of the Hong Kong Government, certainly applies the legal standards for prosecution too mechanically, at least excluding from her consideration those factors that could lead to a decision not to prosecute accused protesters.

The great question is what are the political, economic, social, cultural and other factors, if any, that should be taken into account in the prosecutor’s decision whether or not to take a case to court if there is sufficient evidence for conviction. “The rule of law” is not self-defining.

Foreign universities and academic freedom in China

By Jerome A. Cohen

This piece by John Fitzgerald, Chinese Scholars Are Calling For Freedom And Autonomy – How Should Western Universities Respond?, is an important and timely appeal to Western universities to take the concrete, useful steps that he suggests.

It is especially urgent for those foreign universities that have major projects in China to commission honest, independent assessments of the current inroads made by Xi Jinping’s ever tightening measures and the implications of these repressive measures for the lives of the Chinese and foreign students, professors and scholars involved.

There have apparently been many disturbing developments that have been too often concealed, minimized or glossed over by relevant foreign academic administrators in the hope of carrying on their missions in parlous times. The foreign universities invested in China—New York University included—should now collaborate in openly sharing their experiences and challenges, join in collectively protesting to PRC authorities as appropriate, and expose the realities of contemporary education in China for world consideration.

This is the only way they can push back against the political corruption of their academic goals and give effective voice to the plight of their silenced Chinese colleagues.

Chinese justice and Japan's Carlos Ghosn case

To those familiar with criminal justice in the PRC, the Ghosn case has always been of great interest. The long detention periods allowed the police and prosecution in democratic Japan as well as totalitarian China, of course, ring a bell. So do the restrictions on access to the detained suspect, although Japan does allow a role for defense counsel if the suspect can afford one. But lawyers are not allowed to be present when the suspect is interrogated, and interrogations go on endlessly in the hope of extracting confessions.

From the outset of the Ghosn case, I was also struck by the apparent coordination between the police/prosecution and major local business interests. This is a frequent phenomenon in China. As Hong Kong, Taiwan and ethnic Chinese business people from other jurisdictions have experienced, involvement in a commercial dispute in China with Chinese partners or rivals can result in detention by local Chinese police. Local Public Security Bureau officials sometimes travel to far flung places within the country to detain non-Mainlander businessmen who, fearful of returning to the locus of their business in China for negotiation of a dispute, have erroneously believed that negotiations could be conducted safely on “neutral” turf elsewhere in the country. Once detained, the “suspect” is told that any criminal charges can be made to disappear if he is only reasonable in settling the matter. Many police fail to realize that, even in a Chinese court, promises extracted under coercion should not be legally enforceable. Or at least they and the politically well-connected local business interests that have mobilized the aid of the police realize that these cases rarely reach the courts for one reason or other or that, if they do, the same political influence that mobilized the police can also guarantee judicial cooperation. 

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. 

Open letter to Carrie Lam: an international, independent inquiry mechanism for Hong Kong

By Jerome A. Cohen

Here is an open letter addressed to Carrie Lam from parliamentarians and officials from 18 countries. It is a powerful letter and a powerful idea whose time may be here. In particular, the letter calls for an independent inquiry into police brutality, and if the Hong Kong Government continues to reject any effort in this respect, the letter calls on the international community to establish an international, independent inquiry mechanism instead.

The Hong Kong Government, the PRC and the Hong Kong community seem unable to break the increasingly dangerous and damaging stalemate. Organization of an independent international inquiry in cooperation with courageous and informed members of the Hong Kong community may help to stimulate some creative response from the beleaguered Hong Kong Government. Of course, there are great practical difficulties in carrying out such an effort, but the effort itself may prove productive.

I only know or know about some of the signers but would be glad to see Helena Kennedy, for example, take the lead. She is a dynamic, articulate human rights lawyer and Oxford educator as well as a member of the House of Lords well-equipped to take on this extraordinary but compelling challenge.