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on recent developments in the rule of law in Asia and China
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By Jerome A. Cohen
I've just published an op-ed in South China Morning Post, in which I argue that Hong Kong urgently needs an independent investigation commission to prevent an even more catastrophic crisis. Community leaders in Hong Kong should take the initiative to set up such an institution and to persuade the Hong Kong government to empower it with necessary powers for effective investigation. They must do so before it's too late. Time is running out.
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.
By Jerome A. Cohen
As widely expected, Hong Kong Chief Executive Carrie Lam’s very late withdrawal of the notorious extradition bill has had no pacifying effect. Perhaps it has even exacerbated the situation by demonstrating how reluctant the Hong Kong government and the Central Government are to make any reasonable concession to local public opinion. They are still relying on the attrition strategy that eventually ended the 2014 Umbrella Movement. They hope that even the most dedicated protesters will eventually wilt from exhaustion and despair.
Events in Hong Kong may someday add to the internal pressures for improving the Mainland system of criminal justice in practice as well as law but any significant changes will have to await a radical shift in the policies of the Chinese Communist Party, and that shift seems far from today’s horizon.
The currently contemplated Hong Kong Human Rights and Democracy Act in the United States is immediately of symbolic importance but will also add to American leverage over Beijing in practical terms because of its threat to eliminate Hong Kong’s special status under American law. The so called “nuclear option” it authorizes would significantly add to Hong Kong’s protection against the PRC’s use of military force to govern Hong Kong, but, as the “nuclear” name suggests, actual resort to this deterrent would substantially harm Hong Kong economically in order to “save” it politically.
It reminds me of the annual Congressional Most Favored Nation (MFN) review of China’s human rights actions that took place in the 1990s before Congress agreed to approve PRC entry into the WTO. Many in America regret the U.S. surrender of that option to withdraw the MFN access to the U.S. market of a China whose exports required it. The annual threat to deny the PRC this MFN treatment was one of the few tools the U.S. Government had to effectively express its support for human rights in China. While not as profound in its impact on China as the withdrawal of MFN might have been, the proposed Hong Kong Human Rights and Democracy Act would nevertheless threaten to inflict serious damage on the PRC’s national economy as well as on Hong Kong by ending Hong Kong’s special customs status.
Hong Kong is surely not a matter of China’s exclusive domestic concern, as the PRC claims, but obviously a matter of great and legitimate international importance for many reasons. Not the least is the applicability of the International Covenant on Civil and Political Rights (ICCPR) to Hong Kong and the PRC’s obligations under various human rights treaties it has ratified, including the Convention against Torture and the International Covenant on Economic Social and Cultural Rights.
Hong Kong’s protesters are today’s greatest challenge to PRC efforts to persuade the world of its “soft power.” The outrageous suppressions of freedom, human rights and the rule of law throughout the Mainland and even the increasingly well-known repression in China’s Xinjiang as well as Tibet have not had as big an impact on world opinion as present events in Hong Kong. It is time for the PRC to recognize this, and it is time for President Trump to consistently communicate this to Beijing in public as well as in private.
By Jerome A. Cohen
I did a podcast today on the latest situation in Hong Kong. Click here to listen on the website of the Council on Foreign Relations.
By Jerome A. Cohen
Here’s a good story from today’s Washington Post on the arrest of Joshua Wong and other Hong Kong young democracy activists. I note that Joshua and Agnes were very promptly released on bail, in contrast to some arrests where Hong Kong police and courts have seemed very slow in granting bail. That was probably in order not to add to the provocation that the arrests would cause, increasing the likelihood that people will spill into the streets on Saturday.
Ironically, the timing of the arrests was evidently inspired by the desire to diminish the possibility of a major demonstration in defiance of the disapproval to hold it. The events that led to the arrest reportedly occurred on June 21. Why on August 30 did the arrests suddenly occur as everyone was preparing to hold the new demonstrations despite the refusal of approval? Not because Joshua et al were leading this Saturday’s preparations but because the authorities wanted to make clear to prospective violators what lies ahead for them if they take part despite non-approval. This is classic deterrence strategy.
Was the denial of approval of tomorrow’s events reasonable? For the assembly as well as the march? Are there leaders who intend to violate the prohibition? The Washington Post story notes that a prominent organizer disclaims any intent to go forward contrary to the denial of permission. Will thousands of ordinary people, without apparent leaders, nevertheless move forward to hold a rally and inevitably leave together in the streets after its conclusion?
The police have already arrested 800 over the past three months. Will they arrest several hundred thousand tomorrow for flagrantly violating a prohibition that huge numbers of people deem unreasonable? The legitimacy of the government refusal depends on its reasonableness in light of community values and customs.
And what about October 1? If two million citizens violate the denial to protest, can they all be arrested, detained and punished? This is where the system breaks down and where things are heading, and that is why Joshua et al were arrested today, seemingly irrelevantly on the brink of tomorrow’s events, for events that occurred June 21.
Finally, Beijing is of course calling the shots about the action of the Hong Kong police, although I hesitate to use that metaphor.
By Jerome A. Cohen
Cheng returned home from Shenzhen to Hong Kong Saturday afternoon, apparently by car. The only reports I have since seen noted an understandable request from his family for a period of repose before being subjected to media interviews or other enlightenment of the public about the mysteries surrounding his detention and punishment for allegedly consorting with a prostitute. Has anyone had any subsequent news about the case? Has Cheng emerged? Returned to work at the UK Consulate? Told friends about his ordeal?
Has the media made attempts to interview him or otherwise obtain an explanation of one of the more unusual recent cases of PRC justice? How long can journalists and the public, at home and abroad, be expected to wait? HK must be a far more polite and thoughtful media environment than other cities of comparable size. Will the UK Consulate General issue an explanation? The Hong Kong Government? Cheng’s lawyers? Family or girlfriend?
Is there some widely-shared community expectation that we should forget about this important and curious incident that might tell us a great deal about PRC justice? Should we all act like it never happened? Can anyone recall similar situations? Do people only care about the extent of violent protests in Hong Kong and the US-China economic war?
I understand the UK Government’s concerns, which is why I did not expect a statement from it, but that is only a part of the overall picture. What inference should the public draw from the eerie silence?
Do Hong Kong people just believe whatever they normally do about such incidents, with PRC sympathizers putting their faith in the China Daily and democrats passing the case off as another instance of phony Communist charges?
And what should the rest of us infer from the strange circumstances? Should we assume that Cheng’s silence means he was indeed guilty of colossal misjudgment - from several perspectives? Should we assume that he is innocent but willing to accept scandalous defamation and to fall on his sword to avoid further damage to Sino-British relations and HK’s incendiary plight?
And what should we infer from the apparent passivity or lack of interest of the media? Are the London tabloids content with once again raking the Duke of York over the coals? Summer doldrums? Compassion fatigue? Overwork?
Is my impatience unique?
By Jerome A. Cohen
This story in Global Times that the UK Consulate General employee Simon Cheng was detained for dallying with a prostitute was astounding. What a sensational mystery!
Cheng reportedly has been released today and returned to Hong Kong, after 15 days since his August 8 detention. I hope he will have the opportunity to make public his version of events. So many questions to answer.
If, as reported by his girlfriend, he was on a one-day visit to Shenzhen for a trade meeting on behalf of the UK Consulate General and if he was anxious about his prospects for being permitted to return to HK that night, when did the alleged contact with a prostitute occur? Was it a lunchtime quickie? A taxi rendezvous? A post-prandial digestif? A Soviet-style ”honey trap”? Could Cheng actually be guilty of such a colossal misjudgment?
Why did it take the Shenzhen police 13 days to come out with this story of what they now claim is the most ordinary type of tawdry violation?
Why did Cheng receive a sentence of 15 days rather than 5 or 10? Was he also fined?
What roles did his lawyer, UK consular authorities and the Hong Kong Government play? Was there an attempt to obtain court review?
Did the Shenzhen police and Ministry of Foreign Affairs comply with relevant law and agreements about timely notice of detention to the Hong Kong Government and to family? Will the police give the usual excuse that to have done so would have interfered with the investigation of the case?
Wasn’t there a case some years ago where the Shenzhen area authorities locked up a rising young HK politician for six months on a prostitution charge so that he couldn’t take part in a scheduled election? That case at least seemed less implausible than this one.
If the PRC is caught staging a phony charge in this one, it would be the scandal and laughing stock of the world, a risk that it would be unlikely to take after almost two weeks of consideration. What a case!! I wish I could join Cheng’s questioners today!
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.
By Jerome A. Cohen
Given the way things have now turned in Hong Kong, there will be no need for PRC intervention via the People’s Liberation Army and People’s Armed Police so long as momentum will develop toward an apparent improvement in the situation.
If the Hong Kong Government comes forth with a plausible platform for independently reviewing allegations of police misconduct, that will be a start. It could be accompanied by or followed by withdrawal of the extradition proposal and the retirement of Carrie Lam. If the courts begin to exercise more leniency in evaluating and sentencing cases brought before them, soon reversing the conviction or reducing the sentences of Benny Tai and others, for example, and if the Secretary for Justice becomes less zealous in pursuing new cases, that will help.
Further peaceful and massive demonstrations will be desirable to keep the pressure on. But still necessary, besides the newly-formed Neutral Legal Observers Group, will be establishment of an independent Citizens Reconciliation Group or similar institution to move the process forward to achieve the positive reforms required.
Of course, we cannot naively expect the Hong Kong Government not to investigate, identify and perhaps informally seek to intimidate and even punish people it labels organizers. That would be a setback, if not a disaster. And Beijing’s barrage of fake news is surely likely to continue.
By Jerome A. Cohen
I discussed Hong Kong’s protests in a conference call on Aug. 14 for the Council on Foreign Relations with Robert McMahon presiding. Here is the transcript.
You can also listen to the audio here. The transcript is not edited to make it seem more like an essay or written Q&A but reflects the actual diverse and lively dialogue.
MCMAHON: Well, hello, everyone, and welcome to this Council on Foreign Relations on-the-record conference call about the protests in Hong Kong. I’m Robert McMahon, managing editor of CFR.org, and I’ll be moderating this call with Jerome Cohen. Jerry is a CFR adjunct senior fellow, as well as director of the U.S.-Asia Law Institute at New York University’s School of Law. And Jerry is especially well-versed on the situation playing out in Hong Kong.
I’m going to kick off the discussion with him for about ten minutes before opening the call to your questions. I know there’s a lot of people on the call, and I want to get to as many questions as possible. Overall the call is set for about forty-five minutes. And we do expect a transcript to be up by tomorrow of the call.
So, Jerry, for starters, we appear to be in a momentary calm at the latest scene of the protests—Hong Kong International Airport. But there is a broader tension here playing out, for months now, and no one expects it to dissipate. Can you briefly touch on what is driving these protests and the response from the mainland?
COHEN: Well, the causes of the protest are many, and some long lasting and profound—like social inequality, the cost of living in Hong Kong, the difficulties of education. But we have immediate causes. Every time there is a new, more intense clash between police and some protesters this adds to the incentives. And what we’ve seen is a protest that started in June against the ill-fated extradition proposal that the Hong Kong government tried to speed through the LegCo has expanded into multiple—
MCMAHON: The LegCo is the Legislative Council that administers Hong Kong.
COHEN: Yes. And the Hong Kong government, instead of following the customary procedures, tried to fog one by the populace and the democratic members of the legislature by speeding up consideration of this bill using a phony excuse, saying they really needed it in order to extradite an alleged murderer from Hong Kong to Taiwan. Now, that was absolutely phony. Everybody knew—who paid attention to it—this was a long overdue effort to extradite people from Hong Kong to China.
The remarkable thing is, for twenty-two years there has been no agreement between Hong Kong and the mainland for extraditing people either way—just for the same reason that no commonwealth country has ever ratified an agreement to extradite anybody to China. Everybody knows about the Chinese legal system. And they’re all afraid to test their popularity with their own people by agreeing to extradite them back to a China where they face torture, coerced confession, no counsel, unfair trial. And even within China, its own SAR, Special Administrative Region, has been unable, because Hong Kong has emphasized the rule of law, to conclude an agreement with the mainland. And this was an attempt to do it.
The initial protest focused on that. But once, like many protests, you’ve got lots of people in the street and the police try to restrain them, that leads inevitably to violence. And so that becomes a second cause. And once that arouses popular ire because of police abuses then people start calling for the resignation of the chief executive and they want an independent investigation. And they don’t mean a police investigation of itself; they mean an investigation that people can feel is legitimate and free of government interference. So these demands start escalating, and of course, they’ve gone beyond that now.
This has revived all the resentments of previous protests—including the protest about can you have a free, universal suffrage, like election of the chief executive? Can you have free election of all members of the Legislative Council? These have been denied to the people of Hong Kong. And now in recent months, you even have some people who are obstreperous enough to say: Why aren’t we independent of China? Why do we need these people? And that, of course, goes beyond the pale. So these protesters now have all kinds of reasons. It’s not like it’s what the Chinese Communists like to call the United Front. These have no obvious leaders.
They believe in different things. They have different priorities. Some of them believe, like Chairman Mao said, if you’re going to have a revolution, it’s not a dinner party. Violence is inevitable. Some of them don’t believe in violence at all. Most of them, I think, would love to have a Gandhi-like, orderly, peaceful protest, nonviolent. That would have been more impressive, had they been able to carry that out—as they started to—in the airport. But things, like in all protest situations, tend to get out of hand. And what we don’t know is how will this come to an end?
And I’ve got my own ideas, that I think have gotten too little play in Hong Kong and in the media, et cetera. But otherwise, I see, lest you have popular leaders come forward—not government officials, but highly respected people in Hong Kong from the business community, the political community, the human rights community, the educational community—if they can’t forge themselves a group, a commission, a committee to independently investigate, start negotiations, make recommendations—if they don’t take their future in their own hands, they can’t leave it to Carrie. Carrie Lam said yesterday, incredibly, she’s not responsible for the police operations. She only knows how to cry and warn about falling into the abyss if this goes on. That’s not leadership. That’s irresponsible.
MCMAHON: So, Jerry, the—so, Jerry, we’ve got a situation then with this, as I said, momentary calm. Then the situation at the airport, as you alluded to, went beyond sort of civil disobedience to something that turned more violent. There doesn’t seem to be any sort of centralized or organized opposition figures leading this opposition—leading these protests—and the local government seems to be completely unresponsive. So the mainland is dangling, it appears to be, some sort of a military response, as a warning. Do you see that continuing the play out, or how should we regard what we’re seeing from Shenzhen, and what President Trump was talking about on his Twitter feed the other day?
COHEN: Xi Jinping is a tough guy. He’s a high-stakes gambler. He doesn’t believe in the wisdom of his father, whom he’s always praising. The father’s ultimate lesson, after sixteen years of exile caused by Chairman Mao, came back. The father said, the Party must allow differences of opinion at the mass level and at the leadership level. And it will never succeed if it doesn’t allow differences of opinion. And that’s the one thing Xi Jinping can’t tolerate. And he knows the dangers, of course, of repeating a June 4, 1989, Tiananmen-type massacre. He doesn’t want to do that. It would be a disaster for him personally, perhaps, and his leadership, his people, and certainly for Hong Kong and international security. But if push comes to shove, he’ll use force. But that’s not—he doesn’t want to do it.
And he certainly doesn’t want to mar the seventieth anniversary celebration of the PRC’s founding on October 1. And of course, beyond that we see the hundredth anniversary coming along next summer of the establishment of—well, it’ll be the hundredth-year next summer, 2020, of the party’s birth. As these anniversaries pile up, and he wants increasing prestige and show the world he’s achieving the Chinese dream, using force would show the Chinese dream is a nightmare. But he wants to do it. He’ll do it if he has to. But in the intermediate, there are lots of different possibilities—intermediate possibilities even for increasing PRC influence in Hong Kong through a variety of less-dramatic methods.
MCMAHON: So is there—sorry, to interrupt, Jerry. So is there a scenario in which this gets dialed back, but China still ends up exerting more control?
COHEN: How are they going to dial back if they have a government in Hong Kong, that they control increasingly, that’s unresponsive? That isn’t dialing back. That really is an attrition strategy. They are trying to do what they successfully did in 2014 with the Umbrella Movement. You wait it out. You minimize the disruption to public functions. You try to wear down the opposition. You mobilize public support by giving an adverse portrait of the reasons for the protest. And that worked before. And that’s the only formula they have now.
But the thing is, you have, five years later, a new echelon, a new group of mostly young people—some highly educated, some not—and they’re different from the Benny Tai academics who started the Umbrella Movement, or from the Joshua Wong younger people who succeeded them—some of whom—(inaudible)—have gone to jail—(inaudible). These guys are different, at least a relatively small corps. Are they one hundred thousand rather than a million or two million? They probably aren’t even one hundred thousand. The problem is how to deal with them. Somebody’s got to reason with them. Somebody’s got to use symbols that will cause them to lose face by excessive violence that they’re increasingly engaging in, and by giving them some opportunities, some incentive to stop these protests—take part in the political process that Hong Kong has been frustrating under PRC influence.
MCMAHON: And you mentioned in your previous comments about the role, potentially, of community leaders in stepping in. Could you talk briefly about who that might be? And then we’ll open up the call to our—to those on the call.
COHEN: I’m not sure I understood what you just said, Bob.
MCMAHON: Sorry. If you could talk about the community leaders in Hong Kong that might play a role in helping to, you know, negotiate or navigate through it?
COHEN: Yes, well, you know, since you published the interview with me yesterday, we’ve had a very interesting development. Yesterday I finished the interview by saying the legal profession in Hong Kong, the law society, the barristers and the bar association, they could be an example of some of the prominent people in the community—not officials—who could put together the kind of community effort that would defuse the situation. And lo and behold, today we get news of the establishment of a neutral lawyers observation group. This has been a product of an eloquent appeal that was just voiced, but this doesn’t go far enough. It is an example of the beginnings of a community response. But these lawyers aren’t saying they’re going to knock heads together and put together an imaginative political effort to work out some kind of compromise, et cetera. They’re saying: We’ll monitor, neutrally, all the abuses that are now being committed on both sides.
Well, that’s good. But lawyers aren’t dentists. I admire dentists. They have high technical skill and they operate literally in our faces. But we don’t look to dentists to do more than be technicians. And it’s not enough here for these lawyers to be rule of law technicians, because we see the rule of law as a technical matter, and Hong Kong sees too many political leaders who are fine people going to jail. What we need lawyers to do now—and they can be gadflies to the business leaders, and the educational leaders, and others in the community that put together an imaginative coalition—that could start to resolve these tensions. That’s what I’d like to see. Occasionally you’ve heard a few people make hints or suggestions, but nobody’s got the guts to come forward.
As I said yesterday, the unofficial leaders of Hong Kong are like deer in the headlights. And some of them have said—since communicated with me to say—they agree. But I don’t hear them say now they’re willing to take the lead. They’d lose their positions in the Chinese political consultative conference, or other preferred advantages in dealing with the Hong Kong government. It’s too risky. And yet, what is the risk of doing nothing? We see doing nothing—you’re getting an argument now on various listservs among China specialists—is this going to lead to a train crash? Or is it really the Hong Kong people are lying on the railroad track and the train is going to crush them? They’re beginning a debate what metaphor is appropriate to illustrate what lies ahead if people don’t take some enlightened action.
MCMAHON: All right. Well, you’ve set the table for this discussion, Jerry. Thanks very much. And I want to open up the call now to those on the line. A reminder, this is an on-the-record CFR conference call on the Hong Kong protests with CFR’s Jerry Cohen. Operator, could you please open up the call?
OPERATOR: Yes. Thank you…We’ll pause for just a moment to allow parties to signal for questions.
MCMAHON: And while those are queuing up, I wanted to ask Jerry—if you could quickly rundown Jeremy—Jerry—excuse me—why the importance of Hong Kong to China, economically and otherwise, what’s at stake if it does end up enduring a harsh crackdown from the mainland.
COHEN: You know, Hong Kong is obviously still of important significance—huge significance to the mainland. Its economic significance has been dropping relatively because of the rise of Beijing, Shanghai, Guangzhou, and now Shenzhen and other places as financial and economic centers. But Hong Kong still has the cache and the reality of being the principal vehicle for China interacting with the world in terms of financial business transactions. And it has, of course, a special status in the world.
Of course, the United States is now—at least, people in the Congress and some in the executive—are talking about should Hong Kong continue to enjoy special status? Hong Kong is even under the protection of the International Covenant on Civil and Political Rights, which Beijing has been threatening to ratify for over twenty years but hasn’t done it. So Hong Kong is special in a business, economic way. And although Singapore is always trying to benefit, and does to some extent from Hong Kong’s difficulties, Hong Kong is of huge economic importance—and certainly to American, and Western, Japanese, and other business entities.
But Hong Kong is more than that to Beijing. Hong Kong is the leading symbol of the Communist Party’s vindication of China’s rise and China’s reintegration of the country, completing the reunification of the mainland against the long depredations of Western colonialism and Japanese colonialism. And that was Deng Xiaoping’s brilliance in bringing Hong Kong back, showing the flexibility of one country, two systems. Hong Kong is a symbol politically of China’s territorial integrity. And this, of course, has evolved, with the Xinjiang problem, Tibet problem, and especially now Taiwan. And a failure to resolve the situation successfully in Hong Kong will put to an end, for all time—certainly our lifetime—any thought people in Taiwan might have of reintegration with the mainland under one country, two systems—the formula originally devised to reincorporate Taiwan.
So there are many political symbolic nationalist sovereignty questions. And there’s a huge amount at stake that goes far beyond economics for the leadership in Beijing. And they’ve got to be careful, because if they reassert real control through the use of force, that’s a terrible result. If they don’t use force and you get freedom in Hong Kong, that’s a terrible result. So—
MCMAHON: Damned if you do and damned if you don’t, yeah. Well, Jerry, I think we have a number of people in the queue. I want to just turn it over to the operator to open up for questions and we’ll take it from there. Operator, do we have a question, please?
OPERATOR: Yes, sir. Our first question comes from Benjamin Naimark-Rowse, with the Fletcher School of Law and Diplomacy.
NAIMARK-ROWSE: Thanks so much for the—
MCMAHON: Yes, hello. Go ahead.
NAIMARK-ROWSE: Yep. So to succeed, these kind of popular mobilizations require leadership and they require an endgame strategy, right? And on average, these sort of popular mobilizations take about three years to run their course. So I’m wondering if you could say more about the leadership of this uprising, and in particular their interest and ability to cooperate, for example, with the law society, business leaders, et cetera, to create a unified and diverse front, and a clear endgame strategy.
COHEN: Yeah. I like that question because it focuses on what can be done. On the other hand, it also reveals the difficulty, because how do we identify these leaders? Are there going to be votes within their various groups? Will people volunteer? Remember, when the question arose before June 4, 1989, which leaders from the Tiananmen Square protests would meet with Prime Minister Li Peng, how would they come forward and what would they say, how would they behave, and would it be public? There are just all these questions. The hardest is to identify who the leaders really would be, or who would speak for the diverse groups and how would they come up with any sort of coherent front.
But some effort has to be made. And there are some—we see there are some students, even at the airport, who are willing to come forward and explain to the Wall Street Journal and the New York Times, and the Washington Post why they’re there. They give different reasons and they have different views about what procedures they should follow, and how violent they should be. I think we’d have to have a diverse group. And I think the mobilization of community leaders and the opportunity to hear the views of the students, not expressed while fighting the police, this would be a healing process. And it certainly would take time. And it would cool things down. And it might lead to some detailed progress. So I like the question, because it focuses on the problems that would be confronted by trying to do something, rather than passively await the train crash.
MCMAHON: But to this point, Jerry, you’re not seeing a kind of a centralized leadership of the opposition—of the protesters, who have sort of an endgame in mind, or anything like that?
COHEN: You are a master of understatement, Bob. (Laughter.)
MCMAHON: OK. Operator, can we have the next question, please?
OPERATOR: Yes. Our next question comes from Trudy Rubin with the Philadelphia Inquirer.
RUBIN: Hi. Thanks to both of you.
Jerry, just a quick follow up on the last question. What has happened to that generation of Joshua Wong, Nathan Law, the liberal members of LegCo—both the ones who were not allowed to stay in and whoever survived? Do they have any role to play? And then also, I wonder if you could elaborate a little bit on how the Taiwan situation will affect Beijing’s decision, especially since the Taiwan election is coming up in a few months?
COHEN: Yeah. Well, the first one is the key to this discussion. Trudy, as always, you’re on the ball. The—Nathan Law is active. He’s turned up in the United States. I think he may be studying at Yale at this point. But Joshua has just been released after serving some time in jail. Some of the others are certainly around. They have varying differences of views, but I think there’s some resentment among the current protesters that Joshua might come back and try to take over the movement. Of course, you’ve got personal considerations here. One of the sad things in every human rights movement is sometimes there’s internecine disputes among all the good guys, but sometimes for personal reasons of gratification, ego, whatever, sometimes for reasons of policy.
But I think certainly if we could get some commission organized in the next couple of weeks, Joshua, Nathan, these would be people who would come forth. But there would be others who would say: They no longer have the right to represent us. We’ve been out there doing this and that while they’re giving speeches or serving time in jail. But they should be heard too. I think this can be managed. I think a couple of these people have appeared in the United States recently. You have some—and, by the way, we shouldn’t discredit people like Dennis Kwok, who still is in the LegCo and is a terrific person, who is trying to give this movement some coherence.
I think what you’d have is you’d have several days of testimony from a variety of witnesses who would make their suggestions, not only about the past but the future. I feel, in a way, it’s understandable. There’s so much focus on police abuses and so much public concern in support of the police—because every community needs the police, and many of these police themselves are internally torn, apparently: they don’t want to be out there. It’s like the June 4 situation. Even some of these soldiers who were picked to come in and do the dirty job, they were unhappy about killing their own people. So I think you can find representatives—and you’ve identified a few of them—who could give this a legitimate launch.
The Taiwan thing is much more complex. But in simplistic terms, it’s clear that although we still don’t know who all the candidates will be and all the parties in the Taiwan election, I think the events in Hong Kong are forcing even the KMT candidate, Mayor Han, now to be much more cautious in his gestures toward reconciliation with the mainland. And we’ll see if Mayor Ko of Taiwan—of Taipei starts to make an impact as he makes another effort to become president. He’ll also be condemned for his efforts in the past to reach out to the mainland.
I think it’s going to make—unless Beijing succeeds in having so many candidates, minority parties, et cetera, that will cut into the DPP, so there’ll be a plurality not a majority outcome, I think the DPP and President Tsai are—they’re going to get reelected. Because most people in Taiwan are horrified about what’s going on, and many are outraged that the Hong Kong SAR government is using Taiwan as an excuse for starting this by saying we need this extradition bill so we can send back one alleged murderer for trial in Taiwan. That could have been arranged without any of this.
MCMAHON: Thanks a lot, Jerry. And thanks for that question, Trudy.
Next question, please.
OPERATOR: Our next question comes from Roberta Cohen with Committee for Human Rights in North Korea.
R. COHEN: Hello, Jerry. Thank you so much for your comments.
How do you find the United States and Western response to the struggle in Hong Kong? Is there anything you would think important to be done internationally by governments, by NGOs?
COHEN: Well, in view of your good work with human rights in North Korea, Roberta, the first thing I would say is, like other major Chinese Communist violations of human rights, one cost by worrying about them is we fail to give enough attention to the suppression of human rights in North Korea. And similarly now, what we’re fighting, Hong Kong gets the attention it deserves now, even though we don’t have a suitable response yet. But it’s taking popular attention away from the horrors of what China, the PRC, is doing in Xinjiang to millions of people there. And in a way, they’re lucky, because the American and other liberal democracy publics, they were beginning to get that Xinjiang message and beginning to see how horrific the Communist Chinese behavior to those people is. And by focusing on Hong Kong, we’re not focusing on another equally serious, but less dramatic problem.
So in terms of the United States, of course, we have a president who seems to be giving the license to Xi Jinping to do whatever you have to do to bring peace and stability back to Hong Kong. He seems to be saying we don’t have to worry about the human rights of the people in Hong Kong. He isn’t worried generally about human rights, except occasionally to contradict himself. And he seems to be not recognizing the importance of Hong Kong to the United States and to retaining its special status. And it’s difficult for us because Beijing is trying to neutralize him by claiming falsely that everything in Hong Kong is really the product of a CIA-sponsored color revolution. And that, of course, is nonsense. And it would be good if we had a public hearing of a legitimate type in Hong Kong, and the lack of foreign sponsorship for what’s going on in Hong Kong could be brought out, the lack of evidence.
So I think the U.S. has a lot to do in terms of forging an appropriate response to this. And we see in our primaries now, the candidates should be speaking out more on this. But they’re aware of the fact the American people are now overwhelmingly going against the PRC for a whole range of reasons—largely preoccupied daily about the headlines over the trade negotiations and its impact. And I think people are afraid now to come out. You’d think that this anti-Chinese Communist wave that’s taking over America would make it easier for politicians to come out and say we should have some enlightened defense of Hong Kong.
But the last thing we want to do is give them the Hungarian Revolution treatment, where in 1956 Dulles, and Ike, and the Republican Party there encouraged the Hungarian Revolution against the Soviets, and then let them down. They falsely inspired these people to think we were going to come to their assistance. But the U.S. is not going to come to Hong Kong’s assistance in any military way. But we at least should show—not only by what we say about Hong Kong but by improving our own behavior at home—that we stand on the right side in terms of freedom, rule of law, due process, and all that.
MCMAHON: Thank you. Thanks for that question.
And, Operator, we’ll take another question, please.
OPERATOR: Thank you. Our next question comes from Gary Ross with Black Gold Investors.
ROSS: Yes. Thank you, Professor Cohen, for a very insightful talk.
And I apologize for the difficulty of the question I’m about to ask, but we’ve all seen the recent Chinese military movements nearby Hong Kong. What would you place the probability of a military action against Hong Kong before the October 1 seventieth anniversary?
COHEN: Most observers—yeah, it’s a good question. Of course, that’s one of the key ones now everyone’s focusing on. Most knowledgeable observers who I respect say it’s a low probability. Now, of course, that’s a prediction based on many events here. As I indicated earlier, if the provocation is seen to be great enough, it will happen before October 1 no matter what. But there’s a very low likelihood. And I think even the protesters at the airport have got that message. And I think that may be why there now is this sudden lull after a terrible Monday and Tuesday, that Wednesday—despite the violence—it looks a little more possible for the airport to function. So I think overall—and that’s making a very general guess, because people know the reluctance of the Chinese leadership, not because they’re great humanitarians but because they’re realistic, political, military people—very low possibility, I think, before October 1.
Q: Thank you.
MCMAHON: Great. Thanks for that question.
Also, just a reminder, this is a CFR on-the-record conference call on the Hong Kong protests, with our expert Jerome Cohen. We’ve got ten more minutes on the call, and I wanted to go back to those waiting to ask questions.
Operator, can I have another question, please?
OPERATOR: Our next question comes from Joel Gehrke with Washington Examiner.
GEHRKE: Hello, Professor. Thank you for doing this.
I wondered, to return to the issue of blaming the United States for fomenting these protests, accusing us—you know, describing it as a color revolution—who’s the target audience for that kind of message? Who is Beijing trying to persuade? Is it to drive a wedge—or attempt to drive a wedge—between the protesters and some portion of the Hong Kong population? Are they talking more to mainland Chinese people, and if so, what are they trying to prepare them for?
COHEN: You know, the key audience is always the domestic mainland Chinese people. In the beginning, as you know, they tried to deal with the Hong Kong difficulties by saying nothing to the local people. And it was hard for local people to know what’s going on. They have trouble finding out even what’s going on in an honest way within their own mainland jurisdiction, as with Xinjiang repression of the Muslims. But when it became impossible to keep this thing under wraps, then, of course, Beijing shifted to mobilization of public opinion by still trying to restrict access to news of what’s happening and to impose their own interpretation on the news, and even creating fake news, even on CCTV. So they are now preparing their own people to understand the government’s reluctance and to support any radical military intervention in Hong Kong. So that’s the main audience.
They would like [us]—a second audience would be the outside world, beyond Hong Kong—to think that this is like what the CIA did in Italy after World War II, et cetera, or another Mosaddeq regime suffering from CIA plotting, et cetera, in Iran in the 1950s. They would like [us] to think this is a repetition. And they can build on that. That’s one of the costs we pay for the CIA’s record in certain places at certain times. So they’re trying to get that through. Most people still don’t know what’s going on in Hong Kong, although I think the American reporting I’ve been exposed to, and the British, Australian, French, has been good on this. A lot of people in the developing world don’t have access easily to all that stuff.
A third audience is obviously the people in Hong Kong. And I don’t think they’re very successful in that. We all tend to reinforce our own convictions as we take in the news, but I think most people in Hong Kong who see their children, grandchildren, themselves out there, they know they’re not being foils of the CIA. So you have different audiences. But the main audience, of course, is the people at home. And they seem to be believing it. There’s always the regional divisions of people in China—Shanghai people against Beijing, Cantonese people against (inaudible)—et cetera. You have those traditional tensions and dislikes. Hong Kong has suffered from some of that in dealing with the Chinese population that increasingly has liked to visit Hong Kong. But—and there are, of course, political resentments that are fanned now by the government to intensify these traditional resentments of Hong Kong.
So I think they’re succeeding still, just like the PRC government seems to have succeeded in persuading most Han people in the mainland that what they’re doing in Xinjiang is required in order to repress terrorism. And indeed, we’ve just seen they’re beginning to play the terrorist card in characterizing what’s going on in Hong Kong. And once you say “terrorism,” then that’s the basis for real hostile action—military action. And of course, in Hong Kong, they’re upping the ante of how you characterize what the protests are. Are you going to prosecute these people? And hundreds may be locked up soon if this goes on. The new police authority in Hong Kong, I think he’ll be taking his guidance from his previous successes. And they’ll be arresting lots of people.
And the question then will be, what do you charge them with? You see, Benny Tai, Professor Chan, these academics who were going to jail now and are just appealing—the Benny Tai’s appeal’s coming up, I think, tomorrow in the court. They’re being charged with creating nuisances. That’s a minor offense. Benny got sixteen months for that, which is very hard time. But now they’re going to charge them under the new court injunction with obstruction of justice. And that’s more than a popular nuisance. So we’re going to see an escalation of punishment here. And that in turn, unless you have some community response coming between the obdurate government and the protesters, that’s going to get worse. And that will intensify opposition.
MCMAHON: Great. Thank you. I’m going to see if I can fit in a couple more questions.
So, Operator, another question, please.
OPERATOR: Our next question comes from Daniel Ahn with BNP Paribas.
AHN: Hi. Thank you, Professor.
I have another question which may be a little unfair. But in light of not just what’s happening in Hong Kong, but also the U.S.-China trade tensions that you alluded to earlier, we are seeing the possibility of significant economic weakness in China. You might have seen this morning, industrial production in China fell to its lowest level since 2002. So stepping back from Hong Kong to more just the general economic conditions in China, would you say that the overall weakness in the economy is narrowing maneuvering room on Hong Kong, as in they may feel a need to be softer in light of potential negative economic repercussions if they hold a hard line? Or are they—or might they adopt a more conciliatory approach in the trade talks with the U.S., again, because of the fragility of the U.S.—of the economy? And, third, would they—might they introduce some kind of more stimulatory—more economic stimulus in light of all of these pressures?
COHEN: That’s a terrific question toward the end of our conversation because I really have been among those who think that despite China’s vaunted prominence in the world politically, economically, militarily, it’s a much weaker regime than the world realizes. When Xi Jinping came to Washington in 2015, I greeted him that day with an op-ed in the Washington Post. And they put the right title on it, something like: “China’s Fragile Leader.” And I feel the situation has gotten worse in the last four years. That’s why he’s imposed this absurd dictatorship on people that has altered life for even good supporters of the regime, among academics, bureaucrats, et cetera, in the last few years.
He’s sitting on a hot tin roof. And he—this is—this situation of the declining economy and the consciously mobilized administration—Trump administration pressure to worsen China’s economic situation, that’s really putting him into some difficulty. At the same time, there’s lots of silent—necessarily silent—opposition to his rule, even among the party elite. So he’s in a difficult position. And of course, he’s got all these other problems he has to deal with, ranging from pollution to corruption. Just—there are a lot of causes for the daily protests within China that we are usually unable to read about.
But, you see, your analysis may well be right. In our terms, a leader faced with these problems should try to show some flexibility. This was the brilliance of Deng Xiaoping. Deng Xiaoping I didn’t like at all, because he was a Soviet-type repressor. He presided as party secretary-general over the anti-rightist movement of 1957–58 that crushed the liberal intellectuals trying to transform the Chinese Communist Party into a more humane organization. Deng was the guy who authorized the slaughter on June 4, 1989.
But he was on diplomatic, political matters I think not only very bright, but courageous in moving forward. And he felt he had the power to do it. That’s how Hong Kong came back to the motherland, because of the compromise he was willing to make on one country, two systems. That’s why Japan and China were able to reconcile in 1979—1978–1979*—because he postponed things like the Senkaku-Diaoyutai thing. Deng showed flexibility. If Xi Jinping now could summon that kind of flexibility, this could be resolved without the PLA in a way that could bolster Xi’s insecure status at home.
But Xi Jinping has shown none of that. He has made a big deal out of saying: We will not give an inch on any of these questions, whether you talk about dealing with Japan or Taiwan or Hong Kong. His stock in trade is don’t give an inch. We are the leaders. We will do this. And he doesn’t show the kind of flexibility that his predecessors did in order to make over twenty agreements with Taiwan, even though they said we’ll never treat with Taiwan in negotiations as an equal. They found a way to do it, thanks to Ma Ying-jeou and his relations with the mainland. But today, this is the test for Xi Jinping. Is he going to try to carry on as an absolute military leader or is he going to show the wisdom of political concessions?
MCMAHON: And that is an appropriate broad note to end this call on. I want to thank our expert Professor Jerome Cohen for navigating us through this crisis moment for Hong Kong and China more broadly. I also want to thank those on the call for superb questions and for taking part in this CFR on-the-record conference call. This now concludes the call. And, again, thanks to all for taking part.
(END)
*CORRECTION: Please note that Jerome A. Cohen has since noted that the correct years are “1971—1971–1972.”
Jerome A. Cohen
Chinese Government and media suggestions that the protests amount to “terrorism” are without foundation. They are as irresponsible as Chinese Government claims that many of China’s detained Xinjiang citizens may be actual or potential “terrorists”.
The PRC is increasingly mobilizing Mainland people against the protesters, as noted by several major U.S. papers this morning. Louisa Lim’s op ed in the NYT, The Battle for Hong Kong Is Being Fought in Sydney and Vancouver, is certainly worth reading in addition to news reports that themselves include some useful analysis.
As to the timing of possible intervention of People’s Liberation Army or People's Armed Police, should the airport or other transport continue to be disrupted seriously, the timetable might be moved up. Much depends on the success of Hong Kong’s new police commander in enforcing the new court injunction etc.
Choosing the airport was a brilliant move for the protestors to gain the world’s attention. Having made their point, they should stop interfering with departures or arrivals and avoid any acts of violence. This seems to have happened on Wednesday of this week. Future airport protests are likely to be fewer and easier to disperse because of the enforcement of a new court injunction that means arrested protesters will now face more severe punishment than earlier.
If the HK Government’s injunction and other efforts to stop the protests do not succeed, AFTER the October 1st 70th anniversary celebration of the PRC’s founding, the Central Leadership may well feel it necessary to send in the army or the People’s Armed Police. This would be a disaster for China, Hong Kong and international cooperation and security.
United Nations High Commissioner for Human Rights Michelle Bachelet’s message asking Hong Hong authorities to exercise restraint and to investigate excessive use of police forces is most welcome and adds to international pressures cautioning the Beijing leadership and the SAR Government. I think it’s wonderful that tearful Carrie now says that she is not responsible for her own government’s police operations! She certainly is not responsible for initiating the discussions and independent investigation that could ease the crisis!
By Jerome A. Cohen
Here is an eloquent plea just issued inviting practicing lawyers in Hong Kong to join the newly-formed Neutral Legal Observers Group to monitor abuses on all sides of the current struggle: The Law Is Our Business by Davyd Wong.
This is undoubtedly a desirable professional response to the political stalemate. It is ironic that it appeared at the same time that the Council on Foreign Relations published its interview with me suggesting that HK’s Law Society and Bar Association should be among the nonofficial organizations to finally take the initiative to form some sort of unofficial but influential investigative, reconciliation or unity commission to help break the increasingly dangerous political deadlock. The Neutral Legal Observers Group won’t do that.
Hong Kong lawyers are admirable professionals. I know that from cooperating with them for decades. However, they are also capable of doing more than the Neutral Legal Observers Group calls for. Hong Kong has highly-skilled dentists. We don’t expect dentists to contribute their skills to help resolve political crises but we should expect lawyers to do so.
I hope the lawyers will stimulate formation of a new political group that will call for, and begin, public hearings to examine the origins of the crisis, the actions of the Hong Kong Government including the police and their agents, and the actions of the various protesters. This independent public commission should also examine whatever evidence exists that the crisis was secretly fomented by and is still supported by foreign organizations.
Jerome A. Cohen
I’ve been following Hong Kong’s developments. Below is what I’ve written for the Council on Foreign Relations two days ago. More is coming on my blog.
https://www.cfr.org/in-brief/crisis-hong-kong-what-know
August 13, 2019
Over the past ten weeks, the situation in Hong Kong has become increasingly tense. The broad protests, which on one occasion totaled roughly two million people, were sparked late this spring by the government’s attempt to adopt a bill that would have enabled the People’s Republic of China (PRC) to request extradition of suspected criminals from Hong Kong. The city’s chief executive, Carrie Lam, eventually announced that the bill was dead, but she has refused to formally withdraw it. She has also refused to resign.
Incidents of police violence have added fuel to the fire. The Hong Kong government has not established an independent investigation into police brutality, including reports of excessive use of tear gas, rubber bullets, and other weapons. Especially infuriating to many has been police tolerance of gangs that have assaulted protesters.
Frustrated by the government’s unresponsiveness, some protesters turned to violence. However, most protests, including a one-day general strike and the initial occupation of Hong Kong International Airport, were peaceful.
The protesters have expanded their demands. Many now insist on electoral reforms that the PRC has long rejected, as well as the reversal of the Hong Kong government’s removal of some democratically elected members from the Legislative Council. They want to exercise the political freedoms that they believe they were promised by the “one country, two systems” provisions of the Sino-British Joint Declaration of 1984 and Hong Kong’s Basic Law.
The PRC has thus far left the growing crisis to the Hong Kong government and given it strong backing, but there are now serious signals that its patience may be expiring, and the threat of intervention by the People’s Liberation Army (PLA) is growing. Agencies and propaganda organs of the central government have called the protests “terrorist” activities and intensified their claims that Hong Kong’s turmoil is the result of American “black hands” seeking to create a color revolution.
Beijing knows that military repression in Hong Kong would be even more disastrous to its international relations than the 1989 Tiananmen Square massacre. Yet it will use force if necessary.
The Hong Kong government’s strategy is to make no concessions to the protesters, rely on aggressive police tactics, persuade community leaders of the desirability of stability, and engage in a war of attrition against protesters who continue to interfere with public, commercial, and social life. Such a policy ended the 2014 protests known as the Umbrella Movement.
But will this strategy be successful again, especially against a newly-energized younger generation that is the backbone of the current struggle? Most observers believe that Chairman Xi Jinping, recognizing that China now confronts a more serious challenge than in 2014, will not await the outcome of a war of attrition.
Thus, after celebrating the PRC’s seventieth anniversary on October 1, Beijing may well deploy the PLA. This would have tragic consequences for Hong Kong and its people, the PRC’s world standing, and international security.
Although Hong Kong’s economic importance to the PRC has diminished as mainland cities develop, it continues to be the PRC’s major international financial and business center and, as a special administrative region, enjoys a privileged status in its relations with the United States and other countries. Additionally, Hong Kong’s return to the Chinese motherland in 1997 symbolized the restoration of continental China’s territorial integrity and the vindication by the PRC of Chinese nationalism and sovereignty.
Beijing would never tolerate losing control over Hong Kong. Furthermore, the historic completion of China’s territorial integrity, in the PRC’s eyes, requires that Taiwan is ultimately restored to China. Losing control over Hong Kong would end the forlorn hope of reintegrating Taiwan in the foreseeable future.
Perhaps not if Hong Kong’s risk-averse nonofficial community leaders, who thus far have largely behaved like proverbial deer in the headlights, respond urgently to the crisis instead of continuing to dither.
They can organize an unofficial but public investigative, reconciliation, or unity commission to press for a peaceful resolution. Such an effort would never be possible in mainland China, because Communist Party repression has prohibited the growth of politically active nongovernmental organizations and independent public organizations.
Hong Kong is still strong in this respect. The Law Society and the Bar Association, for example, could take the lead in what would be a desperate but worthwhile attempt to avoid another Chinese Communist tragedy.
By Jerome A. Cohen
Hong Kong's resistance to the Extradition Bill has been fascinating. I've written another piece on what Hong Kong Government's "pause" of the bill means. It's out on ChinaFile (link).
The Chinese translation is published by Initium Media (link).
By Jerome A. Cohen
This remarkable essay by Neville Sarony is the best I have seen on the use of force in dealing with protesters. I almost skipped reading it because of its title, assuming it would be a one-sided, understandably outraged attack on Mrs. Lam. Instead it turned out to be a judicious, balanced disquisition rooted not only in theory but also in practice and personal experience.
It also is a definitive verdict on Mrs. Lam’s future. She must now accept responsibility for the whole mess and for many specific ugly actions, even preceding Wednesday’s climactic events.
Indeed, we have new insights into the origins of the Hong Kong extradition bill from yesterday’s New York Times. Keith Bradsher’s front page story reports on the introduction of the bill, just before the Chinese New Year holiday, to the Executive Council prior to its subsequent introduction to the Legislative Council after the holiday. ExCo quickly approved the bill “with virtually no discussion”. And the top finance officials and leading financiers at the meeting were not alerted to provisions of the bill for “mutual legal assistance in criminal matters” that would permit the police to freeze the assets of companies and people in Hong Kong at the request of Mainland security agencies!
These officials and business leaders were reportedly “appalled” when they later learned what they had approved! This information adds to what has been well-known about the abbreviated procedures to which Mrs. Lam resorted in seeking to gain LegCo’s approval. Was this “good faith” political leadership in the interest of Hong Kong’s people or even its local and foreign business community?
By Jerome A. Cohen
Here is an important, thoughtful and balanced essay by Professors Marina Svensson and Eva Pils, Academic Freedom: universities must take a stance or risk becoming complicit with Chinese government interference. I hope that scholars in the free world will take steps to implement this essay’s excellent recommendations. This will require a profound international effort to alert academic colleagues as well as governments, the media and public opinion.
Professor Benny Tai of Hong Kong University Law School
As the cliche goes, a long march must start with a single step, and it seems wise to begin with an effort to protest the criminal punishment of Professor Benny Tai (戴耀廷) of Hong Kong University Law School as well as the current attempt to oust him from the university faculty.
I hope that civil libertarians and human rights advocates in Hong Kong and elsewhere are not too preoccupied with the current Hong Kong extradition crisis to assume this additional burden. We cannot afford compassion fatigue.
By Jerome A. Cohen
It’s not only “Hong Kong people” whose fate is at stake here. Anyone passing through Hong Kong airport could be detained and sent to China (compare the Huawei Vancouver extradition case). Even people who have been extradited by a third jurisdiction to Hong Kong could be subject to re-extradition to China unless some provision is made in the extradition treaty between Hong Kong and the third jurisdiction to prevent that! This bill would undoubtedly lead those democratic countries that have extradition treaties with Hong Kong to either renegotiate them successfully or terminate them.
No criminal justice systems could be more different in practice than those of China and democratic jurisdictions including Hong Kong. Despite Xi Jinping’s occasionally expressed theoretical aspirations to promote a Chinese court system that will achieve justice in every case, reality is very different in the many cases that, for one reason or other, are regarded as “sensitive” in China.
Actually, Xi keeps reminding the public that the courts are in fact and ought to be under the absolute political control of the Communist Party. The Ministry of Public Security, the Ministry of State Security, the newly-established Supervisory Commissions and many legally unauthorized secret Party, civilian and military units that also detain “suspects” are far more powerful than the courts or even the procuracy (prosecutors) that is supposed to supervise the legality of all government operations.
Some alleged offenders are never brought to trial in China. Think former Party General Secretary Zhao Ziyang, detained without any legal process for the last 16 years of his life!! Many are detained on spurious charges. Think Ai Weiwei, a famous dissident artist who was ostensibly detained on tax charges! How easy it would be for Beijing to conjure up charges that meet the tests of the forthcoming Hong Kong extradition amendments.
Even formal, authorized detention is frequently marked by physical and mental torture that often leads suspects to “confess” on television even before indictment. Suspects and defendants are often denied timely access to any defense counsel or to defense counsel of their choice, even at trial. Trials in sensitive cases are usually a farce, and appeals either prevented or a meaningless exercise. Detention conditions are often execrable, leading some accused to confess in order to end the formal prosecution process so they can be transferred to the generally better conditions in prisons. Human rights lawyers are frequently disbarred, sent to prison or otherwise neutered.
Not just “Hong Kong people” have reason to fear Chinese “justice”!
By Jerome A. Cohen
I've just written a commentary on Hong Kong's controversial extradition bill (SCMP link below). Comments are welcome, especially with regard to the solution proposed at the end of the article.
Jerome A. Cohen, If Beijing wants an extradition law with Hong Kong – and elsewhere – it should reform its judicial process, South China Morning Post, May 23, https://www.scmp.com/comment/insight-opinion/article/3011117/if-beijing-wants-extradition-law-hong-kong-and-elsewhere-it.
“Perhaps the most frightening aspect of the impending amendment is its application, not only to all SAR citizens and foreign and Chinese residents of the SAR, but also to anyone who passes through Hong Kong. ”
By Jerome A. Cohen
Here’s an account by a Hong Kong media owner of a cross-border kidnap attempt by China, “How I Escaped a Kidnap Attempt by Chinese Agents in Hong Kong.” This account, which appears to be accurate, describes the most brazen PRC attempted kidnapping in Hong Kong yet reported.
It is good to know that the HK police prevented it from being successful, although whether they would have done so had they known at the outset that the kidnappers were PRC security police rather than conventional gangsters is a question. How Mr. Gu managed to resist long enough the extraordinary armed show of force by the PRC agents is a mystery. Apparently, when the local police discovered the men they detained were PRC agents, they initiated the cover-up that led to muffling of the event. Other, successful kidnappings have left me with the strong belief that the PRC agents could not have been successful in spiriting those victims to the mainland without the acquiescence of the HK police and immigration authorities.
Also of great interest in Mr. Gu’s report is his claim that very high-level representatives of the PRC State Security and Public Security ministries have often “interviewed” him in the U.S. “Household names” — in what households??
There have been similar reports of such missions in other cases of Chinese who have sought refuge in the U.S. (and Canada). It would be interesting to know how such visits are managed. How do such visitors get visas? To what extent are their activities monitored by our own security agencies? What understandings have been reached between American and Chinese security agencies concerning the rules that each side will respect when conducting undercover operations in the other side’s jurisdiction? I wonder what the rules in HK now are restraining PRC secret police since the publicity that has accompanied PRC kidnappings there since 2015. These incidents cry out for investigative reporting.
Finally, it is pathetic to see some HK and PRC officials and observers simply parrot the tired phrase “interference in internal affairs” in response to foreign warnings that an increasing number of official HK and PRC actions will adversely affect international business. Are the interests of foreigners and the adverse effect on their interests purely domestic questions?
By Jerome A. Cohen
Officials in Hong Kong are now planning to allow “rendition” (the Hong Kong-Mainland equivalent of international “extradition”) of criminals to China. This would be a major change and a development that concerns Hong Kong’s special human rights protections.
The United States, Canada, the United Kingdom and Australia have not finalized extradition treaties with China largely because of their concerns about the pervasive problems in China’s criminal justice system, including arbitrary detention, torture and other cruel treatment, coerced confessions, political prosecutions, unfair trials and capital punishment, especially for nonviolent crimes. For similar reasons Hong Kong—China’s Special Administrative Region—has not been able to conclude a “rendition” agreement with the PRC Central Government.
Hong Kong’s current plan to finally move towards a full rendition agreement with the Mainland must not violate the human rights protections that it acquired while still a UK colony under the International Covenant on Civil and Political Rights. The PRC promised to honor these protections after the former colony’s return to the Motherland. They include the non-refoulement principle, which requires governments not to expel any person to another territory if this would result in exposing him to the danger of arbitrary deprivation of life, or torture or other cruel, inhuman or degrading treatment or punishment (and other serious violations of human rights, including, notably, expected violations of the right to a fair trial).
My colleague Yu-Jie Chen and I have written an article on the human rights problems in Taiwan’s cross-strait “repatriation” agreement (also similar to an extradition arrangement but, like “rendition”, applicable to relations between governments of different parts of China) with Mainland China (see Yu-Jie Chen & Jerome Cohen, "China-Taiwan Repatriation of Criminal Suspects: Room for Human Rights?," Hong Kong Law Journal (2018), SSRN link here). The lessons learned from Taiwan’s experience with the Mainland should be of interest to those who are considering whether Hong Kong should strike a“rendition” deal to send fugitives to suffer the fate of those subjected to Mainland justice. Analogies to the protections provided in conventional international extradition treaties also must be considered.
