Jerome A. Cohen. China's Torture Problems Under Increasing International Scrutiny. SCMP (South China Morning Post)

November 1, 2008

As we mark the 60th anniversary of the Universal Declaration of Human Rights, it is important to note that the administration of justice in China is increasingly being exposed to world opinion. While recent American policy and practice have made Guantanamo and Abu Ghraib symbols of unacceptable abuse, China’s torture problems are far more pervasive and systemic.

Ignoring the warning of the Chinese government, last week the European Parliament awarded its famed Sakharov Prize for Freedom of Thought to Chinese activist and commentator Hu Jia, focusing international attention on the repressive aspects of China’s remarkable development. After a farcical trial, Mr. Hu is serving a three and one-half year prison sentence for publishing essays and interviews that “incited subversion of state power.” During several months of pre-trial police detention he suffered a broad range of physical and mental tortures, some of which have continued in prison.

Twenty years ago, China ratified the UN’s Convention Against Torture (CAT), which requires state parties to take effective measures to prevent acts of torture in their territory. Next week, CAT’s committee of ten experts, including specialists from China and the U.S., will question a PRC delegation at a hearing to review the degree of China’s compliance concerning the mainland, Hong Kong and Macao. In 2006 the PRC submitted compliance reports, and this September it submitted a 52-page single-spaced response to 40 detailed questions that the committee posed after reading the initial reports. The committee’s interrogation will also take account of information presented by some 15 NGOs, as well as the scathing condemnation of PRC criminal justice issued by the UN Special Rapporteur on Torture following his 2006 visit to China.

Although operating under severe time restraints — only two half-days of  hearing for the huge topic of torture in China and the reforms that would be necessary to bring it under control, the committee can be expected to expose gaps that persist between CAT standards and China’s reality despite PRC efforts to improve the training and performance of law enforcement personnel.

China’s written submissions claim that CAT’s demands have been met by PRC legislation prohibiting torture. Yet, as Human Rights in China, a leading NGO, demonstrates, PRC laws still do not reflect CAT’s comprehensive definition of torture. Regarding the committee’s many requests for information about individuals who reportedly were tortured during police investigation, the PRC often claims that no information is available or simply that the accused were convicted “according to law.” And some committee questions are rejected either as insulting the feelings of the Chinese people or as beyond CAT’s competence.

Following the hearing, the committee will report its conclusions and recommendations. It will also list certain items for immediate follow-up by the PRC within a year and require it to report the actions taken. China’s response to previous similar efforts by the committee has been incomplete.

China’s record on torture not only violates its international obligations, but also undermines its own criminal justice goals. In Canada, for example, the Chinese government appears to be losing its long battle to obtain the return of Lai Changxing, allegedly the greatest smuggler in Chinese history. Thus far, Canada’s judiciary has prevented Lai’s forced return on the ground that no satisfactory inter-governmental arrangements have been made to monitor China’s compliance with its formal promise not to torture Lai if he is returned. And the United States, recognizing the PRC’s due process defects, has refused to repatriate Chinese Uighurs after their release from unwarranted detention in Guantanamo.

Like Canada and the U.S., many democratic countries have declined to conclude extradition treaties with China because of concerns about widespread torture and other obstacles to a fair trial there. Even Hong Kong has been reluctant to sign a “repatriation” agreement to hand over suspects requested by Beijing. This hampers China’s efforts to bring home for prosecution many alleged offenders, including embezzlers who have absconded with billions of U.S. dollars.

If China should ratify and seriously implement the UN’s International Covenant on Civil and Political Rights (ICCPR), which it signed over a decade ago, its extradition prospects would markedly improve, since other governments would feel more comfortable surrendering people to Chinese justice. ICCPR adherence would mandate profound improvements in the PRC’s criminal process, as well as in its freedoms of expression. It would also require the PRC to report the extent of its compliance periodically to the Covenant’s Human Rights Committee. That group of independent experts, similar to its CAT counterpart, publicly scrutinizes a country’s compliance with the Covenant in both legislation and government and court practice.

Yet, experience under the Torture Convention has demonstrated how difficult and unattractive it is for the PRC honestly to report to a UN human rights forum, especially in view of China’s expansive state secrets law. Is it any wonder that the PRC has been slow to ratify the ICCPR, obligating itself to yet another international forum’s scrutiny of its criminal process?
Jerome A. Cohen is Co-Director of NYU’s U.S.-Asia Law Institute and Adjunct Senior Fellow at the Council on Foreign Relations in New York.

This article appeared in the South China Morning Post on November 1, 2008 under  the title “Torture under scrutiny.”