Jerome A. Cohen discusses the Rio Tinto case on ABC Radio Australia

Professor Jerome A. Cohen offers his views on the trial and sentencing of Rio Tinto's Stern Hu to Fran Kelly of Australian ABC Radio National's Breakfast:


(prepared from recording by USALI)

FRAN KELLY - […] from the fallout from the Stern Hu verdict.  The former Rio executive and three other employees of Rio Tinto were sentenced to between seven and 14 years in jail yesterday for accepting bribes and stealing trade secrets.  Rio Tinto has now sacked the four men.  But Foreign Minister Steven Smith still has “serious unanswered questions” about the most controversial part of the trial which covered the stealing of commercial secrets.  That part of the trial was held behind closed doors.  Jerome Cohen is professor of Chinese law at New York University and senior fellow with the Council on Foreign Relations.  I spoke with him a short time ago from New York.

JEROME A. COHEN – Thank you Fran.

FAN KELLY – Jerome Cohen, did Stern Hu and his colleagues in your view receive a fair trial?

JEROME A. COHEN – Well, certainly it wasn’t fair by international standards.  For the guilty plea, on the first count, it would be alright, because we don’t try guilty pleas by and large.  But the second count, the commercial secrets acquisition that was declared secret, is very troublesome.  There are wheels within wheels.  People say that  Hong Kong companies have been involved, that perhaps political leaders have been involved.  You know, if one only knew the whole story it would be a great, great thing, but eh, we may never know the whole story but we’ll surely know more than we know now.

FRAN KELLY – And it seems to be, according to the judge anyway, what’s filtered out, that China claims its steel sector paid one billion yuantoo much for iron ore last year because of the bribery and industrial espionage by the Rio Tinto Four, that’s the charge.  Our Foreign Minister Steven Smith said last night that he is “advertising the fact that he doesn’t think was in China’s interest not to have this part of the trial transparent.”  Do you think this is against China’s interests - business interests?

JEROME A. COHEN – Well, certainly from the broader point of view, in most cases that I have been an advisor in in China, the Chinese government loses by secrecy.  People don’t credit the Chinese government claims that certain people have committed espionage or stolen commercial secrets because the procedures are so non-transparent.  So, China hurts itself by not opening many of these so-called “secret trials.”  And I think in this case, too, it leaves so many suspicions.  It gives such a bad reputation to Chinese justice that I think China’s “soft power” suffers by this kind of thing.

FRAN KELLY – And in terms of soft power Australia and China do have a consular agreement which would, or should have you would’ve thought, allowed Australian consular officials to observe the full trial – both parts of the trial.  That was denied.  And you’ve been critical of the Australian government for not doing more to get access to the court.

JEROME A. COHEN – Well at least the Australian government did a little bit more than the US government did when confronted by a similar problem last summer even though its consular convention and the Australian one with China are virtually identical.  And the conventions are clear.  And Chinese practice used to recognize the right of foreign consuls to attend even secret trial sessions.  And now, we found, a 1995 Chinese instruction endorsed by all the judicial ministries including the secret police as well as the court and prosecutor that says international obligations including the right of foreign consuls to attend secret trials have to be honored and come before domestic law.  And yet the Chinese government, trying to send off your foreign minister’s allegations and questions, said Chinese law must come before international obligations.  Well that’s a very dangerous comment for China to make.  So I think China looks bad on this.  There is a revival of their former, very hostile, defensive attitude to the world community.  So there is a more nationalistic tone, a revival of the old, sort of anti-international spirit.  That may be a reflection of China’s rising power, maybe a reflection of the new nationalism that’s sweeping certainly the younger generation in china.  We don’t know, but I think it’s important to point out this is a dangerous, anti-world community posture and again it hurts China’s position.

FRAN KELLY – And meanwhile these four men now, who is [sic] facing jail terms.  Do you agree with Australia’s foreign minister that these sentences imposed on Stern Hu and the other three Rio executives are harsh?

JEROME A. COHEN – Well, you know, it depends on the legal system, but China has a right to defend itself against corruption.  Commercial bribery, especially in important negotiations, is an important thing.  So china has a right to condemn these people.  I don’t think the sentences are unduly harsh, giving china’s normal sentencing policy.  But, the fact is, why did they pick these defendants?  China, and the steel industry included, is awash with corruption.  So why were these people picked out and not others?  Did it have something to do with the ore negotiation – [the] pricing?  I think it did.  But what about all the others who weren’t being pursued?  Or being pursued in totally non-transparent proceedings.  I think if you are after corruption you have to take an even-handed and vigorous policy toward it.

FRAN KELLY – And can I ask you, just finally, what you do think the way forward is in terms of the appeal?  At least one of the convicted, Wang Yong, will appeal.  The other three are still deciding.  In your view, is there a real avenue of appeal?

JEROME A. COHEN – Well there is an avenue but appeals usually don’t go anywhere in part because the trial court often secretly checks with the appellate court before it even hands down its trial, eh, judgment.  And of course an appeal in Chinese eyes traditionally is a refusal to admit guilt.  It’s a challenge to the state.  It shows you are not really repentant.  And sometimes you could regret it.  I don’t know what deals Stern Hu and his lawyers may have made with the government but they may think it’s wiser not to appeal.  Certainly on the receipt of bribes if he resisted as he apparently did the charge of stealing commercial secrets they may want to appeal that.  And that’s worth five years.  I thought maybe china would make a show of due process by acquitting some of the defendants on one charge and convicting them on the other.  Occasionally they have done that in order to make a good impression.

FRAN KELLY – Professor Cohen you mentioned the fact that bribery within the iron ore sector is not unknown, what about bribery in the Chinese judicial system in the use of bribes to help get convicted prisoners out of jail?

JEROME A. COHEN – Well, you know, it’s a very serious problem.  One of the vice presidents of the national supreme court of China has been sentenced to life for corruption.  And many judges are involved in corruption.  They are paid so little they often feel the need to take money on the side.  It’s a very sad thing.  Efforts are being made to stamp it out, but until the judges are treated like autonomous people who should be independent and should be paid well as they are in many other countries.  And you have to start by insulating the courts from local pressures, Communist Party pressures and many distorting influences.  Being a Chinese judge is difficult because they are under a lot of pressure in cases that have any sensitivity.  By the way this case is not over even if there is no appeal.  Because in many cases like this, even with ten-year sentences, the defendants get out quicker.  Of course legally after serving half the sentence the defendant is eligible to apply for parole.  But often, medical excuses are found.  There was even one case involving a Chinese national resident in America, Ms Gao Zhan, around 2000.  She was sentenced to ten years for espionage on behalf of Taiwan.  Forty-eight hours later she was on her way to Washington, where she lived.  The deal had been made in advance to first punish her formally by vindicating the Chinese judicial process and, then, let her go, on medical grounds.  So we don’t know whether Stern Hu can be home in a year, or, in five years.  That’s just not clear.

FRAN KELLY – That’s Jerome Cohen, professor of Chinese law at New York University and senior fellow with the Council on Foreign Relationships. Relations.  I spoke with him early from New York.  It’s quarter to seven, on hour on Breakfast.


(translated by NYU US-Asia Law Institute)





主持人:好像说 – 至少根据我们从法官那里听到的 – 中国声称去年它的钢铁行业因为所谓“力拓四被告”被控的受贿和工业间谍行为在购买铁矿石时多付了十亿元人民币。我们的外交部长史蒂芬史密斯昨晚说他在“广而告之这样一个立场,即他不认为中国作出的将这部分审判不透明进行的决定符合中国的利益”。你认为[该决定]不符合中国的利益 – 商业利益 - 吗?


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孔:至少澳大利亚政府作出的努力比美国政府稍微多一点。去年夏天美国政府遇到了一个类似案件;澳中领事协议和美中领事协议基本上是完全一致的。这些协议白纸黑字,内容是清楚的。而且中国过去的操作其实也一直是尊重外国领事旁听秘密审判的权利的。我们发现,1995年时中国所有的司法相关部委,包括秘密警察和法院、检察院,联名推出了一个指导文件,说国际义务包括外国领事旁听秘密审判的权利必须被尊重而且地位优于国内法。但是这次中国政府在回应你们外交部长的指责和质询的时候说中国国内法优于中国的国际义务。这对中国来说是一个非常危险的立场。这使得中国在这件事上看上去形象很差。现在有一种他们过去对国际社会敌对、防御性态度的复活。有一种更加民粹主义的腔调,一种老的、有一点反国际主义的精神的回归。这可能是中国上升实力的反映, 也有可能是席卷年轻一代的新民粹主义的反映。是不是这样我们不清楚。但是我认为,认识到这是一种危险的、反国际社会的姿态是很重要的,而且我重申这其实负面影响中国的国际地位。