Wednesday, October 28, 2020

US Federal Government Embraces Capital Punishment Leading Up to UN Review

A cell on death row. Image credit: Innocence Project 

This summer the United States federal government aggressively resumed federal executions, ending an ad hoc federal moratorium that had been in place since 2003. So far this year, the federal government has executed seven people, and three more federal executions are currently scheduled for 2020. The execution of Lisa Montgomery, scheduled for December 8, will mark the first federal execution of a woman since 1953. The number of US federal executions this year already exceeds the total number of federal executions that took place in the rest of the last half century combined. Even as both individual US states and nations around the world are abandoning capital punishment, the US federal government is instead choosing to embrace it. As the United States prepares for a review of its human rights record at the UN in November, the future of the federal death penalty is on the agenda. 

Capital Punishment and the Universal Periodic Review

The resumption of federal executions comes as the United States is in the midst of its third Universal Periodic Review (UPR), a human rights process that every UN member state undergoes about every five years. The UPR is organized by the Human Rights Council. Although the United States withdrew from the Council in 2018, it still participates in the UPR as a UN member state.  

The UPR of the United States is formally a three-hour event at the UN in Geneva that is scheduled for November 9. But the November review is the culmination of a long process that began in 2019 when the Human Rights Council solicited input on the US record from stakeholders. As an NGO with UN Special Consultative Status, Dui Hua provided a stakeholder submission on the US human rights record last fall. The death penalty was a theme raised by many stakeholders, and Dui Hua’s submission (PDF) focused in particular on Attorney General William Barr’s stated intention to re-start federal capital punishment. Dui Hua highlighted ongoing concerns about the administration of the federal death penalty and urged the administration to maintain the moratorium and address these procedural concerns. Dui Hua also noted that the federal government had selected people with the most gruesome crimes for execution, rather than those who had been on death row the longest, raising worries that optics—rather than justice—shaped the terms of the resumption. 

Countries under review also prepare a national report in response to the stakeholder input. The US national report was due in February and finally released in September. While it does discuss capital punishment, it does not adequately address stakeholder concerns about the resumption of federal executions raised by Dui Hua. The report does not explain why the US attorney general directed the Bureau of Prisons to restart federal executions after more than 17 years without them. Nor does the report—which describes in detail the graphic crimes of the condemned—explain why the government is going forward with executions for these individuals, rather than others who had also exhausted appeals. Because these matters are entirely under the control of the same federal administration whose department of state prepares the national report, the report ought to address these issues. 

Capital Punishment in a Federal Review

The United States is a compound federal republic in which criminal justice authority is divided between state and national jurisdictions. As long as capital punishment is deemed constitutional by the Supreme Court, state executions are a state matter outside the control of the federal government. The majority of US executions have always been carried out by the states—a point national government officials often make to international audiences. When the United States last underwent a UPR in 2015, the US report touted the fact that “the federal government has carried out no executions since our last UPR; in fact, it has not executed an inmate since 2003 and only three since 1963.” In some sense, the national government has been de facto abolitionist for over a decade. The resumption of federal executions ends this record. The federal government already accounts for half of all executions in the United States so far this year. If the federal government proceeds with the three executions it currently has scheduled, then federal executions will exceed state executions in 2020. It would be the first time in modern US history that this has occurred.  

The rise of federal executions comes as states are moving away from capital punishment. Since the last US UPR in 2015, capital punishment has been struck down by courts in two states (Delaware, 2016; Washington State, 2018), repealed by the legislature in two states (New Hampshire, 2019; Colorado, 2020) and subject to moratoriums in two states (Pennsylvania, 2015; California, 2019). The death penalty is now abolished or under moratorium in half of all states. State executions have also been declining for two decades. As leaders in Washington have become directly responsible for a significant share of US executions, international scrutiny of American capital punishment should also shift from the states to the federal government.  

Renewed Comparison to China

Dui Hua has long called for all countries that retain the death penalty to adhere to transparency and the rule of law in application of capital sanctions. The foundation puts a particular focus on China because of its secrecy and resistance to international laws and norms. China is a capital punishment outlier in the world today. 

Despite the overall transparency in US federal executions, the manner in which the condemned were selected remains unclear. Of the many individuals on federal death row who have exhausted their appeals, those who were given execution dates this year are not the people who have been there longest. It appears that these individuals may have been scheduled for execution first because their crimes were particularly shocking and unlikely to elicit public sympathy. The Justice Department’s announcement of the resumption of federal executions in 2019 placed particular emphasis on the fact that the individuals scheduled for execution had committed crimes against children and the elderly. The US UPR report similarly emphasizes the graphic nature of the crimes committed by those who were executed. An impartial justice system should avoid even the appearance of politicization in the death penalty process. As China faces accusations that American, Australian, Japanese, and Canadian citizens are facing capital sentences for political reasons, the US federal government must do more to indicate how it is selecting individuals for execution warrants.  

The current administration also appears to want to use the death penalty to mimic China in ways that may violate the US Constitution and international law. As Dui Hua makes clear in its US UPR stakeholder submission, President Trump has repeatedly called for the death penalty for drug dealers, an idea he claims he got from Xi Jinping. Following President Trump’s statements about capital punishment for drug offenders, former Attorney General Jeff Sessions released a memo encouraging federal prosecutors to pursue capital punishment in drug cases where permitted by federal law, including non-homicide “drug kingpin” cases. While capital punishment for non-homicide drug kingpin crime is allowed under US federal statute, no defendant has ever been sentenced to death under the statute, so its legality is untested. Existing caselaw suggests that capital punishment for a non-homicide drug crime is unconstitutional under the Eighth Amendment, and therefore constitutes “cruel, inhuman or degrading treatment or punishment” under Article 7 of the International Covenant on Civil and Political Rights as indicated under US reservations to the Covenant as well. In addition to capital punishment for non-homicide offenses, President Trump has also expressed support for the extra-judicial execution for drug offenses in the Philippines, a practice that is a clear violation of the Universal Declaration of Human Rights and US and international law. 

The UPR and the Election

Because the power to carry out federal executions lies with the US executive branch, the upcoming presidential election will likely shape the course of federal executions over the next few years. Criminal justice has been front-and-center in the presidential race, even though capital punishment has not been a major topic of debate. The issue got more attention during the primary race. At the time, Democratic nominee Joe Biden called for eliminating the federal death penalty. Vice presidential candidate Kamala Harris also publicly opposes the death penalty. She declined to pursue the death penalty when prosecuting David Hill for murdering a police officer. Hill is now serving a sentence of life in prison without parole. Ultimately, the near future of the federal death penalty will be decided at the ballot box on November 3. Regardless of that outcome though, the United States should expect to receive comments from nations around the world at the UPR in Geneva on November 9.   

Thursday, September 24, 2020

Big Increase in Women Behind Bars in China

Female inmates in political and education reform classes. Image credit: Hubei Prison Administrative Bureau 2019

Statistics released by China’s Ministry of Justice (MOJ) and recently published by the World Prison Brief have revealed a significant increase in the number of women prisoners incarcerated in MOJ prisons since 2015, the last year for which a number was made available prior to 2019. The numbers were provided in a statement by an MOJ official to the Asia Pacific Conference of Correctional Administrators (APCCA) meeting in Mongolia. The number of women prisoners in MOJ prisons in 2019 has yet to be made available.
 
As of mid-2015, there were 107,131 female prisoners in MOJ prisons, accounting for 6.5 percent of China’s population of prisoners held in all MOJ-administered prisons and juvenile reformatories. The number rose to approximately 143,000 as of mid-2018, equivalent to 8.4 percent of that population. This represents an increase of approximately 34 percent over a three-year period, or an average growth rate of more than 10 percent per year. 

The numbers exclude women prisoners in Qincheng Prison, which is managed by the Ministry of Public Security (MPS). More significantly, the numbers do not include women held in pre-trial detention centers operated by the MPS and the State Security Ministry. Nor do they include women held in other carceral facilities like “legal education centers,” often used to hold female petitioners and practitioners of unorthodox religious groups like Falun Gong and Almighty God. A large but unknown number of Uyghur and Kazakh women in Xinjiang who are involuntarily held in a network of internment facilities known as “vocational training centers” are also omitted in the MOJ statistics. Finally, it should be borne in mind that the numbers are for adult females and do not include juvenile females incarcerated in juvenile reformatories run by the MOJ. 

† Figures only available as of the middle of the year. 
‡ This is an approximate figure. Dui Hua estimates suggest that the actual figure may be higher. 
Sources: For 2003-2015 figures: Dui Hua, China Statistical Yearbook 2005-2013, APCCA Conference Report 2013-2015; For 2018 figure: World Prison Brief

In February 2014, Dui Hua, together with partners, held an International Symposium on Women in Prison in Hong Kong. The symposium, which aimed to introduce the United Nations Rules for the Treatment of Women Prisoners (the Bangkok Rules), was well attended by officials from China. In October of the same year, Dui Hua Executive Director John Kamm traveled to Beijing where he and Judge Leonard Edwards met with Mr. Wang Shengming, Vice Chairman of the Internal and Judicial Affairs Committee of the National People’s Congress. Wang advised the two Americans that China was considering incorporating the Bangkok Rules into Chinese legislation, but to date little appears to have been done. Rather than adopt policies that slow the influx of women prisoners, China seems to have opted to build more women’s prisons. 

To cope with the rising number of women sentenced to prison, China has built 10 new women’s prisons since 2015. There were 31 women's prisons in mid-2015, 38 in mid-2017, and by mid-2018 there were 41.i In the past, most provinces had only one prison for women. Now, ten provinces have two, and Yunnan has three. Noticeably, the Tibetan Autonomous Region does not have a women’s prison. By building more prisons, China has managed to keep the average number of prisoners per prison stable at around 3,500 per prison, high by international standards. Overcrowding of Chinese women’s prisons remains a serious problem. 

Sources: China Statistical Yearbook 2013, APCCA Annual Report 2015, World Prison Brief

In its 2019 submission to the thematic session of the United Nations Working Group on Discrimination Against Women in Law and Practice held in June 2019, Dui Hua urged the MOJ to release the current number of women held in its prisons. Several months after Dui Hua made this recommendation, the MOJ released the mid-2018 figure to the APCCA at its September 2019 meeting in Mongolia.

Hong Kong’s Correctional Services department has also released numbers that are published in World Prison Brief. They reveal that, in 2019, more than 20 percent of the territory’s prison population were women, one of the highest such percentages in the world. Nearly half are non-local and convicted of non-violent crimes, including drug trafficking and immigration violations.

According to the Prison Policy Initiative, there were 130,000 women in American prisons and 101,000 in local jails in 2019. The number of women in Chinese pre-trial detention centers is not known. It nevertheless appears to be the case that the number of women in Chinese prisons now exceeds the number of women in American prisons, as Dui Hua predicted in its Human Rights Journal entries published in June 2015 and February 2016.


A list of the 41 women’s prisons administrated by the MoJ is below.






Thursday, August 6, 2020

Court Statistics on Splittism & Inciting Splittism, Part III: Mongols & Han Chinese

The following has been posted to Dui Hua's Human Rights Journal. It is the third in a three-part series examining the application of splittism and inciting splittism charges using Records of People’s Courts Historical Judicial Statistics: 1949-2016.

Part I examined the application of splittism and inciting splittism from 1998-2016 as it corresponded to major incidents of ethnic unrest in China.

Part II focused on two ethnic groups who are more likely to face trial for splittism and inciting splittism: Uyghurs and Tibetans. Court statistics discussed in both parts indicate that splittism and inciting splittism charges were disproportionately used against ethnic minorities. However, a breakdown of ethnicities is not available.

Mongols

Compared to Uyghurs and Tibetans, Mongolian splittism is rarely discussed in state discourse, perhaps reflecting its status as a smaller security threat to China. An important reason is that ethnic Mongols in Inner Mongolia have been heavily assimilated with Han Chinese. Despite Inner Mongolia’s designation as China’s first autonomous region, ethnic Mongols have long been greatly outnumbered by Han Chinese in the region. The 2010 census indicated that ethnic Mongols accounted for a mere 17 percent of the population in Inner Mongolia, compared to 80 percent Han. 

Signs of Mongolian nationalism emerged among university students in the 1980s. While some preferred political separation and the establishment of an independent Inner Mongolian state, others promoted unity with Mongolia and the ethnic Mongols in Russia. Separatist sentiments were further rekindled by the disintegration of the Soviet Union in 1991. Although there were demonstrations in Inner Mongolia in 1990 in favor of independence, key figures were quickly arrested. In 1991, leaders of a group based near Hohhot were sentenced to two years for separatist activity, according to British Sinologist Michael Dillon. In the same year, Mongol independence activist Xi Haiming (席海明) fled persecution in China to Mongolia and was granted political asylum in Germany in 1993.

Hada (left), founder of the Southern Mongolian Democratic Alliance, was sentenced to 15 years' imprisonment for splittism and espionage in 1996. Image credit: Radio Free Asia
Perhaps the most iconic case was Hada (哈达). Unlike Xi Haiming, Hada chose to stay in Inner Mongolia to continue his peaceful activism and formed the Southern Mongolian Democratic Alliance with other Mongol activists in 1992. The alliance’s mission was to oppose colonization by the Han people and call for self-determination, freedom, and democracy in Southern Mongolia. He was later sentenced to 15 years’ imprisonment for conspiring to split the country and espionage. Having completed his full sentence without a sentence reduction in December 2010, Hada continues to live under close police surveillance and numerous restrictions, including a travel ban and frozen bank accounts.

Other than Hada, cases of ethnic Mongolian splittism have not been widely reported or well documented. Dui Hua’s research into government gazettes unearthed only a few cases of endangering state security:
  • In 1992, 11 of the 197 people classified as the “targeted population” in Ordos were splittists;
  • In 1996, Ordos police solved the case of the illegal ethnic splittism publication Dure and the case of the “Ordos Branch of the Southern Mongolia Democratic League Central Committee” ethnic splittism organization. Police quickly uncovered and stopped a small number of Mongol students who were carrying out efforts in support of Hada’s “Southern Mongolia Democratic League;”
  • In 2009, two of the 18 people classified as the targeted population in Urad Rear Banner were “ethnic splittists.”
Large-scale ethnic Mongol protests erupted in 2011; they were triggered by collective grievances over the ecological destruction of grasslands as a result of excessive mining operations dominated by Han-owned entities in Inner Mongolia. Pro-independence groups overseas also pointed out that the protests had nothing to do with self-determination or independence but were focused on legal rights for indigenous herders. Beijing, however, still blamed foreign forces for fueling unrest among ethnic Mongols. 

Dui Hua’s Political Prisoner Database only has information on four ethnic Mongols who were convicted of inciting splittism over the past two decades.
  • On October 29, 2008, the Xining Intermediate People’s Court sentenced Quehezhou (却合周) and E’erjian (俄尔尖) to nine and ten years in prison, respectively. They were both detained on April 16, 2008. The timing of their detention coincided with the protests which spread across the Tibetan plateau before the Beijing Olympics.
  • Lobsang Gongpo (洛藏公保) was likely involved in the same case; he was sentenced to ten years in prison by the same court on the same day. Despite his Tibetan-sounding name, Lobsang Gongpo is an ethnic Mongol, according to a court judgment Dui Hua discovered online.
  • Quehezhou, E’erjian and Lobsang Gongpo are all from Henan Mongol Autonomous County, an ethnic Mongol-majority county in the south of Huanggang Tibetan Autonomous Precture in Qinghai Province. The judgments did not provide further information about the case.
  • In July 2019, Lhamjab A. Borigin received a one-year suspended prison sentence in Shili Yin Gool for splittism and illegal business activity. The charges stemmed from his book written in Mongolian about the Cultural Revolution. Published in 2006 by an underground press and subsequently translated into Mandarin, the book discloses survivor testimonies and details torture techniques used during political campaigns.

Han Chinese

Court statistics have confirmed that splittism and inciting splittism have been disproportionately applied to ethnic minorities, but no less striking is the remainder of the defendants who are not classified as ethnic minorities. Dui Hua believes that these people are Han Chinese.


Charts 1 and 2 show that of the 3,936 people convicted of splittism and inciting splittism with judgments taking effect from 1998-2016, 347, or 8.8 percent, were not ethnic minorities. There was a slightly bigger proportion of non-ethnic minorities in inciting splittism cases: 155 people, or 14 percent, in inciting splittism cases, compared to 192, or just 6.5 percent, in splittism cases.

In inciting splittism cases, the number of non-ethnic minority defendants varied from 1.6 percent in 2001 to 83 percent of all defendants in 2012. In 2006, slightly over half of the 13 people convicted of inciting splittism were not ethnic minorities; in 2012, 15 of 18 people convicted were Han Chinese.

Unlike Uyghurs, Tibetans, and, to a lesser extent, ethnic Mongols who are imprisoned for promoting ethnic independence, demanding genuine or greater autonomy, or criticizing China’s ethnic policy, the reasons for convicting Han Chinese in splittism or inciting splittism cases are not immediately obvious.

Dui Hua’s Political Prisoner Database only has information on one Han Chinese who was convicted of inciting splittism: Wang Jicheng (王集成) was sentenced to eight years in prison in Nanping, Fujian, in December 2009 for inciting splittism, inciting subversion, and teaching methods of committing crimes. In this case, Wang was sentenced to four years in prison for inciting splittism. A judgment Dui Hua discovered indicated that Wang was released on December 25, 2015, more than seven months earlier than the original release date, without providing information on his criminal acts, which were said to have incited other people to divide China.

A case recently posted by Wei Quan Wang shed some light on the obscure cases of Han Chinese inciting splittism. Originally from Wuhan, Li Ke stood trial in Xining, Qinghai, where he was caught red-handed displaying a “Free Tibet” banner and a Snow Lion flag at a Tibetan monastery. The source also said Li was found in possession of a U-drive with images of overseas Tibetan protesters disrupting the 2008 Olympic Torch relay. The trial outcome is nevertheless unclear.

The following two cases show how Han Chinese can be at risk of being accused of inciting splittism because of their online speech, although neither was found guilty of this particular ESS crime:
  • Huang Qi (黄琦) was sentenced to five years’ imprisonment for inciting subversion in February 2003. Prosecutors moved forward with the inciting splittism charge against Huang because his website contained articles about ethnic independence. The court dismissed the inciting splittism charge and upheld that Huang did not have the intent to divide the country since he did not author the articles.
  • Prominent human rights lawyer Pu Zhiqiang (浦志强) was sentenced to three years’ imprisonment for inciting ethnic hatred, picking quarrels, and provoking trouble in December 2015. The initial allegations against him included inciting splittism, a charge stemming from his negative online comments about China’s policies in Xinjiang. Pu urged China to stop treating Xinjiang as a colony and to stop acting as a conqueror and plunderer.

Taiwan

The developments in Taiwan might be relevant to understand how China curbs separatism among Han Chinese in the mainland. Dui Hua, however, has yet to find proof that promoting Taiwan independence is a reason for conviction in cases of splittism or inciting splittism in mainland China. 

Over the years, Beijing has proactively blocked Taiwan in the international arena in a bid to suppress independence. China typically undertakes countermeasures and ramps up rhetoric against the Taiwan independence movement when the Democratic Progressive Party (DPP) becomes the majority ruling party in Taiwan. A year after Chen Shui-bian of the DPP was re-elected as Taiwan president, China ratified the Anti-Succession Law in 2005. The law claims that Taiwan is a part of China and suggests the use of non-peaceful means against Taiwan independence in the event of a declaration of independence. 

Evidence suggests that Han Chinese are not necessarily criminally liable for discussing Taiwan independence online. A court judgment Dui Hua discovered indicated that Wang Yong (王勇) was only given “admonishment” in Shandong for posting messages on Twitter to “incite Taiwan independence.” Wang was not imprisoned for tweets about Taiwan independence, but rather for the 1,200 “anti-Communist Party” messages and images he tweeted as of August 14, 2019. In January 2020, Wang was sentenced to 10 months’ imprisonment for “picking quarrels and provoking trouble.”

Hong Kong

China has been increasingly wary of the newly emerged independence movement in Hong Kong. Beginning with the student-led movement in 2014 calling for the right to vote for their chief executive, the calls for independence have become more visible in the wake of the civil unrest through the second half of 2019 triggered by the ill-fated extradition bill.

A man found carrying a "Hong Kong Independence" flag in his backpack during a protest on July 1, 2020 was the first person arrested under the Hong Kong National Security Law. Netizens said that the flag said "no to" (反对) in tiny print above the independence slogan. The man has been released without formal charges at the time of publication. Image credit: Hong Kong Police Force Twitter account
As the coronavirus outbreak subsided from May-June 2020, throngs of demonstrators chanting pro-democracy slogans and displaying banners saying “Hong Kong Independence” and “Liberate Hong Kong, Revolution of our times” returned to the city’s streets and shopping malls. Chinese officials condemned the Hong Kong protesters as a “political virus” using violence to promote independence claims.The Hong Kong government has also declared that the protest slogans are pro-independence, secessionist and subversive, and can be prosecuted under the newly enacted national security law, which came into force on June 30, 2020.

Openly supporting Hong Kong independence in the mainland is a risky proposition, but this act alone does not necessarily constitute a crime of ESS. Dui Hua’s research into online judgments found that Twitter user Tang Guogang (唐国刚) was sentenced to 18 months in prison, also for “picking quarrels,” in Liaoning in December 2019. His imprisonment stemmed in part from his messages supporting the independence of both Hong Kong and Taiwan. The court also found him guilty of tweeting hundreds of “subversive” messages attacking China, the Communist Party, and the socialist system. 

In a separate case, a local court in Foshan, Guangdong, sentenced Deng Xiqiang (邓锡强) to two years in prison (suspended for three years) on January 20, 2020, also for “picking quarrels.” Deng was accused of using circumvention software to access Instagram and post 48 messages, which “attacked the socialist system, satirized Chinese leaders, and vilified the Hong Kong Special Administrative Region’s government.” The court also found him guilty of posting “unhealthy and fake” information about Hong Kong independence. Other allegations against Deng included the “yellow umbrella” accessories he designed in support of Hong Kong’s Occupy Central Movement in 2014.

The two cases above were concluded before the National People’s Congress passed national security legislation on June 30, 2020. The law, which covers secession, subversion, terrorism, and collusion with foreign forces, signals a harsher crackdown to crush the Hong Kong independence movement. It remains to be seen whether mainland courts will mete out more severe punishment to deter dissenters who publicly express sympathy for the Hong Kong cause under the catch-all crime of “picking quarrels.” It is also possible that the same acts conducted online will be construed as endangering state security amid a worsening political climate.

Minor splittism movements

There are a few other minor splittism movements in China advocating for provincial independence, but the threat is more apparent than real. Individuals who promote this cause are not known to have been charged with splittism or inciting splittism:

The Haizhu District People's Court convicted Yang Xubin (杨旭彬) of "picking quarrels" for spray painting graffiti slogans, including "Liberate Guangzhou" and "Guangdong independence," as shown in the image of a court judgment posted online. The court did not explain why the slogans did not amount to splittism or other endangering national security crimes. Image credit: China Political Prisoner Concern
  • Yang Xubin (杨旭彬), of Han ethnicity, was sentenced to nine months in prison for “picking quarrels” in January 2020. He spray-painted graffiti of slogans in Guangzhou about the anti-extradition bill protests in Hong Kong and also daubed slogans of “Free Guangzhou” and “Guangdong Independence.”
  • In a separate case, Wang Zhan (王展) was detained for subversion on October 15, 2019 upon returning to China from Finland, where he pursued his post-doctorate study. Wang, whose ethnicity is unclear, was an advocate for independence for Manchuria and Shanghai.
It is hard to understand the rationale behind the tactics of criminalization against Han Chinese supporters of any independence movement. The above cases demonstrated that splittism and inciting splittism are not necessarily applicable even when Han Chinese openly criticize China’s ethnic policy or disseminate information about independence for Taiwan, Hong Kong, or other less developed provincial independence movements. Because of the opacity of China’s criminal justice system, the identities, acts, and fates of the 347 Han Chinese who were convicted of splittism and inciting splittism from 1998-2016 remain unknown. 

What is clear is that the application of splittism and inciting splittism charges has an ethnic bias. Similar acts to split or incite splittism by Uyghurs, Tibetans, or ethnic Mongols are more likely to lead to more severe consequences. Instead of “picking quarrels,” they will likely be charged with splittism and inciting splittism—crimes of endangering state security, which China gives utmost priority and carry much harsher prison sentences. 

On a final note, the drop in splittism and inciting splittism cases beginning in 2014 is no cause for celebration. In an upcoming post, Dui Hua will analyze the reasons and explain how the Chinese government has employed new tactics of criminalization against ethnic minority dissenters: from using splittism and inciting splittism to non-ESS crimes, including terrorism-related crimes and inciting ethnic hatred. 

China’s propaganda often denounces western critics for their “hypocrisy” and defends its own anti-splittism law by drawing comparisons with separatist movements in the west. While it is true that punishing splittism-adjacent crimes through other laws, including anti-terrorism measures, are in place in western democracies to suppress separatism, people in many countries and regions other than China and Hong Kong are at least “free to express secessionist views.” In Spain, political parties that support the independence of Catalonia are represented in the parliament. By contrast, China has zero tolerance for political parties that promote splittism. It also makes peaceful speech punishable under splittism, inciting splittism, or other criminal offenses.

Thursday, July 16, 2020

Court Statistics on Splittism & Inciting Splittism, Part II: Uyghurs and Tibetans

The following has been posted to Dui Hua's Human Rights Journal. It is the second in a three-part series examining the application of splittism and inciting splittism charges using Records of People’s Courts Historical Judicial Statistics: 1949-2016.

In Part I, Dui Hua discussed the application of splittism and inciting splittism from 1998-2016, examining how the trends and sentencing corresponded to major incidents of ethnic unrest in China. The court statistics also indicated that splittism and inciting splittism were disproportionately used against ethnic minorities, but a breakdown of ethnicities is not available. 

Part II focuses on two major ethnic groups who are more likely to face trial for splittism and inciting splittism: Uyghurs and Tibetans.

Uyghurs

Individuals who are convicted of splittism or inciting splittism are predominantly Uyghurs. Parts of today’s Xinjiang Uyghur Autonomous Region briefly enjoyed independence in the two decades before 1949. The disintegration of the Soviet Union in 1991 and the subsequent emergence of independent Muslim nations in Central Asia rekindled Uyghurs’ desire to establish an independent state of their own. To curb the emerging separatist sentiments, China launched its first “strike hard” campaign in Xinjiang in 1996 following large-scale protests, bombings, and killings of government cadres. Thousands of Uyghurs suspected of violence and separatism were reportedly rounded up, and hundreds were executed.

The following year, the Chinese government suppressed the Uyghur uprising in Ghulja, which was sparked by the news that as many as 30 Uyghur independence activists were executed and of the prohibition on traditional Uyghur gatherings known as meshrep. A large but unknown number of people were charged with the counterrevolutionary crime of “conspiring to split the country.” In 1997, Xinjiang concluded 83 counterrevolution cases of first instance, accounting for 30 percent of all counterrevolution cases nationwide.
Sources: Dui Hua, Xinjiang Yearbook, Records of People’s Courts Historical Judicial Statistics: 1949-2016
Dui Hua’s research into government records confirmed that Xinjiang made up an even bigger portion of political cases in China after counterrevolutionary crimes were expunged in the 1997 Criminal Law. From 1998-2003, at least half of endangering state security (ESS) cases were concluded every year in Xinjiang; the number even increased to two-thirds in 2001 and 2003. Between 1996 and 2003, there was an average of two to four defendants per trial. Figures from 2004-2007 are not available.

Despite global attention to the suppression of the Tibetan Riots in 2008, Xinjiang remained the epicenter of ESS cases. Government sources also revealed that Xinjiang made up 67 percent of ESS cases nationwide in that year. From 2009-2010, three quarters of China’s ESS cases were tried in Xinjiang.

Based on analysis of annual work reports disclosed by Xinjiang’s high court from time to time, Dui Hua estimated that Xinjiang concluded approximately 300 ESS case each year from 2013-2014. During this period, Xinjiang continued to account for about 75 percent of the ESS cases in China. The number of Xinjiang ESS trials dropped to 100 cases in 2015. This drop coincided with the overall decline in ESS cases nationwide beginning in the same year. The same work report also reveals that trials for crimes that cover "terrorism" surged by about 25 percent in 2015. Dui Hua believes that many of the trials for terrorism crimes had previously been handled as ESS trials.

Most, if not all, of these ESS cases were splittism or inciting splittism, and a large portion of them took place in west Xinjiang. For instance, government sources confirmed that more than 60 percent of Xinjiang's most serious ESS cases between 2001-2009 were tried in Kashgar. In 2009 alone, Kashgar courts handled 49 ESS cases involving 225 defendants. Among them, 33 cases involving 171 defendants concerned separatist organizations, such as Hizb ut-Tahrir (伊扎布特) and Hijrah Jihad (伊吉拉特).

In recent years, government reporting often conflates splittism and inciting splittism cases with terrorism-related crimes, making it impossible for observers to discern how many people were convicted for non-violent expressions of dissent. The Supreme People’s Court reported that 712 people were convicted of inciting splittism, terrorism, and other violent crimes in 2014, an increase of 13.3 percent compared to 2013. Alleged members of Hizb ut-Tahrir and Hijrah Jihad are often charged with splittism, inciting splittism, and terrorism. The identities, acts, and fates of these people remain largely unknown.

This is not to suggest that peaceful dissenters are necessarily treated more leniently than people convicted of violent crimes. Uyghurs who openly oppose Xinjiang independence remain at great risk of facing lengthy prison sentences for the two ESS crimes if they refuse to toe the party line or are critical of China’s ethnic policy. Notable examples include:

Gheyret Niyaz in a screengrab from the now-defunct uyghurbiz.net. Image credit: Radio Free Asia
  • Gheyret Niyaz, a journalist who was sentenced to 15 years’ imprisonment with five years’ deprivation of political rights for inciting splittism in July 2010. Despite openly opposing Xinjiang independence and holding moderate political views, Gheyret was accused of speaking to foreign media about the 2009 Urumqi Riots. In the interview, he blamed Hizb ut-Tahrir for orchestrating the riots and estimated that the group had nearly 20,000 members in Xinjiang. He also urged his government contacts to take precautions against a potential outbreak of violence in advance of the demonstration planned for July 5, 2009

  • However, the prosecutors focused on his critical essays about Mandarin-focused bilingual education policies, which he said had resulted in widespread layoffs of Uyghur teachers. He also opposed a government program to transfer Uyghur women to jobs in the interior of China because Uyghur communities feared that the programs would result in prostitution and intermarriage. He is not known to have received a sentence reduction over a decade into his sentence and is scheduled for release in October 2024.

Uyghur economics professor Ilham Tohti was sentenced to life imprisonment for splittism by the Urumqi Intermediate People’s Court on September 23, 2014. Image credit: news.cri.cn
  • Ilham Tohti, arguably the most prominent Uyghur prisoner, was sentenced to life imprisonment for splittism in September 2014. The scholar rejected violence and independence but argued that the Uyghur population has been largely left out of Xinjiang’s economic development and routinely face discrimination. He was accused of colluding with the East Turkestan Independence Movement and promoting ethnic separatism on uighurbiz.net, a website he founded to reconcile differences between Han and Uyghurs.

  • Over the years, Dui Hua has been advocating for clemency and better treatment on behalf of non-violent Uyghur activists who were sentenced for splittism or inciting splittism. Our research indicated that clemency provided to ESS prisoners has a clear ethnic bias: Han Chinese convicted of espionage and supplying foreign entities with state secrets are more likely to receive clemency than Uyghurs convicted of splittism and inciting splittism, despite all these crimes being categorized under ESS.
One noteworthy development is that Uyghur splittism and inciting splittism cases are not just confined to Xinjiang. Some of these Uyghurs were job seekers or students who pursued tertiary education in Han-majority cities. Evidence also suggests that some of these cases were related to Hijrah Jihad, which means “migration” and “holy war.” This group encourages members to leave their hometowns to proselytize.
  • Dui Hua previously reported that two Uyghurs were detained in Pingdingshan, Henan, in 2012 for ESS crimes: Adili Tursun was allegedly as one of 61 fugitives of “three forces” (i.e., separatism, religious extremism, and terrorism), while Iliyar Kublati was charged with inciting splittism.
  • Another duo in their early twenties were also indicted for inciting splittism in Henan but were tried in Jilin. Eli Exmet continues to serve his eight years’ sentence in a prison in Changchun until November 2020, while Paziniye completed her five years’ prison sentence in 2019.
  • Fujian’s Nanping Intermediate People’s Court sentenced Ailaijiang Abuliti to seven years’ imprisonment for inciting splittism in December 2015. The judgment only stated that he was given a five-month sentence reduction in June 2019 because of good behavior. 
  • In 2016, Guangdong tried an inciting splittism case involving Warisjan Ghopur. No government responses have been provided to Dui Hua despite repeated inquiries about the case.
Tibetans

The Tibetan regions are widely considered to be trouble spots. Mounting resentment against Beijing began after China reasserted control of Tibet in 1950. Outbreaks of armed resistance, which culminated in the Lhasa Uprising in March 1959, compelled the Dalai Lama to escape to Dharamsala, India, where he currently lives as a refugee. 

Protests in the Tibetan regions are typically initiated by monks calling for the return of the Dalai Lama, and are joined by lay people supporting the same cause. Over the past decades, Chinese policies within Tibet have shifted from relatively liberal to repressive and back again. The 1980s were a period of relative tolerance in Tibet: Beijing briefly allowed temples and monasteries to reopen, and the Tibetan language was reintroduced in schools. However, China tightened its policy after then-Tibet party secretary Hu Jintao violently suppressed large-scale anti-Chinese demonstrations in Lhasa in honor of the 30th anniversary of the 1959 uprising. Martial law was declared on March 8, 1989 and lasted about two years. 

Chinese rule in Tibet remained largely repressive in the 1990s. Monks and nuns who were serving sentences for counterrevolution coordinated large numbers of prisoners to join hunger strikes, shout campaigns, and to chant pro-independence slogans. They also sought to solicit international attention from visiting diplomats. The most severe crackdown on prison protests took place after demonstrations in Drapchi, Tibet’s largest prison, on May 1 and May 4 in 1998. On both occasions, prisoners who were ordered by Chinese officials to celebrate the socialist achievements in Tibet shouted political slogans just ahead of a visit by a delegation from the European Union. Defiant prisoners were reportedly dealt with by deadly force and given sentence extensions for inciting splittism.

Tibetan prisoners convicted of splittism and inciting splittism were largely peaceful, but in some cases, they received additional sentencing for violent crimes. One notable example is Tenzin Delek, who was sentenced to death with two-year reprieve for inciting splittism and setting explosions in December 2002. A respectable leader among Tibetans in eastern Sichuan who had spoken out against deforestation, the monk was accused of staging a series of bombings in Chengdu. Tenzin Delek also denied the charges against him, human rights groups said in 2004, citing a recording smuggled out of prison. Tenzin Delek died in July 2015 while serving his sentence in Chuangdong Prison.

Tibetan monks clashed with armed police during the Lhasa riots in 2008, which the Chinese government saw as a separatist movement plotted by the Dalai Lama. Image credit: CCTV
The impact on ESS cases of the Lhasa Riots, which began on March 14 just months ahead of the Beijing Olympics, cannot be overstated. As noted earlier in this post, 67 percent of China’s ESS cases were concluded in Xinjiang. That said, a portion of ESS cases involved young Tibetans who questioned the path of non-violence promoted by the Dalai Lama and resorted to violence to express political grievances. Foreign journalists reported cases where Tibetan rioters focused on setting fire to and looting businesses owned by Han Chinese and Hui.

Two weeks into the protests, China brought a delegation of foreign journalists to Lhasa to allow independent reporting from the Tibetan capital. Several dozen monks at the Jokhang temple protested in front of the foreign reporters and yelled “We want the Dalai Lama to return to Tibet, we want to be free.” Some of these monks were likely charged with or sentenced for ESS, including splittism and inciting splittism. Reliable arrest figures are not available.

Amid the outbreak of the Tibetan protests, filmmaker Dhondup Wangchen joined the ranks of political prisoners because of his independent coverage of the tensions in Tibet. He produced a 25-minute documentary “Leaving Fear Behind,” in which he interviewed Tibetans about their hopes and frustrations living under Chinese rule. His footage was smuggled overseas before he disappeared into detention on March 26, 2008. He was sentenced to six years’ imprisonment for inciting splittism in December 2009 and completed his full sentence without a sentence reduction on June 5, 2014. In December 2017, he fled China and was reunited with his family in the United States who had been granted political asylum there.

The spate of self-immolations in the Tibetan regions, which began in 2009, brought into sharp relief the despair and defiance of Tibetans. Some Tibetans see these acts as altruistic suicide committed in order to not cause material damage or inflict physical harm on others. State-run news media reported at least two cases of inciting splittism in connection to the self-immolation protests:
  • A court in Qinghai sentenced Phagpa to 13 years’ imprisonment for inciting splittism and murder in February 2013. Phagpa allegedly encouraged a monk to set himself ablaze for the Tibetan cause. In November 2012, Phagpa organized pro-independence demonstrations in Tongren County and was found in possession of a large number of “Snow Lion Flags” and photos of the Tibetan government in exile. In this case, the crime of inciting splittism alone carried five years’ imprisonment.
Due to limited information available, it is hard to estimate the number of splittism and inciting splittism cases throughout all Tibetan regions, which span not only the Tibetan Autonomous Region but also parts of Qinghai, Sichuan, Gansu, Ningxia, and Yunnan. Although comprehensive data of arrests, indictments, and trials for splittism and inciting splittism across all Tibetan regions are not available, piecemeal figures from government sources suggest that Tibetan cases came in a distant second after Xinjiang:
Self-immolation protests by Tibetans have not stopped; the latest incident was reported on November 26, 2019. At the same time as the rate of occurrence has slowed down, considerably fewer political cases in the Tibetan regions have been reported over the past few years. 

One of the most well-known cases over the past few years concerns Tashi Wangchuk. Like some of the previously discussed Uyghur cases, promoting or discussing independence for Tibet is not a requisite for conviction. Tashi Wangchuk was sentenced to five years’ imprisonment for inciting splittism in May 2018 because of the interviews he gave to The New York Times. In the interviews, he explicitly stated that he was not calling for Tibetan independence; rather, he expressed worries about the disappearance of the Tibetan language because Chinese authorities have been prohibiting the use of Tibetan in spheres ranging from schools to commerce. He is scheduled for release from Qinghai’s Dongchuan Prison in January 2021.

In Part III, Dui Hua examines two other ethnic groups who have also faced trials for splittism and inciting splittism: ethnic Mongols and Han Chinese.

Thursday, July 9, 2020

Court Statistics on Splittism & Inciting Splittism, Part I

This is the first post in a three-part series examining the application of splittism and inciting splittism charges using Records of People’s Courts Historical Judicial Statistics: 1949-2016. Previous posts drawing on SPC statistics discussed the decline in juvenile convictions, cases related to Hong Kong and Taiwan, and cases covered by Article 300 of the Criminal Law—“using or organizing a cult to undermine implementation of the law.”

On May 27, 2014, the Yili Kazakh Autonomous Prefecture Branch of the Xinjiang High People’s Court convicted 55 defendants of splittism, “organizing/leading/participating in a terrorist organization” and murder in a public rally of sentencing, arrest and criminal detention jointly held by the party secretary and public security. Image credit: China Daily

Splittism and inciting splittism are crimes of endangering state security (ESS), introduced in 1997. They are routinely used to suppress calls for greater self-determination rights, including genuine autonomy and political separation from China. Trials of these two crimes have been used as proxies for the suppression of dissenters from ethnic minority groups, most notably Uyghurs and Tibetans.

Defined in Article 103 of the Criminal Law, splittism and inciting splittism serve to deter people from “splitting the country or undermining national unification.” The former carries a potential death sentence and targets those who organize, plot, or act to divide China. Inciting splittism is not a capital crime and is applicable when an offender urges or persuades others to commit splittism through the use of language, text, images, or other communication tools but does not commit splittism him- or herself.

Statistics released by the Supreme People’s Court (SPC) in the 12-volume Records of People’s Courts Historical Judicial Statistics: 1949-2016 corroborate Dui Hua’s observation that splittism and inciting splittism are considered by the Chinese government to be the two principal state security threats in China. The two crimes account for the majority of ESS cases nationwide and are disproportionately applied to ethnic minorities.


Chinese courts accepted 5,863 ESS cases and brought 14,072 people to trial for ESS in the first 18 years after the 1997 Criminal Law came into effect. Charts 1 and 2 show that among them, 4,304, or 73 percent of the ESS cases, and 11,810, or 84 percent of the defendants, stood trial for splittism or inciting splittism.


Chart 3 shows that the first peak of splittism and inciting splittism cases occurred in 2001; a total of 731 people were brought to trial. Although sporadic incidents of ethnic unrest had started earlier in the 1990s, China remained relatively silent and downplayed the severity of the security threat before 2001, according to a research report by CNA China Studies.

China began speaking more openly and frequently about separatist violence in Xinjiang after the September 11, 2001, terrorist attacks on New York and Washington. After 9/11, Beijing employed similar rhetoric to the United States to justify its own “War on Terror” and designated the East Turkestan Independence Movement (ETIM) as a terrorist organization with assistance from global jihadist networks. In the same year, China started blaming ETIM for instigating a number of separatist and terrorist activities in China. Because most information on ETIM can only be tracked back to Chinese government sources, some critics have raised questions of credibility and said the threats were exaggerated.

Due to the limited information available, it is impossible to quantify the extent of ETIM’s involvement in splittism and inciting splittism cases. Dui Hua’s research, however, revealed that a substantial proportion of these cases after 2000 were attributed to Hizb ut-Tahrir (伊扎布特), or Party of Liberation. For example, in 2010, police in Kashgar identified 522 people for their involvement with Hizb ut-Tahrir. Many countries have banned the group, but independent media reports documenting Hizb ut-Tahrir activity in China are scarce. Members of this group are also likely to face terrorism-related charges. Part II will feature a more in-depth discussion of this topic.

The six years before the Beijing Summer Olympics were a period of relative calm. The number of people tried for splittism and inciting splittism dropped every year from 2002-2005, falling from 630 people to 310, but increased steadily in the two years since 2006. From 2002-2007, the number of people tried for splittism and inciting splittism made up around 80 percent of ESS defendants nationwide.

The crackdown on separatism intensified in 2008; the number of defendants tried for the two crimes doubled to 1,155 from 564 in 2007. This surge was likely triggered by calls for an Olympics boycott by international activists over China’s extensive human rights violations. Chinese state media blamed ETIM and Tibetan separatists in exile for fanning anti-China sentiment overseas. Just months ahead of the Beijing Olympics, Tibetan protests erupted in Lhasa on March 14, 2008, and spread across the entire Tibetan plateau.

The number stayed high between 2009 and 2013, during which 3,871 people were brought to trial. Notable incidents of ethnic unrest included the Urumqi Riots in July 2009, a spate of Tibetan self-immolation protests, and violent attacks allegedly committed by Uyghurs in- and outside of Xinjiang.

A significant drop in the number of people brought to trial for splittism and inciting splittism occurred in 2014, falling to 577 from 886 in 2013. The number dipped almost threefold to 199 in 2015 and remained low in 2016. From 2015-2016, splittism and inciting splittism cases accounted for 58 percent of all ESS cases, down from over 90 percent when these cases were at their peak in 2012.

It is worth noting that China consistently tried and concluded more cases of splittism than inciting splittism from 1998-2013, but the case ratio vastly fluctuated. In 2013, ten people were tried for splittism for every one person tried for inciting splittism. The ratio dropped to 1.7:1 in 2005. Between 2006 and 2013, the number of defendants tried for splittism was 1.7-4.6 times more than those tried for inciting splittism.

The number of cases and defendants tried for splittism was superseded by inciting splittism after 2013. From 2014-2016, 630 people were tried for inciting splittism, more than double the number of defendants for splittism. More research is needed to better understand this emerging trend.

Sentencing

From 1998-2016, only 15 people tried for splittism or inciting splittism were acquitted. These acquittals mostly occurred in the first five years after 1997. No one was acquitted for either crime from 2003 through 2016. The only exception was in 2009; four people were acquitted for inciting splittism.


About 99.6 percent of splittism and inciting splittism trials ended with a conviction. Charts 4 and 5 show the following types of punishment: a. below three years, b. three to five years, c. over five years to death penalty, d. other, which includes exemption from criminal punishment, suspended sentence, criminal detention, and public surveillance.

Thirty-five people, 0.8 percent, were exempt from criminal punishment. Only three people, or 0.07 percent, were given criminal detention.

Non-custodial punishments were also rare. Only 26 people received suspended sentences (eight for splittism, 18 for inciting splittism), and 16 people were given public surveillance (nine for splittism, seven for inciting splittism).

The vast majority of people received imprisonment sentences. Chart 4 shows that considerably more people convicted of splittism received longer prison sentences than those convicted of inciting splittism. In the 18 years beginning in 1998, 74 percent of defendants convicted for splittism received prison sentences longer than five years, compared to 41 percent for inciting splittism as shown in Chart 5.



Chart 6 shows a year-by-year sentencing breakdown for people convicted of splittism from 1998-2016. The surge of long prison sentences (i.e. longer than five years) meted out from 2008-2013 coincided with the aforementioned incidents of ethnic unrest involving Uyghurs and Tibetans. During this restive period, as many as 90 percent of them received prison sentences longer than five years, including an unknown number of people who might have received the maximum sentence of death.

However, the same trend was not reflected in inciting splittism cases. Chart 7 shows that although nearly half of the defendants received longer prison sentences in 2009, the number dropped to 32 percent in 2010 and 34 percent in 2013.

The Publicity Department of Shache County in Xinjiang reported that 840,000 people from different ethnic groups took oaths to fight against extremism and splittism before the Chinese Communist Party flag, following a deadly terror attack which occurred in the city on July 28, 2014. Image credit: China News

Severe punishments were meted out in both splittism and inciting splittism cases in 2014. Nine out of every 10 splittism defendants received long prison sentences, as did eight out of every 10 defendants for inciting splittism. In that year, state-run Xinhua News Agency called the frenzied violence at a crowded train station in Kunming, Yunnan, “China’s 9/11.” The attack was allegedly committed by Uyghur separatists.

Social Backgrounds

The SPC statistics also provide interesting insights into the social backgrounds of defendants with judgments taking effect. Notable observations gleaned from the statistics include:


  • A substantial portion of splittism and inciting splittism cases appeared to concern rural grievances. Chart 8 shows that from 1998-2016, over 70 percent of people convicted of splittism were farmers, whereas farmers made up half of the defendants convicted of inciting splittism.

  • Classified as a sub-category of farmers in the court statistics, migrant workers emerged as a numerically significant group in 2009. Of the 322 individuals convicted for splittism, 113 were migrant workers. In that year, a violent dispute between migrant Uyghurs and Han Chinese workers from June 25-26 at a toy factory in Shaoguan, Guangdong, triggered the days-long riots that broke out in Urumqi on July 5.

    Unemployed (370) and private business owners (355, including self-employed), came in a distant second and third place, respectively.

  • Women committed splittism and inciting splittism at a fraction of the rate of men. Only 118, or less than three percent, of all the 4,238 people convicted of the two crimes were women.

  • Women have received harsh prison sentences. For instance, Gulmire Imin was sentenced to life imprisonment for splittism in April 2010; she is not known to have received a sentence reduction. The Chinese government accused her of calling on Uyghurs to join the protests in Urumqi in July 2009. 


  • Splittism and inciting splittism were disproportionately applied to ethnic minorities. Of the 4,283 convicted individuals, 3,936, or 92 percent, were ethnic minorities. 

Read Part II to learn about the two main ethnic minority groups in splittism and inciting splittism cases: Uyghurs and Tibetans