Fortifying the Great Firewall: The Criminalization of VPNs, Part I

China’s Great Firewall keeps people inside the country from accessing thousands of overseas websites, 
including Twitter, YouTube, and Facebook. Image credit: Megan Pendergrass

With a netizen population of 829 million at the end of 2018, China is arguably the world’s most sophisticated surveillance state: with increasing effectiveness, China blocks information deemed sensitive or harmful by the party from entering its domestic network. Its notorious censorship scheme, widely known as the “Great Firewall,” came into operation not long after the internet arrived in China in 1994. The Chinese government realized the need to protect the regime from “flies” once “the window is open for fresh air,” a famous quote from Deng Xiaoping, who sought to keep the nation away from western influence, despite a commitment to economic reform.

The Great Firewall has blocked around 10,000 domain names, including Dui Hua's, according to Greatfire.org, a non-profit group that monitors the status of online censorship in China. Almost all popular social media websites and mobile apps are censored, including Google, Facebook, YouTube, Instagram, and Twitter. The New York Times, The Wall Street Journal, Reuters, Bloomberg, and the BBC are among the best-known foreign media outlets blocked by China’s domestic network. Just ahead of the 30th anniversary of the events of June Fourth, 1989, all versions of Wikipedia, in all languages, joined the long list of foreign websites blocked by the Chinese government. Even academic, cultural, and scientific sites can be blocked: current examples include Google Scholar, The China Quarterly, Northwestern University Medical School, and Shutterstock.

Driven by their desire for information filtered out by the domestic network, an estimated 20-30 million internet users rely on virtual private networks (VPNs) to get unfettered access to overseas websites (commonly referred to as “scaling the wall”). They typically do so by paying a small subscription fee. The academic sector relies on VPNs for research data and to connect to libraries worldwide. VPNs are also a necessity for both Chinese companies that conduct business overseas and foreign companies that conduct business in China.

Xi Jinping expresses his views on cybersecurity: “There is no national security without cyber security.” Image credit: Xinhuanet

In view of the growing number of internet users accessing overseas information, Beijing has not hesitated to target VPN providers and cripple their services. VPN service providers describe the battle against online censorship as a game of cat-and-mouse, in which they play mice trying to evade a giant cat—the Chinese government—by continuing to modify or develop new tools to skirt the increasingly fortified Firewall. The mice, however, have been playing a tougher game ever since Xi, in early 2017, called on other countries to respect different models of regulating the web space and extolled his concept of “cyber sovereignty.” A hallmark of how Xi exercises his cyber sovereignty is the launching of clean-up campaigns that periodically shut down websites and online accounts containing or propagating “harmful” online information. China’s state-owned internet service providers China Mobile, China Unicom, and China Telecom were ordered to completely block VPNs by February 2018. Green VPN, one of the most reputable China-based VPN companies, ceased service on July 1, 2017. In the same year, Apple defended its decision to remove 674 VPN apps from its China app store because they violated Chinese laws. All companies and individuals must seek government approval to use and install VPNs, effective March 31, 2018.

In addition to expanding the list of blocked foreign IP addresses and shutting down unofficial VPN services, Xi has recently shifted to targeting individual users and providers of VPNs. Those who attempt to escape the tight leash on internet control, or those who enable others to do so, not only face fines, but also criminal detention and imprisonment for varying offenses.

Before & Now

China started regulating the use of VPNs with the enactment of the Regulations of the Administration of International Networking of Computer Information in 1996. Article 6 of the regulation states that “[c]omputer information networks within the territory of China, when connected with international networks, must use international inward and outward channels (guojichurukouxindao 国际出入口信道) provided by the national public telecommunication network of the Ministry of Posts and Telecommunications.” Violators shall be ordered to terminate their networking activities and are subject to a maximum fine of RMB 15,000. But in over two decades of existence, the regulation was not enforced until 2017, when Xi began tightening control over the VPN market, according to Lee Jyh-An, at the Chinese University of Hong Kong, who publishes extensively on Chinese internet law.

An early case concerning the criminalization of internet users who bypass the Great Firewall, however, predated the VPN ban in 2017. In May 2015, Chen Lefu (陈乐福) was detained for 28 days in Shanghai on suspicion of sabotaging a computer information system. Chen promoted the use of Twister, an open source peer-to-peer (P2P) microblogging network whose decentralized platform prevents sent messages from being blocked or deleted after they are published. The tool also protects publishers’ identities from being tracked, since the posts’ IP addresses are not recorded. Exiled activist Wen Yunchao speculated that another reason for detention was that Chen helped other dissidents to circumvent the Great Firewall. Chen also published a list of Shanghai and Chongqing netizens he suspected of being the 50 Cent Army, a colloquial term referring to state-backed online commentators. Human rights lawyer Liu Xiaoyuan said that several other individuals were detained alongside Chen, but their identities are not known.

In December 2018, news media sources began reporting more cases concerning VPN users. Zhu Yunfeng (朱云枫) was given a warning and a fine of RMB 1,000 by public security in Shaoguan, Guangdong, for “establishing or using an unauthorized channel to access the international internet” via Lantern, a globally recognized circumvention tool. The administrative punishment decision stated that Zhu had logged into the VPN 487 times in one week prior to the warning. A similar case occurred in Chongqing on January 4, 2019. Police summoned Huang Chengcheng (黄成成), on suspicion of the same offense. Huang was previously sentenced to two years’ re-education through labor in March 2011, after circulating online messages calling on netizens to “go for a stroll” to support China’s pro-democracy protests that year, known as the Chinese “Jasmine Revolution” and inspired by the Arab Spring in Tunisia.

In addition to individual VPN users, police have also targeted unauthorized use by trading corporations. In June 2019, a news media source reported that an overseas trading company in Haining City, Zhejiang, received an administrative punishment for installing an unauthorized circumvention application. Police alleged that the use of such applications from an unidentified developer exposed the risk of privacy leakage. Nothing else is known about the administrative punishment.

It must be noted, however, that using VPNs does not necessarily incur a penalty, nor is it necessarily criminal. Global Times editor-in-chief Hu Xijin, an active user of Twitter, is known to use a mobile circumvention tool frequently to tweet while defending China against international criticism, including over Xinjiang’s political re-education camps, which hold or have held over one million Muslims. China’s state media outlets China Daily and Xinhua, as well as Chinese telecommunications companies, rely on foreign social networking sites that are blocked in China to launch soft-power, marketing, and advertising campaigns. For example, Xinhua has accounts on both Facebook and Twitter, although these sites are blocked for most Chinese users. Similarly, despite being widely mocked online for tweeting “Happy #2019” on New Year’s Day with a “Twitter for iPhone” stamp clearly visible due to a VPN issue, Huawei continues to actively use Twitter and Facebook to rebut accusations that the telecom giant poses a threat to U.S. national security.

"Politically harmful content": The categories of offenses

While the Chinese government justified its internet clean-up campaigns to combat economic crimes, online gambling, and pornography, the crackdown is also conspicuously aimed at eradicating “politically harmful content.” Within one month after the Cyberspace Administration of China launched a campaign on October 20, 2018, about 9,800 social media accounts had been scrubbed for posting sensational or vulgar content, or “spreading politically harmful information, maliciously falsifying the party history, slandering heroes and defaming the nation’s image.” As part of the internet clean-up, the crackdown has extended its reach to online users who post or circulate online messages unwanted by the party, or sometimes even local officials, beyond the Great Firewall.

"Picking quarrels and provoking troubles"

The offense of picking quarrels and provoking troubles is typically invoked to punish such VPN users. In November 2018, Radio Free Asia (RFA) reported that Liu Jichun (刘继春) was formally arrested in Chongqing because he refused to delete a large number of his tweets attacking social ills. Available sources, however, have not revealed the exact content of his tweets. Another case, also reported by RFA, sheds light on the political nature of offenses that resulted in imprisonment: in December 2018, Jiangsu netizen Liu Hongbo (刘红波) received a six-month sentence for picking quarrels and provoking troubles. The judgment stated that Liu Hongbo posted 72 tweets between August 2017 and August 2018 that “defamed the party and national leaders” and 329 tweets that harmed the image of the party and government. Liu Hongbo stated in his defence that the tweets were not composed by himself; he only liked and retweeted Guo Wengui's tweets. Guo is an exiled billionaire tycoon wanted by China for a variety of crimes. He is currently seeking asylum in the U.S.

An indictment statement recently circulated online stated that Shi Genyuan (施根源) was indicted for the same offense as Liu Hongbo in March 2019, because he used Twitter and Facebook to post 383 messages that “attacked the party and Chinese leaders, and exaggerated and distorted certain sensitive cases and incidents.” His messages, which have been discussed, forwarded, and liked 2,316 times, were said to have “caused a serious disturbance in a public place.” Since the Supreme People’s Court issued a judicial interpretation in 2015, the crime of picking quarrels and provoking troubles has extended its reach into virtual space, even though, ironically, most citizens do not have access to much of the space without VPNs.

Dui Hua’s research into online judgments uncovered several cases that have not been reported by news media sources. A day prior to detention on October 7, 2018, Xu Nailai (许乃来) staged a solo protest on Beijing’s Wangfujing Street with a banner that read, “End the Chinese communist dictatorship; no more sexual assaults and faulty vaccines; taxpayers are in dire straits.” On March 25, 2019, Xu was sentenced to three years and six months’ imprisonment in Tianjin for picking quarrels and provoking troubles. The allegations against him also included posting a large number of tweets that “vilified the Communist Party and political system, slandered Chinese leaders, and hurled insults at public security.”

The criminalization of VPN users also extends to critics of local officials. In a separate case also concluded in Tianjin in September 2018, Mu Zhixiang (穆志祥) was sentenced to 22 months’ imprisonment and convicted of the same offense as Xu Nailai, in addition to illegal business activity. Apart from using his personal blog and domestic online forums that required no circumvention, Mu was accused of posting multiple messages on Facebook and Twitter that allegedly attacked Tianjin public security officials and smeared the government.

"Offenses related to defamation"

VPN users can also stand accused of defamation. Initially detained and arrested for picking quarrels and provoking troubles in the second half of 2017, Yin Zhenglin (殷正林) was sentenced to 11 months’ imprisonment for defamation in Chongqing in July 2018. The prosecution accused Yin of obtaining a large amount of information that defamed the party and Chinese leaders concerning four issues: the Malaysian aircraft MH370 that went missing on March 8, 2014, with 153 Chinese nationals on board; the wrongful conviction and execution of Nie Shubin; the abnormal death of Lei Yang in police custody; and Guo Wengui, the tycoon mentioned above, now living in the U.S. Yin was said to have spread this negative information using three different Twitter accounts, “seriously harming the image of the party and nation, endangering state security, and disrupting social and public order.”

Also convicted of defamation, Wang Zhiqiang (汪志强) was sentenced to one and a half years’ imprisonment in Benxi, Liaoning. Wang was found guilty of composing 412 tweets that defamed the Chinese leaders, with 637,610 views between June 2016 and September 2018. The judgment stated that his tweets “harmed the nation’s image and seriously endangered state interests.”

Disseminating terrorist, subversive, divisive, and reactionary information

VPN users who share dissenting versions of narratives about Xinjiang could be charged with a different set of offenses. For instance, Shandong netizen Wang Mingde (王明德) was sentenced in 2018 to 15 months’ imprisonment for “fabricating or intentionally disseminating false terrorist information,” a charge stemming from, among other things, his posting messages on Twitter and Facebook about “East Turkestan.” The Chinese government calls “East Turkestan” a terrorist group advocating both violence and Uyghur independence. In another case, Xinjiang resident Tian Weiguo (田卫国) was accused of tweeting two “fake” messages from his account, which has 98 followers. One of his tweets concerned the deadly incident in Shache, Xinjiang, that left 96 dead (including 59 terrorists) on July 28, 2014, according to official accounts. Tian called the incident the “Shache Massacre,” and claimed thousands of people were killed, many of whom were Uyghur women. Tian also called on the UN to look into the incident. In March 2016, Tian was sentenced to three years’ imprisonment for “inciting racial hatred” in Xinjiang’s Ili Autonomous Prefecture.

More recently, Zhou Yongjun (周勇军) has been charged in Dongxing City, Guangxi, with picking quarrels and provoking troubles on the grounds of using overseas social networking media, presumably with the help of a VPN, to disseminate “reactionary information.” This is the fourth time Zhou has been taken into custody since he took part in the Tiananmen Square protests of 1989. Before he was charged with picking quarrels and provoking troubles, Zhou was initially detained for “using a cult to undermine implementation of the law” and then indicted for inciting subversion. Both charges stemmed from his alleged possession of Falun Gong materials, and his critical tweets about the Communist Party.

Stay tuned for Part II next week.

From Hu to Xi: China’s Grip on Environmental Activism: PART II: Environmental Activism from Above and Below

Environmental Activism from Above and Below

In Part 1 of this series,  Dui Hua analyzed a decade of environmental activism, both mass protests and individual actions, and the price paid by those trying to protect the environment. In Part 2, Dui Hua looks at civil society engagement in activism to protect the environment, and China’s shrinking space for the work of environmental NGOs.

Civil Society

The concept of environmental non-governmental organizations (ENGOs) was entirely foreign to China until, in the nation’s first bid for the Olympic Games in 1993, its delegation was asked by the International Olympic Committee whether China had ENGOs. A year later, China’s first ENGO, Friends of Nature, formerly known as The Academy for Green Culture, was formally incorporated. Both grassroots and foreign-funded ENGOs thereafter emerged, and provided help for victims stricken by environmental disasters.The most famous of these were the deadly floods along the Yangtze River in 1998, caused by deforestation, and the Nu River hydropower project, which would have flooded a natural UNESCO site on the lower reaches of the river in Yunnan, had then-prime minister Wen Jiabo not put a dam-building moratorium on the river due to ecological concerns.

An early criminal case involving six villagers, all surnamed Ye, who joined an environmental non-profit organization did not garner the attention it deserves. The leading members were sentenced in 2010 to 6-18 years’ imprisonment for multiple violent offenses, including organizing/leading an organization of a gangland nature. The case took place in Guangdong’s Huangshawei Township, not far from another township well-known for ceramics, where a clay quarry began operation in 2008. Southern Farmer’s Daily reported that half of the quarry sites were illegal and over 300 haul trucks without mechanical covers passed through Huangshawei Township every day, causing both safety hazards and considerable dust pollution. As government officials refused to take measures to protect the villagers, the villagers set up The Huangshawei Education Foundation in July 2009 to defend their environmental rights. The foundation used its funds to provide subsidies to affected villagers and hired armed road guards to intercept haul trucks. Within two months of its founding, the foundation successfully pressed the local government and quarry operation for compensation over pollution. In October 2009, a verbal argument turned into a group brawl after the foundation members intercepted a haul trucker who refused to use a mechanical cover. The foundation was then labelled a “gangland” organization and the compensation it had received from the government was cited as evidence of extortion. In 2017, a Chinese government response provided to Dui Hua confirmed that one of the foundation members, Ye Bailian (叶百练), received three sentence reductions, 32 months in total between 2013 and 2017. Ye is now scheduled for release on May 6, 2025.

According to Southern Farmer’s Daily, similar environmental rights groups emerged in four nearby villages after The Huangshawei Foundation was founded in 2009. While it is unclear whether they all suffered the same fate, the fact that all of them targeted the same clay mining operations reflected a growing trend in grassroots environmental consciousness. Over the two decades since 1994, there was an exponential growth in ENGOs nationwide. The number had grown from just nine in 1994 to 8,000 in 2017, according to Gulf News, citing the French Embassy in Beijing. ENGOs were said to have enjoyed an unusual degree of freedom – many, in fact, were co-funded by local governments to evaluate the environmental impact of factories and even to critique public policy.

Nonetheless, Xi Jinping has tightened his grip on environmental activism, particularly since the Foreign NGO Law came into effect in 2017. The law requires all foreign NGOs to abide by strict requirements related to funding sources and registration procedures, which has sharply limited their ability to support or collaborate with Chinese NGOs, including ENGOs. Police can also question foreign NGO employees and seal off their assets and offices. While in 2016 there had been about 7,000 foreign NGOs active in China, according to former vice foreign minister Fu Ying, in January 2019 ChinaFile reported that the number of new foreign NGOs registering to work in China dropped from 303 in 2017 to only 133 in 2018. Of these, the number of ENGOs dropped from 36 to 13 (although the number of ENGOs applying for temporary registration increased from 39 to 71, very likely indicating efforts to work around the difficulties of registering to operate permanently in China.) While exact numbers vary according to different reports, the drop in registration from the beginning of 2017, when the law went into effect, is consistent across sources. An ENGO from the U.S. said of its work in China that “[w]e chose to stop all activities to avoid putting ourselves and partners at risk… it’s not like the law allows any wriggle room.”

A poster of Green Leaf Action, an
environmental group founded by Xue Renyi,
calls on the Chinese government to improve
food safety and air and water quality.
Image Credit: Boxun

Members of Green Leaf Action, a Chongqing-based environmental group that promoted food safety, clean air, and clean water, were among the first to face suppression for having “foreign connections.” In December 2016, founder Xue Renyi (薛仁义) was warned by police that his group was “controlled” and “manipulated” by overseas forces. Xue was later detained for picking quarrels and provoking troubles in May 2018, and in January 2019, Xue’s fiancée claimed that she had not been allowed to visit him in custody. Another active member of Green Leaf Action, Pan Bin (潘斌), was sentenced in December 2018 to four years’ imprisonment for the same offense.

The case of Liu Shu (刘曙) indicates that environmental surveying can also be considered a state secret. In 2013, the Ministry of Environmental Protection called soil pollution information a state secret in a reply to a Beijing lawyer’s request to make the information public. Liu, founder of ENGO Shuguang Green, was accused of revealing China’s state secrets related to counterespionage work in October 2016. Liu collected soil and paddy samples to examine the level of heavy metal pollution in the waters of Lake Dongting, a shallow lake in northeast Hunan. One of her samples indicated that heavy metal pollution exceeded the national limits by 715 times. In January 2016, Liu wrote that the degree of freedom in the realm of environmental protection had significantly declined because she had faced repeated harassment in the three years since her ENGO came into operation in 2013. Liu was given a ten-day administrative detention by the Changsha state security bureau.

Whistleblowers

China appears to have encouraged the public to monitor environmental affairs in the “war on pollution” that began in early 2013. The initiative has the intended goal to hold local governments accountable by encouraging informers to report environmental violations. In 2015, substantive amendments were made to the Environmental Protection Law, which imposes harsher penalties against polluters and requires that enterprises disclose information about discharged pollutants and that authorities keep reports filed by whistleblowers confidential.

But disclosing information concerning an imminent danger to public health, safety, or the natural environment remains a highly risky proposition. In March 2018, Lei Ping (雷萍) was accused of rumor mongering after she made complaints online about illegal quarrying and disposal facilities near a national-level conservation area in her hometown of Xinyi City, Guangdong. Lei volunteered for the government-funded non-profit China Biodiversity Conservation and Green Development Foundation. Lei Ping spent ten days in detention and she was released in part due to public outcry; the foundation had issued a public letter to police calling for her release. Sixth Tone, a sister publication of The Paper (澎湃), cited a Beijing-based lawyer specializing in environmental cases as saying that the handling of Lei’s case by police gave a bad impression to the public that informers were being punished to cover up private business violations.

A group of protesters from Funing, Jiangsu, assemble in support of environmental whistleblower Ji Shulong. The banner says: “Xi Jinping, release environmental rights defender Ji Shulong. We want blue mountains and green waters, not mountains of gold and silver. Ji Shulong is innocent.”
Image credit: RFA

Independent whistleblowers without support from government-funded environmental groups are not as fortunate. Ji Shulong (嵇书龙) tipped off the environmental authorities in Beijing that a local government in Yangcheng, Jiangsu, planned to reintroduce Aoyang Industrial Park (Yancheng is the same prefecture-level city where the plant explosion mentioned in Part I occurred in March 2019). Aoyang is a chemical enterprise widely discredited even by domestic news media for causing severe pollution, and has previously been ordered to suspend production for environmental violations. Ji led a group of villagers to petition Beijing to request intervention from the central government after Aoyang seized and converted approximately 130,000 square meters (32 acres) of farmland into a landfill. Ji continued her efforts to expose Aoyang’s environmental violations after completing her two-year sentence for picking quarrels in 2014. In October 2017, Ji was re-detained for the same offense, and remains incarcerated after spending 21 months in custody at the time of writing.

Zhang Wenqi (张文奇) is yet another case highlighting how people who expose wrongdoing on environmental issues are given insufficient protection and subjected to retaliation . In July 2018, Zhang was sentenced to 17 months’ imprisonment for damaging business reputations and causing financial losses to three companies in his home province of Henan, even though the environmental authorities had verified Zhang’s complaints. Having worked for a Shanghai-based biochemical technology company, Zhang is well-informed about the environmental impact caused by crystal violet lactone (CVL), a dye used in carbonless copying paper. In 2014, Zhang found pollutants such as ammonia and heavy metals in the gases and solid waste discharged by the two manufacturers of CVL in Henan, and witnessed the companies illegally dumping waste near the industrial zone. Both manufacturers were connected to the same parent paper company, a major taxpayer in Wuzhi County. Unconvinced by the Ministry of Environmental Protection’s 2015 investigation that rebutted Zhang’s complaints that the companies were manufacturing CVL, Zhang continued to file anonymous reports against environmental violations. A year later, the Henan provincial environmental bureau confirmed Zhang’s allegations and ordered the companies to terminate CVL production. In March 2017, however, Zhang was detained for using a fake identity to fabricate the accusations against the companies over the past three years for personal gain. In a document submitted to the court, the parent company claimed that Zhang’s allegations had cost them a financial loss of 800,000 yuan, even though the defence lawyer claimed that the amount had not been independently verified by auditors.

Despite the positive publicity Xi has received for his stated commitment to “ecological civilization,” the term is in fact not Xi’s own creation. It was first coined by Hu Jintao in 2007 as a guiding principle to cure environmental woes associated with China’s biggest and fastest industrial revolution in the world. From Hu to Xi, both regimes have made commitments to climate change targets and rolled out a number of corresponding measures to curb pollution. However, an article from The National Bureau of Asian Research (NBR) in 2014 argued that there was an apparent gap between rhetoric and reality in China’s air pollution control, due to an absence of a robust legal system, a free press, and an active civil society.

After years of government-driven environmental efforts, China remains the world’s biggest polluter. It emits more carbon dioxide than the U.S. and EU combined. NBR explained that historical precedents have demonstrated that people who bore the direct consequences of pollution provided the driving forces of environmental reform. A top-down approach to environmental governance could not succeed in bringing about substantive changes without active assistance from below.

Factors impeding the progress of grassroots environmental protection persist, or have even increased, in Xi’s “new era.” Xi shows few signs of tolerating individual rights to protest about environmental problems. His state security and NGO legislation have created an unfavourable atmosphere for environmental civil society, making activists who join independent groups more likely than ever to fall victim to state security charges. The cases discussed in this article also indicate that mechanisms intended to guarantee the safety of environmental whistleblowers are insufficient. To make meaningful progress in environmental protection both domestically and internationally, the Chinese government must reconsider its approach to environmental governance. It must respect human rights, because freedom of expression, assembly, and association are indispensable to the protection of public health and the environment.

From Hu to Xi: China’s Grip on Environmental Activism PART I: Mass Protests and the Threat to Activists

Threats to China’s natural environment, and the resulting negative impact on public health and well-being, have galvanized an impressive range of individuals and groups across Chinese society. Whatever the diversity of the groups, they all face risks of official harassment, including detention and prison sentences. For example, in November 2018, a group of Buddhist monks from Sansheng Temple in Changzhou, Jiangsu, attempted to stop the construction of an underground rainwater pipe in front of a chemical plant across from the temple. While authorities claimed that the construction was intended to repair a road and improve traffic for local residents, the monks believed that the pipes would be used to dump industrial waste from the plant. This striking case of religious involvement in environmental activism did not surface until Chinese news media sources reported in July 2019 that three monks had been indicted for “disrupting public services.” This case not only demonstrates the range of Chinese groups involved in environmental protection, but also the growing mistrust of official narratives concerning environmental matters, and the risk of action against infrastructure projects that threaten to damage the environment.

Having catapulted through the ranks of developing countries during the four decades of economic reform, China is now the world’s second largest economy. Its breakneck GDP growth, however, comes at the cost of egregious environmental degradation. Smog continues to blanket major cities surrounding heavy-industry hubs, while riverfront, lakeside, and coastal localities are hit hard by water contamination. Over the years, China has vowed to combat pollution and take a global lead in fighting climate change. In November 2016, Xi Jinping spoke to President Donald Trump about China’s commitment to combat climate change “whatever the circumstances,” in stark contrast to Trump’s climate change scepticism and subsequent withdrawal from the Paris climate accord.

Domestically, China is making efforts to keep its environmental promises, although its carbon inventory for 2014, submitted to the UN in June 2019, revealed a surge of 53.5% over the 10-year period from 2004-2014. During the “Two Sessions” meetings in 2017, Li Keqiang pledged to make the nation’s smoggy skies “blue again” and curb pollution caused by burning coal for heat and electricity. Xi echoed the same sentiment by calling for constructing a system of an “ecological civilization” (shengtai wenming 生态文明) to bring back “clear waters and green mountains” for his “New Era of Socialism with Chinese Characteristics.” To redress the damages done to skies, water, and soil, authorities prosecuted 42,195 individuals nationwide for environmental offenses in 2018, including deforestation and illegal mining and fishing activities, a one-fifth increase in prosecutions compared to 2017.

Algae Bloom on Lake Tai Image Credit Global Citizen.com

Despite sharing the same green agenda with the central leadership, local governments have not steered away from their pursuit of GDP growth. They continue to cooperate with police, prosecutors, and judges to maintain social order. Two significant cases during the Hu Jintao administration indicated that environmental activists face reprisals from officials or businesses. The first case involved Wu Lihong (吴立红), who was sentenced in 2007 to three years’ imprisonment for extortion for bringing attention to the environmental plight of Lake Tai, China’s third largest freshwater body in the coastal province of Jiangsu. Once an agricultural heartland, the surrounding region of the lake is now home to thousands of chemical plants that are continuing to dump effluent straight into the lake. Liu Futang (刘福堂), another activist who, like Wu Lihong, had earned the nickname "Eco-Warrior”(huanbaoweishi 环保卫士), was named the Person of the Year 2007 for his environmental work by South Reviews, a subsidiary of Guangzhou Daily News Group, and named the Person of the Year 2011 by the Hainan Channel of People.cn. Despite his fame, Liu was given a three-year suspended sentence for illegal business activity, a charge stemming from his self-publishing of books that exposed pollution scandals in the southernmost province of Hainan.

The impetus unleashed by the army of green activists continues to be deemed a destabilizing force under Xi, who has put the utmost emphasis on the longstanding policy of “stability above all else” to ensure the party’s “perennial ruling status,” as well as his permanent role as the leadership core. Despite nationwide government-driven initiatives to strengthen environmental protection, Beijing often construes criticisms “from below” -- ie, from individuals and grassroots organizations -- about environmental policies as endangering the foundations of China’s economic miracle. Space for environmental activism has shrunk, as a result of the slate of legislation Xi introduced against perceived threats to state security between 2014 and 2016, including the National Security Law, the Counterespionage Law, and the Cybersecurity Law. Since Xi’s rise to power in 2012, Dui Hua’s political prisoner database has recorded over 50 individuals who have been detained, arrested, or imprisoned for participating in environmental protests, joining environmental civil society organizations that promote environmental awareness, or whistleblowing.

Environmental protests

The Chinese Academy of Social Sciences estimated that half the large-scale protests between 2000 and 2013 were triggered by concerns over pollution and lack of transparency on environmental issues. Such protests were linked to land expropriation and forcible relocation. China’s Ministry of Environmental Protection claimed that major environmental protests surged by 120 percent a year before Xi’s rise to power, after which the Chinese government stopped releasing official statistics. At that time, violent protests initiated by parents of children suffering from lead poisoning due to heavy metal pollution from smelting and chemical plants frequently made domestic and international headlines.

Observers continue to believe that environmental concerns are a prime cause for mass incidents during Xi’s administration. Some estimates suggest that there were as many as 30,000 or even 50,000 anti-pollution demonstrations over the four-year period from 2013 to 2017. When Xi began his first term as president, grassroots protests organized by residents of “cancer villages” were a flashpoint for mass incidents. “Cancer villages” refer to communities near chemical, pharmaceutical, or power plants where cancer rates far exceed the national average. In 2013, it was estimated that 459 cancer villages were spread across every province except Qinghai and Tibet. A peaceful protest occurred in Shantou’s Guiyu Township in March 2016. Over 10,000 residents assembled to demand that the township government terminate the construction of a waste incineration plant. Once the world’s largest e-waste dumping site, Guiyu is called Guangdong’s No.1 cancer village, as villagers have reported a suspiciously high number of deaths from cancer. As a result of the four-day protest, the township government gave in and shelved the incinerator proposal.

There are signs that local governments were willing to yield to protesters’ demands to scrap or even terminate infrastructure projects during the Hu years, and even the early years of Xi’s era. From 2011-2016, official proposals to build or expand Para-Xylene (PX) factories triggered mass demonstrations every year across China, including in Dalian, Ningbo, Kunming, Maoming, Shanghai, and Longkou. PX is a chemical necessary for producing clothes and plastic bottles. Residents feared that the chemicals from the nearby PX factories would cause air pollution and even cancers. These anti-PX plant protests successfully pressured local governments to compromise, at least temporarily, in an attempt to pacify local discontent. The protest in Dalian, for instance, was caused by fears about PX leakage after a typhoon struck the city and breached the factory’s dyke. Although the government promised to suspend production and relocate the factory, Chinese news media reported in the following year that the factory had clandestinely resumed operation of the the PX plant.

In November 2017, Michael Standaert wrote in Yale Environment 360 that fewer environmental protests were taking place in China. This argument is in line with Dui Hua’s observation that unofficial news media sources have been reporting noticeably fewer protests in recent years, in part because demonstrations, as Standaert noted, tended to be quickly broken up by police. The pesticide factory blast in Yancheng, Jiangsu, in March 2018 that caused nearly 80 deaths and dozens injured reportedly did not trigger any mass incidents. Authorities were swift to suppress signs of social instability by detaining family members of the deceased and injured who questioned the government’s handling of the man-made disaster. Zhang Wenbin (张文斌), a volunteer from a local environmental group, was summoned by police for “picking quarrels and provoking troubles” after he criticized local authorities for refusing to evacuate nearby residents after the blast and warned about the possible risks of contamination. Another individual, Cao Jianshan (曹建山) was criminally detained for “defamation” in April, after he called on the government to disclose information about the deceased victims. The authorities had previously rejected Cao’s request on the grounds that publicizing such information would cause “great harm to their family members.”

Since June 2019, mass protests against official plans to build waste incinerator plants have become the latest type of environmental protest to take place in China. One week after hundreds of thousands of residents filled the streets in Yu’nan County, Guangdong, another large protest erupted in Wuhan, Hubei, on June 28, 2019. In mid-June, Wuhan protesters first learned of the government’s plan to build an incinerator plant on an existing landfill in a densely populated residential area. While the landfill is already causing severe land and ground water pollution, protesters are even more alarmed by the incinerator proposal, which had been previously shelved. The protests underscored the mounting discontent not just about public health, but also over the lack of public consultation and transparency of the projects. RFA reported that around 20 protesters were detained, many of whom were WeChat users who posted or forwarded information about the protests. The government quickly blocked mobile phone signals and possible contacts with Hong Kong, where the controversial extradition bill in the former British colony set in motion successive rallies and clashes in June 2019.

Dui Hua’s research into Chinese-language judgment websites has uncovered approximately 20 criminal cases involving criminalization of anti-pollution protests since 2014. Some of them involved violence and did not receive any media coverage. While the offense of picking quarrels and provoking troubles is commonly used against protesters, other offenses include gathering a crowd to disturb social order, gathering a crowd to attack an organ of the state, and holding an illegal assembly. Among the protests recorded in the judgment websites, one broke out in July 2017 in Xiangtan, Hunan, where hundreds of villagers protested the Huashi township government's plan to construct an animal carcass disposal plant, which would specialize in disposing of piles of pigs that had died of swine fever. The protesters used WeChat and blogs to discuss their fear of pollution and raised funds to print leaflets and produce banners. At its peak on August 3, over a thousand villagers took to the streets. (On the exact same day a year later, China reported its first case of African swine fever in Shenyang, Liaoning.) The Huashi township government refused to back down. Four leading protesters were sentenced from nine months' to one year’s imprisonment for gathering a crowd to disrupt an organ of the state.

Lawyer-turned-environmental activist Chen Wuquan initiates the “War to Protect the Sea” against illegal reclamation and destruction of marine resources in his home village in Zhanjiang, Guangdong, in 2017. Photo credit: RFA

The case of Chen Wuquan (陈武权) indicates that even peaceful protesters can receive severe sentences. In 2012, Chen Wuquan represented Chen Kegui, nephew of prominent dissident Chen Guangcheng, before his law license was rescinded in the same year for taking the sensitive case. Chen Wuquan (no relation to either Chen Guangcheng or his nephew Chen Kegui) returned to his home village in Zhanjiang, Guangdong, and initiated a campaign to protect the tidal flats and natural abundance that has provided a livelihood for the villagers for centuries. Chen Wuquan argued that the destruction of marine life in his village was caused by forced demolition, land reclamation, and mangrove logging—all conducted without the villagers’ consent. Prior to detention in February 2018, Chen Wuquan staged a seaside protest with over a dozen villagers, calling on the government to terminate the reclamation project. In January 2019, Chen Wuquan was sentenced to five years’ imprisonment for picking quarrels and provoking troubles, and six other villagers were each sentenced to 12-18 months for the same offense.

Stay tuned for Part II next week.

Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad Part II of II

Camp Glenwood One-on-One Counseling with Probation Officer. Image Credit: Dui Hua

Can China's Juvenile Justice Policymakers Receive Lessons from Abroad?

In “Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad” (Part 1 of 2), Dui Hua analyzed a number of challenges in juvenile justice, both in China and elsewhere, including deciding the age of criminal responsibility and alternatives to criminal confinement. In Part 2, Dui Hua looks at promising programs and important research findings from outside China that could be useful for Chinese experts in juvenile justice to study as part of China’s ongoing juvenile justice reforms.

World Health Initiatives Regarding Juveniles

The experiences and practices of other countries and institutions can play an instructive role in China’s efforts to reduce violent behavior by adolescents. Relevant international human rights principles include the 1989 UN Convention on the Rights of the Child, especially articles 37 and 40. UNICEF’s Child Protection Information Sheet on Children in Conflict with the Law, in its summary of key applicable human rights principles, states that “children in conflict with the law have the right to treatment that promotes their sense of dignity and worth, takes into account their age, and aims at their reintegration into society. Further, UNICEF recommends that placing children in conflict with the law in a closed facility should be a measure of last resort, to be avoided whenever possible.” In light of these provisions, UNICEF aims to “reduce incarceration while protecting children from violence, abuse, and exploitation,” while also promoting “rehabilitation that involves families and communities as a safer, more appropriate, and effective approach than punitive measures.” Mirroring some of the policies mentioned by China’s juvenile judges at Dui Hua’s 2017 expert exchange, UNICEF also strongly advocates diversion, restorative justice, and alternatives to confinement.

Experiences from Europe might help Chinese officials in adopting some of these principles as it adjusts its juvenile justice practices. In the European context, the World Health Organization’s (WHO) adolescent mental health programs focus on reducing depression and anxiety disorders, severe cases of which can contribute to violent acts. As evidence of the severity of mental health problems for juveniles, suicide is the “leading cause of death among 10–19-year-olds in low- and middle-income countries of the [European] Region, and the second-leading cause in high-income countries.” To reduce risk factors associated with juvenile violence, European member states of the WHO find that “supportive parenting, a secure home life and a positive learning environment in school are the key factors in building and protecting mental well-being, or mental capital, in childhood and adolescence.”

In 2015, WHO European member states formalized their approach to supporting the mental well-being of adolescents and others experiencing major life transitions. According to the Minsk Declaration, the WHO life-course approach “encompasses actions that are taken early and appropriately to transitions in life,” recognizing that “adolescence, the transition from child to adult, marks the pivotal change to greater personal autonomy. It could signify a new beginning for those who were disadvantaged in their start in life. It also represents an opportunity for policies and programmes to influence key decision-making processes such as the timing of sexual debut and parenthood, the onset or avoidance of risky and addictive behaviours, as well as the acquisition of life skills, the start of independent living, building resilience and the capacity to bounce back in the face of adversity…Effective intervention is also essential to modify the course of other critical phases in life in which people experience dramatic changes in roles and status, such as...the transition from adolescence to adulthood.”

Making Every School a Health Promoting School Image Credit: WHO/SEARO/Sanjit Das

One of the policy initiatives with potential to be used in tandem with the life-course approach is the Health Promoting School concept, developed by WHO and UNESCO. According to these agencies, “Health Promoting Schools have been recognized as a strategic vehicle to promote positive development and healthy behaviours such as physical activity, physical fitness, recreation and play, balanced nutrition, prevent (sic) tobacco use, and preventing being bullied.” Chinese policymakers might gain significant insights, for instance, by comparing the role of schools, parents, and work-study institutions to the Health Promoting School concept, to see if improvements to existing Chinese institutions can be made.

Using Lessons from Abroad to Limit Dominant Role of Police in Juvenile Cases

In addition to improving outcomes for juveniles, thoughtful consideration of the life course approach and health promoting schools concept might help reduce the dominance of police authority in juvenile cases and alleviate the caseload burden on China’s juvenile courts. Too often, police officials focus on exercising punitive measures, like fines and/or administrative detention in juvenile cases. When the police or procurators dismiss cases (which they often do to lower the crime rate and meet bureaucratic goals), they might also be failing to redirect youth to community resources that can help them from re-offending. Taking a holistic and inclusive approach to mental health intervention could be a way to limit police dominance in juvenile justice policy implementation, as, in most cases, local police lack the necessary training or proper tools to deal with juvenile offenders. A local police inspector suggested recently that although a child’s discipline is generally a parental decision, the police could still request young offenders to be sent to government rehabilitation with parental consent. This approach could be beneficial if police officials took a consultative approach to such requests, rather than treating the case solely as a criminal investigation. In the U.S., for example, since the early 2000s US juvenile judges have been “re-establishing their authority to decide whether to transfer youth in conflict with the law from juvenile court to the criminal court and corrections system. Transfer and waiver of juvenile court jurisdiction is frequently used in cases involving serious crimes by offenders aged 16 and younger.”

Adopting lessons from the European and U.S. experiences that incorporate a stronger role for social workers and schools might also ease the caseload burden on China’s courts, which have been hearing cases involving juveniles at least since 1984, the year that the first specialized “juvenile courtrooms” were opened. Adding more juvenile cases to court dockets might simply overwhelm overburdened juvenile judges, who have generally been focused on delivering light sentences, but a focus on light punishment does not address affirmative steps needed to address adolescent mental health through community programs and non-custodial measures. The WHO “life course” approach taken in Europe sees a prominent role for schools as well in supporting adolescent mental health, by providing “a positive learning environment” that serves a key role “in building and protecting mental well-being,” a critical process in reducing violence among juveniles.

Towards Evidence-Based Juvenile Reform in Lieu of Lowering the Age of Criminal Responsibility

Instead of focusing on lowering the age of criminal responsibility as a principal concern, the WHO initiatives strongly suggest that reductions in juvenile violence result from providing a safe and supportive environment for children to grow. While European member states have come together in support of a life-course approach to juvenile mental health, they have not adopted a uniform age for criminal responsibility. According to the London-based Child Rights International Network, France and the Netherlands, for instance, allow children under 14 to be criminally sentenced, while Germany and Italy do not. This seems to suggest that the critical element in European juvenile justice has less to do with selecting a minimum age of criminal responsibility and more with identifying and implementing effective policy solutions based on non-custodial and preventive measures. Similarly, Dui Hua has previously written that the age of criminal responsibility varies significantly among different U.S. states, but there has been a trend to raise the age of criminal prosecution to 18 in light of two important findings: 1) recent neuroimaging studies showing important structural differences between adolescent brains and adult brains that persist well past the age of 20, and 2) evidence that criminal penalties for juveniles lead to more, not less, teen recidivism.

Mental health evaluations are critical for the administration of juvenile justice. Findings support legislation that would establish clear court procedures “regarding when and how juvenile defendants should receive mental health evaluations...A 2016 NCBI/NIH study on mental health and juvenile crime examined the effectiveness of various intervention and treatment programs/approaches, finding that treatment models including Cognitive-Behavioral Interventions (CBI) and Functional Family Therapy (FFT) are effective treatment frameworks for juvenile offenders.” Changes to the age of criminal responsibility in China, such as lowering it to 12 from 14, are unlikely to reduce crime, and conversely, are likely to increase juvenile recidivism. Instead, a comprehensive approach to non-custodial measures that involves a variety of actors, and not just police and prosecutors, needs to be considered for implementation.

Although China’s courts and juvenile justice system have made great strides since the establishment of the first juvenile courtrooms in the mid-1980’s, Chinese policymakers should eschew a focus on lowering the age of criminal responsibility and instead work to fully establish a comprehensive juvenile system that focuses on non-custodial measures. Such an approach would also avoid over-reliance on the police and procuratorial organs and integrate social workers, schools, and parents into the process of promoting well-being among China’s youth.

Renewed Calls to Lower China’s Age of Criminal Responsibility Ignore Benefits of Non-Custodial Measures and Lessons from Abroad Part I of II

Image Credit: NYU/Counseling

Calls for lowering the age of criminal responsibility in China have emerged again after a recent spate of violent acts committed by adolescents. Because these acts were committed by children under the age of 14, the offenders cannot be criminally punished under Chinese law, leading to societal pressure for greater criminalization of juvenile violence. Legal experts are among those calling for lowering the age of criminal responsibility.

Violence committed by very young offenders is a serious social problem and needs fresh approaches in China and elsewhere. It should be noted initially that violence represents a small percentage of overall instances of youth in conflict with the law, and that some attention should be paid to whether the media is sensationalizing the coverage of these cases. Regarding juvenile justice policy specifically, China could strengthen its non-custodial, preventive, and community institutions to address violent acts committed by children under 14. Furthermore, the role of parents, schools, and social workers in making interventions and referrals to programs for youth in conflict with the law could be reassessed. In China, juvenile cases are often dominated by the police and procuracy, and the role for others with juvenile expertise is frequently understated. On the bright side, juvenile justice reform is a top priority in China, and later sections of this article describe several international initiatives sponsored by the World Health Organization and others that could help integrate evidence-based community solutions into these reforms.

Lowering the Age of Criminal Responsibility?

Juvenile justice reform need not be over-simplified and framed around a polarizing issue like the minimum age of criminal responsibility. Rather, recent events can spark a discussion regarding non-custodial and preventive measures, the proper role of police in juvenile cases, and lessons that can be learned from other legal systems about evidence-based policies to help combat violence committed by young offenders.

There is no disputing that there have recently been disturbing cases of young people committing violent acts in China. In March, a 13-year-old Jiangsu boy killed his mother over a quarrel about money; a 13-year old Hunan boy brutally killed his parents in December 2018; and, in a case in Guangxi, a 12-year old girl killed a classmate, after which the girl did not receive punishment (financial compensation between families was arranged instead).

Although these are tragic events, policy need not be based on a small number of cases removed from the larger context of overall juvenile criminal justice trends. According to statistics reported by Caixin, general patterns in juvenile crime do not indicate a crisis in juvenile crime: although the number of arrests of juveniles increased to 29,350 in 2018, the number of indictments of juveniles based on these arrests decreased at a much higher rate. Additionally, Professor Zhang Hongwei of Jinan University’s Juvenile and Family Law Research Center conducted a statistical analysis (Figure 1) of juvenile offenders in China, which shows that the number of offenders younger than 18 remained flat between the years of 1991-2014, even though the overall number of offenders increased dramatically over the same period.

Figure 1. Professor Zhang Hongwei’s Multi-year Analysis of Juvenile Crime

Nonetheless, some legal experts have called for China’s age of criminal responsibility to be lowered to 12. For example, Li Chunsheng, of the Hubei Lawyers Association, who specializes in minor protection law, said in July 2018 that the age of criminal responsibility should be lowered because “children’s mental maturity was becoming accelerated and many juvenile offenders were showing similar cognitive ability to adults.” However, Li provided no evidence, scientific or otherwise, for her assertion that children’s “maturity” is “accelerated,” and her suggestion is directly contradicted by a variety of studies indicating not only that adolescent brains in fact mature several years after the age of 14 but also that adult penalties for younger offenders produce more teen recidivism--factors which have led many U.S. states to raise the age for “adult” criminal prosecution to 18.

Non-Custodial and Preventive Measures

Other experts have suggested that, instead of over-criminalizing and incarcerating the youth of a nation, the proper emphasis belongs on non-custodial and preventive measures for reducing juvenile violence. These are not only more grounded in scientific evidence but are also more fiscally responsible. Non-custodial measures emphasize rehabilitation over punishment, and often include programs involving community support and mental health counseling. Social workers can be trained in providing youth psychological examinations in cooperation with schools and parents to capture a fuller picture of the conditions that lead to violence.

In China, the Supreme People’s Procuratorate (SPP) is moving in this direction by pushing for renewed juvenile justice reform, hoping to implement preventive laws to reduce juvenile recidivism. The 2018-2022 SPP reform plan aims to reduce juvenile crime through family education, procedural adjustments, and preventive measures. In an interview, the president of the ninth procuratorate division (which is dedicated to juvenile cases) acknowledged that current law lacks effective correctional measures to address serious juvenile crime. The proposed solution: a “ladder” of different procedural levels to “realize individualized and effective correction.”

Although China’s current juvenile system lacks effective correctional measures, there are a few non-custodial programs already in place. In 2017, Dui Hua held an expert exchange with juvenile judges from mainland China who discussed China’s community-based alternatives to confinement. These include: “help and educate” (bangjiao 帮教) measures, which are based on Confucian doctrines of caring for the young and involve efforts to reintegrate juvenile offenders into the community as a means of crime prevention; diversion (fenliu分流), similar to US programs that redirect juveniles to short-term community interventions; restorative justice, in which offenders learn of the consequences of their actions for the victims, with the larger aim of developing a sense of responsibility; and work-study schools (gongduxuexiao工读学校), which have been proposed as a way to deal with juvenile delinquency “for students who engage in repeated acts of bullying or violence and fail to respond to other disciplinary measures.” Work-study schools receive students who have been referred to the school. The Juvenile Delinquency Prevention Law states that juveniles can only be sent to a work-study school upon application by their parents, guardians, or schools, but work-study has also been criticized for disproportionately targeting “left-behind” (liushouertong 留守儿童, rural children whose parents have gone to other regions to work and have left them in the care of family members, often grandparents) and migrant children.

Policy discussions indicate that clear alternatives to juvenile confinement exist, but that proper implementation determines outcomes. In a recent school bullying case that involved battery, none of the above interventions was attempted, and instead, a superficial “criticism and education” (piping jiaoyu批评教育) session was employed. In 2018, a 12-year old Hunan boy killed his mother, and the boy was released and later sent to a specialty school in Changsha to receive three years of “restrained education” (guanshujiaoyu管束教育). Instead of these ambiguous policies, there could be a more systematic implementation of evidence-based interventions.

Regarding preventive measures, counselors and educators in school could be trained to identify certain behaviors and provide counseling. What kind of behaviors can raise red flags? How are they empirically determined? Can civil society organizations work in cooperation with schools and the judicial system to identify solutions early on? In looking for red flags, Chinese policymakers might find it useful to reference a comprehensive, detailed mental health intervention guide published by the World Health Organization (WHO) in 2016 that is recommended for use with adolescents. Intervention guides could be used as a reference by a variety of interested parties, including parents, school teachers, judges, and law enforcement officials. The guides might also help circumscribe the undue focus on juveniles who commit violent crimes, which ignores the fact that the overwhelming majority of juvenile offenses are non-violent.

Continue reading Part II here.

Hurry Up and Wait: The Robert Schellenberg Case

Hurry Up and Wait: The Robert Schellenberg Case

Robert Schellenberg, Dalian Intermediate Court, Jan 14, 2019. Image Credit: cdn.hk01.com

As US-China relations sink ever lower, the list of urgent criminal cases involving Western citizens in China has increased. In just the last few weeks Canadians Michael Kovrig and Michael Spavor were formally arrested on espionage charges and American Mark Swidan was given a suspended death sentence for drug trafficking.

Amid so many arrests and sentences, a May 9 appeal hearing in the case of Robert Schellenberg, a Canadian sentenced to death for drug trafficking, went largely unnoticed. Although Schellenberg’s appeal hearing concluded without pronouncement of a sentence, the timing of the hearing—the day after a hearing in Vancouver for Huawei CFO Meng Wanzhou—points to the continuing role of international politics in the outcome of his case.

Schellenberg’s case is part of a larger emerging dynamic of tit-for-tat detention diplomacy, but it is also unique because it is both overtly political and carries a death sentence. No other case is so inextricably bound up with that of a Chinese national being held in the West. Schellenberg’s fate has unfolded in parallel to that of Meng, a Chinese citizen who is currently detained in Canada pending extradition to the United States. After her detention Chinese state media representatives ominously warned there would be retaliation. Schellenberg’s sudden, unusual retrial and capital sentence followed shortly thereafter, leading many to conclude that it is Canada, as well as Schellenberg, that is being punished in this case. The fact that Schellenberg’s most recent hearing in Dalian took place the day after Meng appeared in court in Vancouver suggests that the two cases remain linked. As Huawei has moved to the center of a global struggle over China’s role in technology markets in the last few weeks, the political stakes in the two cases have increased as well.

Mark Swidan with his mother, Katherine Swidan, in 1991.
Image Credit: Katherine Swidan

Schellenberg’s case stands out not just because it is one of a prominent set of political cases involving foreigners, but also because it is the only overtly political verdict carrying a sentence likely to result in death. (Swidan, an American detained on drug charges in 2012, received a suspended death sentence on April 30, which, in accordance with Article 50 of the Criminal Law, will be reduced to a prison sentence so long as he does not commit a new crime in the next two years). Western citizens have been executed in China before, but such cases typically become international causes of concern because of China’s use of capital punishment in general, rather than doubts about the intention behind the ruling. For example, another Canadian citizen, Fan Wei, was also recently sentenced to death for drug trafficking, but so far there have been no accusations that his sentence was intended to punish Canada; in Schellenberg’s case, by contrast, it seems that the death sentence is politically motivated. While Chinese authorities insist that the punishment conforms to the rule of law, state spokespeople have also provided not-so-subtle indications that the death sentence should be understood as retaliation for Meng’s detention. Canadian Prime Minister Justin Trudeau has accused China of “arbitrarily” applying the death penalty in the case. For better or worse, Schellenberg stands out as the capital test case in a new dynamic that one legal commentator has dubbed “death-threat diplomacy.”

What has happened in the case to date, and what might we expect in the future? So far, the case has unfolded in two phases. In the first phase, which stretched from arrest in 2014 to an initial sentence of 15 years in November 2018, the case was not overtly political, and the judicial process was slow and low-profile, perhaps because the evidence against Schellenberg was weak and central authorities were called in to deliberate. In the second phase of the case, which began with an appeal court remand for retrial immediately following Meng’s detention in December 2018, the case took on a new political valence. The judicial process was fast and well-publicized. The court operated with perverse procedural formalism, meeting legal deadlines and adhering to the letter, if not the spirit, of the Criminal Procedure Law.

Following the hearing this month it is likely that the pace of proceedings will again slow to a crawl. Formal deadlines for the next legal phases of the case are minimal. The Liaoning High People’s Court may draw out announcement of the sentence. If the appeals court does come down with a death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There are no procedural deadlines in that process; the judiciary can hold up the case indefinitely, or wait until an opportune political moment in the Meng case to announce a decision.

The Background of the Schellenberg Case

Robert Schellenberg, a Canadian citizen, was arrested in the city of Dalian in 2014. (According to Canadian officials, nearly 200 Canadians are currently detained or imprisoned in China.) He stood accused of participating in a scheme to smuggle about 500 pounds of methamphetamine from China to Australia inside car tires. He was tried in 2016. In November 2018, two years after his trial, Schellenberg and his co-defendants were sentenced by the Dalian Intermediate People’s Court. He was found guilty of drug smuggling and sentenced to 15 years in prison, along with a hefty fine and expulsion from China following completion of the prison term. No one involved in the case was initially sentenced to execution, though two of Schellenberg’s co-defendants—both Chinese nationals—were given stiffer sentences: a suspended death sentence and an indeterminate life sentence (wuqi tuxing 无期徒刑). (In contrast to the U.S. parole system, China’s sentence reduction policy entails the reduction of sentences based on a system of points for good behavior, and generally means that prisoners with indeterminate life sentences are not usually imprisoned until death). The harsher punishments for the co-defendants reflect the court’s initial judgment that Schellenberg did not carry principal culpability in the case.

Dalian Intermediate People's Court. Image Credit: chinaplus.cri.com

Following the initial verdict Schellenberg appealed his sentence, indicating he considered the punishment too severe. If a defendant appeals a verdict, a second-instance court may not increase the sentence on review. The prosecution may also choose to appeal a sentence in order to increase the punishment, but they did not do so, suggesting they considered the penalty appropriate at the time.

Typically defendants face no risk in filing an appeal, but the Liaoning High People’s Court took an unusual approach to the case: rather than rule on it, the high court returned the case to the lower court for retrial. The retrial gave prosecutors the power to amend the charges and seek a harsher sentence, something the appeal court could not do. Prosecutors quickly amended the charges, ostensibly introducing new evidence that increased Schellenberg’s culpability. (Schellenberg’s lawyer claims no new evidence was introduced.) The lower court retried the case in January 2019 and sentenced Schellenberg to death, a significant increase in punishment from the previous trial verdict. Schellenberg appealed his verdict to the Liaoning People’s High Court a second time. On May 9, 2019—days before the four month procedural deadline for a hearing—the appeal court heard the case. However, the court declined to issue a judgment, indicating it would do so at an unspecified later date.

Liaoning Province High People’s Court. Image Credit: Zhonglan Xinwen

A Tale of Two Cases

What sentence should Schellenberg receive? A defendant’s criminal culpability and punishment ought to be determined in light of his or her own crimes. But whatever chance Robert Schellenberg may have once had of having his case interpreted in isolation ended last year. Today his case is indelibly wedded to another defendant: Meng Wanzhou, the CFO of Huawei, the world’s second largest cellphone manufacturer and one of China’s flagship companies.

Meng Wanzhou, Huawei CFO. Image Credit: Mingbao

In December 2018 Meng was arrested in Vancouver during a layover flight between Hong Kong and Mexico. Canadian officials arrested Meng based on a warrant issued by the United States Eastern District of New York, which named Meng as part of an alleged conspiracy violating sanctions with Iran. Meng is currently free on bail in Vancouver. The United States has requested that Meng be extradited to the U.S.

Meng’s arrest precipitated a diplomatic crisis in China-Canada relations. China has demanded Meng’s immediate release, alleging that the arrest is part of a Western effort to obstruct Huawei’s entry into Western markets. A representative of China’s Ministry of Foreign Affairs stated that Canada would face “grave consequences” over Meng’s continued detention. Immediately after Meng’s arrest in December, China detained two Canadians, Michael Spavor and Michael Kovrig, on accusations of endangering state security. Shortly thereafter the editor in chief of state media outlet the Global Times made a statement in English that “if Canada extradites Meng to the U.S., China's revenge will be far worse than detaining a Canadian.”

It is in this context that Chinese and Western commentators interpret Schellenberg’s situation. When Schellenberg appealed his 15-year sentence in November 2018—just before Meng’s arrest—he had every reason to think that the re-consideration of his case at a trial of the second instance could only work in his favor. A defendant who appeals a verdict is not supposed to face a more severe sentence on retrial. And the prosecution did not file an appeal raising concerns about the severity of the sentence.

But circumstances changed between Schellenberg’s appeal in November 2018 and the Liaoning High People’s Court review in December. Meng’s case became an international flashpoint and China vowed to respond. The Liaoning High People’s Court took the unusual step of inviting foreign media to the second-instance trial. Western journalists who were present noted the ways in which the event appeared staged to send signals to the audience. Rather than reach a verdict on the case, the court took the unorthodox step of sending the case back to the lower court.

The remand to the lower court allowed the prosecution to amend the charges against Schellenberg, claiming new evidence in the case. This procedural move provided the trial court with a legal justification for resentencing Schellenberg to death. Numerous Chinese legal experts have noted irregularities in these proceedings. It is striking, for example, that although it took four years to initially sentence Schellenberg to a 15-year sentence, the justice system managed to re-sentence him to death in less than a month. His lawyers also contend the amended indictment in fact does not provide any new evidence of Schellenberg’s culpability.

What Are We Waiting For?

What comes next? Schellenberg’s case has so far proceeded in two phases with very different timelines. In the first phase, which ran from arrest in 2014 through Schellenberg’s initial sentence of 15 years in November 2018, there were no public announcements indicating the case carried political significance. The court moved extremely slowly, taking four years to deliver the initial sentence. Four years is an unusually long stretch for a criminal case in China. In waiting so long to produce a verdict, the Dalian trial court surely consulted higher authorities on the appropriate course of action. Why did this process take so long? The protracted wait might be the result of weak evidence in the case. Since China’s trials virtually never produce acquittals (as Dui Hua has recently noted), cases with shaky facts are likely to be sent to an adjudication committee for deliberation on appropriate sentencing. When a case involves a foreigner, the considerations may take even longer.

The second phase of the Schellenberg proceedings began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

The second phase of the began after Schellenberg appealed his 15-year sentence in November 2018. In contrast to the first phase of the case, the second phase was fast, high-profile, and politically fraught. Following Meng’s arrest on December 1, 2018, Schellenberg’s case went through second instance trial and retrial of the first instance in six weeks. The second instance trial court announced its decision the day of the trial, rather than deliberating on the evidence, as usually takes place. And after the high court remanded the case for retrial, prosecutors amended the complaint with new evidence in a mere four days. The lightning speed of proceedings and state media comments about retaliation for Meng send signals about how Schellenberg’s death sentence should be interpreted. And yet Chinese authorities and media figures also strenuously insist that the court’s judgment was “beyond reproach” and rooted in the rule of law. China’s insistence on adherence to criminal procedure in the case fits with a general trend towards legal formalism in China, despite a larger turn away from rule of law. (China’s recent Supervision Law, for example, introduces a formal legal basis for the longstanding unaccountable, extrajudicial detention powers of the National Supervisory Committee, the Chinese Communist Party watchdog.).

We are now entering a third phase in the Schellenberg case, one in which Schellenberg’s fate hangs like a sword of Damocles over Canada. A cynical reading of the situation suggests that Schellenberg must continue to dangle there until Meng has either been extradited to the U.S. or returned to China. Meng’s most recent hearing took place on May 8. Schellenberg’s appeal hearing notably took place the following day. The timing of Schellenberg’s hearing carried a two-fold significance. The court heard the case within four months of accepting it, as required by law. But in doing so the day after Meng’s hearing, the court also pointed to the ongoing connection between the two defendants (a signal that did not, however, get much Western media coverage).

When will the Liaoning High People’s Court issue a sentence for Schellenberg? The Criminal Procedure Law indicates that the court may announce the sentence at a set time after the hearing, but does not stipulate any procedural constraints on that announcement (Articles 202 and 242). Indeed, Mark Swidan waited more than half a decade for announcement of a verdict following conclusion of his trial.

Although the court may delay indefinitely, Schellenberg’s procedural experience suggests that a verdict may be announced as a response to a development in Meng’s case. She is scheduled to next appear in court for an extradition hearing on September 23, so a sentence may be forthcoming at that time. If the high court upholds Schellenberg’s death sentence, the case will be sent to the Supreme People’s Court (SPC) for final review. There is no fixed statutory period for completion of this review. Although limited data suggests that many death penalty reviews are completed in a matter of months, anecdotal evidence also indicates that some cases are under review for years. Overall, however, the outcome is extremely consistent: the SPC eventually affirms the overwhelming majority of death sentences, although precise data on this is lacking. In 2007, around 15% of death sentences were not approved, but the percentage is believed to be lower now.

Once the SPC affirms the verdict, an execution order is issued and the execution usually takes place as soon as within a week, although there are exceptions: Li Yan, a woman from Sichuan, was sentenced to death for killing her husband in 2010 in self-defense, after enduring years of horrific domestic abuse at his hands, by each court that heard the case (local city/intermediate, provincial Sichuan High People’s Court, and finally, in January 2013, the SPC.) The case provoked broad condemnation and expressions of concern both inside and outside China, including by the Dui Hua Foundation. China’s 2016 anti-domestic violence law was invoked in wide-spread calls to take seriously the situation of domestically abused Chinese women who receive harsh sentences ranging from ten years to death sentences when they act in self-defense. On April 24, 2015, Li Yan’s death sentence was commuted to death with two years reprieve, and on September 8, 2017, the intermediate court commuted the 2015 sentence and sentenced Li Yan to life in prison.

Post settings Labels Criminal Justice, Law Enforcement Published on 5/30/19, 12:13 PM Pacific Daylight Time Permalink Location Options