Wednesday, August 25, 2021

Chinese Asylum Seekers in Bangkok, Part II

At the Thailand-Laos crossing checkpoint at Sop Ruak, people queue to travel between Thailand and the Golden Triangle Special Economic Zone in Laos. Image credit: Slleong / CCO via Wikimedia Commons

This is the second installment in a two-part series. Read Part I here.

Thailand does not recognize the status of refugees because it has not acceded to the 1951 Refugee Convention or its 1967 Protocol. Refugees who overstay their visas or enter Thailand without proper documents are regarded as illegal immigrants. They have no legal right to work or adequate access to health care; nor can their children attend local schools. They are dependent on charitable groups, religious organizations, other refugees in their community, or they simply subsist on meagre savings. Because of budget cuts and a global tightening of national immigration policies, the UNHCR has reportedly axed financial aid for refugees. 

Consequently, many Chinese asylum seekers and refugees enter Bangkok’s labor black market to make a living. Once arrested, they are typically held in immigration detention centers, many of which are “severely overcrowded, provide inadequate food, have poor ventilation and lack medical service and other basic necessities,” according to Human Rights Watch.  

In January 2015, Uyghur refugees also complained to a visiting Istanbul-based journalist about health problems in the detention facilities in Thailand. Prior to this incident, three Uyghurs died despite efforts of charitable groups to provide relief. In September 2018, a Chinese observer claimed that dozens of refugees and asylum seekers of different nationalities were crammed into an area of approximately 12 square meters of floor space. 

Because of the cramped and unhygienic conditions at the immigration centers, seven Uyghurs made a failed attempt at a jail break in February 2019. A Thai NGO, which has worked to assist these Uyghurs since their detention, is compiling evidence about the alleged reports of physical abuse by Thai police officers.   

The long wait time for resettlement is another major source of frustration among refugees. Zhang Shufeng (张淑凤), who obtained refugee status in 2017, said the UNHCR prioritizes applications of refugees from armed conflicts such as Syrians and Myanmar’s Rohingya Muslims over Chinese applicants. In 2016, another asylum seeker Cai Yuliang (蔡欲亮) was finally accepted for resettlement in the United States after spending a total of 17 years in Thailand. Cai fled China in 1999, seven years after he completed his 20 years’ imprisonment for the now-defunct criminal offense of counterrevolution. 

No Safe Haven

Jiang Yefei holds a placard with a criminal charge at a Thai immigration detention center prior to repatriation in 2015. Image credit: Apple Daily (Taiwan) 

Since the coup of 2014, the Thai military regime has been tilting away from the United States toward China. Refugees or asylum seekers are believed to be facing imminent risk of repatriation at the behest of China — Thailand’s largest trade partner and major country of origin for tourists. 

Repatriation

Four months after over 100 Uyghurs were repatriated to China, Thailand deported Dong Guangping (董广平) and Jiang Yefei (姜野飞) in November 2015, allegedly for breaking immigration rules. A political cartoonist, Jiang left China in 2008 after he was detained and allegedly tortured over his work critical of the government’s handling of the Sichuan earthquake. Dong fled to Thailand in 2015, having served a three-year jail term for subversion from 2001-2004 and “disappeared” for eight months in secret detention in 2014.  

Following their repatriation, Jiang and Dong were sentenced in Chongqing to 78-month and 42-month imprisonment sentences, respectively, for subversion and illegal border crossing in July 2018. Thailand’s decision to repatriate the duo drew condemnation from the UN, United States, and others because both men had been awaiting resettlement in Canada after they obtained their refugee status. Dong completed his prison sentence on August 2, 2019, whereas Jiang still has one year to serve before release in August 2022. 

Cross-Border Law Enforcement

The disappearance of Chinese-born Swedish citizen Gui Minghai in Pattaya in October 2015 raised fear of cross-border operations of Chinese security forces. A similar case that did not garner much attention concerns former editor of the Southern Metropolitan Daily Li Xin (李新). In November 2015, Li fled to New Delhi after he was coerced by Chinese state security to work as an informant. He disappeared while riding a Laos-bound train in north Thailand in January 2016 in a bid to renew his Thai visa. A month later, Li reappeared in China claiming that he had returned to China “voluntarily” to assist with a police investigation. When asked about the case by The New York Times, the Thai Foreign Ministry responded that there was no “record as yet as to whether he has left the country.” Li’s wife and supporters speculated that Li had been abducted by Chinese security forces and clandestinely transported across the border.  

Turning a Blind Eye

Xing Jian (邢鉴) arrived in New Zealand as a refugee in January 2020, more than three years after the UNHCR recognized his refugee status in the summer of 2016. Xing criticized the Thai government for providing insufficient care and protection for UN-recognized refugees. While in Thailand, Chinese public security officers apprehended him alongside Bangkok police because he overstayed his visa on November 25.  

Before fleeing China, Xing volunteered for prominent dissident Huang Qi (黄琦) and was accused of “rumour-mongering” for exposing corruption in his home county in Jiangsu. His father Xing Wangli (邢望力), who remains in China, was sentenced to two years and three months’ imprisonment in October 2018 for “picking quarrels and provoking troubles.” Xing Wangli was re-arrested in June 2021 for defamation after visiting prominent rights lawyer Jiang Tianyong

Wu Yuhua and Yang Chong (see part 1) were originally scheduled to depart for Canada from Bangkok on June 25, 2019. However, they were barred from leaving Thailand. Yang may be required to complete his one-year suspended sentence there for overstaying, according to a Chinese activist familiar with Thai laws. However, another Radio Free Asia report cited the Chinese embassy as saying that the Thai authorities “do not rule out the possibility of repatriating the duo to China.” 

Fleeing Again

Risky Voyage

In view of a potentially indefinite waiting period for resettlement, the threat of repatriation, and abduction by Chinese security forces overseas, some asylum seekers and refugees are determined to flee once more. Prior to the scheduled interview with the UNHCR in 2017, Falun Gong practitioner Dong Junming (董俊明) undertook a risky voyage to New Zealand, some 6,000 miles away from Pattaya, on February 29, 2016. Dong was joined by six like-minded asylum seekers and two children.  

In early March, a few days into their voyage, the yacht capsized off the Thai coast. In an interview with overseas media, Dong said that “[i]t’s highly risky out there on the ocean, but we are so fearful here in Thailand that I thought I should take the risk.” All travellers who boarded the yacht, including China Democracy Party member Li Xiaolong (黎小龙), were returned to Thailand after the failed escape. Some were placed in immigration detention centers while at least one of them stood trial for illegal entry into Thailand in January 2017. 

To Taiwan

In a bid to evade the extending reach of China in Thailand, some dissidents have chosen to flee once more to Taiwan. Huang Yan (黄燕)  fled to Thailand in 2016 after years of harassment, repeated incarceration, and alleged torture for speaking out in support of Gao Zhisheng. In May 2018, she flew to Jakarta, then to Taiwan, where she was granted temporary leave to remain until the United States granted her political asylum in January 2019. 

Following in Huang’s footsteps, China Democracy Party members Yan Bojun (颜伯钧) and Liu Xinglian (刘兴联) left Bangkok four months after Huang’s arrival in Taiwan. They were granted entry in February 2019 on the basis of “professional exchanges” after 125 days at Taipei Taoyuan airport. At the time of writing, both men have been granted asylum protection in Canada. 

On September 29, 2016, Taiwan’s Mainland Affairs Council Deputy Minister Chiu Chui-cheng expresses concerns over the situation in Hong Kong but says Taiwan will not intervene. Image credit: Voice of America via Wikimedia Commons 

It would be a mistake to assume that Taiwan welcomes individuals fleeing violence and persecution in China. While the island has promised assistance to Hong Kong anti-extradition bill protesters, Taiwan’s Mainland Affairs Council (MAC) maintained that Taiwan policy toward mainland asylum seekers remained unchanged. Should Taiwan openly admit mainland asylum seekers and refugees, it will likely trigger a flood of applications and further antagonize China, putting hundreds of thousands of China-based Taiwanese residents, workers, and investors at risk of arbitrary detention. Additionally, Taiwan fears what it calls “infiltration” from mainland agents. There have been recent arrivals of mainland Chinese who managed to cross the Taiwan Straits despite it being one of the world’s most heavily policed waterways. 

Taiwan is not a member of the UN and does not have legislation to protect refugees. The island only vows to deal with applications from mainland Chinese on a case-by-case basis, according to the MAC.  

Non-Refoulement

It must be noted that around the globe, not all Chinese asylum applicants are found to have a legitimate fear for persecution. In Australia, for instance, the number of Chinese nationals applying for refugee asylum rose by 311 percent in just one year from 2017. Despite this surge, the Australian Department of Home Affairs only recognized 10 percent of such claims as being genuine. Most claims found to be bogus have been used by applicants to overstay their visas. The United States has also cracked down on “asylum mills,” which have helped thousands of Chinese immigrants to fraudulently win asylum status. Over 13,500 immigrants, mostly Chinese, who were granted asylum status are reportedly facing possible deportation.

A poster from the Australian government’s 2013 "No Way" campaign aimed at dissuading attempts by non-citizens to enter Australia. Image credit: Australian Customs and Border Protection Service / CC BY-SA 3.0  

However, many of those in Bangkok have been determined by the UNHCR to have a well-founded fear for persecution, a fear not imaginary but very much real, as being detained, arrested, and sentenced should they be returned to China. The fact that Thailand is not a signatory state of the 1951 Refugee Convention or its 1967 Protocol does not absolve the country from its duty to protect refugees inside its borders. The UNHCR has also called on all states, including non-signatory states, to observe non-refoulement, an international principle that prevents all countries from expelling or returning an individual to a country where he or she is at genuine risk of persecution. 

Thai officials have reiterated their commitment to protecting the rights of refugees and asylum seekers. They have also vowed to adopt anti-torture legislation to strengthen implementation of the principle of non-refoulement. However, insufficient protection for asylum seekers and refugees has left them stranded in Thailand, vulnerable to detention, arrest, and repatriation. Some of them have even been compelled to flee Thailand as well to evade arrests, deportation, and Chinese security forces overseas. 

Wednesday, August 11, 2021

Chinese Asylum Seekers in Bangkok, Part I

 

The United Nations building in Bangkok, Thailand. Image credit: dsin_travel / CC BY 2.0 

China has consistently ranked among the top 20 refugee producing countries every year since 2003, according to statistics published by the United Nations High Commission for Refugees (UNHCR). The latest statistics published in June 2021 indicated that China was 18th on the UNHCR’s list at the end of 2020. The number of UNHCR-registered refugees originally from China reached 175,585. Additionally, there were 107,864 Chinese asylum seekers around the globe with pending claims. The number of asylum seekers increased nine-fold from just 11,375 in 2011, the year before paramount leader Xi Jinping assumed power.  

Table 1. UNHCR's Forced Displacement Statistics (Country of Origin: China)

Source: UNHCR, Refugee Data Finder, 2003-2020 

Many UNHCR-recognized refugees from China consider the West a destination of choice for resettlement. After taking the first step in the long journey to asylum, many refugees from China sojourn in Thailand where they await refugee status determination. It is an administrative process by which the Bangkok-based regional office of UNHCR for Southeast Asia determines whether a person seeking protection qualifies as a refugee under international law. Bangkok is home to an estimated 8,000 urban refugees—hailing from Asia, the Middle East, and Africa.  

Dui Hua is not aware of any official statistics about Chinese asylum seekers in Thailand. However, Bei Ling, founder of “Home of Refugees” in Thailand in 2015, estimated that more than 300 Chinese asylum seekers were in the country as of October 2018.  

This is the first entry in a two-part series examining issues facing Chinese asylum seekers in Thailand. This entry explores who they are and why they have fled China. The second entry will look at how and why Thailand falls short of being a safe haven. Prospective refugees with or without valid passports risk criminal detention for overstaying in Thailand. Their predicaments also include indefinite wait times for third country resettlement. The fact that Thailand fails to abide by the principle of non-refoulement also places a heightened risk of repatriation for those seeking protection from persecution at home. 

Why Thailand?

Thailand started to become a popular place of transit for Chinese refugees about two decades ago. Prior to that, those with a well-founded fear of persecution decamped to colonial Hong Kong to flee political persecution thanks to the lax border controls at the time. Since China resumed sovereignty over the former British colony in 1997, Hong Kong has ceased to be a popular destination for asylum protection.  

For decades, Hong Kong has been a magnet for refugees. It is troubling to see a spiked increase in asylum seekers from Hong Kong since civil unrest triggered first by the now-rescinded extradition bill, and then by the sweeping arrests made under the National Security Law. The law criminalizes secession, subversion, terrorism, and collusion with foreign forces. At the end of 2020, there were 487 registered asylum seekers from Hong Kong, up from 22 in 2018 before mass protests erupted in June 2019. 

While a portion of those who fled China could be considered “economic migrants” in search of sustenance and a livelihood, China’s much-lauded economic success has fallen short of stopping people from fleeing abroad. Critics of one-party rule, adherents of banned religious groups, civil rights activists, petitioners, and ethnic minority groups are continuing to seek asylum protection abroad via Thailand.  

Chinese nationals find entry to Thailand easier than other neighboring countries or regions including South Korea, Japan, and Taiwan, mainly because they benefit from the 15-day visas on arrival available to them (Thailand has suspended this arrangement due to the outbreak of coronavirus). Entry to elsewhere requires obtaining a pre-arranged visa. 

The Thailand-Laos overland crossing checkpoint at Sop Ruak. Image credit: Slleong / CC0 via Wikimedia Commons 

Because of geographical proximity, those without proper legal documents can resort to traveling illicitly overland from Yunnan with the help of smugglers. Chiang Mai, for instance, is reachable by land transport from Yunnan’s border in nine hours. From Chiang Mai, it is another half-day journey to Bangkok, where asylum seekers file their refugee claims at the UNHCR office. 

Why Flee?

Political Prisoners

Geng He (耿和), wife of human rights lawyer Gao Zhisheng, is arguably the most notable example of a family member of a Chinese political prisoner fleeing political persecution via Thailand. She left for Bangkok with her children in January 2009 while her husband was serving his suspended sentence for inciting subversion. Gao’s entire family faced reprisal because Gao took on controversial cases and publicly called for an end to the persecution of Falun Gong. While in China, Gao’s children were prevented from attending school. Geng and her children stayed in Bangkok for two months before resettling in the United States. However, it must be noted that such speedy granting of asylum by the United States was only expedited by international attention. As will be discussed in Part II, the wait time for third country resettlement is often indefinite. Today, Gao remains under house arrest even after his sentence expired in August 2014. 

Another asylum application involved Hua Yong (华涌), who arrived in Canada in April 2021. Hua is a well-known painter from Beijing who posted videos documenting forced evictions and demolitions in poor neighborhoods. He was placed under residential surveillance at a designated location for three months after meeting with the father of Dong Yaoqiong, a girl who was admitted to a psychiatric facility after she live-streamed a video of herself accusing the Chinese Communist Party of “thought control.” Hua escaped to Thailand in September 2019. 

Dui Hua previously assisted former political prisoner Li Huangming (李焕明) with verifying his claim for political asylum. Before being granted political asylum in Finland in May 2013, Li fled to Bangkok after he completed his nine years’ sentence for inciting subversion in September 2010. The conviction stemmed from him distributing or planning to distribute tens of thousands of “reactionary” flyers in Shenzhen. While awaiting refugee resettlement, Li wrote stories about other Chinese asylum seekers in Bangkok for Boxun and other NGOs. In an article published by Human Rights in China in November 2012, Li wrote that Bangkok’s UNHCR office had a special team of interpreters and officials to handle the surge of applications from Chinese dissidents.  

Li wrote about changing demographics of Chinese asylum seekers. A significant number of applications were submitted by petitioners contrary to the popular belief that most Chinese refugees are supporters of China’s democracy movement, violators of the one-child policy, and adherents of banned religious groups such as Falun Gong and house churches. 

Petitioners

Li’s observation is in line with what has been reported in unofficial news sources in recent years. Petitioners fled to Bangkok because they face reprisal in China after lodging futile complaints about land expropriation or forced demolition in their home cities.  

Petitioner Zhang Shufeng protests at UNHCR’s Bangkok office while holding a bilingual slogan that says “Request UNHCR help.” Image credit: Mirror Media 

Zhang Shufeng (张淑凤), a native of Beijing, fled to Bangkok in 2014 and obtained refugee status three years later. Taiwan-based Mirror Media reported that Zhang’s family was subjected to house arrest, beatings, and constant surveillance by government-hired thugs in China. Surveillance intensified during the “Two Sessions” (the National People’s Congress and the Chinese People's Political Consultative Conference) and other political events. In Bangkok, Zhang protested at the UNHCR office while holding a bilingual slogan saying “Request UNHCR help,” in the hope that the UNHCR would expedite her resettlement process.  

In January 2017, unofficial news media reported that Beijing evictee Wang Ling (王玲) joined her son who had arrived in Bangkok in December 2016 to maximize the chance of them both getting through Chinese immigration checks. Wang claimed that she had received death threats from police after pursuing complaints about the forced demolition of her home. In 2008, she was sentenced to 15 months of re-education through labor and had been detained a total of 11 times. The news of abnormal deaths in police custody made Wang fear for her life.

Religious Persecution

Falun Gong practitioners still make up a large portion of asylum seekers in Bangkok. Many of them have fled persecution after the suppression of the spiritual sect began in 1999. One widely publicized case concerns Song Zhiyu (宋志宇), who escaped to Thailand in early 2014 via Myanmar after completing his three-and-a-half-year sentence for “organizing a cult to undermine implementation of the law.” In a Reuters interview in 2016, Song recounted how he “was spirited across a river into Thailand and hidden in the luggage hold of a Bangkok-bound bus.” Song claimed that Thailand had about 160 Falun Gong refugees and asylum seekers. The Thai authorities have taken an interest in them owing to the close bond between the military junta and Chinese government since 2014. More than 29 practitioners had been arrested on immigration charges under the military junta, said Song. 

Members of the Early Rain Covenant Church in Chengdu have also made their escapes via Thailand and joined the ranks of asylum seekers before pastor Wang Yi (王怡) was sentenced to nine years in prison for subversion and illegal business activity in December 2019. The crackdown on this prominent house church prompted Liao Qiang (廖强) to travel to Thailand with five of his family members in July 2019. They stayed in Thailand only for three days before transiting to Taiwan. However, their stay in Taiwan was only temporary because Taiwan does not have a refugee law. Liao and his family left for the United States on June 29, 2021 after receiving political asylum there. 

Civil Activism

New groups of asylum seekers have emerged following Xi Jinping’s sweeping crackdown on civil society since he took power in 2012. Some were participants of the “Southern Street Movement,” a series of small-scale street banner protests that occurred in southern cities such as Guangzhou and Shenzhen from 2012-2013. The movement called for democratic reform and government officials to disclose assets.  

Among the “Southern Street Movement” asylum seekers were Wu Yuhua (吴玉华) and her husband Yang Chong (杨崇). They fled China in early 2015 after being targeted by police for supporting the protests in Guangzhou. Two years later, the couple was granted refugee status in Bangkok.  

Yang Chong holding up a banner calling for human rights and elections in 2015. Image credit: Bnn.co

Supporters of the New Citizens’ Movement have also sought political asylum. The movement was promoted by prominent legal scholar and civil rights lawyer Xu Zhiyong, who was formally arrested for subversion in January 2021 after calling on Xi Jinping to step down. Sharing similar aspirations with Xu, Yan Bojun (颜伯钧) arrived in Bangkok in early 2015 after several futile attempts to leave China. In 2016, Yan published a book in Japan recounting the suppression he faced after helping Xu provide legal assistance to victims of social injustice. He had been placed under criminal detention several times in China; the longest one lasted 30 days. 

Liu Xinglian (刘兴联), another UNHCR-recognized refugee, was arrested in Hubei for inciting subversion in June 2015 due to his involvement in Qin Yongmin’s “China Human Rights Watch.” The group promoted the idea of a peaceful transformation to a democracy and circulated Qin’s articles about the inevitable demise of China’s autocratic rule. After Liu was released on bail in April 2016, he managed to escape to Bangkok in 2017.  

Uyghurs & Kazakhs

Pakistan, which borders Xinjiang, was once a popular escape route for Uyghurs seeking to escape Chinese state repression, but its growing economic reliance on China has made Uyghurs fear for their future. Pakistani Prime Minister Imran Khan said as recently as July 2021 that, “What they [China] say about the programs in Xinjiang, we accept it.”  In the mid-2010s, a large group of Uyghurs made a long detour south to Bangkok before human rights abuses associated with the “re-education camps” made international headlines. However, Uyghurs are typically not interested in registering in Thailand as asylum seekers, according to a UNHCR statement in 2015. They were only looking for ways to get to Turkey, a destination of choice with an estimated 50,000 Uyghur residents.  

Thai authorities have confirmed a staggering number of Uyghur escapees in Thailand. In 2014, a group of 424 Uyghurs were detained in Thailand. In July 2015, over 170 Uyghurs were released to start new lives in Turkey, but a week later the Thai government repatriated 109 refugees to China. In July 2017, Thai immigration police said about 60 Uyghurs remained in detention centers across the country. As recently as 2020, their number was down to about 50. They were remnants of the Uyghurs who fled to Thailand in 2014. 

Evidence also suggests that ethnic Kazakhs have fled Xinjiang’s massive surveillance and detention campaign. A recent case involved Qalymbek Shahman, who Uzbek authorities sent back to Thailand after being denied entry to Kazakhstan in January 2019. He was subjected to intense racial profiling in China, making it impossible for him to make a living. “I would have my ID checked every 50 to 100 meters when I was in Xinjiang…Whether it was getting on a plane, on a train or other public transportation, they would spend half an hour checking me out every time.” His clients became concerned as to why he was routinely monitored and consequently stopped doing businesses with him. 

Chinese asylum seekers in Thailand face a number of problems beyond finding safe haven, including the lack of legal recognition. The second instalment will explore why and how Thailand falls short in protecting asylum seekers, and the challenges asylum seekers encounter once in Thailand. 

Read Part II here.

Wednesday, July 28, 2021

Dueling Statements, and Visions, at UN Human Rights Council

United Nations High Commissioner for Human Rights Michelle Bachelet makes remarks during the annual high-level panel discussion on human rights mainstreaming at the 46th session of the Human Rights Council on February 22, 2021. Image credit: UN photo by Violaine Martin

The United Nations Human Rights Council is an ideological battleground between China and its allies and the United States and its allies. Its 47th regular session (hereafter HRC 47) took place from June 21 to July 14, 2021 in Geneva. At the start of the session, Permanent Representative of Canada to the United Nations (UN) in Geneva Leslie E. Norton delivered the Joint Statement on the Human Rights Situation in Xinjiang on behalf of 44 countries. In response, Belarus delivered a joint statement from 69 countries refuting criticisms against China and urging non-interference.

In recent years, HRCs and other UN sessions have seen dueling statements expressing concern over China’s human rights record on the one hand and lauding it on the other. Two blocs have emerged since a joint letter at HRC 41 in 2019. While each of the UN’s 193 member states has its own motivations, some factors offer insights into how countries are negotiating the US-China relationship and the current human rights climate.

Dueling Statements

The Canada statement at HRC 47 expressed concerns about the human rights situation in Xinjiang Uyghur Autonomous Region (XUAR), Hong Kong Special Administrative Region (SAR), and Tibet Autonomous Region (TAR) citing “credible reports” of rights abuses including widespread arbitrary detention, surveillance, restrictions on fundamental freedoms, torture, and gender-based violence by authorities. It urges China to allow “immediate, meaningful, and unfettered access” to the region and to implement the concluding observations of the UN Committee on the Elimination of Racial Discrimination (CERD).

The signatories to the Canadian statement are predominantly developed democracies in North America, Europe, and Asia-Pacific. European states make up the majority. Most of the signatories have been outspoken against China’s human rights record and, as with Asia-Pacific signatories, have geopolitical concerns about China. Ukraine allegedly backed out of signing the statement when China threatened to halt sending vaccines. Israel was reportedly pressured to join by the United States

All of the G7 – Canada, France, Germany, Italy, Japan, the United Kingdom, and the United States – signed the Canadian statement. In 2020, the G7 countries made up at least a third of China’s foreign trade revenue. Except for Japan and the United States, the G7 countries are also members of the China-launched Asia Infrastructure Investment Bank. The countries that signed the Canadian statement likely account for at least 50 percent of China’s export revenue. Trade between the United States and China, meanwhile, has surged to record levels, with some reports writing that it is “as if the protracted tariff war and pandemic never happened.” 

Belarus’ counter statement emphasized the importance of “sovereignty, independence and territorial integrity of states and non-interference in internal affairs.” It implies that the Canadian statement is politically motivated and based on disinformation and double standards. The statement originally had 65 signatories with four nations joining later, and has broad support among the Organization of the Islamic Cooperation (OIC). Twenty-three of the OIC’s 57 members did not sign the Belarus statement, nor did most of China’s major trading partners.

Table 1. HRC 47 Statement Signatories

There were notable omissions. Both Turkey and Kazakhstan have not signed either statement despite cultural links to persecuted groups in China. Multiple ASEAN nations, particularly those that are Muslim-majority and/or have concerns about the South China Sea, have not aligned with either bloc. Several of the world’s largest economies have also been absent, including India and Brazil. South Korea, which enjoys strong economic ties with both but is politically aligned with the United States, refrained from signing, as did Singapore. Finally, four members of the EU have not signed either statement: Cyprus, Greece, Hungary, and Malta.
 
As mentioned, HRC 47 was not the first instance of dueling statements on China’s human rights record. At HRC 41 in 2019, 25 nations signed a letter criticizing China while a counter letter garnered 50 signatories. At HRC 44, the UK issued a joint statement signed by 27 nations; in turn, two statements supported China—one on Xinjiang issued by Belarus signed by 53 states and another on Hong Kong issued by Cuba signed by 46 states. At HRC 46, Belarus and Cuba switched: Belarus offered a statement on Hong Kong for 69 states while Cuba’s statement on Xinjiang garnered 64 signatories. There was no joint measure critical of China; instead, 21 member states made 34 separate remarks criticizing China’s human rights record. 

Similarly, in the 74th session of the General Assembly, the UK issued a statement on behalf of 23 states, which was met by a counter statement from 54 member states. In the 75th session, Germany issued a joint statement on behalf of 39 states. Cuba supported Xinjiang policy on behalf of 45 states and Pakistan supported Hong Kong policy on behalf of 55 states.  

Statements critical of China have been issued by the UK, Germany, and Canada while joint actions supporting China have been issued by Belarus, Cuba, and Pakistan. Both Belarus and Cuba are among the last communist dictatorships in their regions, and both have faced political turmoil and threat of regime change in recent months. Should political instability in Cuba result in the fall of the regime, China could lose one of its key supporters. 

Table 2. Selected Actions at the UN

The joint statements have consistent messaging. Statements critical of China have expressed concern over human rights, noted China’s obligations under international law, recommended that China implement the CERD observations, and urged China to allow meaningful, unfettered access to independent observers. Statements in support of China consistently accuse the other bloc of being politically motivated, commend China’s actions in Xinjiang as human rights achievements through the right to development and, because there have been no terrorist attacks in Xinjiang in three consecutive years, the right to life. 

Regions Beyond the Rhetoric

The most obvious bloc is that of the developed democratic economies of North America, Europe, and Asia-Pacific that express concern over human rights in China. Canada’s HRC 47 statement was the most supported statement yet: 44 states signed on, 23 from the EU and 32 in Europe. This corresponds to recent polling in which publics in 17 advanced economies said China does not respect the personal freedoms of its citizens. Of the nations surveyed—all in North America, Europe, and Asia-Pacific—13 signed the HRC 47 statement. Several of these nations have designated China’s actions in Xinjiang as genocide in their domestic political bodies. Of the remainder, South Korea, Greece, and Singapore have not signed any statement; the latter two reported favorable views of China, and Singapore was the only public to prefer close economic ties with China and to express confidence in Xi Jinping. However, the United States induces uncertainty. Of the 16 other nations, a third said that the United States considered their foreign policy interests. While most described the United States as a “somewhat reliable partner,” most believe that it is no longer a good model of democracy. 

Much has been made of the Islamic world’s support for China’s actions in Xinjiang. Belarus’ HRC 47 statement was signed by 13 MENA countries and the majority of OIC countries. Only one OIC member, Albania, signed Canada’s statement. Muslim populations’ support for alleged genocide against a Muslim population has been explained as a byproduct of strong-man rule because many MENA, OIC, and Central Asian nations have authoritarian features. However, polling has found consistently positive views of China and Xi Jinping even when support for the United States increased among seven MENA countries. Arab publics consistently view the United States as a larger economic threat than China. Across 13 Arab countries, 58 percent viewed US policy towards the region negatively while a majority held positive views on China’s foreign policy. These views persist even though respondents view China as a less desirable employer and a source of inferior goods, and they express broad support for democracy, which suggests that China’s argument for sovereignty is attractive. Dismissing the Muslim world’s support of China as a product of illiberalism may validate China’s narrative that human rights are individualistic western ideals used to infiltrate and subjugate otherwise sovereign states. 

Among ASEAN countries, seven of its 10 members did not sign either statement. The Philippines stopped supporting China after HRC 41. While sharing the Philippines’ concerns over the South China Sea, Indonesia and Malaysia are also facing pressure, both external and internal, over the situation of the Uyghurs in their country. A 2021 survey of government and civil society experts in ASEAN nations found that support for the United States has increased in recent years. A 2020 poll found 79 percent identified China as the most influential power in the region, with 72 percent expressing wariness over this: “China’s economic influence is deeply felt but not very well received in the country.” Still, China is favored in many ASEAN countries with the United States being the overwhelming preference in the Philippines and Vietnam.

Africa has been a consistent source of support for China at the UN, even as some of the continent’s largest economies avoid statements. (In a surprise development, Côte d’Ivoire issued a statement expressing concern over actions in Xinjiang, Hong Kong, and Tibet despite not signing either statement.) A survey of 18 African countries found that while the United States is still the preferred development model, in countries where China had invested mainly in infrastructure, perceptions have held steady or improved. Less than half of those polled said they were aware of Chinese loans or financial assistance to their country but among those who were, 77 percent were concerned about loan repayment and a majority (58 percent) said that their governments had overborrowed. This might indicate that narratives about debt traps and asset seizures are having an effect. 

Like Africa, the region consisting of Latin America and the Caribbean (LAC) has seen hefty Chinese investment. According to the Congressional Research Service, 19 LAC countries have Belt and Road Initiative (BRI) projects in the region and total trade between China and the region reached $316 billion in 2019. Accumulated loans from 2005 to 2020 totaled $137 billion, with top recipients being Venezuela, Brazil, Ecuador, and Argentina—only one of which signed the Cuba statement. Public polling in Brazil, Argentina, and Mexico suggests that people have more positive views of China than negative, and these ratings have improved since 2014; these publics were more likely to name the United States as the top threat but say that they have good economic relations with both countries.

Trading Onwards

A look at China’s top trading partners suggests that any battle for hearts and minds is occurring separate from trade deals. China’s top 10 countries for imports and exports are dominated by Canada statement signatories—the United States, Germany—and non-signers—Brazil, South Korea. While supporters like Russia and the odd MENA state factor in at lower levels, China’s economy is still supported by the countries it accuses of weaponizing human rights. Amongst ongoing calls for decoupling and an economic reality that suggests the opposite, there are several issues to consider moving forward.

Investment and attention seem to matter. In public polls, countries that receive investments tend to have more favorable opinions of a country, which sometimes translates into UN support or at least the absence of opposition. The United States and Europe have recently announced initiatives to compete with China’s BRI, and vaccine diplomacy, as seen by the Ukraine case, remains a crucial issue for international engagement.

Narratives can create opportunities. Narratives on predatory investment may have sway in regions lacking a power monopoly; China-led narratives about sovereignty at the very least provide effective cover for post-colonial societies, some of whom may be truly weary of invasion. Similarly, China’s human rights whataboutism can deflect attention from criticism. It has highlighted the United States’ history of genocide and aggression in the MENA region. At the same time that Canada issued its statement, reports of mass graves at its relocation schools revealed its own human rights abuses. China even issued its own joint statement expressing “deep concerns” on human rights in the United Kingdom largely due to severe systemic racism.

China’s accusations of political bias might seem contrived to western audiences, but the United States has at times taken a similar approach. The Bush administration declined to join the HRC in 2006 when the HRC replaced the Human Rights Commission, which was widely seen as ineffective and even counterproductive. The Bush presidency also cited anti-Israel bias as a reason for non-involvement, and the United States was one of four nations—with Israel, the Marshall Islands, and Palau—to vote against the HRC’s formation. Belarus, Iran, and Venezuela abstained. During the Obama administration, the United States joined and was elected to the HRC. In 2018, the Trump administration withdrew from the HRC, again citing anti-Israel bias as the reason.

On June 19, 2018, then-Ambassador to the United Nations announced the US withdrawal from the HRC. Image credit: C-Span

Similarly, China has used the US-led war on terror to justify its actions. Many Western countries have expressed indignation at China’s actions without acknowledging parallels to US programs of extraordinary rendition, extrajudicial drone killings, and the “off-shoring” of refugees by developed democracy economies. This helps reinforce China’s narrative that human rights are culturally biased, politicized devices. Ignoring these aspects may reinforce China’s notion that the choice between the US and China-led narratives on human rights is a political one, as opposed to one rooted in international law and morality. 

The Biden administration seems to be progressing on some of these fronts. The administration’s statement on key outputs from HRC 47 listed achievements such as co-sponsoring resolutions in human rights in Syria and the human rights of migrants, leading events on Hong Kong’s National Security Law and business and human rights, and cooperating on a new mechanism to combat systemic racism. It also confirmed that the United States will seek election to the HRC leadership for 2022-2024. 

Monday, July 26, 2021

China: All State Security Judgments Purged from Supreme Court Site

 

A search for "inciting subversion of state power" yields no results as of July 23, 2021. Image credit: CJO

In a blow to judicial transparency, all judgments and judicial decisions for endangering state security (ESS) cases, including those for sentence reduction, have been purged from the Supreme People's Court (SPC) online judgment website China Judgements Online (CJO, 中国裁判文书网). 

The SPC has selectively removed judgments on CJO for some time, but the mass purge of a full chapter of the criminal law is unprecedented. In early 2021, the built-in crimes filter on CJO yielded over 640 ESS judgments and rulings, but the whole category of ESS judgments covering Articles 102-113 of the Criminal Law disappeared in mid-July. At the time of this posting, using the CJO’s search feature to look for ESS cases, such as inciting subversion of state power, returns not a single result even though the category has returned to the filters.  

The removal of all ESS judgments is the culmination of a process whereby politically sensitive judgments – including for pocket crimes like picking quarrels and provoking troubles, which is often used against peaceful dissidents and petitioners – have become harder to come by. The Los Angeles Times recently told the story of Dong Zehua (董泽华), a protester who was sentenced to seven months in prison for picking quarrels and provoking troubles. Yuan Shaui (原帅), another young man who protested alongside of Dong, received six months for the same crime. Their judgment was erased from CJO. 

The posting of judgments of sensitive cases has always been arbitrary. One of the most prominent cases to come out of the “709” crackdown on rights lawyers was the trial of veteran political dissident Hu Shigen (胡石根). Bucking the usual secretive practice, China widely publicized the trial for this subversion case. Tianjin Number Two Intermediate Court posted the court hearing and sentencing live on Weibo. The trial was hailed in Chinese official media as proof that China’s legal system secures convictions using evidence – not just witness testimony and confessions – and can withstand outside scrutiny. However, the full judgment was never posted on CJO.

The number of trials for ESS cases is a closely guarded secret. In the annual work reports delivered by the SPC and Supreme People’s Procuratorate to the National People’s Congress, the number of ESS prosecutions and trials has been lumped together under the category of “Others” with crimes such as violation of duty by military personnel. In provincial court reports, ESS is one of the most serious organized crimes together with organized gangs, yet information is rarely given. 

Judgments for splittism and inciting splittism, crimes used almost exclusively against ethnic minorities, have always been selectively posted. Over the past four years, Dui Hua has been unable to find ESS cases in Xinjiang from CJO, despite the region making up the majority of the ESS cases nationwide. That said, intermediate people’s courts in Sichuan published no fewer than 13 inciting splittism judgments between August and December 2020. All the defendants were Tibetans. 

CJO from time to time reveals the humane side of China’s legal system. Discovery of a sentence reduction decision of a long-forgotten prisoner can provide comfort to the family and renew supporters’ hopes. Dui Hua’s research with CJO found that Tibetan monk Tsultrim Gyatso received a six-month sentence reduction in April 2021, just before judgments of a sensitive nature like these were removed from the website. Tsultrim was convicted of splittism in 2009, and very little had been known about him after his life sentence was commuted to 19.5 years in 2014. Now, his sentence reduction decision is nowhere to be found. The lack of transparency now leaves prisoners’ families and supporters in the dark and can lead to misinterpretations, speculation, and undue suffering. 

In addition to ESS, judgments involving other politically motivated criminal offenses have also disappeared. Among them are Article 300 cases, punishing those found to be “organizing/using a cult to undermine implementation of the Law.” Only a few dozen judgments can still be found, down from 4,000 judgments in early June of this year. The contents of these remaining judgments are not disclosed; they are all deemed “unsuitable for disclosure.” 

Besides cases that are of a political nature, death penalty cases, another example of closely guarded “state secrets” in China, have for the most part disappeared from CJO. Death penalty judgments, especially review decisions issued by the SPC, offer a rare window into the legal procedures governing death penalty reviews, including the investigation process, evidence gathering and review, and, most importantly, the appeals process. It is valuable to learn, although very rare, the legal basis on which the SPC chooses to reject a death penalty sentence. Along with judgments on ESS and cult cases, all SPC death penalty review decisions have been removed as well. At the time of writing, only 1,968 documents issued by SPC remain on the site, most of which are notices of rejecting petitions for retrial. 

Paradoxically, references of counterrevolution can still be found under the judgments and decisions issued for crimes abolished under the 1997 Criminal Law revision. The remaining decisions principally relate to sentence reductions. There are 25 results found for counterrevolution listed under the “pre-1997 crimes” category. Most documents suffer from the same lack of content as those noted above. Although the majority of cases are former counterrevolutionaries’ petitions for rehabilitation, the courts usually deemed these case details too “sensitive for online posting.” The box at the end of this article, however, recounts a striking case of a counterrevolutionary, still in prison, found by Dui Hua on CJO.

Dui Hua, in its submission to China's 2018 Universal Periodic Review (UPR) at the United Nations, hailed advances in judicial transparency. It was only in 2016 that the SPC issued the regulation about releasing judgments online. The Court has since issued numerous statements about the importance of judicial transparency and the need to “place justice under the sun.” Even with some issues along the way, the CJO enjoyed a brief boom in both the quantity and quality of the documents released in its infancy. In September 2020, China announced that CJO had reached a milestone of 100 million published cases while also implementing measures to restrict access to judgment sites. However, posting of sensitive cases such as ESS became less frequent in the past two years before stopping fully in mid-2021 and the complete removal of such cases now. The removal of sensitive judgments from CJO is a significant setback which will be brought to the attention of the United Nations Office of the High Commissioner for Human Rights. 

(Left) On November 9, 2018, Assistant Minister of Foreign Affairs of the People's Republic of China Zhang Jun delivers final remarks during the adoption of recommendations for China’s UPR. (Right) The hall as adoption session ends. Image credit: UN Web TV

A popular phrase among young patriotic Chinese netizens is “don’t hand knives to foreign hostile forces” – a self-imposed censorship reminder that no one should volunteer information that could be used by Western media to draw attention to problems in China. In a 2015 Central Political and Legal Affairs Commission work meeting, the Party Secretary Xi Jinping remarked that the Party must firmly grip the “knife handle” – control of the political and legal system. China now sees the outside world gaining an understanding of – and reporting on – its legal system as problematic: a questioning of the fairness of its judicial system and, thus, a direct challenge to the legitimacy of Party rule.  

Although the purging of judgments on ESS, cults, and death penalty reviews considerably diminishes the value of CJO for human rights groups like Dui Hua, that is not to say the CJO is without value. It is not unusual for political and religious prisoners to be tried for economic crimes like operating an illegal business or fraud. US citizen and pastor David Lin (林大卫) was sentenced to life in prison for fraud in December 2009. Dui Hua learned of his subsequent commutation and multiple sentence reductions in CJO. He is due to be released in 2029. News of clemency for David Lin was met with great relief by his family who feared they would never see him again. 

Lost and Found: the Case of He Shuichang

Among the counterrevolution cases still listed without details, Dui Hua was able to identify a man – He Shuichang (何水长) – who is quite possibly one of China's last remaining prisoners still serving a sentence for counterrevolution, a crime that was abolished in the 1997 revision.

He, a 66-year-old man from Sichuan’s Meichan Municipality, was first convicted in 1977 – not long after the downfall of the Gang of Four – by the Pengshan County Court for counterrevolution. He was 22 years old in 1977 and was one of 22,218 individuals sentenced for counterrevolution that year (624 of whom were between 18 and 25 years old). All but 243 of 23,797 tried were convicted.

Details of He Shuichang’s offense are not known. His original sentence would have expired in 1989 had He not escaped from prison. After his recapture, the Muchuan County Court in 1981 gave him a combined 15-year prison sentence for his escape and his previous remaining sentence. This sentence would have expired in 1995 had He not escaped again two years later, in 1983. He evaded the law for almost 15 years. In 2018, He was sent to Jiazhou Prison to serve out his remaining 12-year imprisonment. The sentence was set to expire in 2030.

According to a decision found by Dui Hua on CJO, He recently received his first act of clemency: a seven-month sentence reduction granted by Leshan Intermediate People’s Court in 2020. With this reduction, the counterrevolutionary will leave prison in September 2029, when he will be more than 75 years old.

China’s continued punishment of crimes abolished in its own legal code contravenes international legal norms, notably Article 15 paragraph One of the International Covenant on Civil and Political Rights. Dui Hua noted the importance of “retroactive application of ameliorative law,” citing a report by the Human Rights in Criminal Sentencing project that found that 129 of 193 countries surveyed – 67 percent – have some provision requiring the retroactive implementation of a lesser penalty in their criminal law. 


Wednesday, July 7, 2021

China’s National People’s Congress May Expand Legal Aid in Death Penalty Cases

 

The closing ceremony of the 29th session of the 13th NPC Standing Committee on June 10. Image credit: NPC.gov   

China’s National People’s Congress is considering a new Legal Aid Law. Among its many provisions, Article 24 of the new law would extend access to legal aid to condemned defendants during final death penalty case review at the Supreme People’s Court. 

China’s legal system already provides legal aid to defendants in the trial phase of death penalty proceedings. However, legal aid does not currently cover the crucial final death penalty review stage of China’s capital punishment process: death penalty review at the Supreme People’s Court. Capital defense lawyers have dubbed the lack of legal aid in death penalty review the “last mile problem” of Chinese capital defense. The new law would finally address this last mile, bringing death penalty review under the scope of legal aid and guaranteeing universal representation during all stages of capital proceedings.  

The law would also improve the quality of death penalty counsel at both trial and review. The draft law mandates that legal aid lawyers representing clients in cases carrying a possible sentence of death or an indeterminate life sentence have at least three years of legal practice experience.  

The Development of the Legal Aid Law  

If enacted, the new Legal Aid Law will be China’s first comprehensive legislation on legal aid. Up until now, China’s legal aid has been governed by State Council Regulations. Implementation of the regulations takes place at a local level, and the quality of legal assistance has been uneven. Critics charge that low funding, low status, and lack of oversight lead to substandard representation in many legal aid cases. The new law earmarks funds and sets new standards in an attempt to address these problems. 

In recent years China’s leaders have signaled their intention to overhaul state legal aid as part of the Xi administration’s comprehensive effort to increase “governance through law.” In 2015 the CCP issued “Opinions on Improving the Legal Aid System,” a policy statement setting an agenda for improvements across the legal aid system. The document placed special emphasis on capital cases, including a call for legal aid in death penalty review cases. The 2015 opinion also called for an expansion in criminal representation generally, including the use of duty lawyers—criminal attorneys who can provide basic on-site legal advice at detention centers and courts. In 2018 the Supreme People’s Court and the Ministry of Justice issued “Measures on Launching the Pilot Program for Full Coverage of Lawyers’ Defense in Criminal Cases.” That measure did not specifically provide for death penalty review representation, but it has improved standards and increased access to defense lawyers in all criminal cases.  

The new Legal Aid Law is currently under review at the National People’s Congress. The first draft of the new Legal Aid Law was released in January. A second draft was introduced for public comment in June. The second draft notably improves upon the first by including an additional provision specifying that appointed legal aid counsel must have at least three years of experience in all death penalty review proceedings and trial cases carrying the possibility of an indeterminate life sentence or death sentence. 

Legal Aid and Death Penalty Review 

Death penalty review is the final stage of legal proceedings in China’s capital punishment system. A capital defendant in China initially undergoes a trial of the first instance, typically at an intermediate court. If found guilty, the defendant faces a trial of the second instance, typically at a provincial high court. Following a capital sentence in a second instance trial, the condemned defendant’s case will undergo a final death penalty review. In 2007 the Supreme People’s Court retook the authority to perform death penalty review from provincial courts as part of its sweeping efforts at death penalty reform. Since that time, all death penalty review proceedings have been handled by the Supreme People’s Court in Beijing. 

The Supreme People’s Court has not previously recognized a universal right to legal aid in its death penalty review proceedings. China’s Criminal Procedure Law (Art. 35) requires the provision of a legal aid lawyer in cases in which defendant faces an indeterminate life sentence or death sentence. This provision should logically extend to death penalty review. However, the Supreme People’s Court has declined to apply this provision in death penalty review.  

The conference on providing legal aid for death penalty review. Image credit: Southern Metropolitan 

Currently condemned defendants may choose to hire counsel for the proceedings; however,  if they do not do so, the state will not provide a lawyer for them. While official death penalty review data is a state secret in China, the available evidence indicates that under the current system—in which legal representation at the review is not mandatory and a defendant must hire an attorney privately—most condemned defendants do not retain a lawyer for the proceedings.  

Experts Debate the Draft Law 

On March 27 a group of 20 scholars and lawyers in China came together to discuss the implications of the death penalty review representation provision contained in the new Legal Aid Law. The conference was hosted by China University of Political Science and Law and Shangquan Law firm, a leading criminal defense firm in Beijing. Conference participants noted both the promise of the new legal aid law and the deficiencies that still exist in death penalty in China. 

Defense lawyers pointed out that while universal legal representation in death penalty review is an important legal development, obstacles to lawyer engagement with death penalty review proceedings hinder the substantive impact of the new law. For example, although death penalty review judges are legally mandated to meet with defense counsel, attorneys report difficulty in arranging these meetings. Lawyers also report difficulty accessing casefiles, and often end up taking pictures of documents on their phones because they cannot get copies. 

Scholars at the conference expressed concern that the expansion of legal aid to death penalty review might carry unexpected consequences for the legal market: legal aid lawyers assigned to death penalty review cases may lack experience and qualifications for this technical work, and the provision of these lawyers may also crowd out competent private lawyers who currently focus on death penalty practice. It is therefore important that the legal aid system provide sufficient compensation for this representation and also establish qualifications for death penalty review representation. The second draft of the Legal Aid Law, which was released subsequent to the conference, goes some way to addressing this concern by providing that legal aid counsel in both capital trial and death penalty review cases must have more than three years of related practice experience. Standing committee representatives also included a suggestion to include legal aid costs in the government budget, beginning at the county level. However, it is unclear whether death penalty review at the SPC would be covered by such a measure at the national level. 

Since the Supreme People’s Court retook the power of death penalty review in 2007, the Shangquan law firm in Beijing has been conducting empirical work on death penalty review representation. This work has included pro bono death penalty review representation in the past. At the conference, Shangquan law firm director Mao Lixin formally announced a new pro bono program that will provide pro bono representation for indigent condemned defendants facing death penalty review. The program was intended to run through March 2021, or until the new Legal Aid Law goes into effect. 

By Tobias Smith 

Thursday, June 3, 2021

Juvenile Justice for Girls with Chinese Characteristics: Juvenile Convictions Drop, Number of Offending Girls Remains High

Executive Director John Kamm makes introductory remarks during the webinar on March 30. Composite image credit: The Dui Hua Foundation 

The United States is increasingly mainstreaming gender-specific justice reform, and the need has been identified in China as well. In 2019, Dui Hua found that even as the number of girls convicted by courts decreased until the end of 2016, the number of girls convicted as a percentage of juvenile convictions had increased.

When Dui Hua published its research and analysis in December 2019, it expressed concern that the draft of a proposed law on the Prevention of Juvenile Delinquency released that autumn omitted gender-specific measures, saying that “it is increasingly accepted that gender-specific needs require different approaches.” The International Symposium on Girls in Conflict with the Law, organized by Dui Hua and its partners, explored issues related to girls’ justice in the Chinese justice system with representatives from China’s Supreme People’s Court (SPC). The webinar “China’s Supreme People’s Court: Special and Priority Protection of the Legitimate Rights and Interests of Underage Girls in Accordance with the Law” featured Dr. Jiang Jihai, Director of Juvenile Offender Office of Research Office of SPC, and Ms. Dai Qiuying, Director of Center for the Protection of Minors of Applied Law.

Remarks by both panelists, speaking through an interpreter, provide insight into the causal factors of female juvenile offences and new laws for juvenile offenders, particularly girls. These remarks, statistics discussed during the webinar, and Dui Hua’s research provide a more informed understanding of juvenile female crime rates in China and changing approaches to juvenile crime.

The Number of Offending Girls

Statistics from Dr. Jiang and Dui Hua research show that beginning in 2018, there was a sustained increase in the number of offending girls overall. Furthermore, the number of offending girls as a percentage of all offending juveniles has risen every year from 2013 to 2019 with a slight drop in 2020, yet percentagewise more than doubled over seven years earlier. Figures were unavailable for 2017 other than the total number of juveniles convicted.

Table 1: Total Convicted Juveniles by Gender and Percentage, All Chinese Courts 

Overall indictments for juveniles decreased from 37,743 in 2016 to 33,223 in 2020, in part due to an increased emphasis on diversion. However, as seen in Table 1, the number of girl offenders convicted has increased to 7.32 percent, compared to 4.39 percent in 2016 according to Dui Hua’s research and the numbers provided by Dr. Jiang, compared with the period of 2013-2016.

Table 2: Number of Juveniles Indicted in China, Annually

Diversion: Reform Through Education

The combined efforts of the SPC and the Supreme People’s Procuratorate (SPP) work to create a “whole society approach” to the criminal process for juvenile offenders that is focused on rehabilitation and education first, and punishment second. Table 2 shows that in 2019, the SPP prosecuted a total of 43,234 minors suspected of committing crimes. Table 3 shows that conditional non-prosecution (known in the United States as “diversion”) was applied for 7,663 of the juveniles who committed “minor crimes” and showed repentance in 2019, a number that had already been increasing year-by-year but had a sharp uptick between 2016 to 2019. 

The Chinese government has been overhauling legislation for juveniles as recently as 2020, when the newest version of the Law on Protection of Minors was passed. This law works in tandem with the revised Law of the People's Republic of China on Prevention of Juvenile Delinquency to inform policy and approach. These revisions codify previous legal provisions into black letter legal provisions, basic principles of law that are undisputed and accepted by all judges.

Table 3: Percentage and Totals of Juveniles Diverted Annually in China

"Important Innovations" and Criminal Law

The increase in minors given conditional non-prosecution in 2019 points to the continued emphasis on rehabilitation and education as the first response to juvenile offenders. It also underlines the relevance of the recent changes to the Law on Protection of Minors and the revised Law of the People’s Republic of China on Prevention of Juvenile Delinquency. 

Dr. Jiang discussed “important innovations” in the revised laws that aim to improve the treatment of juvenile offenders. These include refining the family guardianship system, improving governmental guardianship measures, establishing a mandatory reporting system, establishing an information inquiry system for criminals as well as clarifying the prevention and control of internet addiction, campus bullying, new offenses, and punishment measures for the behavior of failing to fulfill the legal obligations. 

The newly revised law also states that if a minor below the age of criminal liability commits an act which is prohibited by law, then government agencies may conduct an evaluation and, with the approval of a special education steering committee, provide corrective education at a special school. At these special schools, offenders reportedly receive moral, legal, and psychological health education, along with appropriate vocational training.

In December 2020, China passed 11th Amendment to the Criminal Law lowering the age of criminal responsibility from 14 to 12 years old for some serious crimes. The law holds children aged 12 to 14 criminally liable for “intentional homicide or intentional injury that leads to death or causes others severe disabilities by extremely cruel means.” If a crime not mentioned in the new law is committed by a child under the age of 14, they will be exempt from criminal punishment but may be given correctional education as mentioned above. Remaining unchanged is the law that holds those between the ages of 14 to 16 criminally responsible in serious crimes such as cases of rape, robbery, and intentional homicide. 

The approach to “juvenile justice with Chinese characteristics,” spoken of by both Dr. Jiang and Ms. Dai, prioritizes diversion from conviction and ongoing involvement by the court as part of the rehabilitation and education process. Under these reforms, judges are responsible for building and maintaining relationships with juvenile offenders and their families to understand the causal factors of their offence and provide guidance. Courts must first conduct a comprehensive analysis of the possibility of recidivism of minor offenders, including consideration of the offender’s family and home situation, then assess the best approach for rehabilitation with an emphasis on the primary caregiver or parents as role models. According to Dr. Jiang and Ms. Dai, the courts are also in the process of drafting two pieces of legislation titled the Family Education Law and the Child Welfare Law that would allow judicial agencies to play a larger role in ensuring the proper education and mentorship of children.

There is not much gender-specific data available to clarify what trends in diversion and education mean for girls specifically. Dr. Jiang noted that the overall age of female juvenile offenders has been getting younger. He cited the “low age” and “rebellious psychology during adolescence” of girl offenders as factors that lead them to “handle issues in a very simplified and immature way without the proper foresight and prediction of the consequence” due to their lack of legal knowledge. To address this, the government has taken efforts to help young people understand Chinese law. Such measures include events, campaigns, and educational materials for use in classrooms, judges serving as adjunct teachers on school campuses for primary and middle schools, and a moot court experience as well as online courses for older students.

Dr. Jiang makes remarks during the webinar. Image credit: The Dui Hua Foundation

Evidence also points to poor general education as a common causal factor for girl offenders, many with below a middle school education and a “non-existent or limited” understanding of the law according to Dr. Jiang. He also cited parents’ low education level as a causal factor for criminal behavior in both male and female minors. This lack of a basic education coupled with limited understanding of the law, can lead to the development of bad habits and criminal behavior. Both Dr. Jiang and Ms. Dai cited contexts and environmental factors as fundamental pathways to offending for girls, expressing the sentiment that “there are no problem children, only problem families.” 

Neglect was noted as another strong contributing factor for female offenders in China. In today’s economy, many children are left home unsupervised as both parents are working. This can result in young girls being negatively influenced by older female peers or people they befriend on the internet. Judges review these types of causal factors when assessing how to handle crimes committed by female juvenile offenders and deciding which course of action will bring the offender back to a “normal law-abiding citizen and useful talent for society.”

Ms. Dai emphasized that the family is the most important domain for the growth and improvement of minors, saying that “people should build a family upbringing model full of love, freedom, and respect.” Reflecting this emphasis, Article 7 of the Minors Protection Law in China allows the state or government to take “necessary measures” to guide, support, and supervise the parents or guardians in doing their duty” to raise law abiding citizens.

Ms. Dai makes remarks during the webinar.

Dr. Jiang suggested that the court is committed to continuing to improve gender-sensitive procedures for female juvenile offenders. These include increasing the use of female police officers, prosecutors, judges, and lawyers who are trained to handle girl’s cases and to protect the privacy of girl offenders. Taken together, these legislative and procedural changes suggest that juvenile justice policy reform, including gender-sensitive approaches, is increasingly seen as a priority.

A Gender-Sensitive Future

The comments by Dr. Jiang and Dai on changes to the SPC’s approach to juvenile justice law, including the inclusion of gender-sensitive processes, are promising. The International Symposium on Girls in Conflict with the Law produced a list of recommendations for the promotion of effective girls’ justice policy. Dr. Jiang and Ms. Dai’s remarks on community-based solutions, reducing detention, and applying non-custodial solutions/alternatives to detention are in line with these recommendations and Article 37b of the Convention on the Rights of the Child.

The focus on addressing root causes of juvenile offending, including socio-economic vulnerability and family instability, by funding and supporting social services is promising. At the time of this writing, China does not have, and never has, gender-specific criminal laws. Similarly, such measures as the implementation of gender-specific measures like specialized training and having female personnel interact with girls have yet to materialize in legislation or official policy.

The Symposium recommendations also stress the need to systematically collect disaggregated data in order to better understand the pathways leading children to detention globally. More transparency on figures for female juvenile offenders and diversion programs would contribute towards a collective understanding and better research. Were China to increase its engagement with the international community on girl’s justice, this could help promote best practices and effective policy at the international level.

Finally, the issue of long-standing research gaps rooted in discriminatory thinking emerged repeatedly during the Symposium in a variety of contexts. Like other countries including the United States and Canada, funding and supporting research on girl’s lives, including a special focus on Indigenous girls and ethnic minorities, would help governments effect better policy for justice-involved girls. China’s policy success and challenges around juvenile justice are a vital part of that understanding and would be an important contribution towards greater clarity on how to address juvenile justice for girls in the future.