Tuesday, May 9, 2023

UN Submission Focuses on Persecution of Women in Unorthodox Religions

The logo for the Committee on the Elimination of Discrimination against Women, which monitors compliance with the Convention, both of which are abbreviated as CEDAW. Image credit: UN Office of the High Commission for Human Rights 

The number of women incarcerated in Chinese prisons has grown faster than the population of incarcerated men over the past decade, and women are disproportionately represented in criminal cases involving unorthodox religious groups. These are the main points highlighted by Dui Hua in its submission to the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW)’s review of China.  

CEDAW, which also stands for the Convention on the Elimination of All Forms of Discrimination against Women and is sometimes described as an “international bill of rights for women,” is the treaty and human rights instrument adopted by the United Nations that provides guidance for nations to combat discrimination faced by women. Nations that have signed and ratified CEDAW – which includes all but six UN member states – are required to submit reports to the Committee on their compliance with the Convention every four years. NGOs are invited to make submissions informing country reports, which Dui Hua did for China’s, considered during CEDAW’s 85th session in the week of May 8, 2023. 

Dui Hua’s statement largely focused on female prisoners charged under Article 300, “organizing or using a cult to undermine implementation of the law.” The statement noted that women account for 8 percent of the prison population in China – a figure similar to that of the United States – but are thought to make up more than 40 percent of prisoners incarcerated for violating Article 300 from 1998-2016. More so, court records suggest that sentencing for these cases is comparatively harsh and that instances of clemency are rare. (The statement notes that there may have been an increase in clemency over the last two years but the lack of consistent data and transparency in legal processes makes this difficult to confirm.)  

Charts 1 and 2: Gender breakdown of unorthodox religious prisoners accused of violating Article 300 in the PPDB as of March 31, 2023.*

*Gender is not known for all cases. Image credit: The Dui Hua Foundation

The submission builds on the research Dui Hua initially published in its report “The Persecution of Unorthodox Religious Groups in China,” which identified a gender imbalance in sentencing under Article 300. Dui Hua’s Political Prisoner Database (PPDB) holds records on 11,400 women who have been subject to coercive measures for violating Article 300 due to their participation in unorthodox religious groups, which the Chinese Communist Party regards as cult organizations practicing non-state sanctioned faiths.

The statement also noted that women are the main target of negative stereotypes in China’s anti-cult propaganda. This messaging often relies on stereotypes of middle-aged, rural women being “weak-willed and psychologically vulnerable” and more vulnerable to “coercion or monetary enticements from cult organizations.” Such messaging, which comes from both national and regional organizations, itself seems to violate Article 5 of CEDAW which mandates that state parties take all appropriate measures to eliminate “prejudices and customary and all other practices which are based on the idea of inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.”

An image from the opening session of CEDAW’s 85th session on May 8, 2023. Image credit: UN Web TV 

Another focus of Dui Hua’s submission to China’s state report was the decline in judicial transparency. Dui Hua ended its submissions by recommending that the Chinese government increase the use of non-custodial measures and clemency for women prisoners and improve judicial transparency, writing: 

Dui Hua urges the Chinese government to resume providing meaningful access for the public to judicial documents, including indictments, court judgments, and decisions of all cases, regardless of the criminal offense involved. Transparency is particularly lacking in provinces with high populations of ethnic minorities. It also helps the public understand the reasons why women are placed in custody for peacefully pursuing their religious faith and other criminal offenses.   

This is not the first time Dui Hua has made a statement to a UN body concerning China’s treatment of female prisoners. Dui Hua previously made submissions to CEDAW during China’s previous review in 2014 and, more recently, to the Working Group on Discrimination Against Women in Law and Practice in June 2019. 

Of the 193 UN member states, 189 have ratified CEDAW, binding them to the treaty and mandating that they participate in regular review every four years. The United States has not ratified CEDAW, placing it among a small group of countries – Iran, Somalia, Sudan, Tonga, Palau – and the Holy See that have yet to bind themselves to the treaty.  

Read the full statement 

Read the report “The Persecution of Unorthodox Religious Groups in China” 

Tuesday, May 2, 2023

Eleven Years on the Lam: Indictment of a Tibetan “Robber”

Barkhor Square in Lhasa, Tibet, on 22 September 2008. Image credit: Reurinkjan / CC BY 2.0 

Protests swept across the Tibetan plateau ahead of the 2008 Beijing Olympics. More than a decade later, China continues to track down and punish pro-independence protesters who took part in the unrest, some episodes of which turned deadly. An indictment uncovered by Dui Hua reveals how one protester was ultimately found and punished years after their alleged crime.  

This case revolves around a Tibetan known by the name of Kelsang Cheron (格桑谢郎) who was accused of robbery. He was formally arrested on October 18, 2019 in Zhuoni County, Gansu, for a crime he allegedly committed 11 years ago during the Tibetan protests that began on March 17, 2008. The case was transferred to the procuratorate for prosecution on January 7, 2020. 

Cropped image of the indictment confirming that arrest of Kelsang Cheron in October 2019 for robbery. His name was partially redacted, but the full name was revealed later in the indictment.

Zhuoni County (Jonê County 卓尼县) is located in the southeast of Gannan Tibetan Autonomous Prefecture, one of the hardest hit regions during the 2008 Tibetan unrest. State news media reported that as of April 8, 2008 (about three weeks after the outbreak), 2,204 protesters reportedly turned themselves in and 432 people were in criminal detention for “beating, smashing, looting, and burning” (da za qiang shao 烧) across the prefecture. Derived from the denunciation of the Red Guards during the Cultural Revolution, the phrase “beating, smashing, looting and burning” is highly ideological and permeates official accounts of popular protests, including June Fourth, regardless of whether violence is involved.  

It is questionable whether the robbery charge against Cheron is justified. Throughout the indictment the prosecutors failed to present evidence of him looting properties by means of force or fear. The allegations focused on his role as the principal organizer of the protests in Zhuoni County. First, he was accused of convening a secret meeting on March 17 with over 60 Tibetan monks in a forest near the Gongba Monastery to discuss the specifics of the protests and their plans to “smash” the public security bureau and county government office. The following morning, he gave Snow Lion flags to a group of 200 Buddhist monks to be used in a Buddhist ceremony. After the ceremony was over, the monks proceeded to march to the public security bureau and county government offices, where they allegedly waved the Snow Lion flags and chanted slogans about independence and “Long Live the Dalai Lama.”
Cropped image of the indictment showing the facts pertaining to Cheron’s crime of robbery. There is no evidence that Cheron engaged in looting or using force or intimidation, important requirements for the crime in many other jurisdictions outside of China.

Similarly, the indictment did not say whether the Tibetan monks looted anything valuable. However, evidence is cited of them damaging public property. They allegedly set fire and threw bricks and stones, destroying more than four million yuan worth of property such as fences, gates, computers, televisions, vehicles, and various data files. During the destruction, some protesters entered a primary school where they lowered the Chinese national flag and replaced it with the Snow Lion flag, which remained hoisted for days until police took the flag down on March 20.  

In May 2008, Tibetans in Dharamsala, India, protest China’s occupation while holding the Snow Lion flag. Image credit: Kiran Jonnalagadda / CC BY 2.0 

Cheron was on the run for 11 years until he was apprehended by Zhuoni Public Security on September 11, 2019. The indictment did not say whether he took part in the actual protests when the alleged violence occurred. It is only clear that he was the person who gave the protesters the Snow Lion flags on the morning of March 18 prior to the protests. The prosecutor argued that he was complicit in the commission of robbery with other Tibetan protesters. According to the indictment, Cheron refused to confess to his crimes during interrogation. 

The case of Cheron calls into question of the allegations of robbery, a crime many Tibetan monks were also accused of violating in 2008. Official accounts of his case bear resemblance to some of the problematic evidence about “beating, smashing, looting and burning” by pro-democracy protesters in 1989, with a notable example being Wang Jun (王军). Wang, 18 years old at the time, was caught at the scene during the April disturbance in Xi’an. In May, the Xi’an Intermediate People’s Court convicted Wang for arson and robbery and sentenced him to death for the two crimes. Upon appeal, the Shaanxi High Court, following the review instruction from the Supreme People’s Court, revised the combined sentence to death with two-year reprieve. The crime of robbery, which afforded him a life sentence, stemmed from Wang allegedly “taking advantage of the unrest and stealing an electronic calculator, cassette tapes, and pens.” Wang ultimately spent a total of twenty years in Shaanxi’s Fuping Prison before he was released in May 2009. 

Common charges against Tibetan protesters who participated in the 2008 unrest include robbery, arson, and gathering a crowd to disturb social order or to attack state organs. In the same year, the number of people tried for splittism nationwide doubled from 459 in the previous year to 926. By now, many of these Tibetan protesters are believed to have completed their prison sentences, but the fate of Kelsang Cheron remains shrouded in mystery. Dui Hua has been unable to find the judgment of his case. Given the abysmally low acquittal rates and his refusal to confess, it is likely that Kelsang Cheron is still behind bars for a disputable crime that he committed 14 years ago. 

Thursday, April 6, 2023

Child Welfare with Chinese Characteristics, Part II: An All-of-Society Effort

Image credit: The Dui Hua Foundation 

Read Part I:  Rights & Responsibilities of Family & Schools

The revised Law of the People’s Republic of China on Protection of Minors (hereafter Protection of Minors Law) came into effect in June 2021, introducing 60 new articles into law. During Dui Hua’s Joint Program on Child Welfare Laws (JPCW) webinar in April 2022, experts from the United States and the Supreme People’s Court of China (SPC) discussed best practices for child protection legislation and the revisions to the Protection of Minors Law across six protection areas. Part I explored the roles of family and schools in child protection. This installment looks at the roles assigned to broader society, online content providers, government, and the judiciary. 

Child Protection Online

China’s regulation of youth gaming online drew international attention, partly because these measures were among the first of their kind. Even countries that balk at online censorship and lack of user privacy have expressed positive attitudes towards China’s efforts to set limits on youth online consumption. 

Much of this has been necessitated by the nation’s high internet penetration. According to the white paper Youth of China in a New Era, at the end of 2020 the number of netizens in China aged 6 to 18 reached 180 million, with the internet available to 94.9 percent of minors nationwide.  

Number of Chinese minors and internet accessibility rate from 2018 to 2020. Source: China Daily, Full Text: Youth of China in the New Era 

Online content regulations focus on reducing internet addiction and cyberbullying and combating sexual exploitation of minors. Article 74 states that internet product and service providers “shall not offer minors products and services that induce addiction,” and Article 75 specifically limits the time minors spend playing online games by minors and also restricts in-game purchases. 

During the JPCW, Li Chen, Deputy Director of the Division of Supervision of Minors’ Protection at the Child Welfare Department of the Ministry of Civil Affairs, stated that the Office of the Central Cyberspace Affairs Commission and the Ministry of Industry and Information Technology have created reporting channels for minor-related issues in order to help standardize reporting mechanisms and response times. The amendments require service providers to take measures to stop cyberbullying, stipulating that the parent or guardian of a minor who is cyberbullied has the right to inform service providers to delete, block, or disconnect links. If service providers are unresponsive to these complaints, the reporting channels should be leveraged to stop the illegal behavior. If found complicit or guilty, the website, individual, or platform may have their operating licenses revoked and face fines of up to one million yuan (roughly $150,000 USD). 

In May 2022, China Daily reported that prosecutors had obtained evidence of 2,584 cyberbullying cases through the compulsory reporting system since 2020 and found 1,604 cases in which staff (those working at schools, hospitals, hotels and in other industries related to minors) failed to report violations despite having compulsory reporting obligations, with 299 individuals being held accountable.  

The United States’ approach is less centralized. According to the Cyberbullying Research Center, 48 states or territories (including Washington, DC) include cyberbullying or electronic harassment in their anti-bullying legislation. While most states have criminal and school sanctions for cyberbullying, these laws vary by state in terms of scope. 

Former Facebook product manager Frances Heughen testifying to Congress on the effects of social media on youth mental health. Image credit: C-Span YouTube account 

In terms of online regulation, the clearest equivalent in the United States would be the Children's Online Privacy Protection Act (COPPA), which was enacted in 1998, entered into force in 2000, and was revised in 2013. COPPA places requirements on websites that are directed to children under 13, with a focus on the collection, use, and disclosure of personal information of their data. Efforts to further revise COPPA have been underway – among the most recent being the “Protecting the Information of our Vulnerable Children and Youth Act” or the “Kids PRIVCY Act” introduced in 2021 by Representative Kathy Castor (R-Fla.) – but it is unclear if these will address issues beyond data collection or those affecting adolescents older than 13. The current law has also come under fire, both for being ineffective and outdated (for example, by the CEO of NGO Common Sense Media) and for being too restrictive (Facebook founder and Meta CEO Mark Zuckerberg famously argued that these restrictions impede early child education). 

In 2019, China instituted restrictions on the amount of time minors could play online games to 90 minutes a day on weekdays, and minors were banned from online gaming from 10 PM to 8 AM. In 2021, online gaming for minors was restricted further to Fridays, weekends, and public holidays for one hour per day. Restrictions like these and limitations on in-game purchases for minors were meant to combat gaming addictions that state officials sometimes refer to as “spiritual opium.”  

While federal implementation of such a law is unlikely, the state of Utah recently approved the Utah Social Media Regulation Act restricting minors’ use of social media in ways that bear some similarities to China’s gaming restrictions. The bill, signed by Governor Cox in March 2023, requires minors to obtain the consent of a guardian before joining social media platforms, marking the most aggressive step yet by state or federal lawmakers to regulate minors’ online behavior. It requires social media platforms to conduct age verification for all Utah residents and provide parents’ access to their teens’ accounts. The law also bans all ads for minors and bans minors from using such sites from 10:30 PM to 6:30 AM. 

Judiciary, Government & the “China Dream” 

Included in the Protection of Minors Law is the establishment of a special juvenile court office. According to the Global Times, citing Vice President of the SPC and juvenile court office director Yang Wanming, the new office is responsible for coordinating, guiding, and managing all juvenile trials and cases.  

In an effort to implement the new office’s mandate, the Protection of Minors Law amendments impose new requirements on public security organs, procuratorates, courts, and judicial administrative departments. These include Article 101 (designating dedicated institutions and appointing dedicated personnel to handle cases involving minors), Article 103 (keeping information about minors confidential), and Articles 110 to 112 (stipulating that adult representatives be present when minors – suspects, victims, or witnesses – are interviewed by judicial organs). Article 112 in particular requires female staff be present when the minor involved is female. 

(Clockwise top left) Judge Wang, Deputy Director Li, Judge Song, and Committee Member Chen during the JPCW. Image credit: The Dui Hua Foundation 

In 2021, Beijing News reported that 24,035 criminal cases involving the infringement upon the rights and interests of minors (including trafficking, child molestation, and forced begging) were tried nationwide between 2016 and 2020. Of those cases, 24,386 offenders received punishment. From 2016 to 2020, more than 1.2 million civil cases involving the upbringing and guardianship of minors were brought to trial. 

The amendments to the Protection of Minors Law speak to an increased awareness by the Supreme People’s Court and the Chinese government that China’s youth face new challenges to their welfare that require novel approaches. These amendments also call on government social service agencies to improve the quality of support received by minors without guardianship. Li Chen, speaking during the JPCW shared that in 2021 13 authorities including the Ministry of Civil Affairs – which houses the Department of Children’s Welfare Affairs – jointly issued Opinions on Further Promoting Improvement, Upgrade and Innovation-Driven Transformation of Child Welfare Institutions to Pursue High-Quality Development. The opinions aimed to improve child welfare institutions at the provincial and municipal levels, and to foster increased integration between the upbringing of children and wraparound services like community-based medical treatment, rehabilitation, education, and social work.  

The Protection of Minors Law differs from the United States' approach to juvenile justice and child welfare, which is defined both by its child-focused, rights-based approach and its federalist orientation that creates variations between states with some federal regulation. By contrast, Beijing’s top-down approach stresses uniformity, setting responsibilities for various stakeholders to ensure compliance at the local level. A lingering question is how far the law will go in holding parents, schools, and other community stakeholders responsible for violations and derogations of child welfare.  

The Youth of China in the New Era white paper paints a rosy picture of the future of child welfare in China:  

In the future, with successive efforts from one generation of young people to the next, China will scale new heights in every dimension, achieving economic, political, cultural, ethical, social, and eco-environmental progress. The Chinese people will enjoy a happier and healthier life and the Chinese nation will become a proud and active member of the community of nations. The great Chinese Dream will eventually become a reality. 

The continued emphasis on rule of law and legal responsibility is evident in the changes to the Protection of Minors Law. What is less clear is if these changes will yield a system that is fair, enforceable, and subject to rule of law in line with that Chinese Dream. 

An All-of-Society Effort

The revised Protection of Minors Law also recognizes broader societal obligations to protect minors. Article 11 grants any organization or individual "the right to discourage, prevent, or report or make an accusation against an act...which is not conducive to the physical or mental health of minors or infringes upon the lawful rights and interests of minors.” These regulations share many of the same principles as those placed on schools and educational institutions. Using sexual or physical abuse as an example, Article 9 of the Opinion on Punishing Sexual Violations of Minors in Accordance of Law (2013) states that anyone with a special responsibility to minors – including supervising, educating, training, or providing medical treatment – has a right and obligation to report to the public security organ or the people's procuratorate if they discover that a minor under their supervision has been abused.  

As with the obligations for schools, the Protection of Minors Law’s view to societal obligations has similarities to CAPTA in the United States; however, by making reporting a legal responsibility through national legislation, China’s law potentially elevates the issue and could help create a uniform process for reporting, response, and resolution. Currently in the United States, each state may or does have different definitions, processes and responses to any reported abuse, of any kind. According to a 2019 report by the Child Welfare Information Gateway, approximately 47 States, the District of Columbia, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands designate professions whose members are mandated by law to report child maltreatment. Individuals designated as mandatory reporters are those who typically have frequent contact with children. The circumstances under which a mandatory reporter must make a report, and the process for doing so, vary by state.  

President Obama signs S. 3817, the “CAPTA Reauthorization Act of 2010.” Image credit: Pete Souza / Official White House Photo 

According to China Daily, Chinese procuratorates nationwide prosecuted 60,553 people for crimes against minors in 2021, up 5.7 percent year-on-year, of which 27,851 were for crimes involving sexual assault against minors. The Opinions on Establishing the Compulsory Reporting System for Cases regarding Infringement on Minors (Provisional) is meant to combat this trend by standardizing the compulsory reporting procedure system and specifying the parties considered mandated reporters. The reporting procedures enabled procuratorates, public security organs, and women's federations to set up more than 1,600 "one-stop" interview and rescue areas to shield minor victims from "secondary injuries" or re-traumatization that can occur during the reporting process.  

The revisions to the Protection of Minors Law reflect renewed appreciation for the role of society in protecting minors. The European Union’s Civil Society Roadmap for China notes that the revised Protection of Minors Law makes 13 mentions of “social organizations.” Furthermore, a State Council working group was established to assist civil society organizations focused on child protection in an effort to “achieve full coverage” of child protection by civil society organizations by 2025. 

Achieving such comprehensive child welfare mechanisms remains a challenge for any government. China’s recent developments reflect a top-down, all-of-government mentality that outlines obligations for all stakeholders, from the parent who might have to leave their child with relatives to centralized government bodies. China’s approach speaks to the adage that it “takes a village to raise a child,” and both the JPCW presenters and the legislation suggest that there is room for civil society organizations and grassroots participation. Whether or not these entities have the space and agency to fill these roles remains to be seen. 

The information in both parts of this article was gathered over the past year since the JPCW concluded. Dui Hua continues its dialogue with the SPC in an effort to stay abreast of developments and best practices for juvenile justice reform and the improvement of child welfare systems. These are areas in which countries the world over struggle to identify policies that will meaningfully address the issues facing youth, and dialogue on these issues is a reminder that sound child welfare policies help pave the way for a bright future. 

Tuesday, April 4, 2023

Child Welfare with Chinese Characteristics, Part I: Rights & Responsibilities of Family & Schools

Image credit: The Dui Hua Foundation

On June 1, 2021, the second revision of the Law of the People’s Republic of China on Protection of Minors (hereafter Protection of Minors Law) came into effect. The revision introduced 60 new articles into law. During the Joint Program on Child Welfare Laws (JPCW) webinar hosted by Dui Hua in April 2022, panelists from the Supreme People’s Court of China (SPC) spoke in depth about the revisions to the Protection of Minors Law across six key protection areas: family, school, society, internet, government, and the judiciary.  

The current Protection of Minors Law is the result of decades of revision and reform. First adopted at the 21st Meeting of the Standing Committee of the Seventh National People’s Congress on September 4, 1991, the law was revised in 2006; in 2012, it was amended in accordance with the Decision on Revising the Law of the People's Republic of China on Protection of Minors made by the Standing Committee of the 11th National People’s Congress at the 29th Meeting. In 2020, it was revised at 13th National People’s Congress and came into effect in its current iteration in June 2021.  

The amendments are meant to fill in the gaps of the previous law and safeguard children’s rights to the greatest extent possible. During the JPCW, Li Chen, Deputy Director of the Department of Children’s Welfare Affairs from the Ministry of Civil Affairs (MCA) stated that the revisions to the Protection of Minors Law “explicitly provide that the people’s governments at or above the county level shall establish a coordination mechanism for the protection of minors...so as to further consolidate the legal groundwork for the protection of minors (in China).” On April 21, 2022, the State Council Information Office of China issued a white paper titled Youth of China in a New Era. The paper stated that China’s aim is to “create a future of prosperity, health, safety, mutual respect, mutual learning, and shared benefits” for young people all over the world.   

China’s reforms in child welfare and juvenile justice have made strides towards a more comprehensive national policy, and certain aspects of its system stand in contrast to the US child reform and juvenile justice systems which are largely decided at the state level. Yet, the vagueness surrounding the Protection of Minors Law’s scope may open the door to practices that are harsh on parents and guardians, place undue stress on families, or present issues for enforcement.  

Screenshots from the April 7 expert exchange. (Clockwise top left) Host John Kamm, moderator Dr. Jiang Jihai, moderator Judge Len Edwards, Dr. Jiang with members of his panel. Image credit: The Dui Hua Foundation 

This article explores China’s child welfare legislation by drawing on the relevant legislation, white papers issued by Chinese Communist Party organs, and remarks made during Dui Hua’s 2022 JPCW webinar. Part I focuses on the obligations of the family unit and educational institutions in child welfare. Part II looks at the designated roles of online entities, government bodies, the judiciary, and society at large in ensuring the welfare of the child. 

“A Good, Harmonious & Civilized Family Environment” 

Like many legal systems, China’s child welfare laws center the family as the foundation for child protection. During the JPCW, Judge Wang Wei, Deputy Chief Judge of the First Criminal Division of Jiangsu Province High People’s Court, spoke on guardianship revocation cases in China, stating that “raising children is both an ethical and affectionate need and a statutory responsibility.” The Protection of Minors Law contains ten articles that specify the guardian’s responsibility to the child, with emphasis on when and how guardianship can be revoked and possibly restored.  

Issues of guardianship and child neglect have particular relevance in China due to the number of children who are left in the care of grandparents or other relatives in rural villages while their parents work in cities. A combination of factors – among them the household registration system known as hukou, the high cost of living in cities, and limited economic opportunities in rural areas – has resulted in millions of “left behind” children (留守儿童), so-called because they live apart from their parents for much of their childhood.

The cover of an individual household's register, or hukou, booklet. Image credit: Wikimedia Commons / Public Domain 

Article 21, a more recent addition to the Protection of Minors Law, stipulates that children under the age of eight cannot be left unattended or in the care of unsuitable guardianship. Minors under the age of 16 should not be forced out of the home or forced to live without a guardian. Article 15 states that “parents or other guardians of minors shall learn family education, accept guidance on family education, and create a good, harmonious and civilized family environment.” Article 15 also requires any adult family members living in the same house to bear some guardianship responsibilities, which are detailed in Article 16
  1. To provide minors with life, health, safety, and other aspects of protection; 
  2. To care for the physical, psychological and emotional needs of minors; 
  3. To educate and guide minors to abide by the law, to be diligent and thrifty, and to develop a good moral character and behavior habits; 
  4. To conduct safety education for minors to improve their self-protection awareness and ability; 
  5. To respect minors' right to receive education and ensure that school-age minors receive and complete compulsory education in accordance with the law; 
  6. To ensure the time of rest, entertainment, and physical exercise for minors, and guide them to carry out activities beneficial to their physical and mental health; 
  7. To properly manage and protect the property of minors; 
  8. To act for minors to carry out civil legal acts in accordance with law; 
  9. To prevent and stop the bad behaviors and illegal and criminal behaviors of minors and conduct reasonable discipline; and 
  10. Other duties under guardianship that should be performed. 
This list raises the issue of whether parents or guardians can be liable for violating the above responsibilities and whether courts can mandate revocation of guardianship. The broad sweep of section 10 could lead to highly discretionary implementation. 

Articles 22 and 23 address instances when a minor’s parent or guardian is temporarily unable to perform their duties. Article 22 states that the parents or guardians “shall entrust a person with full capacity for performing civil juristic acts to attend minors,” and Article 23 requires the parent or guardian to promptly inform the child’s school and local authorities of the guardianship arrangement. The articles instruct guardians to follow specific reporting mechanisms but provide little guidance about how to determine if a guardian is “temporarily unable to perform duties.” Judge Wang of the Jiangsu Province High People’s Court clarified in his remarks that revocation of guardianship “is only applicable to serious circumstances; judicial power shall only intervene in family relations in a way of minimal damage as the 'last resort.' It should strictly distinguish between guardianship infringement and improper education/slight physical punishment.” 

Article 36 of the Civil Code of China lists three circumstances when guardianship may be revoked either permanently or temporarily. During the JPCW, Judge Wang of Jiangsu Province High People’s Court described them thusly: 

  • the guardian engaged in any act which damages the physical and mental health of the ward, such as sexual assault, sale, abandonment, abuse, and violence against the ward; 
  • the guardian fails to perform the duties of guardianship or is unable to perform such duties but refuses to delegate all or part of the duties to others, i.e., drug use, gambling, or being alcoholic, in jail serving sentences, unable to perform their obligations (as a clause designed to cover all other circumstances); 
  • the guardian is engaged in any other act which infringes upon the lawful rights and interests of the ward, such as instigating or using minors to commit crimes of a severe nature; coercing, deceiving, using minors to beg on the street, and refusing to rectify after censure and education being conducted three times by the public security authority. 

Dr. Jiang Jihai, then-Director of the Juvenile Justice Guidance Division of the Supreme People’s Court of China, stated that the Family Education Promotion Law, which was also revised in 2021, escalated family education from traditional “family affairs” to “state affairs.” The law stipulates that parents bear principal responsibility such that “if they fail to fulfill this responsibility, or do not implement family education correctly, they should bear the corresponding legal responsibility.” 

Safe Schools, Peaceful Campuses 

Beyond the family, the Protection of Minors Law similarly introduced and amended regulations on the responsibility of schools in child protection. The law and its amendments provide a blueprint for child protection in educational institutions by assigning new responsibilities to institutions as well as specifying special-purpose schemes, administrative requirements, work mechanisms, and measures for support and supervision.  

Chinese elementary school students on their way to school in Nanyou. Image credit: Wabbit Wanderer Flickr Account / CC BY-SA 2.0 

Education environments – including kindergartens, special education institutions, primary, secondary, and vocational schools – have mandatory measures to fight campus bullying and sexual misconduct, and they also mandate the inclusion of sex education curriculum. Kiosks and businesses that sell alcohol, cigarettes, or lottery tickets are barred from operating near schools to prevent minors from developing unhealthy habits. To prevent sex trafficking, hotels and short-term accommodation facilities must ask underage guests for their guardians’ contact information and the nature of their relationship with fellow guests. Hotel staff are obligated to call police if they observe suspicious activity involving child sex trafficking. The Ministry of Education (MOE) and other authorities launched pilot programs at schools, organized training workshops, and provided guidance to students, including: 

  • Initiating the “safe school and peaceful campus” campaign;  
  • Launching a national safety education day for primary and secondary school students;  
  • Holding special activities around water safety to prevent drowning accidents;   
  • Launching an anti-bullying initiative for primary and secondary school students;  
  • Implementing measures such as regulating extracurricular sports training and strengthening the physical health management of primary and secondary school students. 

In 2016, China Daily reported on new measures to combat school bullying, including that authorities will hold regions and schools responsible if they are found to have serious bullying problems. Issues of bullying and sexual assault continue to draw widespread public attention. A 2016 survey of seven Chinese cities found that 26 percent of urban children had been bullied during the previous year. As such, the law includes implementation rules and procedures to help schools and other authorities identify and intervene in bullying, abuse, and harassment at schools. For example, Article 130 provides a legal definition of bullying, and Article 39 provides a mandate for schools to establish a formal system of control and prevention of bullying.

A CAPTA post. Image credit: School House Connection 

The national reach of the Protection of Minors Law is distinct from federal efforts in the United States to curtail bullying. The law is unique in its far-reaching nature and its placement of legal responsibility on multiple different actors, including schools, parents, public security organs, and law enforcement. The closest US analog to the Protection of Minors Law is the Federal Child Abuse Prevention and Treatment Act (CAPTA). CAPTA is primarily concerned with physical and sexual abuse against minors, but its impact is limited as it depends on individual states to pass legislation on mandated reporting of child abuse neglect.  

The roles of family and schools in child welfare present an emerging picture of how legislation differs between China and the United States. While both legislate obligations for different parties and manifest this largely through mandatory reporting requirements, China’s top-down legislation stands in contrast to the United States’ approach. The US system offers guidance but leaves actual definition and implementation to states to induce localized systems. How these obligations – and the differences in systems – manifest across cyberspace, government, judicial bodies, and society at large will be discussed in Part II. 

Read Part II: An All-of-Society Effort

Wednesday, March 1, 2023

Criminal Acts: Luzhou Armed Rioting Cases

Daheidong Cave in Luzhou, Sichuan, where the Southwest Buddha League was headquartered in 1996. Image credit: Sogou 

The criminal acts of armed rebellion (武装叛乱) and armed rioting (武装暴乱), defined in Article 104 of the Criminal Law, are among the least understood crimes of endangering state security (ESS). They are also among the least frequently invoked in the country. Statistics published by the 12-volume Records of People’s Courts Historical Judicial Statistics: 1949-2016 indicated that Chinese courts only tried 11 cases involving 39 defendants in the 18 years beginning in 1998. 

Trials of armed rebellion and rioting intermittently took place in 1999, 2001-2003, 2006, 2008, 2011-2012, and 2015. The largest case involved 24 defendants and was tried in 1999. Two years later, six people were tried in two separate cases. Only one to two people were tried each year in the remainder of the years. 

Both armed rebellion and armed rioting are capital crimes that are punishable by death when cases are deemed to be particularly severe, but the acts are not identical. One key difference, according to Chinese legal practitioners and scholars, is that armed rebellion requires an intent to seek refuge with or assistance from an entity perceived by the Chinese government to be a hostile foreign organization.  Armed rioting, however, occurs when a group of people take up weapons or use explosives as an act of resistance against the Chinese Communist Party without seeking assistance from abroad. 

Armed rebellion and armed rioting are not the same, as explained in Illustration of Standards and Application of Law for Filing a Case, Evidence Assessment, Conviction, and Sentencing (tu jie li an zheng ju ding zui liang xing biao zhun yu fa lü shi yong 图解立案证据定罪量刑标准与法律适用). Image credit:Illustration of Standards and Application of Law for Filing a Case, Evidence Assessment, Conviction, and Sentencing, China Legal Publishing House

As public information about armed rebellion or armed rioting cases is almost non-existent, the defendants and their acts remain shrouded in secrecy. However, Dui Hua found evidence that these cases could be connected to an armed riot which broke out 24 years ago in Luzhou, Sichuan. 

Luzhou, Sichuan 

The 24 people convicted in 1999 were all sentenced in a closed trial in Luzhou, Sichuan. Official sentencing records report that they participated in an anti-government militia called the Southwest Buddha League (西南佛联盟). Guizhou native Chen Faqing(陈发清) founded the militia in Yongxu County, Sichuan, in the early 1990s. Chen allegedly aimed to overthrow the Communist regime and save the Chinese people from an apocalypse that he said would occur between 1997 and 2000. The militia issued its own work permits, organized an independent household registration system, and established more than 30 bureaucratic divisions and a military academy. At its peak, the Southwest Buddha League had 1,120 registered members, according to provincial records. 

The militia attempted to stage an armed riot in April 1998 after two members were detained. On June 5, armed police surrounded the group’s stronghold in Daheidong Cave in Gulin County, detaining 48 core members and confiscating more than 400 pounds of explosives. The most lenient sentence in the case was three years in prison. However, Chen Faqing and three others were sentenced to death. 

A photograph of Luzhou, Sichuan, from August 2008. Image credit: Philip / CC BY-SA 4.0 

Another three were sentenced to 15 years’ imprisonment: two of them were released early while the third died in custody. In the early 2010s, Dui Hua inquired about the fate of two of the surviving members. Chen Yunhua (陈云华) was released on November 7, 2011, after receiving a 19-month sentence reduction. Zeng Xiangui (曾显桂) received four sentence reductions totaling 60 months between 2002 and 2008. Zeng was released on June 7, 2008.  

More Trials in Luzhou 

Dui Hua’s research has uncovered more armed rioting trials after the case of Southwest Buddha League was concluded in 1999. Coincidentally, all the trials took place in Luzhou. In April 2008, Liu Zhonglin (刘中林) received a 10-year prison sentence and a one-year supplemental sentence of deprivation of political rights. In 2012, his sentence was reduced by one year. In 2015, Sichuan’s Ya’an Prison recommended that an additional 18-month sentence reduction be given to Liu because he demonstrated diligence in prison labor. If the recommendation was approved, Liu would have completed his sentence early in June 2015. 

An armed rioting trial as recently as 2019 was also concluded in Luzhou. The case involved three defendants: Li Guanghong (李光洪), Long Xianyao (龙先尧), and Wang Anhua (王安华). The judgment, which was published online on December 25, 2019, has since been removed amid the mass purge of court judgments beginning in June 2021. The specifics of the case are unclear because the contents of the judgment had not been disclosed. Precedent suggests that prison sentences for people convicted of armed rioting tend to be lengthier and more severe, and it is very likely that the three are serving their sentences somewhere in Sichuan.

Intermediate People's Court of Luzhou City, Sichuan Province. Image credit: Baike 

The 1998 incident in Luzhou took place at a time when the internet was at its infancy. It is the only armed riot known to have been documented online over the past two decades. It is difficult assess how truthful this official narrative is. Were there a recent outbreak of an armed riot, it is likely that some Chinese netizens would still have recorded and posted what they witnessed on blogging and messaging services. 

Dui Hua could not find information about any other armed riots or rebellion beyond what happened in Luzhou in 1998. The fact that all three known trials of armed rioting cases occurred in the same place can hardly be a coincidence. It is possible that those tried in 2008 and 2019 took part in the same 1998 incident and eluded police for an extended period. ESS cases are by nature sensitive and are subject to low transparency. Unless the Chinese government publishes more information about these trials, the incident officially labeled “Luzhou armed riot” will join the ranks of other mysterious ESS cases about which extremely little is known. 

Friday, February 17, 2023

Of Dialogues and Prisoner Lists

 This essay, written by Dui Hua Executive Director John Kamm, was originally published in the US-Asia Law Institute's journal USALI Perspectives, Volume 3, Number 16 on February 13, 2023. You can view the original posting here

As China prepares to resume bilateral human rights dialogues, a human rights advocate reflects on their record.

In August 1989, just weeks after the Chinese army opened fire on peaceful protesters in Tiananmen Square, the UN Human Rights Commission’s Subcommission on the Prevention of Discrimination and Protection of Minorities passed a resolution censoring China. It was the first and last time that China lost a vote at a UN forum over its human rights record.

Since then, Beijing has strenuously lobbied and spent significant resources to make sure nothing like this ever happened again. Instead of multilateral discussions about its treatment of dissidents and minorities in open UN fora, the Chinese government persuaded Western countries to present their criticisms in closed-door, bilateral human rights dialogues. One of the main features of such dialogues was the presentation by the foreign party (and acceptance by the Chinese side) of prisoner lists. As China prepares now to revive its dialogues with some Western governments, it’s worth reflecting on the role that dialogues and prisoner lists have played.  

Switzerland and the United States were the first two countries that China invited to launch these dialogues, which began in 1991. Geneva was home to the Human Rights Commission (now the Human Rights Council), and China hoped to discourage future critical resolutions by lobbying Swiss officials in Geneva and Berne. Geneva also was home to the International Committee of the Red Cross (ICRC). Access to Chinese prisons by the ICRC has been a key demand of Western governments for decades. 

As for the United States, China was not fazed by the sanctions put in place by the George H.W. Bush administration after Tiananmen, but it was deeply worried by the prospect of Congress revoking its trade privileges, notably its MFN status. To avoid this outcome, Beijing made many concessions to prevent the loss of its trade status, including releasing dozens of political prisoners, agreeing to a memorandum on prison labor in 1992, and initiating numerous bilateral human rights dialogues. 

Throughout the early 1990s, other governments agreed to hold their own bilateral human rights dialogues with China. These included the European Union, the United Kingdom, Germany, Norway, Canada, Australia, and Japan. In addition to periodic human rights dialogues, the United States and China held seven sessions of a legal experts’ dialogue, focusing on rule of law issues. China also held human rights consultations with the Netherlands, New Zealand, and developing countries such as Brazil.

In addition to the submission of prisoner lists, bilateral human rights dialogues featured visits to Chinese and American courts and prisons, and, in rare instances, meetings with representatives of civil society groups. All told, more than 120 sessions of human rights dialogues took place between China and foreign countries between 1991 and 2019, according to my count. 

As time went by, China held fewer and fewer dialogues with foreign governments. It also downgraded the status of officials leading the dialogues, from vice-minister to assistant minister, then to director general, and finally to deputy director general or special representative. According to a senior Chinese official, once China achieved its goals of lifting post-1989 economic sanctions and entering the World Trade Organization, it no longer felt the need to hold human rights dialogues or otherwise make human rights concessions. 

The last governmental dialogue, a session with the European Union, took place in 2019. China  cited various reasons for suspending or cancelling dialogues: with Norway, it was the 2010 award of the Nobel Peace Prize to Liu Xiaobo; with Japan, it was visits to the Yasukuni Shrine by senior Japanese officials.  

However, alarmed by the deterioration of China’s image in the West, Beijing decided in late 2022 to resume human rights dialogues with Western governments. On February 11, Hong Kong's South China Morning Post reported that the EU and China would hold the 38th session of their human rights dialogue in Brussels at the end of the week of February 13. Beijing has hinted that it is willing to resume its dialogue with Australia.

China suspended the dialogue with the United States on at least three occasions, most recently in 2016 after then-President Barack Obama met with the Dalai Lama. Then-assistant secretary of state for democracy, human rights, and labor, Tom Malinowski, declared that the dialogue with China had been a waste of time anyway. No efforts have been made to revive it. 

The suspension of both the human rights dialogue and the legal experts’ dialogue that same year were but two of the official US-China dialogues in various issue areas that were done away with immediately before or during the Trump administration. More recently, dialogues with the Biden administration on climate change and narcotics were frozen in the wake of then-House Speaker Nancy Pelosi’s visit to Taiwan in August 2022.

The submission of prisoner lists to the Chinese government was always the most valuable part of rights dialogues. Some of these lists have been very long, containing hundreds of names of individuals subjected to coercive measures in virtually every province and autonomous region. Lists promote transparency and force the Chinese government to focus on specific individuals whose rights have been violated, drawing in ministries and courts responsible for the violations. In response to prisoner lists, over the years the government released information about the location and status of hundreds of political and religious prisoners who had simply dropped into a black hole. 

The lists also have played a role in gaining clemency for political and religious prisoners. According to a survey submitted by the Dui Hua Foundation to Congress in 2005, presence on a prisoner list tripled the chance that a prisoner would be granted clemency. Even when the Chinese government declines to respond to a list, evidence suggests that the inquiry is passed along to ministries and courts, where, occasionally, action is taken.

For the same reasons that it downgraded human rights dialogues, China’s Ministry of Foreign Affairs increasingly resisted accepting prisoner lists. In one instance, a list was left on the table while the Chinese official leading the dialogue played video games on a cell phone. No written responses to prisoner lists submitted by governments have been recorded since 2012.

Matters came to a head at the 18th session of the US-China dialogue in Kunming in July 2013. The leader of the Chinese side refused to accept the US list. Only after intense pressure from the US side was the list begrudgingly accepted. The director general who led the Chinese side made clear that this would be the last time the Ministry of Foreign Affairs accepted a prisoner list from a foreign government.

While governments have been unable to hand over lists, my organization, the Dui Hua Foundation (whose name means “dialogue” in Chinese), has been able to submit lists continuously since it was established in 1999. By the end of December 2022, Dui Hua had handed over 463 lists containing altogether more than 2000 “unique” names of prisoners (“unique” means names are only counted once; it is not uncommon for a name to appear on dozens of Dui Hua lists). Interlocutors responded on 282 occasions, providing information on more than 1,000 unique names. In 2022, Dui Hua submitted 21 lists, received 27 responses, and learned of instances of clemency or better treatment for 22 names on its lists.

The degradation of human rights dialogues that intensified after Xi Jinping assumed power in 2012 is not the only blow to judicial transparency during the strongman’s reign. In June 2021, China’s Supreme People’s Court purged all cases involving state security, “cults,” and death sentences from its judgment website. Crafting prisoner lists has become increasingly difficult for Dui Hua, but it has found new sources and new channels to continue submitting lists and getting responses.

Experience tells us that dialogues cannot immediately solve China’s human rights problems, but they can increase transparency. Prisoner lists in particular have benefited prisoners and their families, and should be part of any resumed dialogues.  Dui Hua, which remains committed to a mutually respectful dialogue with the Chinese government, plans to continue submitting lists for as long as it is able to do so. 

Tuesday, February 14, 2023

Polls Suggest Stormy Waters for Biden, US-China Relations

US President Joe Biden delivering the 2023 State of the Union Address on January 7, 2023 with Vice President Harris and House Speaker McCarthy seated behind him. Image credit: Public Domain 

Polling from the start of 2023 suggests that China is increasingly unpopular in the United States as well as in other regions. A majority of Americans are dissatisfied with the Biden administration’s handling of the US-China relationship.  

“Stable but Underwater” 

Approval ratings for Biden as president are hovering in the 40s, a modest increase from the lows of summer 2022. As per the Harvard/Harris poll from January 18-19: “Biden’s approval is stable but underwater.” That poll of 2,050 registered voters showed 56 percent disapproval for Biden’s job as president, against 42 percent that approve. Rasmussen’s poll from February 2-6 of 1,500 likely voters pegged Biden’s approval at 44 percent, with 54 percent disapproval. Among a Economist/YouGov poll from February 4-7 of 1,500 registered voters, 41 percent approval versus 50 percent disapproval. A CBS News Poll taken from February 1-4 of 2,030 adults found that 45 percent approve of Biden’s job as president compared to 55 percent who disapprove.  

Biden’s approval rating did surpass his disapproval rating in one poll, the IBD/TIPP poll which found 46 percent approval among Americans, compared to 44 percent disapproval. However, the poll noted that “Biden’s improvement is strictly among self-described investors and higher earners.” 

Biden’s handling of classified documents has also damaged optics around his presidency. The YouGov poll found that 34 percent said that Biden was trustworthy against 46 percent that said he wasn’t (20 percent answered “not sure”). An NBC News poll of 810 registered voters from January 20-24 found that 67 percent of those polled are concerned about the handling of classified documents by both Biden and Trump. The classified documents scandal is likely to play into the hands of China hawks who view Biden as either soft on China or benefiting financially from ties to the CCP. In the Harvard/Harris poll, 83 percent of voters supported an FBI investigation into Biden’s handling of the documents, and 66 percent said that Biden’s dealings with the University of Pennsylvania raise questions that should be investigated. 

Biden’s handling of China also reflects a lack of confidence among Americans. Redfield & Wilton Strategies’ January 19 poll found that 39 percent of respondents disapproved of Biden’s handling of relations with China, compared to 29 percent who expressed some form of approval (24 percent neither approved or disapproved). In the CBS News Poll, 61 percent disapproved of the way Biden is handling issues with China, compared to 39 percent that approved. 

Similar attitudes abound for Biden’s handling of foreign policy. The Quinnipiac Poll shows 38 percent approval to 54 percent disapproval. The January 29-31 Economist/YouGov poll puts it as 31 percent approval to 53 percent disapproval. The NBC News poll found 41 percent approval to 50 percent disapproval. Across two polls, one from January 28-29 and the other from February 4-5, Morning Consult found that Biden’s foreign policy approval rates remained above 40 percent “while approval of his handling of national security rose from 42 percent to 45 percent during that time period.” 

Friends & Enemies

Negative views of China have persisted into 2023. In the Harvard Harris poll, 66 percent of respondents had an unfavorable view of China. A YouGov/Economist poll from February 4-7 found 13 percent view China as a friend or ally versus 72 percent that answered unfriendly or an enemy. That poll also asked about attitudes toward Taiwan, of which respondents had a much more positive view: 61 percent see Taiwan as a friend or ally compared to 10 percent that see it as unfriendly or an enemy and 29 percent that were unsure. A majority of respondents, 74 percent, said that the US government made the right decision to shoot down the Chinese balloon, and 60 percent rejected China’s explanation that it was a weather balloon blown off course.  

Morning Consult’s US-China Relations Barometer currently holds that 62 percent of US respondents have an unfavorable view of China, with 14 percent favorable. Chinese perceptions of the United States are similar: 69 percent unfavorable to 20 percent favorable; however, the share of Chinese adults with unfavorable views of the United States has declined since November 2022. Across Central and Eastern Europe, a survey of 13 countries by the International Republican Institute found worsening approval for China across all 13 countries, and 34 percent of respondents reported increasingly negative views of China in the past year. Of those, 66 percent cited China’s support for Russia as the main factor.  

While China is expected to play a large part of Congress’ foreign policy agenda in the 118th Congress, Morning Consult’s US Foreign Policy Tracker suggests that voters’ concerns are split. US-China relations are not a top issue, with only 27 percent of respondents ranking it as the biggest concern, while protecting human rights globally came in at 25 percent. Upholding democracy globally ranked the lowest, at 14 percent. The biggest foreign policy concerns were terrorism, followed by immigration, cyberattacks, drug trafficking, and climate change. 

However, Republicans express much more concern for US-China relations, with 31 percent citing it as the most important issue. On a list of Republican foreign policy concerns, US-China relations ranked fifth out of 14; for Democrats, it ranked 12th out of 14 issues, with 23 percent citing it as the most important issue. Partisan preference switched when it came to support for Ukraine: 16 percent of Republicans cited it as the most important issue while 32 percent of Democrats said it was the most important issue.  

Unfavorable opinions abound, but a December 2022 Rasmussen Reports poll suggests that Americans believe their biggest enemy is domestic. When asked  “Who is America's biggest enemy as 2022 draws to a close - Russia, China, Iran, North Korea, Republicans, or Democrats?” as The Hill reported, “nearly 40 percent of Americans don’t choose a foreign power but name a domestic political party.”  

Source: Rasmussen Reports

Biden’s China policy, which has largely followed that of the Trump administration, has drawn criticism for being more reactive than proactive. In recent weeks, this approach has been publicly criticized by high-profile figures. Former Trump-era national security advisor John Bolton authored an article for The Hill asking, “When will Biden get tough with China?”, and former treasury secretary Henry Paulson declared “America’s China Policy Is Not Working” in Foreign Affairs. A divided Congress, a divided populace, and a president lacking in approval are all reckoning with the future of US-China relations, with little other than “hawkism” uniting them.