Torture under scrutiny
As we mark the 60th anniversary of the Universal Declaration of Human Rights, it is important to note that the administration of justice in China is increasingly being exposed to world opinion. While recent US policy and practice have made Guantanamo and Abu Ghraib symbols of unacceptable abuse, China's torture problems are far more pervasive and systemic.
Ignoring Beijing's warning, last week the European Parliament awarded its famed Sakharov Prize for Freedom of Thought to Chinese activist and commentator Hu Jia , focusing international attention on the repressive aspects of China's remarkable development. After a farcical trial, Hu is serving a 3?-year prison sentence for publishing essays and interviews that 'incited subversion of state power'. During several months of pre-trial police detention, he suffered a broad range of physical and mental tortures, some of which have continued in prison.
Twenty years ago, China ratified the UN's Convention Against Torture (CAT), which requires state parties to take effective measures to prevent acts of torture in their territory. Next week, CAT's committee of 10 experts, including specialists from China and the US, will question a Chinese delegation at a hearing to review the degree of compliance concerning the mainland, Hong Kong and Macau. In 2006, Beijing submitted compliance reports, and this September it submitted a 52-page response to 40 detailed questions that the committee posed after reading the initial reports.
The committee will also take account of information presented by some 15 non-governmental organisations, as well as the scathing condemnation of mainland criminal justice issued by the UN Special Rapporteur on Torture following his 2006 visit to China.
The committee can be expected to expose gaps that persist between CAT standards and the reality on the mainland, despite efforts to improve the training and performance of law enforcement personnel.
China's written submissions claim that CAT's demands have been met by legislation prohibiting torture. Yet, as Human Rights in China, an NGO, demonstrates, mainland laws still do not reflect CAT's comprehensive definition of torture. Regarding the committee's many requests for information about individuals who reportedly were tortured during police investigation, Beijing often claims that no information is available or simply that the accused were convicted 'according to law'.
Following the hearing, the committee will report its conclusions and recommendations. It will also list certain items for immediate follow-up by Beijing within a year and require it to report the actions taken. China's response to previous similar efforts by the committee has been incomplete.
China's record on torture not only violates its international obligations, but also undermines its own criminal justice goals. In Canada, for example, Beijing appears to be losing its long battle to obtain the return of Lai Changxing , allegedly the greatest smuggler in Chinese history. Thus far, Canada's judiciary has prevented Lai's forced return on the grounds that no satisfactory inter-governmental arrangements have been made to monitor China's compliance with its formal promise not to torture Lai if he is returned. And the US, recognising mainland China's due process defects, has refused to repatriate Uygurs after their release from unwarranted detention in Guantanamo.
Like Canada and the US, many democratic countries have not concluded extradition treaties with China out of concerns about torture and other obstacles to a fair trial. Even Hong Kong has been reluctant to sign a 'repatriation' agreement to hand over suspects requested by Beijing. This hampers China's efforts to bring home and prosecute many alleged offenders, including embezzlers who have absconded with billions of US dollars.
If China should ratify and implement the UN's International Covenant on Civil and Political Rights (ICCPR), which it signed over a decade ago, its extradition prospects would markedly improve. Adherence would mandate profound improvements in the mainland's criminal process, as well as in its freedoms of expression. It would also require Beijing to report the extent of its compliance periodically to the covenant's Human Rights Committee.
Yet, experience under the torture convention has demonstrated how difficult and unattractive it is for Beijing to honestly report to a UN human rights forum, especially in view of China's expansive state secrets law. Is it any wonder that Beijing has been slow to ratify the ICCPR, obligating itself to yet another international forum's scrutiny of its criminal process?
Jerome A. Cohen is co-director of NYU's US-Asia Law Institute and adjunct senior fellow at the Council on Foreign Relations in New York