What can be done regarding Xinjiang’s mass detentions?

By Jerome A. Cohen

I have discussed Xinjiang’s horrific detentions on my blog. There should be more investigative reporting that looks into various important questions. We do not know all the types of detention resorted to. They may include: simply lawless detentions, i.e., not based on any regulations or laws; detentions authorized by some written document even if issued only by low level police; detentions based on special legal provisions under the new Supervision Law; detentions based on the usual Criminal Procedure Law; and detentions based on special provisions of the Criminal Procedure Law, i.e., residential surveillance.

It would be difficult to convincingly argue that these detentions are consistent with the PRC Constitution if such arguments could be made before an impartial tribunal, which, of course, does not exist in the PRC. These detentions are very similar to those imposed for decades under “re-education through labor” (RETL), which, like several other notorious administrative detention procedures, finally had to be abandoned by the regime, at least in name. Yet similar detentions still take place under various rubrics such as “re-education” for drug offenders, prostitutes and their customers and political offenders who continue to be given “black jails” and other types of confinement.

We are purposely being kept in the dark about the unique, massive detentions in Xinjiang, which have confined many hundreds of thousands of closely-settled people on many specious charges. Perhaps the last time so many people have been detained outside the formal criminal process was in the 1957-59 “anti-rightist” campaign where RETL was first used.

Given the Communist Party’s domination of the judicial system, the legal impossibility of getting the courts to consider constitutional claims and the refusal of the National People’s Congress Standing Committee, which, unlike the courts, is authorized to interpret the Constitution, to consider such claims, there is no prospect for challenging the Xinjiang measures domestically. It is worth noting, however, that what is being done should be understood as violating procedural rights under Article 37 of the Constitution as well as various freedoms enshrined in the Constitution, not to mention relevant provisions of China’s Criminal Procedure Law and other national legislation.

To be sure, the Xinjiang measures also violate public international law in many respects. China has signed but not ratified the International Covenant on Civil and Political Rights, which plainly prohibits arbitrary detentions. The PRC has ratified the Convention Against Torture and the International Covenant on Economic, Social and Cultural Rights, and the Xinjiang actions are clear violations of these international treaties in many respects. Other international human rights violations can also be established. Relevant treaty bodies, such as the Committee Against Torture and the Committee on Economic, Social and Cultural Rights, should review the Xinjiang detentions in their dialogues with China, ask the Chinese government to provide accurate information and condemn violations in Xinjiang.

Additionally, other UN human rights agencies are the obvious fora in which to move, including the UN Human Rights Council, the UN independent human rights experts such the Working Group on Arbitrary Detention and other special rapporteurs, and the Office of the High Commissioner for Human Rights. Unfortunately China has moved skillfully to dominate the UN Human Rights Council and the U.S. Government has certainly not risen to the challenge of effectively opposing China’s maneuvers. The departure of Mr. Zaid, the energetic and courageous High Commissioner for Human Rights, is greatly to be regretted.

Individual countries, of course, can take actions, which is why I recommend that the U.S. Government adopt Magnitsky Act sanctions against those responsible for Xinjiang, starting with Xi Jinping.

Various concerned countries can also act in concert outside the UN, for example excluding China from major economic and political meetings. It is a particular disgrace that Turkic, Muslim countries and their organizations have done so little to condemn China for what it is doing to their kinsmen.

There should also be many public protests by ordinary citizens, i.e., NGOs and popularly-inspired meetings in free countries whose people support human rights.

U.S. should impose Magnitsky Act sanctions against China’s human rights violators

Jerome A. Cohen

Amnesty has just issued a plea for urgent action on behalf of what remains of lawyer Jiang Tianyong. Amnesty’s announcement seems understated despite the large cap title. Jiang is exposed to more than the “imminent risk of torture and other ill-treatments”. He has in actuality long been suffering from such abuse that is designed to break him as a person, to destroy him both mentally and physically. And, as we know from many cases including those of Gao Zhisheng and Wang Quanzhangthis calculated campaign to end China’s human rights lawyering seems to be gradually thinning the ranks of human rights lawyers. The many, sometimes bizarre, procedural violations in Jiang’s case are a reminder of the realities of Chinese justice when it comes to those who challenge the regime. His captors should be investigated on charges of what may well amount to “attempted murder”.

I know Jiang but have never cooperated with Wang Quanzhang, whose case appears to be even more outrageous. After three years of absolute silence about Wang’s fate the Party has reportedly decided to finally bring him to “trial” in the near future but his mental and physical condition are both in doubt, and he has not been allowed to retain his own lawyer but must accept a government-selected one.

Despite Chinese Government maneuvers to gain control over the international human rights institutions and the current relative indifference of the U.S. Government to human rights issues, greater efforts must be made to try to stop the PRC campaign against human rights lawyers. One important, if largely symbolic, response would be for the U.S. to impose Magnitsky Act sanctions against those Chinese officials who are directly responsible for executing this notorious campaign, starting at the top of the Communist Party.

“In China, they call it a political camp but really it was a prison in the mountains.”

By Jerome A. Cohen

 (Photo credit:  AFP ; the 41-year-old said she had been tricked into working in one of the camps)

(Photo credit: AFP; the 41-year-old said she had been tricked into working in one of the camps)

Here’s a valuable AFP report on Xinjiang, China’s 'reeducation camps' in spotlight at Kazakhstan trial. There have been occasional references to the mass detention of Kazakhs as well as Uyghurs but this report tells more. It is especially interesting to learn much new information through the medium of a public trial allowed to be held in Kazakhstan despite the politically explosive nature of the charges for the country and its dictatorial government that functions under China’s shadow.

In China a similar case, IF a formal criminal prosecution is used instead of simple arbitrary detention, would usually be closed to the public on grounds of national security. In this case, by contrast, Kazakhstan held an open hearing, apparently attended by foreign media, in which the accused had the benefit of an active defense lawyer who was allowed to question his client extensively. The court, for political reasons, might have curtailed the scope of the testimony to avoid discussion of the Chinese “re-education centers” but instead properly allowed the questioning to take place in order to make clear the background of the defendant’s resort to false travel documents. The defendant, who seems to have made an excellent witness, aptly summed up the terrible Xinjiang situation when she said: “In China, they call it a political camp but really it was a prison in the mountains.” !!! 

Liu Xia’s release: half-way house toward freedom

By Jerome A. Cohen

 Liu Xia arrives at the Helsinki International Airport in Finland on July 10 (Jussi Nukari/AP)

Liu Xia arrives at the Helsinki International Airport in Finland on July 10 (Jussi Nukari/AP)

Here is an excellent statement by the UN HR High Commissioner Zeid Ra’ad Al Hussein on Liu Xia’s release. Liu Xia is now physically free but still enslaved mentally since her brother Liu Hui has been intentionally kept hostage. Liu Hui was convicted of fraud in 2013 and was sentenced to 11 years in prison. He’s been released under medical parole, a lesser criminal law restraint, which can be revoked by the authorities at any time. So for Liu Xia her release is a half-way house toward freedom, really a new form of restriction, another ingenious type of detention-equivalent administered by a PRC that spawns new types of detention almost every day, as the Xinjiang “re-locations” illustrate.

Liu Xia’s restricted release is certainly a case of China responding to outside pressures—enormous pressures of various types including those generated by human rights groups. The PRC, like the rest of us, tries to turn a vice into a virtue and make the best of a difficult situation. They still have Liu Xia’s brother to trade and what about the missing human rights lawyers and the hundreds of thousands lawlessly locked up in Xinjiang? There’s a lot of material to work with any time they feel the need to get better press by releasing some people without actually reducing their repression.

Is America too Dangerous for Chinese Visitors?

By Jerome A. Cohen

The warning to Chinese tourists recently issued by the Chinese Embassy in Washington is only the latest evidence of Beijing’s concern about gun violence and robbery in America. This worry has marked our exchanges since the start of the Sino-American détente following President Nixon’s February 1972 visit to the Promised Land. In May-June 1972, as part of a three person team from the Federation of American Scientists (FAS) that was invited by the Chinese Academy of Sciences to tour the country for a month, I helped to negotiate a reciprocal visit to the U.S. by representatives of the Academy. Our hosts were happy to discuss a possible trip but understandably concerned about their personal safety in America. They had been reading accounts in the People’s Daily for years about the dangers of gun violence and robbery in our cities and wondered how a relatively small private organization like FAS could provide adequate protection to their group. I assured them that the Chinese news reports were generally slanted and exaggerated and that there was nothing for Chinese visitors to worry about.

In December 1972 I had the pleasure to greet the Academy delegation at Boston airport, its first stop. After a good lunch at its Boston base—that proletarian hostel the Ritz Hotel, I suggested that we launch the visit with a stroll down Boston’s then most elegant street. I knew that the Academy’s interpreter, who had taken good care of us in China, was eager to visit a camera shop and thought we might stop at one during our stroll. The chief of the delegation agreed once I told him there would be no safety issue and that I would honor his request that we spend no time visiting stores to discover “the sugar-coated bullets of the bourgeoisie”. Amazingly, as our group entered the second block of our walk, we suddenly witnessed the only cops and robbers chase I have ever seen, with a uniformed policeman chasing someone while shouting “stop, thief” and brandishing a pistol. Our group was stunned and instinctively huddled together as we watched the policeman chase the suspect into the nearby Bonwit Teller department store. I don’t think my credibility ever recovered, although the rest of the trip went smoothly!

The urgent need for stronger foreign opposition to China’s human rights violations

By Jerome Cohen

The essay by Rian Thum and Jeffrey WasserstromThe Dark Side of the Chinese Dream, deserves the widest attention. The problem of how to alert the world to gross violations of human rights while coping with the broader political actions of the perpetrating state is not a new one, of course, in regard to China and other dictatorships. We have long faced a similar challenge regarding North Korea.

It also reminds me of the late 1930s when growing international concern over the foreign political actions of Hitler helped to obscure the domestic horrors he was increasingly committing and to diminish the foreign reactions to those horrors that might have otherwise been expected.

With respect to China’s continuing atrocities, it is time to consider how to heighten the awareness and willingness to protest of the foreign governments and businesses that interact with Beijing. Much greater pressure has to be applied to the national politicians who influence the actions of their  governments. Social protests and boycotts against the multinational corporations that court the PRC and yield to its demands may be necessary to get their attention. Popular condemnations even at athletic events may be desirable. Of course, it behooves the United States Government and the American people to cure our own human rights abuses. “Do as I say, not as I do” is never an attractive or effective posture.

'Easier to die than live': #LiuXia, widow of Chinese dissident Liu Xiaobo, cries out for help in phone call https://www.hongkongfp.com/2018/05/02/easier-die-live-liu-xia-widow-chinese-dissident-liu-xiaobo-cries-help-phone-call/

George Staunton, W. A. P. Martin and the transmission of foreign law

By Jerome A. Cohen  

Here is a good NYT interview with historian Stephen R. Platt about his new book, “Imperial Twilight: The Opium War and the End of China’s Last Golden Age.” It highlights the sad end to George Staunton’s remarkable career relating to China. That career began early with Staunton’s participation in the historic Macartney voyage to Peking in 1793 at age 13 when he reportedly impressed the Emperor with his newly-acquired Chinese language skills.

The high point of Staunton’s career, at least for those of us interested in the Chinese legal system and its interaction with the West, came with his 1813 publication of the first English translation of The Great Ch’ing Code. Having tried wine and women, if not song, to pass the time during the boring off-season in Macao while waiting for trade with the Mainland to reopen, Staunton made good use of the assistance of Chinese colleagues to produce this monumental work. It was stimulated by the recognition that successful business with foreigners requires familiarity with their legal system.

Staunton’s precedent was cited by missionary W. A. P. Martin (丁韙良) in the early 1860s in his campaign to persuade the authorities in Peking to translate Wheaton’s then leading Western text on public international law into ChineseMartin believed that it would not only lead the heathen to Christ but, more practically, also help the Chinese cope with overzealous Western diplomats and traders whose demands were often couched in terms of international law. Some of the foreign diplomats living in China opposed the project for this reason. As Immanuel Hsu’s excellent book on the topic pointed out, the Chinese Government indeed successfully invoked the law of the sea principles recorded by Wheaton against Prussia even before the translation was published.

Sponsorship of China’s political advertising in the U.S.: The example of Tung Chee-hwa

By Jerome A. Cohen

Here is a report from a few weeks ago, “Chinese Communist Propaganda Group Paying for Vox Posts”, noting that the Vox has received funding support from the China-United States Exchange Foundation, whose chair is Tung Chee-hwa, the first Chief Executive of the Hong Kong Special Administrative Region.

  Photo: a screenshot of the website of the China-United States Exchange Foundation

Photo: a screenshot of the website of the China-United States Exchange Foundation

How should the media in various countries deal with political advertising—and more subtle forms of financial support—for China’s views and actions is an important issue. But we should not neglect the broader aspects of the problem—how should the independent academic and policy organizations on whose China research the media depends deal with their needs for financial support? In what circumstances is it acceptable or even desirable for them to receive the support of China-backed organizations?

No salesman for PRC views could be more attractive and persuasive to Americans than C.H. Tung, who proved more effective in the U.S. than he was in his native Hong Kong during the period he was the SAR’s Chief Executive. On behalf of one organization or another, CH has offered and provided funds to various U.S. think tanks and other research groups.

As long as no strings are attached and there is public disclosure, I am not bothered by such support, and indeed it can be very important in making possible the continuing work of useful research organizations. How long such support will continue if the recipient’s products don’t square with PRC objectives is worth examining. And, of course, CH’s sponsors will not support research organizations that have already demonstrated critical views of PRC policies.

Years ago, when I was urging the Council on Foreign Relations, where I have long worked part-time, to consider opening a branch in Hong Kong, I talked with CH about the possibility of his joining in this effort. He was enthusiastic until I noted that, of course, membership would have to be open to people with all points of view, including the famous democratic veteran Martin Lee!

CH seems to have a long-standing preference for avoiding Martin’s outlook. I recall, when CH was the SAR’s chief, I suggested to him that the Hong Kong Basic Law Committee, which advises the Standing Committee of the National People’s Congress, be developed into a serious forum for fairly considering the proper interpretation of controversial clauses of the Basic Law. This would be somewhat akin to what the role of the Judicial Committee of the Privy Council in the House of Lords had been concerning Hong Kong legal issues in colonial times. His swift reaction was to reject the idea because that would only give “guys like Martin Lee” another opportunity to make trouble!  

Israel’s Ties with China

By Jerome A. Cohen

Here is a very useful update on the complex Israel-China relationship, What’s Behind Israel’s Growing Ties With China?. It makes me recall the period 1979-81 when, long before the establishment of diplomatic relations between them, Israel was already secretly providing arms to China. Many of us who then inhabited the Peking Hotel knew what the lonely Israeli arms merchant, Shaul Eisenberg, who so often ate alone in the hotel restaurant, was up to.

 I was told at the time that Israel had enacted a special law exempting Eisenberg (or his company) from income tax on his China profits. His cooperation with Beijing undoubtedly laid the groundwork for gradually increasing Israeli-PRC contacts that led to the preparation for diplomatic relations. My awareness of this process crystallized when in the early ‘80s Peking University asked me to find it a Hebrew teacher and the money to support the teacher. Most of the small group of first students ended up working for Xinhua in Israel or in other relevant pursuits of the Israeli-PRC normalization (Xinhua is the New China News Agency, often used as a forerunner of formal diplomatic relations).

Perennial problems with corruption cases in China

By Jerome Cohen

There have recently been increasing signs of popular dissatisfaction with judicial handling of corruption cases in China. Of course, corruption cases are politically sensitive in every country and often involve influential defendants as well as accusers. Chinese courts are generally weak and unable to withstand political pressures to go along with what the Party-state demands. How can they overcome the instruction of the Party discipline and inspection teams and now the Party-run government supervisory commissions? It is much harder to vindicate rights in China’s corruption cases than in ordinary criminal cases, even if the case really involves only corruption rather than the continuing, if non-transparent, political struggle, local or national.

Thus far specific legislative improvements do not have much effect in Chinese practice. Moreover, it’s like putting a band-aid on a gaping wound. The new supervisory system does not offer significant protections against the arbitrary and lengthy incommunicado detention and torture that mark the criminal process even now, almost 70 years after the founding of the People’s Republic of China.

The fear that the current corruption investigation system engenders in the business and bureaucratic elites is undoubtedly slowing economic development. Certainly, democratic countries that are the principal hiding places for absconding corrupt elements are very reluctant to return fugitives to a country that plainly will not allow them a fair and independent criminal process.

China should face up to the need for genuine reforms in the administration of justice from the moment of detention through the appeal procedure. China should consider establishing special procedures for the handling of cases of returned suspects that could inspire the confidence of foreign countries and provide a model for reforming the regular criminal process.

Kim Jong Un’s third trip to China!

By Jerome A. Cohen

Today’s Washington Post reports that Kim Jong Un has made a third trip to China for meetings today and tomorrow. He ought to get a commuter ticket and is beginning to look like a Chinese yoyo! John Fairbank must be smiling from the grave at this blatant resurrection of the Sinocentric world.

For Kim Jong Un to do this, without more than talk of a reciprocating visit by Xi Jinping, the stakes and pressures must be very high! For those who debate the importance of personal diplomacy this series must have great interest. Tune in tomorrow! 

Settling law of the sea disputes: international law is better than gunboats!

By Jerome A. Cohen

 Subi Reef, May 2015, by United States Navy [Public domain], via  Wikimedia Commons

Subi Reef, May 2015, by United States Navy [Public domain], via Wikimedia Commons

Here’s a piece from the WSJ on French warships asserting freedom of navigation in international waters in the South China Sea—The French Navy Stands Up to China. It may be helpful to emphasize that the location of the ship, airplane, other object or person in question is indeed a critical fact in these disputes. It’s like the secret of success in the hotel business— “location, location, location.”

More broadly, we also should not overlook the obvious, yet seldom-mentioned, fact that the disputing nations have peaceful means at their disposition to settle their many conflicting claims to territory, maritime boundaries and United Nations Convention on the Law of the Sea (UNCLOS) interpretations. Negotiation, mediation, arbitration, and adjudication are all set forth in the UN Charter, and UNCLOS and other pieces of international legislation provide details regarding the possibilities. It is not good enough for the U.S., China, France and others to employ gunboats to vaguely raise their claims in a threatening manner.

The Philippines, in its stunning arbitration claims against China, did try to resort to law and a decision by some of the world’s acknowledged independent legal experts in order to defend itself against a much stronger power. The durability and significance of the UNCLOS tribunal’s monumental arbitration award against China is now being tested, especially by a Chinese Government that is seeking to undermine the award in multiple ways.

The U.S. should ratify UNCLOS and subject itself to the UNCLOS compulsory dispute resolution procedures, as other states have. It would be good if Vietnam, Malaysia and other claimants were to challenge China to settle their disputes over who owns the Spratlys before the International Court of Justice. It would be good if Japan, whose Foreign Minister did challenge China to settle their Senkaku/Diaoyu dispute in the East China Sea before the ICJ in 2012, would also challenge some of China’s law of the sea actions and interpretations via the UNCLOS dispute resolution procedures, in the South China Sea as well as the East China Sea. And Vietnam, Malaysia, Indonesia and others should also resort to those procedures to settle their various maritime claims. France should also explore its legal possibilities for contributing to peaceful settlement.

Since the U.S. has shamefully not ratified UNCLOS, that treaty’s procedural options are denied to Washington, which can only coach from the sidelines. In the long run Asian states may want to develop their own regional institutions for handling these problems, but they can do a lot even now. Gunboats are not the only weapons. We can and should make better use of the “weapons” of international law to help settle increasingly dangerous disputes.

Trump-Kim summit: possibility of North Korea’s developing a credible legal system?

By Jerome A. Cohen

With all the speculation about what positive outcomes might emerge from the Trump-Kim Singapore Summit, we might include the possibility that steps might well be taken to establish a more credible legal system in the DPRK, if only to enhance its economic development and its felt need to establish business cooperation with other countries that have until now understandably shunned the North.

There is no doubt that there has long been DPRK interest in developing a credible legal system, at least for the purpose of attracting foreign business. Both from 1998 to 2001 at Beijing University and in 2013-14 at Hong Kong University, with the collaboration of the Asia Foundation, my NYU colleague Dr. Myung-Soo Lee and  I organized, on behalf of our US-Asia Law Institute, a series of occasional small training programs for North Korean business officials eager to learn how to attract foreign trade and investment to their country. Also, in 1998 I twice took foreign investors that had successfully done business in China to Pyongyang for preliminary business discussions.

While North Korean economic officials had considerable experience with ordinary export/import transactions, they seemed totally unprepared for the complexities of Foreign Direct Investment projects. When at the start of our 2013 sessions I asked the group what they wanted to learn, their initial response was “Why doesn’t Coca Cola want to invest in Korea?” I replied, my head in my hands, by saying “Where to begin?”

Although the North was generally super-cautious about not letting us know the fruits of our labors, I know that our 1998 effort did produce an international commercial arbitration law, and I believe the DPRK did subsequently establish a law firm in Pyongyang to advise on foreign-related business after we spent a couple of days visiting Chinese and foreign law offices in Beijing.

Business law inevitably introduces the notion of government under law. Although the North Korean officials were incredulous about the glamourous offices of one of China’s leading international law firms, they were really stunned when a less prosperous government-owned law firm told them that one of their functions in representing Chinese people was to sue the government for arbitrary violations of administrative law. The chief Korean delegate’s reaction was: ”We don’t have that concept in our country.” Yet we know from infrequent recent reports that some Pyongyang residents have protested against arbitrary actions by the secret police and that their government has tried to improve the situation..

It will be interesting and significant to see whether, in legal aspects as in others, the DPRK will finally follow the paths of China and Vietnam. 

Taiwan’s peaceful use of Taiping Island highlights China’s militarization in South China Sea

By Jerome A. Cohen

Here is a very good essay by Steven Myers of the NYTimes on “Island or Rock? Taiwan Defends Its Claim in South China Sea.” The draftsmen of the United Nations Convention on the Law of the Sea (UNCLOS) could have spared the world a lot of confusion had they done a better job. Obviously Taiping Island is an island not only by the definition agreed on in UNCLOS but also in our common vernacular. But Article 121 of UNCLOS should have made it clearer that it deals with two types of islands—those entitled to a 200 nautical mile Exclusive Economic Zone (EEZ) and those that are not. By calling the latter mere “rocks” the draftsmen set the stage for misunderstanding by the general public concerning the decision of the arbitral tribunal in the Philippines-China dispute since any observer can see that Taiping Island is an island in the commonly understood sense. As the tribunal concluded, however, Taiping Island is not an island entitled to an EEZ in accordance with the criteria stated in Article 121. If every small island were allowed an EEZ, it would produce chaos and conflicts in maritime affairs.

The best part about the Myers story is its emphasis on the peaceful uses to which Taiwan is putting its occupation of the island, in contrast to the militarization by China of features that it has occupied, some of which are not even properly subject to identification as islands at all because, in their natural state, they are not above water at high tide as Taiping Island is.

As Beijing began its artificial constructions on and militarization of these always submerged or low tide reefs and tiny islands – much tinier than Taiping Island, it had tried to assure the world that it was taking these actions largely for non-military purposes, thereby inspiring some of us to suggest that it demonstrate its peaceful intentions by allowing other states to share the use of these features and thereby avoid the crisis that Chinese military bases would inevitably induce. I also suggested that Taiwan open Taiping Island to a variety of international activities. Sadly, at this point, the multilateral option—always unlikely—now seems to be definitively off the charts, leaving the U.S. and China to search for other possible ways to resolve their emerging clash of interests.

What is happening in Xinjiang?

By Jerome A. Cohen

Here's a campaign launched by the Lantos Foundation and Uyghur NGOs. Bravo for their efforts to highlight the stunning, outrageous detention of hundreds of thousands of innocent Uyghurs in Xinjiang. But why is the international academic community largely silent about the current atrocities??? I hope that journalists are silently working to confirm the few reports that are published about what has to be the worst current abuses being committed in China, which says a lot! 

Who are the targets of the round-up? What are conditions in the concentration camps like? How long are people being held? What is the content of their “re-education”? What happens to those who are released? How many are transferred to the formal criminal process, either to “residential surveillance at a designated location” or to the regular detention, arrest, indictment, prosecution and punishment after “trials”??? What should be done to alert the world and to mobilize vigorous responses?  What are foreign governments doing in public and behind the scenes? I am proud of the U.S. Government’s very recent condemnation of Beijing’s shameful measures. Do the Turkic/Muslim countries feel no special obligation to speak out and act?

China sends Uyghurs to re-education camps as a “preventive measure”

By Jerome Cohen

Here is a Radio Free Asia report on the hundreds of thousands of Uyghurs who have been detained in “re-education” camps. The number detained may have reached one million, according to the estimate. This is far beyond the number of those who were retained for “re-education through labor” (RETL) at any given time in what were supposedly the last years of that notorious punishment. As I recall, there were usually said to be about 300,000 detained for RETL at that time.

We need to know much more about who has been recently detained in Xinjiang, for what reasons, by what procedures, for how long, for what type of “education” etc. Is it really true that people under 40 are being preventively detained without any basis for suspicion other than the fact that, because of their relative youth, they might be susceptible to evil thoughts and actions? This is a horrendous situation that makes a mockery of the Party’s claim that it is pursuing the “rule of law”. It invites comparisons with the early years of Hitler’s attack on the Jews.

It also makes me think of Lee Kuan-yew’s Singapore. Until the early ‘80s, when he changed his views, Lee prohibited Singaporeans under 40 or 45 (I forget which) who had been educated in the PRC from returning to Singapore, regarding them as security risks. Lee also resorted to preventive detention, but on a very limited scale and with respect to people who had at least demonstrated what he regarded as “left wing” sympathies. I hope those of us who observe developments in China will not look away from this ugly, worsening phenomenon in the Central Realm.

Xi Jinping’s aspirations

We are witnessing an important modification of the Deng Xiaoping era, personalistic one-man rule enhanced by efficient Party controls of all aspects of life.

By Jerome Cohen

On Sunday, China’s National People’s Congress passed the comprehensive constitutional amendment proposed by the Communist Party under Xi Jinping’s leadership. The vote, which had the support of 2,957 delegates (with only two “no” votes and three abstentions), is what I anticipated. The leadership had to show a few dissenting voices among the almost 3,000 delegates in order to give the appearance of freedom on the part of the delegates. But it wanted, at the same time, to have a show of overwhelming support for the constitutional changes, unlike on some occasions where as many as 100 delegates have either voted against or abstained from voting with respect to certain reports on the legal system. 

The leadership had to work hard in recent weeks first to press the Communist Party Central Committee to go along with its proposal and then the National People’s Congress delegates. Without the advance approval of the leadership it would have taken a brave, indeed foolhardy, person to express dissatisfaction in the current circumstances where the Xi Jinping machine had gone all out, using fear, intimidation and incentives, to achieve its goal. 

We are witnessing an important modification of the Deng Xiaoping era, personalistic one-man rule enhanced by efficient Party controls of all aspects of life, increasing intolerance of dissent, more direct government controls of business and ever greater repression through the new supervisory commissions.

Ironically, this Constitutional amendment changed the wording in the Preamble from ”健全社会主义法制” to “健全社会主义法治.” I have always understood the newly-inserted last character in the phrase to symbolize the aspiration for China to achieve government under law (法治) rather than merely rule by law (法制). I think its insertion in the current circumstances is an attempt by the Xi Jinping crowd to hijack the term in accordance with his clear preference to rule the country by law rather than continue the reality of lawlessness in some crucial respects, as in shuanggui (双规), the party punishment that lacks any legal basis.

That is why we are getting the supervisory commissions fig-leaf of officiality and that is why, in order to feel comfortably free to plan on indefinite tenure as “president”, Xi insisted on amending the Constitution so everything can be done “according to law”.

Of course, there is no intent to place his actions under the law, and it is disappointing that the amendment does not come to grips with the Constitution’s Article 37 in an attempt to reconcile the National Supervisory Commission’s (NSC) “liuzhi” (留置) detention with Article 37’s restrictions on detention and arrest. (Perhaps that is being left to forthcoming relevant legislation—the NSC Law and a possible Organic Law of the NSC system to match the organic laws of the other institutions that purportedly fall under the National People’s Congress. Or it can be done later via a National People’s Congress Standing Committee interpretation or perhaps even a Supreme People’s Court’s interpretation if necessary.)

Everyone talks about Xi Jinping wanting to be another Mao Zedong. Some observers compare Xi’s ascent to the story of Putin. I have been saying for a long time that Xi’s goal is to out-do Stalin, without all the killing, and he may well succeed. He really is following the Stalin centralization of power, suppression of dissent, model that emphasized “the stability of law” even as Stalin used it as an instrument to promote the slaughter of millions.

My interview with the Diplomat: Xi and CCP Aim for Unchallenged Power

This is my interview of last week with the Diplomat on the continuing discussion of Xi Jinping's ending the President's term limits.

https://thediplomat.com/2018/03/jerome-cohen-xi-and-ccp-aim-for-unchallenged-power/ 

Jerome Cohen: Xi and CCP Aim for Unchallenged Power

To whom much is given, much will be required.

By Maurits Elen

March 07, 2018

The Chinese Communist Party (CCP) has contributed much to the success of the modern Chinese nation — a gradual liberalization strategy of the economy has produced widespread growth and raised the standard of living for millions of people. If China continues its current trajectory, it will be crowned the world’s largest economy not long from now.

No one would disagree, however, that China has also become an increasingly oppressive society, with an ever more authoritarian government suppressing the freedoms of its 1.4 billion citizens in order to meet policy objectives. The trend does not seem likely to be reversed anytime soon. In this interview, Jerome Cohen, a Professor of Law at New York University and lifelong friend of China, shares his views on the National People’s Congress’ upcoming decision to remove the presidential term limit from the Chinese Constitution.

Maurits Elen: Are peaceful power transitions in China, as seen since Deng Xiaoping, now less likely to occur without clear succession mechanisms in place?

Jerome Cohen: As many observers agree, ending the term limit is a recipe for increasing political instability and weakening, and perhaps even ultimately dividing the Party. With no designated successor, serious illness or death of the leader could lead to chaos long before the end of the second term, not to mention beyond that.

There are Western leaders who have served a prolonged time in office, sometimes more than a decade. How does this compare to Xi?

Long leadership in a democratic country places the leader and his party in an entirely different position. As the British public demonstrated after World War II when it repudiated the great Churchill after he led the country to victory, even the greatest leader can be replaced in a democracy. And remember the British decided to bring Winston back after they got a dose of Clement Attlee. It was all very orderly, even despite the fact that the U.K. was in a bad domestic shape and was losing its international power at the time.

[Click here to continue reading this interview.]

Xi Jinping Amends China's Constitution

This is my take on the controversial issue of China’s recent move to amend the Constitution. It is just out on the Lawfare blog

Xi Jinping Amends China's Constitution

By Jerome A. Cohen

 Wednesday, March 7, 2018, 12:21 PM

The instantaneous reaction to the momentous news that Xi Jinping will be eligible to serve a third term and beyond as chairman of China’s government is the most recent demonstration that we live in a connected world. Domestically, Xi’s bold move to amend his country’s Constitution, although undoubtedly popular with the masses, has clearly generated significant elite opposition. This has been visible even in non-transparent China, despite Xi’s stifling of information and free expression. Indeed, adoption of what could be life tenure for Xi apparently inspired considerable opposition even within the secret confines of the Communist Party Central Committee, which reportedly had to be dragooned into supporting his political coup.

The elimination of term limits for what are usually translated into English as China’s presidency and vice-presidency is only one of three crucial constitutional amendments about to be adopted. The other two are the enshrinement of “Xi Jinping Thought” and the formalization of government “supervisory commissions” that will strengthen what should be called the Inquisition with Chinese characteristics. Together they will expand Xi’s already fearsome powers over his countrymen and potentially extend his dictatorship into the indefinite future.

The outside world, until now, has shown insufficient interest in the Xi regime’s shocking violations of the human rights supposedly guaranteed by both Beijing’s Constitution and the more than twenty international legal documents to which the People’s Republic of China (PRC) has surprisingly adhered. Sunday’s announcement, however, has awakened deeper concern about Xi’s steadily increasing repression. Foreign observers, for example, have finally begun to focus on the fact that hundreds of thousands of Muslim Chinese citizens are today detained in “political education” camps designed to destroy their religion and customs—camps suspiciously similar to the “re-education through labor” sites that were ostensibly abolished several years ago.

To be sure, Xi Jinping’s constitutional coup has given the world other more prominent concerns—foremost among them its implications for international security. This electrifying elimination of the formal barrier to Xi’s life tenure as chief of China’s government crystallizes developments over the past five years that have resurrected foreign worries about a “China threat.” It coincides with, and further fuels, the intense criticisms by many American policy makers and foreign affairs experts who now question the premises of Washington’s China policy of the past half century.

Only months ago this attack seemed the monopoly of right-wing critics, egged on by the likes of Steve Bannon, who were preparing to mobilize the nation against the perceived growing power of the Beijing regime. Now the attack—and the resistance it has begun to inspire—have moved to center stage.

I am one of those who, in the late 1960s, urged the Johnson and Nixon administrations to abandon U.S. hostility toward the PRC, even though it was in the throes of Mao’s Cultural Revolution. Looking back, I do not think our policy was wrong. Surely continuation of the policy of containment and isolation would have been worse. Of course, different supporters of the then-new policy of luring the PRC into the world community had different primary motivations. Many of us who specialized in Chinese studies were not only interested in the realpolitik of using Beijing to balance Moscow and to extract the U.S. from its mistaken foray into Vietnam. We also believed that ending China’s isolation and promoting its active participation in the world community would be a boon to peace and to the well-being of the long-suffering Chinese people.

That belief has been vindicated by the impressive progress that has been made both in international relations and China’s domestic life since the PRC’s entry into the United Nations in 1971 and the establishment of diplomatic relations between Washington and Beijing in 1979. Now, however, we are confronted by the consequences of success and at a bad time because the helm of the Chinese Communist Party has been seized—perhaps only temporarily—from more moderate leaders. Xi Jinping is a dynamic, able, ruthless and nationalist leader embarked on a mission to restore the greatness of the “central realm” after two centuries of felt inferiority and grievous struggle.

Xi is a risk-taker with a vision backed by a coherent, long-run strategy and tactics to match. His endless speech to the 19th Party Congress last October is a document worthy of serious attention. It showed no interest in either human rights or international law but is destined to have a huge impact both at home and abroad. At the time, Steve Bannon—by then no longer an adviser to the president but still a prominent voice on the right—called it "the single most important speech of the twenty-first century."

The sudden prospect of Xi’s indefinite rule may have a stunning effect on the American public comparable to the Soviet Union’s successful launching of Sputnik. In China its impact on the educated classes may approach that of the Party’s June 4, 1989 military slaughter of students, workers and intellectuals near Tiananmen Square. There has already been a spike in Chinese interest in emigration, and many of the hundreds of thousands of Chinese students in North America, Europe, Australia and other countries appear to have been jolted into reconsidering their plans to soon return home. To the extent we are allowed to know, Xi, a master of propaganda, remains broadly popular with the less-educated population despite growing dissatisfaction with the income inequality, rural-urban divide, labor conditions, real estate bubble, horrendous pollution, male-female imbalance and other problems that trigger the sense of injustice and an extraordinary number of “mass incidents.”

Of course, many Western observers hope that America’s response to this week’s news will stimulate not only abandonment of President Trump’s pathetic and costly attempts at foreign policy but also a resurgence of bipartisan support for strengthening the cooperation of democratic nations and the further development of international institutions and practices capable of meeting Beijing’s political, military, economic, diplomatic and human rights challenges in firm but fair and reasonable ways.

Those challenges may not turn out to be as fearsome as widely anticipated. China’s liabilities are increasing more rapidly, although less obviously, than its assets. This is surely one of the major factors that has led Xi Jinping to play the role of the merciless dictator vigorously suppressing and unfairly punishing mere domestic criticism as well as overt dissent.

Yet it has proved impossible for him to completely hide the difficulties that his bid to end term limits has encountered, even within the Party’s loyal Central Committee. China watchers will now focus on the size of the vote by which the upcoming National People’s Congress (NPC) approves the Party’s proposal to amend the Constitution. Will there be only a handful of token dissenters, just enough to give the appearance of a credible free vote and overwhelming support for Xi’s bid for unrestricted power? Or will there be one hundred or more negative votes or abstentions, as there sometimes have been for the annual reports to the NPC of the Supreme People’s Procuracy and the Supreme People’s Court in protest against blatant failures to honor the rule of law? If a significant minority of the NPC’s roughly 3,000 delegates should muster the courage to register their open disagreement, will their vote be revealed in accordance with customary practice? Or will the published result be doctored to save Xi Jinping’s face?

Experience suggests that the Chinese equivalent of intense lobbying must be under way as the NPC session unfolds, in order to assure the Party leadership’s desired outcome. Skilled Party minions have many tools for enforcing the leadership line through combinations of intimidation and persuasion. Yet, as the process of enacting a number of controversial statutes has demonstrated in recent decades, it is no longer entirely accurate to dismiss the NPC as “China’s rubber-stamp legislature.”

Whatever the vote, it is already clear that Xi Jinping is paying a high price at home as well as abroad for his understandable wish to avoid becoming a final-term lame duck.  Although the anticipated constitutional amendment will add to his power in the short run, it is likely, as many predict, to produce greater political instability before long. If the supreme leader fails to cope with the problems that he will inevitably confront in the next few years, his constituents will know whom to blame, and rivals will be all too eager to seize the advantage.

There is especially high risk of an important mistake in international affairs. Xi, for example, may overplay his current efforts to increase pressures on Taiwan to rejoin the Motherland before the 100th anniversary of the Communist Party’s 1921 founding. A shootout with the U.S. in the South China Sea could also have embarrassing reverberations, as could chaos or war on the Korean Peninsula. We should not assume that the new possibility that Xi can continue to lead the government after 2023 means that he is necessarily destined to do so. As Matthew Arnold wrote long ago, “Only the event will teach us in its hour.”

China is likely to enter another long period of severe dictatorship

By Jerome A. Cohen

Term limits for the leadership are not usually found in dictatorships. The Chinese Communist Party’s proposed abolition of China’s presidential term limit means that it has forgotten one of the main lessons of Mao’s long despotism. The two-term limit was inserted into the People’s Republic of China Constitution after the Cultural Revolution ended and reflected a widespread desire to prevent the return of one-man dictatorship. Its abolition signals the likelihood of another long period of severe repression. This should prompt us to think of Chiang Kaishek as well as Mao and Yuan Shikai and, in a comparative Asian vein, of Marcos and Park among others. Of course, some recognize that Putin’s example may also have significantly influenced Xi Jinping.

Xi’s move will have a profound effect on world order. It will enable him to move more boldly and increases the risk of his acting arbitrarily and perhaps mistakenly in international relations. It will surely hinder China’s efforts to be respected for “soft power” as well as military and economic prowess.

Xi decided to strike while the iron is hot rather than wait for later in his new term when increasing problems might have made the change more difficult. His brash step has undoubtedly aroused profound concern among the elite. Many high Party personnel, bureaucrats, judicial officials, lawyers, intellectuals, academics and business people, mindful of the past Maoist dictatorship and the increasingly repressive and arbitrary government under Xi, have seen this coming and now, in social media and other informal ways, are showing their anxieties and opposition.

But not many public signs of protest can be expected, since he has stifled free expression in the past few years. There must be great grumbling and concern among the country’s elite and educated, especially since the same Party “proposals” that have eliminated term limits have also confirmed the establishment of the National Supervisory Commission that will make the regime more repressive and more free of legal restraints than ever, imposing what amounts to “the Inquisition with Chinese characteristics.”

There is big risk for Xi at home since, as it becomes more obvious that China’s problems are catching up with its achievements, the government will look less impressive and the masses will begin to lose their enthusiasm and hold the great leader responsible. The elite will be less surprised but less forgiving.

The external risk is more immediate. Xi’s bold consolidation of power will enhance fear of “the China threat”, and his ever greater repression will make people think of Stalin’s decades-long centralization of power, even though, one hopes, Xi will not engage in mass executions. He already is engaging in mass detentions in Xinjiang even though “re-education through labor” was abolished in name a few years ago.

These “proposals” are at least a 1-2 punch against the Constitution when we consider the simultaneous establishment of the National Supervisory Commission. People often wonder—even now—how in 1937 Stalin could have said: “We need the stability of the law more than ever.” while at the very same time displaying the infamous “purge trials” to the world and lawlessly executing huge numbers of people. Xi claims to be strengthening the “rule of law” while making certain that it will never get off the ground. Tell it to all the tens of thousands in Xinjiang who are locked up in Xi’s successor camps to the supposedly abolished “re-education through labor”.