My take on Hong Kong Protests

By Jerome A. Cohen

I discussed Hong Kong’s protests in a conference call on Aug. 14 for the Council on Foreign Relations with Robert McMahon presiding. Here is the transcript.

You can also listen to the audio here. The transcript is not edited to make it seem more like an essay or written Q&A but reflects the actual diverse and lively dialogue.

MCMAHON: Well, hello, everyone, and welcome to this Council on Foreign Relations on-the-record conference call about the protests in Hong Kong. I’m Robert McMahon, managing editor of CFR.org, and I’ll be moderating this call with Jerome Cohen. Jerry is a CFR adjunct senior fellow, as well as director of the U.S.-Asia Law Institute at New York University’s School of Law. And Jerry is especially well-versed on the situation playing out in Hong Kong.

I’m going to kick off the discussion with him for about ten minutes before opening the call to your questions. I know there’s a lot of people on the call, and I want to get to as many questions as possible. Overall the call is set for about forty-five minutes. And we do expect a transcript to be up by tomorrow of the call.

So, Jerry, for starters, we appear to be in a momentary calm at the latest scene of the protests—Hong Kong International Airport. But there is a broader tension here playing out, for months now, and no one expects it to dissipate. Can you briefly touch on what is driving these protests and the response from the mainland?

COHEN: Well, the causes of the protest are many, and some long lasting and profound—like social inequality, the cost of living in Hong Kong, the difficulties of education. But we have immediate causes. Every time there is a new, more intense clash between police and some protesters this adds to the incentives. And what we’ve seen is a protest that started in June against the ill-fated extradition proposal that the Hong Kong government tried to speed through the LegCo has expanded into multiple—

MCMAHON: The LegCo is the Legislative Council that administers Hong Kong.

COHEN: Yes. And the Hong Kong government, instead of following the customary procedures, tried to fog one by the populace and the democratic members of the legislature by speeding up consideration of this bill using a phony excuse, saying they really needed it in order to extradite an alleged murderer from Hong Kong to Taiwan. Now, that was absolutely phony. Everybody knew—who paid attention to it—this was a long overdue effort to extradite people from Hong Kong to China.

The remarkable thing is, for twenty-two years there has been no agreement between Hong Kong and the mainland for extraditing people either way—just for the same reason that no commonwealth country has ever ratified an agreement to extradite anybody to China. Everybody knows about the Chinese legal system. And they’re all afraid to test their popularity with their own people by agreeing to extradite them back to a China where they face torture, coerced confession, no counsel, unfair trial. And even within China, its own SAR, Special Administrative Region, has been unable, because Hong Kong has emphasized the rule of law, to conclude an agreement with the mainland. And this was an attempt to do it.

The initial protest focused on that. But once, like many protests, you’ve got lots of people in the street and the police try to restrain them, that leads inevitably to violence. And so that becomes a second cause. And once that arouses popular ire because of police abuses then people start calling for the resignation of the chief executive and they want an independent investigation. And they don’t mean a police investigation of itself; they mean an investigation that people can feel is legitimate and free of government interference. So these demands start escalating, and of course, they’ve gone beyond that now.

This has revived all the resentments of previous protests—including the protest about can you have a free, universal suffrage, like election of the chief executive? Can you have free election of all members of the Legislative Council? These have been denied to the people of Hong Kong. And now in recent months, you even have some people who are obstreperous enough to say: Why aren’t we independent of China? Why do we need these people? And that, of course, goes beyond the pale. So these protesters now have all kinds of reasons. It’s not like it’s what the Chinese Communists like to call the United Front. These have no obvious leaders.

They believe in different things. They have different priorities. Some of them believe, like Chairman Mao said, if you’re going to have a revolution, it’s not a dinner party. Violence is inevitable. Some of them don’t believe in violence at all. Most of them, I think, would love to have a Gandhi-like, orderly, peaceful protest, nonviolent. That would have been more impressive, had they been able to carry that out—as they started to—in the airport. But things, like in all protest situations, tend to get out of hand. And what we don’t know is how will this come to an end?

And I’ve got my own ideas, that I think have gotten too little play in Hong Kong and in the media, et cetera. But otherwise, I see, lest you have popular leaders come forward—not government officials, but highly respected people in Hong Kong from the business community, the political community, the human rights community, the educational community—if they can’t forge themselves a group, a commission, a committee to independently investigate, start negotiations, make recommendations—if they don’t take their future in their own hands, they can’t leave it to Carrie. Carrie Lam said yesterday, incredibly, she’s not responsible for the police operations. She only knows how to cry and warn about falling into the abyss if this goes on. That’s not leadership. That’s irresponsible.

MCMAHON: So, Jerry, the—so, Jerry, we’ve got a situation then with this, as I said, momentary calm. Then the situation at the airport, as you alluded to, went beyond sort of civil disobedience to something that turned more violent. There doesn’t seem to be any sort of centralized or organized opposition figures leading this opposition—leading these protests—and the local government seems to be completely unresponsive. So the mainland is dangling, it appears to be, some sort of a military response, as a warning. Do you see that continuing the play out, or how should we regard what we’re seeing from Shenzhen, and what President Trump was talking about on his Twitter feed the other day?

COHEN: Xi Jinping is a tough guy. He’s a high-stakes gambler. He doesn’t believe in the wisdom of his father, whom he’s always praising. The father’s ultimate lesson, after sixteen years of exile caused by Chairman Mao, came back. The father said, the Party must allow differences of opinion at the mass level and at the leadership level. And it will never succeed if it doesn’t allow differences of opinion. And that’s the one thing Xi Jinping can’t tolerate. And he knows the dangers, of course, of repeating a June 4, 1989, Tiananmen-type massacre. He doesn’t want to do that. It would be a disaster for him personally, perhaps, and his leadership, his people, and certainly for Hong Kong and international security. But if push comes to shove, he’ll use force. But that’s not—he doesn’t want to do it.

And he certainly doesn’t want to mar the seventieth anniversary celebration of the PRC’s founding on October 1. And of course, beyond that we see the hundredth anniversary coming along next summer of the establishment of—well, it’ll be the hundredth-year next summer, 2020, of the party’s birth. As these anniversaries pile up, and he wants increasing prestige and show the world he’s achieving the Chinese dream, using force would show the Chinese dream is a nightmare. But he wants to do it. He’ll do it if he has to. But in the intermediate, there are lots of different possibilities—intermediate possibilities even for increasing PRC influence in Hong Kong through a variety of less-dramatic methods.

MCMAHON: So is there—sorry, to interrupt, Jerry. So is there a scenario in which this gets dialed back, but China still ends up exerting more control?

COHEN: How are they going to dial back if they have a government in Hong Kong, that they control increasingly, that’s unresponsive? That isn’t dialing back. That really is an attrition strategy. They are trying to do what they successfully did in 2014 with the Umbrella Movement. You wait it out. You minimize the disruption to public functions. You try to wear down the opposition. You mobilize public support by giving an adverse portrait of the reasons for the protest. And that worked before. And that’s the only formula they have now.

But the thing is, you have, five years later, a new echelon, a new group of mostly young people—some highly educated, some not—and they’re different from the Benny Tai academics who started the Umbrella Movement, or from the Joshua Wong younger people who succeeded them—some of whom—(inaudible)—have gone to jail—(inaudible). These guys are different, at least a relatively small corps. Are they one hundred thousand rather than a million or two million? They probably aren’t even one hundred thousand. The problem is how to deal with them. Somebody’s got to reason with them. Somebody’s got to use symbols that will cause them to lose face by excessive violence that they’re increasingly engaging in, and by giving them some opportunities, some incentive to stop these protests—take part in the political process that Hong Kong has been frustrating under PRC influence.

MCMAHON: And you mentioned in your previous comments about the role, potentially, of community leaders in stepping in. Could you talk briefly about who that might be? And then we’ll open up the call to our—to those on the call.

COHEN: I’m not sure I understood what you just said, Bob.

MCMAHON: Sorry. If you could talk about the community leaders in Hong Kong that might play a role in helping to, you know, negotiate or navigate through it?

COHEN: Yes, well, you know, since you published the interview with me yesterday, we’ve had a very interesting development. Yesterday I finished the interview by saying the legal profession in Hong Kong, the law society, the barristers and the bar association, they could be an example of some of the prominent people in the community—not officials—who could put together the kind of community effort that would defuse the situation. And lo and behold, today we get news of the establishment of a neutral lawyers observation group. This has been a product of an eloquent appeal that was just voiced, but this doesn’t go far enough. It is an example of the beginnings of a community response. But these lawyers aren’t saying they’re going to knock heads together and put together an imaginative political effort to work out some kind of compromise, et cetera. They’re saying: We’ll monitor, neutrally, all the abuses that are now being committed on both sides.

Well, that’s good. But lawyers aren’t dentists. I admire dentists. They have high technical skill and they operate literally in our faces. But we don’t look to dentists to do more than be technicians. And it’s not enough here for these lawyers to be rule of law technicians, because we see the rule of law as a technical matter, and Hong Kong sees too many political leaders who are fine people going to jail. What we need lawyers to do now—and they can be gadflies to the business leaders, and the educational leaders, and others in the community that put together an imaginative coalition—that could start to resolve these tensions. That’s what I’d like to see. Occasionally you’ve heard a few people make hints or suggestions, but nobody’s got the guts to come forward.

As I said yesterday, the unofficial leaders of Hong Kong are like deer in the headlights. And some of them have said—since communicated with me to say—they agree. But I don’t hear them say now they’re willing to take the lead. They’d lose their positions in the Chinese political consultative conference, or other preferred advantages in dealing with the Hong Kong government. It’s too risky. And yet, what is the risk of doing nothing? We see doing nothing—you’re getting an argument now on various listservs among China specialists—is this going to lead to a train crash? Or is it really the Hong Kong people are lying on the railroad track and the train is going to crush them? They’re beginning a debate what metaphor is appropriate to illustrate what lies ahead if people don’t take some enlightened action.

MCMAHON: All right. Well, you’ve set the table for this discussion, Jerry. Thanks very much. And I want to open up the call now to those on the line. A reminder, this is an on-the-record CFR conference call on the Hong Kong protests with CFR’s Jerry Cohen. Operator, could you please open up the call?

OPERATOR: Yes. Thank you…We’ll pause for just a moment to allow parties to signal for questions.

MCMAHON: And while those are queuing up, I wanted to ask Jerry—if you could quickly rundown Jeremy—Jerry—excuse me—why the importance of Hong Kong to China, economically and otherwise, what’s at stake if it does end up enduring a harsh crackdown from the mainland.

COHEN: You know, Hong Kong is obviously still of important significance—huge significance to the mainland. Its economic significance has been dropping relatively because of the rise of Beijing, Shanghai, Guangzhou, and now Shenzhen and other places as financial and economic centers. But Hong Kong still has the cache and the reality of being the principal vehicle for China interacting with the world in terms of financial business transactions. And it has, of course, a special status in the world.

Of course, the United States is now—at least, people in the Congress and some in the executive—are talking about should Hong Kong continue to enjoy special status? Hong Kong is even under the protection of the International Covenant on Civil and Political Rights, which Beijing has been threatening to ratify for over twenty years but hasn’t done it. So Hong Kong is special in a business, economic way. And although Singapore is always trying to benefit, and does to some extent from Hong Kong’s difficulties, Hong Kong is of huge economic importance—and certainly to American, and Western, Japanese, and other business entities.

But Hong Kong is more than that to Beijing. Hong Kong is the leading symbol of the Communist Party’s vindication of China’s rise and China’s reintegration of the country, completing the reunification of the mainland against the long depredations of Western colonialism and Japanese colonialism. And that was Deng Xiaoping’s brilliance in bringing Hong Kong back, showing the flexibility of one country, two systems. Hong Kong is a symbol politically of China’s territorial integrity. And this, of course, has evolved, with the Xinjiang problem, Tibet problem, and especially now Taiwan. And a failure to resolve the situation successfully in Hong Kong will put to an end, for all time—certainly our lifetime—any thought people in Taiwan might have of reintegration with the mainland under one country, two systems—the formula originally devised to reincorporate Taiwan.

So there are many political symbolic nationalist sovereignty questions. And there’s a huge amount at stake that goes far beyond economics for the leadership in Beijing. And they’ve got to be careful, because if they reassert real control through the use of force, that’s a terrible result. If they don’t use force and you get freedom in Hong Kong, that’s a terrible result. So—

MCMAHON: Damned if you do and damned if you don’t, yeah. Well, Jerry, I think we have a number of people in the queue. I want to just turn it over to the operator to open up for questions and we’ll take it from there. Operator, do we have a question, please?

OPERATOR: Yes, sir. Our first question comes from Benjamin Naimark-Rowse, with the Fletcher School of Law and Diplomacy.

NAIMARK-ROWSE: Thanks so much for the—

MCMAHON: Yes, hello. Go ahead.

NAIMARK-ROWSE: Yep. So to succeed, these kind of popular mobilizations require leadership and they require an endgame strategy, right? And on average, these sort of popular mobilizations take about three years to run their course. So I’m wondering if you could say more about the leadership of this uprising, and in particular their interest and ability to cooperate, for example, with the law society, business leaders, et cetera, to create a unified and diverse front, and a clear endgame strategy.

COHEN: Yeah. I like that question because it focuses on what can be done. On the other hand, it also reveals the difficulty, because how do we identify these leaders? Are there going to be votes within their various groups? Will people volunteer? Remember, when the question arose before June 4, 1989, which leaders from the Tiananmen Square protests would meet with Prime Minister Li Peng, how would they come forward and what would they say, how would they behave, and would it be public? There are just all these questions. The hardest is to identify who the leaders really would be, or who would speak for the diverse groups and how would they come up with any sort of coherent front.

But some effort has to be made. And there are some—we see there are some students, even at the airport, who are willing to come forward and explain to the Wall Street Journal and the New York Times, and the Washington Post why they’re there. They give different reasons and they have different views about what procedures they should follow, and how violent they should be. I think we’d have to have a diverse group. And I think the mobilization of community leaders and the opportunity to hear the views of the students, not expressed while fighting the police, this would be a healing process. And it certainly would take time. And it would cool things down. And it might lead to some detailed progress. So I like the question, because it focuses on the problems that would be confronted by trying to do something, rather than passively await the train crash.

MCMAHON: But to this point, Jerry, you’re not seeing a kind of a centralized leadership of the opposition—of the protesters, who have sort of an endgame in mind, or anything like that?

COHEN: You are a master of understatement, Bob. (Laughter.)

MCMAHON: OK. Operator, can we have the next question, please?

OPERATOR: Yes. Our next question comes from Trudy Rubin with the Philadelphia Inquirer.

RUBIN: Hi. Thanks to both of you.

Jerry, just a quick follow up on the last question. What has happened to that generation of Joshua Wong, Nathan Law, the liberal members of LegCo—both the ones who were not allowed to stay in and whoever survived? Do they have any role to play? And then also, I wonder if you could elaborate a little bit on how the Taiwan situation will affect Beijing’s decision, especially since the Taiwan election is coming up in a few months?

COHEN: Yeah. Well, the first one is the key to this discussion. Trudy, as always, you’re on the ball. The—Nathan Law is active. He’s turned up in the United States. I think he may be studying at Yale at this point. But Joshua has just been released after serving some time in jail. Some of the others are certainly around. They have varying differences of views, but I think there’s some resentment among the current protesters that Joshua might come back and try to take over the movement. Of course, you’ve got personal considerations here. One of the sad things in every human rights movement is sometimes there’s internecine disputes among all the good guys, but sometimes for personal reasons of gratification, ego, whatever, sometimes for reasons of policy.

But I think certainly if we could get some commission organized in the next couple of weeks, Joshua, Nathan, these would be people who would come forth. But there would be others who would say: They no longer have the right to represent us. We’ve been out there doing this and that while they’re giving speeches or serving time in jail. But they should be heard too. I think this can be managed. I think a couple of these people have appeared in the United States recently. You have some—and, by the way, we shouldn’t discredit people like Dennis Kwok, who still is in the LegCo and is a terrific person, who is trying to give this movement some coherence.

I think what you’d have is you’d have several days of testimony from a variety of witnesses who would make their suggestions, not only about the past but the future. I feel, in a way, it’s understandable. There’s so much focus on police abuses and so much public concern in support of the police—because every community needs the police, and many of these police themselves are internally torn, apparently: they don’t want to be out there. It’s like the June 4 situation. Even some of these soldiers who were picked to come in and do the dirty job, they were unhappy about killing their own people. So I think you can find representatives—and you’ve identified a few of them—who could give this a legitimate launch.

The Taiwan thing is much more complex. But in simplistic terms, it’s clear that although we still don’t know who all the candidates will be and all the parties in the Taiwan election, I think the events in Hong Kong are forcing even the KMT candidate, Mayor Han, now to be much more cautious in his gestures toward reconciliation with the mainland. And we’ll see if Mayor Ko of Taiwan—of Taipei starts to make an impact as he makes another effort to become president. He’ll also be condemned for his efforts in the past to reach out to the mainland.

I think it’s going to make—unless Beijing succeeds in having so many candidates, minority parties, et cetera, that will cut into the DPP, so there’ll be a plurality not a majority outcome, I think the DPP and President Tsai are—they’re going to get reelected. Because most people in Taiwan are horrified about what’s going on, and many are outraged that the Hong Kong SAR government is using Taiwan as an excuse for starting this by saying we need this extradition bill so we can send back one alleged murderer for trial in Taiwan. That could have been arranged without any of this.

MCMAHON: Thanks a lot, Jerry. And thanks for that question, Trudy.

Next question, please.

OPERATOR: Our next question comes from Roberta Cohen with Committee for Human Rights in North Korea.

R. COHEN: Hello, Jerry. Thank you so much for your comments.

How do you find the United States and Western response to the struggle in Hong Kong? Is there anything you would think important to be done internationally by governments, by NGOs?

COHEN: Well, in view of your good work with human rights in North Korea, Roberta, the first thing I would say is, like other major Chinese Communist violations of human rights, one cost by worrying about them is we fail to give enough attention to the suppression of human rights in North Korea. And similarly now, what we’re fighting, Hong Kong gets the attention it deserves now, even though we don’t have a suitable response yet. But it’s taking popular attention away from the horrors of what China, the PRC, is doing in Xinjiang to millions of people there. And in a way, they’re lucky, because the American and other liberal democracy publics, they were beginning to get that Xinjiang message and beginning to see how horrific the Communist Chinese behavior to those people is. And by focusing on Hong Kong, we’re not focusing on another equally serious, but less dramatic problem.

So in terms of the United States, of course, we have a president who seems to be giving the license to Xi Jinping to do whatever you have to do to bring peace and stability back to Hong Kong. He seems to be saying we don’t have to worry about the human rights of the people in Hong Kong. He isn’t worried generally about human rights, except occasionally to contradict himself. And he seems to be not recognizing the importance of Hong Kong to the United States and to retaining its special status. And it’s difficult for us because Beijing is trying to neutralize him by claiming falsely that everything in Hong Kong is really the product of a CIA-sponsored color revolution. And that, of course, is nonsense. And it would be good if we had a public hearing of a legitimate type in Hong Kong, and the lack of foreign sponsorship for what’s going on in Hong Kong could be brought out, the lack of evidence.

So I think the U.S. has a lot to do in terms of forging an appropriate response to this. And we see in our primaries now, the candidates should be speaking out more on this. But they’re aware of the fact the American people are now overwhelmingly going against the PRC for a whole range of reasons—largely preoccupied daily about the headlines over the trade negotiations and its impact. And I think people are afraid now to come out. You’d think that this anti-Chinese Communist wave that’s taking over America would make it easier for politicians to come out and say we should have some enlightened defense of Hong Kong.

But the last thing we want to do is give them the Hungarian Revolution treatment, where in 1956 Dulles, and Ike, and the Republican Party there encouraged the Hungarian Revolution against the Soviets, and then let them down. They falsely inspired these people to think we were going to come to their assistance. But the U.S. is not going to come to Hong Kong’s assistance in any military way. But we at least should show—not only by what we say about Hong Kong but by improving our own behavior at home—that we stand on the right side in terms of freedom, rule of law, due process, and all that.

MCMAHON: Thank you. Thanks for that question.

And, Operator, we’ll take another question, please.

OPERATOR: Thank you. Our next question comes from Gary Ross with Black Gold Investors.

ROSS: Yes. Thank you, Professor Cohen, for a very insightful talk.

And I apologize for the difficulty of the question I’m about to ask, but we’ve all seen the recent Chinese military movements nearby Hong Kong. What would you place the probability of a military action against Hong Kong before the October 1 seventieth anniversary?

COHEN: Most observers—yeah, it’s a good question. Of course, that’s one of the key ones now everyone’s focusing on. Most knowledgeable observers who I respect say it’s a low probability. Now, of course, that’s a prediction based on many events here. As I indicated earlier, if the provocation is seen to be great enough, it will happen before October 1 no matter what. But there’s a very low likelihood. And I think even the protesters at the airport have got that message. And I think that may be why there now is this sudden lull after a terrible Monday and Tuesday, that Wednesday—despite the violence—it looks a little more possible for the airport to function. So I think overall—and that’s making a very general guess, because people know the reluctance of the Chinese leadership, not because they’re great humanitarians but because they’re realistic, political, military people—very low possibility, I think, before October 1.

Q: Thank you.

MCMAHON: Great. Thanks for that question.

Also, just a reminder, this is a CFR on-the-record conference call on the Hong Kong protests, with our expert Jerome Cohen. We’ve got ten more minutes on the call, and I wanted to go back to those waiting to ask questions.

Operator, can I have another question, please?

OPERATOR: Our next question comes from Joel Gehrke with Washington Examiner.

GEHRKE: Hello, Professor. Thank you for doing this.

I wondered, to return to the issue of blaming the United States for fomenting these protests, accusing us—you know, describing it as a color revolution—who’s the target audience for that kind of message? Who is Beijing trying to persuade? Is it to drive a wedge—or attempt to drive a wedge—between the protesters and some portion of the Hong Kong population? Are they talking more to mainland Chinese people, and if so, what are they trying to prepare them for?

COHEN: You know, the key audience is always the domestic mainland Chinese people. In the beginning, as you know, they tried to deal with the Hong Kong difficulties by saying nothing to the local people. And it was hard for local people to know what’s going on. They have trouble finding out even what’s going on in an honest way within their own mainland jurisdiction, as with Xinjiang repression of the Muslims. But when it became impossible to keep this thing under wraps, then, of course, Beijing shifted to mobilization of public opinion by still trying to restrict access to news of what’s happening and to impose their own interpretation on the news, and even creating fake news, even on CCTV. So they are now preparing their own people to understand the government’s reluctance and to support any radical military intervention in Hong Kong. So that’s the main audience.

They would like [us]—a second audience would be the outside world, beyond Hong Kong—to think that this is like what the CIA did in Italy after World War II, et cetera, or another Mosaddeq regime suffering from CIA plotting, et cetera, in Iran in the 1950s. They would like [us] to think this is a repetition. And they can build on that. That’s one of the costs we pay for the CIA’s record in certain places at certain times. So they’re trying to get that through. Most people still don’t know what’s going on in Hong Kong, although I think the American reporting I’ve been exposed to, and the British, Australian, French, has been good on this. A lot of people in the developing world don’t have access easily to all that stuff.

A third audience is obviously the people in Hong Kong. And I don’t think they’re very successful in that. We all tend to reinforce our own convictions as we take in the news, but I think most people in Hong Kong who see their children, grandchildren, themselves out there, they know they’re not being foils of the CIA. So you have different audiences. But the main audience, of course, is the people at home. And they seem to be believing it. There’s always the regional divisions of people in China—Shanghai people against Beijing, Cantonese people against (inaudible)—et cetera. You have those traditional tensions and dislikes. Hong Kong has suffered from some of that in dealing with the Chinese population that increasingly has liked to visit Hong Kong. But—and there are, of course, political resentments that are fanned now by the government to intensify these traditional resentments of Hong Kong.

So I think they’re succeeding still, just like the PRC government seems to have succeeded in persuading most Han people in the mainland that what they’re doing in Xinjiang is required in order to repress terrorism. And indeed, we’ve just seen they’re beginning to play the terrorist card in characterizing what’s going on in Hong Kong. And once you say “terrorism,” then that’s the basis for real hostile action—military action. And of course, in Hong Kong, they’re upping the ante of how you characterize what the protests are. Are you going to prosecute these people? And hundreds may be locked up soon if this goes on. The new police authority in Hong Kong, I think he’ll be taking his guidance from his previous successes. And they’ll be arresting lots of people.

And the question then will be, what do you charge them with? You see, Benny Tai, Professor Chan, these academics who were going to jail now and are just appealing—the Benny Tai’s appeal’s coming up, I think, tomorrow in the court. They’re being charged with creating nuisances. That’s a minor offense. Benny got sixteen months for that, which is very hard time. But now they’re going to charge them under the new court injunction with obstruction of justice. And that’s more than a popular nuisance. So we’re going to see an escalation of punishment here. And that in turn, unless you have some community response coming between the obdurate government and the protesters, that’s going to get worse. And that will intensify opposition.

MCMAHON: Great. Thank you. I’m going to see if I can fit in a couple more questions.

So, Operator, another question, please.

OPERATOR: Our next question comes from Daniel Ahn with BNP Paribas.

AHN: Hi. Thank you, Professor.

I have another question which may be a little unfair. But in light of not just what’s happening in Hong Kong, but also the U.S.-China trade tensions that you alluded to earlier, we are seeing the possibility of significant economic weakness in China. You might have seen this morning, industrial production in China fell to its lowest level since 2002. So stepping back from Hong Kong to more just the general economic conditions in China, would you say that the overall weakness in the economy is narrowing maneuvering room on Hong Kong, as in they may feel a need to be softer in light of potential negative economic repercussions if they hold a hard line? Or are they—or might they adopt a more conciliatory approach in the trade talks with the U.S., again, because of the fragility of the U.S.—of the economy? And, third, would they—might they introduce some kind of more stimulatory—more economic stimulus in light of all of these pressures?

COHEN: That’s a terrific question toward the end of our conversation because I really have been among those who think that despite China’s vaunted prominence in the world politically, economically, militarily, it’s a much weaker regime than the world realizes. When Xi Jinping came to Washington in 2015, I greeted him that day with an op-ed in the Washington Post. And they put the right title on it, something like: “China’s Fragile Leader.” And I feel the situation has gotten worse in the last four years. That’s why he’s imposed this absurd dictatorship on people that has altered life for even good supporters of the regime, among academics, bureaucrats, et cetera, in the last few years.

He’s sitting on a hot tin roof. And he—this is—this situation of the declining economy and the consciously mobilized administration—Trump administration pressure to worsen China’s economic situation, that’s really putting him into some difficulty. At the same time, there’s lots of silent—necessarily silent—opposition to his rule, even among the party elite. So he’s in a difficult position. And of course, he’s got all these other problems he has to deal with, ranging from pollution to corruption. Just—there are a lot of causes for the daily protests within China that we are usually unable to read about.

But, you see, your analysis may well be right. In our terms, a leader faced with these problems should try to show some flexibility. This was the brilliance of Deng Xiaoping. Deng Xiaoping I didn’t like at all, because he was a Soviet-type repressor. He presided as party secretary-general over the anti-rightist movement of 1957–58 that crushed the liberal intellectuals trying to transform the Chinese Communist Party into a more humane organization. Deng was the guy who authorized the slaughter on June 4, 1989.

But he was on diplomatic, political matters I think not only very bright, but courageous in moving forward. And he felt he had the power to do it. That’s how Hong Kong came back to the motherland, because of the compromise he was willing to make on one country, two systems. That’s why Japan and China were able to reconcile in 1979—1978–1979*—because he postponed things like the Senkaku-Diaoyutai thing. Deng showed flexibility. If Xi Jinping now could summon that kind of flexibility, this could be resolved without the PLA in a way that could bolster Xi’s insecure status at home.

But Xi Jinping has shown none of that. He has made a big deal out of saying: We will not give an inch on any of these questions, whether you talk about dealing with Japan or Taiwan or Hong Kong. His stock in trade is don’t give an inch. We are the leaders. We will do this. And he doesn’t show the kind of flexibility that his predecessors did in order to make over twenty agreements with Taiwan, even though they said we’ll never treat with Taiwan in negotiations as an equal. They found a way to do it, thanks to Ma Ying-jeou and his relations with the mainland. But today, this is the test for Xi Jinping. Is he going to try to carry on as an absolute military leader or is he going to show the wisdom of political concessions?

MCMAHON: And that is an appropriate broad note to end this call on. I want to thank our expert Professor Jerome Cohen for navigating us through this crisis moment for Hong Kong and China more broadly. I also want to thank those on the call for superb questions and for taking part in this CFR on-the-record conference call. This now concludes the call. And, again, thanks to all for taking part.

(END)

*CORRECTION: Please note that Jerome A. Cohen has since noted that the correct years are “1971—1971–1972.”

“The Bravest Lawyer in China” – Gao Zhisheng

By Jerome A. Cohen

Here is reference to a moving and informative tribute to the great but now almost forgotten human rights lawyer Gao Zhisheng, by Professor/lawyer TENG Biao, himself a great human rights activist now living and working for the cause in exile in the U.S. Teng confirms that there has been no news of Gao for two years. Gao has been subjected to unspeakable tortures since first detained in 2006 and, when last heard from, had been transformed from one of China’s leading business lawyers into a pathetic human vegetable.

Gao Zhisheng (source:    RFA   )

Gao Zhisheng (source: RFA)

As I have written here before, in March 2005, in a Beijing discussion with about a dozen human rights lawyers who were debating how to respond to attempts to restrict their defense efforts in court, Gao boldly favored open opposition to Party violations of the PRC’s Constitution and criminal procedure legislation. He argued forcefully that true law reform would never be effective in China so long as the Party monopolized power. I said that I agreed with him but that, if he continued to voice those views in public, he would soon lose his freedom and be of no use to anyone.

Sadly, we were both right. We should be grateful to Professor Teng for recalling the sacrifice of this great person.

Some thoughts on China’s response to Hong Kong’s protests

Jerome A. Cohen

Chinese Government and media suggestions that the protests amount to “terrorism” are without foundation. They are as irresponsible as Chinese Government claims that many of China’s detained Xinjiang citizens may be actual or potential “terrorists”.

The PRC is increasingly mobilizing Mainland people against the protesters, as noted by several major U.S. papers this morning. Louisa Lim’s op ed in the NYT, The Battle for Hong Kong Is Being Fought in Sydney and Vancouver, is certainly worth reading in addition to news reports that themselves include some useful analysis.

As to the timing of possible intervention of People’s Liberation Army or People's Armed Police, should the airport or other transport continue to be disrupted seriously, the timetable might be moved up. Much depends on the success of Hong Kong’s new police commander in enforcing the new court injunction etc.

Choosing the airport was a brilliant move for the protestors to gain the world’s attention. Having made their point, they should stop interfering with departures or arrivals and avoid any acts of violence. This seems to have happened on Wednesday of this week. Future airport protests are likely to be fewer and easier to disperse because of the enforcement of a new court injunction that means arrested protesters will now face more severe punishment than earlier.  

If the HK Government’s injunction and other efforts to stop the protests do not succeed, AFTER the October 1st 70th anniversary celebration of the PRC’s founding, the Central Leadership may well feel it necessary to send in the army or the People’s Armed Police. This would be a disaster for China, Hong Kong and international cooperation and security.

United Nations High Commissioner for Human Rights Michelle Bachelet’s message asking Hong Hong authorities to exercise restraint and to investigate excessive use of police forces is most welcome and adds to international pressures cautioning the Beijing leadership and the SAR Government. I think it’s wonderful that tearful Carrie now says that she is not responsible for her own government’s  police operations! She certainly is not responsible for initiating the discussions and independent investigation that could ease the crisis! 

Hong Kong’s crisis: What do lawyers have to do with it?

By Jerome A. Cohen

Here is an eloquent plea just issued inviting practicing lawyers in Hong Kong to join the newly-formed Neutral Legal Observers Group to monitor abuses on all sides of the current struggle: The Law Is Our Business by Davyd Wong.

This is undoubtedly a desirable professional response to the political stalemate. It is ironic that it appeared at the same time that the Council on Foreign Relations published its interview with me suggesting that HK’s Law Society and Bar Association should be among the nonofficial organizations to finally take the initiative to form some sort of unofficial but influential investigative, reconciliation or unity commission to help break the increasingly dangerous political deadlock. The Neutral Legal Observers Group won’t do that.

Hong Kong lawyers are admirable professionals. I know that from cooperating with them for decades. However, they are also capable of doing more than the Neutral Legal Observers Group calls for. Hong Kong has highly-skilled dentists. We don’t expect dentists to contribute their skills to help resolve political crises but we should expect lawyers to do so.

I hope the lawyers will stimulate formation of a new political group that will call for, and begin, public hearings to examine the origins of the crisis, the actions of the Hong Kong Government including the police and their agents, and the actions of the various protesters. This independent public commission should also examine whatever evidence exists that the crisis was secretly fomented by and is still supported by foreign organizations.

The Crisis in Hong Kong: What to Know

Jerome A. Cohen

I’ve been following Hong Kong’s developments. Below is what I’ve written for the Council on Foreign Relations two days ago. More is coming on my blog. 

https://www.cfr.org/in-brief/crisis-hong-kong-what-know

By Jerome A. Cohen

August 13, 2019

The Crisis in Hong Kong: What to Know

Why have protests surged in recent months?

Over the past ten weeks, the situation in Hong Kong has become increasingly tense. The broad protests, which on one occasion totaled roughly two million people, were sparked late this spring by the government’s attempt to adopt a bill that would have enabled the People’s Republic of China (PRC) to request extradition of suspected criminals from Hong Kong. The city’s chief executive, Carrie Lam, eventually announced that the bill was dead, but she has refused to formally withdraw it. She has also refused to resign.

Incidents of police violence have added fuel to the fire. The Hong Kong government has not established an independent investigation into police brutality, including reports of excessive use of tear gas, rubber bullets, and other weapons. Especially infuriating to many has been police tolerance of gangs that have assaulted protesters.

Frustrated by the government’s unresponsiveness, some protesters turned to violence. However, most protests, including a one-day general strike and the initial occupation of Hong Kong International Airport, were peaceful.

The protesters have expanded their demands. Many now insist on electoral reforms that the PRC has long rejected, as well as the reversal of the Hong Kong government’s removal of some democratically elected members from the Legislative Council. They want to exercise the political freedoms that they believe they were promised by the “one country, two systems” provisions of the Sino-British Joint Declaration of 1984 and Hong Kong’s Basic Law.

Will Beijing use force against the protesters?

The PRC has thus far left the growing crisis to the Hong Kong government and given it strong backing, but there are now serious signals that its patience may be expiring, and the threat of intervention by the People’s Liberation Army (PLA) is growing. Agencies and propaganda organs of the central government have called the protests “terrorist” activities and intensified their claims that Hong Kong’s turmoil is the result of American “black hands” seeking to create a color revolution.

Beijing knows that military repression in Hong Kong would be even more disastrous to its international relations than the 1989 Tiananmen Square massacre. Yet it will use force if necessary.

The Hong Kong government’s strategy is to make no concessions to the protesters, rely on aggressive police tactics, persuade community leaders of the desirability of stability, and engage in a war of attrition against protesters who continue to interfere with public, commercial, and social life. Such a policy ended the 2014 protests known as the Umbrella Movement.

But will this strategy be successful again, especially against a newly-energized younger generation that is the backbone of the current struggle? Most observers believe that Chairman Xi Jinping, recognizing that China now confronts a more serious challenge than in 2014, will not await the outcome of a war of attrition.

Thus, after celebrating the PRC’s seventieth anniversary on October 1, Beijing may well deploy the PLA. This would have tragic consequences for Hong Kong and its people, the PRC’s world standing, and international security.

Why does Hong Kong matter to Beijing?

Although Hong Kong’s economic importance to the PRC has diminished as mainland cities develop, it continues to be the PRC’s major international financial and business center and, as a special administrative region, enjoys a privileged status in its relations with the United States and other countries. Additionally, Hong Kong’s return to the Chinese motherland in 1997 symbolized the restoration of continental China’s territorial integrity and the vindication by the PRC of Chinese nationalism and sovereignty.

Beijing would never tolerate losing control over Hong Kong. Furthermore, the historic completion of China’s territorial integrity, in the PRC’s eyes, requires that Taiwan is ultimately restored to China. Losing control over Hong Kong would end the forlorn hope of reintegrating Taiwan in the foreseeable future.

Is the situation hopeless for the protesters?

Perhaps not if Hong Kong’s risk-averse nonofficial community leaders, who thus far have largely behaved like proverbial deer in the headlights, respond urgently to the crisis instead of continuing to dither.

They can organize an unofficial but public investigative, reconciliation, or unity commission to press for a peaceful resolution. Such an effort would never be possible in mainland China, because Communist Party repression has prohibited the growth of politically active nongovernmental organizations and independent public organizations.

Hong Kong is still strong in this respect. The Law Society and the Bar Association, for example, could take the lead in what would be a desperate but worthwhile attempt to avoid another Chinese Communist tragedy.

More Thoughts on the Open Letter “China is not an enemy”

By Jerome A. Cohen

The Open Letter “China is not an enemy” (Washington Post link) has generated much debate and disagreement since publication. I have been asked why I signed the letter.

I joined this important effort because I am worried that the current toxic anti-PRC atmosphere and confusion in Washington might lead to a major deterioration in Sino-American relations that could have dangerous political, diplomatic, military and economic consequences. I hoped the letter, endorsed by so many able and prominent observers of the world scene, might alert people in America, China and elsewhere to give the current situation higher priority and greater thought. Of course, if writing the letter alone, I might have handled certain issues somewhat differently, but in a large collective effort one has to focus on its main thrust. I think the impact of the letter and the debate it has provoked demonstrates its value.

The four decades of pre-Trump policies by the U.S. and the “Western” democracies toward China succeeded in many ways. Most Chinese are enormously better off today than in 1972 or 1979, as I can attest from personal experience. China has become part of the world in manifest ways that did not exist forty years ago and there is a huge amount of international cooperation. We need to solve many difficult and serious issues between China and the democracies but should address them one by one while getting our own domestic “Western” houses in better order.

I can cite many examples, good and bad, of how China has been influenced by official American conduct in international affairs. For example, China’s disappointing rejection of the 2016 United Nations Convention on the Law of the Sea (UNCLOS) Philippine arbitration decision concerning many issues of proper interpretation of the Convention undoubtedly was influenced by the egregious failure of the United States even to ratify UNCLOS as well as President Reagan’s scorn for the decision of the International Court of Justice in the Nicaragua case in the mid-‘80s. Also, the cynical U.S. resort to secret CIA actions designed to undermine the new Communist Government in China in the 1950s and 1960s had to have an impact on PRC perceptions about how the international relations game is covertly played.

On the other hand, the major post-World War II roles the U.S. played in establishing the main international organizations and shaping their constructive actions has stimulated increasing PRC efforts to emulate these roles and to rival American influence regarding many crucial areas relating to economics, the environment, international security and even those human rights emphasized by Beijing.

I think the U.S. Government should begin to take a more robust approach towards China’s human rights abuse, especially the Xinjiang atrocities the PRC is now committing. Its Xinjiang record warrants the strongest possible denunciations of the PRC and the application of sanctions, including the Global Magnitsky Act, against those who are directly responsible.

In assessing the current situation, we should recognize that the Xi Jinping government confronts many obstacles at home and will eventually be confronted abroad by a policy that may be summarized as containment, competition and cooperation. Moreover, Xi Jinping will not rule forever.

Another tale of cruelty: how the Chinese government crushed rights lawyer WANG Quanzhang

By Jerome A. Cohen

The case of human rights lawyer WANG Quanzhang (my Washington Post op-ed) is one more tale of PRC cruelty toward a leading lawyer and his family but deserves special further scrutiny from several points of view.

When finally allowed to see him after more than 1,400 days into his detention, his wife Li Wenzu discovered the reason why the regime delayed so long and resorted to so many ridiculous ploys to deny her and any defense lawyers access to him. Like some other well-known professional colleagues, Wang has been reduced to a vegetable through a combination of tortures, physical and mental, as this brief account makes clear.  

Yet there are still unsolved mysteries about the case that render it unusual among the many similar examples of the crushing of the right to defense in violation of China’s Constitution and legislation and the PRC’s international human rights commitments. Why, contrary to standard practice even in “sensitive” cases, has no court judgment confirming and supposedly explaining his long-delayed conviction and sentence been issued to his wife and the public? Is it yet known when his anticipated prison release will occur? Has he, like others, been forcibly subjected to unnecessary and unwanted “medical” treatment that weakened his extraordinary resolve to resist his lengthy incommunicado interrogation?

What will be the terms of his release? Will it be another illustration of what I have often called the “non-release release” (NRR) because the victim is in effect illegally transferred from one mode of loss of personal freedom to another involving less financial and reputational cost to the regime? So many valiant human rights lawyers have been neutered in one way or other after ostensible “release” from their years of futile resistance to unspeakable forms of detention.

I hope many journalists will pursue these inquiries.  

Memories of Bob Bernstein, June 25, 2019

Jerry Cohen

Certain extraordinary people symbolize important aspects of American life. Some stand out in politics, government or law, others in industry, finance, education, culture or sports. Bob Bernstein was a superstar. He was an emblematic figure in not one but two major fields – publishing and human rights. A person of unusual vision and energy determined to make the most of every available moment, Bob insisted on two for the life of one.

I can only speak about Bob’s great accomplishments in the human rights area, which led to a friendship of almost four decades. Yet even in this aspect Bob was a double-header. Not only was he a founder of the leading global human rights organization — Human Rights Watch, but he was also a founder of the leading human rights organization focused on China — Human Rights in China, often referred to as HRIC.

It was Bob’s perceptive preoccupation with China that brought us together, thanks to introductions by the distinguished Columbia political scientist Andrew Nathan and the indomitable scholar-activist Sharon Hom, who has long served as HRIC’s executive director. Together with the able colleagues they recruited for HRIC, this outstanding threesome, Bob, Andy and Sharon, who in China might be dubbed “the three representatives”, have enlightened the world about one of its major human rights challenges.

Robert L. Bernstein (1986). Credit: Don Hogan Charles/The New York Times

Robert L. Bernstein (1986). Credit: Don Hogan Charles/The New York Times

I loved the New York Times obituary about Bob, including the wonderful photos of him. Yet I felt that it didn’t give his work with HRIC its due. With Bob’s prodding and support, HRIC has not only informed the world about the Communist Party’s latest repression of freedoms of expression and arbitrary detention of Chinese who seek to exercise those freedoms, but has also courageously fought to hold the Chinese Government and the Party accountable for their transgressions before the United Nations and other international organizations.

Moreover, Bob was not simply concerned with human rights at large and in the abstract. He cared deeply about the individuals involved, the victims and their front line defenders and also their families. He would often call many of us to ask for ideas about how to find a job for newly-released Chinese dissidents who managed to reach this country or a college opportunity for their children.

Bob’s fierce determination to give voice to the necessarily voiceless was a regular feature of New York’s many China programs. He made sure that the PRC’s  increasing economic development, diplomatic influence and military prowess would not divert us from also considering the human, social and legal costs of its violations of the political and civil rights of its citizens.

I will never forget the lunch at the Council on Foreign Relations where, after listening to a comforting speech by the then Chinese ambassador to the United States, Bob, who was seated directly in front of the speaker, immediately and prominently shot his hand in the air to ask a question that the audience, knowing Bob, anticipated would shatter the harmony. The presider, however, a well-known member of the financial community, kept ostentatiously ignoring Bob’s hand. Finally, Les Gelb, then the Council’s president, to the evident satisfaction of the audience, eased the tension via a stage whisper to the presider: “You’ve got to recognize him!”, at which point Bob did the expected.

Bob was also a tireless human rights advocate behind the scenes. One day, for example, he insisted that I join him in calling on the then president of the Ford Foundation in a final attempt to persuade him to fund the work of HRIC. As Bob knew, Ford, which has done so much to aid China’s modernization, including the development of its legal system, was a reluctant dragon because the Beijing regime has always branded HRIC a “counterrevolutionary” organization. Ford, which has generously supported our NYU US-Asia Law Institute’s law reform projects in China, was concerned that funding HRIC might prejudice Ford’s many ongoing activities in the People’s Republic. I remember three things about that meeting: Bob’s passionate perseverance despite the odds, the respect with which Ford’s president treated him and the grace Bob demonstrated in receiving our inevitable disappointment.

We recovered soon afterward at one of our periodic breakfasts at the University Club, which Bob hosted and knew I enjoyed and which he effectively used as a vehicle for involving me in yet another human rights controversy with the Central Realm. Every time Bob invited me there I knew I would be risking the rice bowls of my law firm colleagues devoted to China and our NYU research associates and perhaps forfeit my next visa.

I could rattle on with other anecdotes but want to end with a tribute to Helen and Bob and their children, who are carrying on his human rights traditions. Bill has recently served as chairman of HRIC and, like the loyal NYU alumnus he is, was instrumental in establishing our comprehensive and innovative NYU Law School Robert L. Bernstein Institute for Human Rights in which Sharon Hom and our US-Asia Law Institute take part. Tom is  Co-chair of another dynamic and international human rights organization, Human Rights First, is Chair Emeritus of the United States Holocaust Memorial Museum and was instrumental in establishing the groundbreaking Bernstein program on human rights at his alma mater, Yale Law School. Peter, with whom I have had the pleasure of cooperating on some publishing projects, has taken a page from each of his father’s two careers and played an invaluable role in bringing to publication many excellent books relating to China and human rights that might have otherwise been still-born. Helen has presided over this energetic menagerie with apparent, if occasionally bemused, equanimity.

Bob was understandably proud of his sons’ perpetuation of his work and indeed proud of all the young people who have flourished and contributed to it, thanks to the foresight and support of the programs in Bob’s honor at Yale and NYU. I feel especially privileged to benefit even today from the continuing help of several of those NYU law students who went on to enjoy the Bernstein fellowships that enabled them to learn the ropes of human rights advocacy at HRIC.

I only came to know Bob toward the end of his impressive publishing career, at a time when he might well have rested on his laurels but instead went on to further achievements in the human rights field. I always told him that I hope to be like him when I grow up! His accomplishments and friendship during the marvelous second phase of his career make me want to recall a few words from Robert Browning’s “Rabbi Ben Ezra”:

“Grow old along with me, The best is yet to be, The last of life for which the first was made. Our times are in His hand, Who saith ‘A whole I planned.’ ……. Let age approve of youth and death complete the same.”

What thoughts should be inspired by the prosecution of Meng Hongwei, the former Interpol chief from China?

By Jerome A. Cohen

The Wall Street Journal had a report on the prosecution of Meng Hongwei a few days ago (“Former Interpol Chief Admits to Taking Bribes, Chinese Court Says”). Here is someone who allegedly received over US$ 2 million in bribes from 2005 to 2017 and nevertheless was selected by the People’s Republic of China in 2016 to be one of its most prestigious representatives abroad. So many questions should be raised about this case.

Were Meng’s alleged misdeeds, committed over a decade, not known at the time of his selection? How could he have previously risen to the top of his PRC institution, the Ministry of Public Security itself, without having been vetted and discovered through its formidable and frightening investigative powers? Were his misdeeds known and not considered troublesome because so common that they did not go beyond the bounds of acceptable behavior? Were they held in abeyance in order to guarantee his compliance with Party demands while at Interpol? Was it inability or refusal to execute Party demands at Interpol that led to his disappearance and prosecution?

Why did Meng return to Beijing when he could have become one of the very people the PRC has unsuccessfully sought to have Interpol help forcibly return to China? Although France has an extradition treaty with the PRC, Meng could easily have gone elsewhere. Moreover, France has signaled that it will not extradite his wife and that she warrants political asylum.

What about Meng’s prosecution? Why did the PRC choose to prosecute him and expose itself to greater international embarrassment when it could have simply kept him “disappeared” like some other sensitive “offenders” who are simply not heard from after their return to the Motherland, voluntarily or not, and who are soon forgotten abroad as well as at home?

Will the court’s forthcoming judgment reveal the details of Meng’s offenses? Will it reveal the identity of the lawyer reportedly assigned to him and the extent of the lawyer’s role both during the many months of presumably incommunicado detention Meng suffered before being brought to trial and during the trial? Did government witnesses testify at trial or were their statements merely introduced in writing? If any appeared in court, were they subject to cross-examination? Was the defense allowed to present its own witnesses in court or even gather evidence before the trial began? Will the court’s judgment be made public as ordinarily required even though the trial was closed to the public? Will Meng be allowed to appeal his anticipated conviction? Will any relatives or lawyers be allowed to visit him once he is transferred from detention to prison at the close of his case?

Will the outside world, the Chinese people or even the overwhelming majority of the Communist Party ever know the answers to these questions?

Police use of force in Hong Kong protests and Carrie Lam's responsibility

By Jerome A. Cohen

This remarkable essay by Neville Sarony is the best I have seen on the use of force in dealing with protesters. I almost skipped reading it because of its title, assuming it would be a one-sided, understandably outraged attack on Mrs. Lam. Instead it turned out to be a judicious, balanced disquisition rooted not only in theory but also in practice and personal experience.

It also is a definitive verdict on Mrs. Lam’s future. She must now accept responsibility for the whole mess and for many specific ugly actions, even preceding Wednesday’s climactic events.

Indeed, we have new insights into the origins of the Hong Kong extradition bill from yesterday’s New York Times. Keith Bradsher’s front page story reports on the introduction of the bill, just before the Chinese New Year holiday, to the Executive Council prior to its subsequent introduction to the Legislative Council after the holiday. ExCo quickly approved the bill “with virtually no discussion”. And the top finance officials and leading financiers at the meeting were not alerted to provisions of the bill for “mutual legal assistance in criminal matters” that would permit the police to freeze the assets of companies and people in Hong Kong at the request of Mainland security agencies!

These officials and business leaders were reportedly “appalled” when they later learned what they had approved! This information adds to what has been well-known about the abbreviated procedures to which Mrs. Lam resorted in seeking to gain LegCo’s approval. Was this “good faith” political leadership in the interest of Hong Kong’s people or even its local and foreign business community?

Academic freedom in Hong Kong

By Jerome A. Cohen

Here is an important, thoughtful and balanced essay by Professors Marina Svensson and Eva Pils, Academic Freedom: universities must take a stance or risk becoming complicit with Chinese government interference. I hope that scholars in the free world will take steps to implement this essay’s excellent recommendations. This will require a profound international effort to alert academic colleagues as well as governments, the media and public opinion.

Professor Benny Tai of Hong Kong University Law School

Professor Benny Tai of Hong Kong University Law School

As the cliche goes, a long march must start with a single step, and it seems wise to begin with an effort to protest the criminal punishment of Professor Benny Tai (戴耀廷) of Hong Kong University Law School as well as the current attempt to oust him from the university faculty.

I hope that civil libertarians and human rights advocates in Hong Kong and elsewhere are not too preoccupied with the current Hong Kong extradition crisis to assume this additional burden. We cannot afford compassion fatigue.

What does Hong Kong people’s refusal of the extradition bill mean for China’s global extradition agenda and international image?

By Jerome A. Cohen

Beijing’s main goal in extradition was to get its hands on Mainlanders it deems offenders for both economic and political reasons, just as it has been often unsuccessfully trying to snare them from major democratic countries where they tend to take refuge. Finally enabling this to happen in Hong Kong would have been an encouraging step toward Beijing’s broader objective with the unyielding democratic countries.

Until now, the refusal of Hong Kong, which knows the quality of PRC justice better than any other jurisdiction does, to send suspects to the PRC — its own central government — has been a key argument against extradition to the PRC by the major common law countries. Australia almost succumbed to PRC blandishments, which would have been a big victory for Beijing. The current Hong King fiasco will further set back PRC efforts in the common law countries and make even those democratic continental law countries in Western Europe that have gradually been yielding to PRC extradition pressures less likely to ratify extradition agreements and to generously implement them.

Events have their uncontrollable consequences. This huge flap over “rendition” has undoubtedly turned many more Hong Kongers, especially the younger ones, against “One Country, Two Systems”, stimulating some to leave and fewer to stay and fight for a better future than they can foresee in the current circumstances. I wonder how many may now be amending the optimism of the Victorian era poet who blindly wrote as the forces that led to World War I began to gather: ”For I looked into the future, far as human eye could see, saw a vision of the world and all the wonders that would be.”

To those observers who have sought to enlighten people in China and abroad about the nature of the PRC justice system and who are still attempting to cooperate with repressed Chinese law reformers and human rights lawyers and their would-be clients, the Hong Kong fiasco is a welcome stimulus to our work. Sadly, although Xi Jinping and his Party elite hope to enhance PRC “soft power”, they fail see how important a nation’s justice system is to the world’s evaluations of its “soft power”. 

In any event the enhancement of the Party’s hard power at home is far more important to them, and their version of the criminal process is crucial to the effectuation of Party power and assurance of their survival.

Hong Kong's extradition law: Not just “Hong Kong people” have reason to fear Chinese “justice”!

By Jerome A. Cohen

It’s not only “Hong Kong people” whose fate is at stake here. Anyone passing through Hong Kong airport could be detained and sent to China (compare the Huawei Vancouver extradition case). Even people who have been extradited by a third jurisdiction to Hong Kong could be subject to re-extradition to  China unless some provision is made in the extradition treaty between Hong Kong and the third jurisdiction to prevent that! This bill would undoubtedly lead those democratic countries that have extradition treaties with Hong Kong to either renegotiate them successfully or terminate them.

No criminal justice systems could be more different in practice than those of China and democratic jurisdictions including Hong Kong. Despite Xi Jinping’s occasionally expressed theoretical aspirations to promote a Chinese court system that will achieve justice in every  case, reality is very different in the many cases that, for one reason or other, are regarded as “sensitive” in China.

Actually, Xi keeps reminding the public that the courts are in fact and ought to be under the absolute political control of the Communist Party. The Ministry of Public Security, the Ministry of State Security, the newly-established Supervisory Commissions and many legally unauthorized secret Party, civilian and military units that also detain “suspects” are far more powerful than the courts or even the procuracy (prosecutors) that is supposed to supervise the legality of all government operations.

Some alleged offenders are never brought to trial in China. Think former Party General Secretary Zhao Ziyang, detained without any legal process for the last 16 years of his life!! Many are detained on spurious charges. Think Ai Weiwei, a famous dissident artist who was ostensibly detained on tax charges! How easy it would be for Beijing to conjure up charges that meet the tests of the forthcoming Hong Kong extradition amendments.

Even formal, authorized detention is frequently marked by physical and mental torture that often leads suspects to “confess” on television even before indictment. Suspects and defendants are often denied timely access to any defense counsel  or to defense counsel of their choice, even at trial. Trials in sensitive cases are usually a farce, and appeals either prevented or a meaningless exercise. Detention conditions are often execrable, leading some accused to confess in order to end the formal prosecution process so they can be transferred to the generally better conditions in prisons. Human rights lawyers are frequently disbarred, sent to prison or otherwise neutered.

Not just “Hong Kong people” have reason to fear Chinese “justice”!

My take on Hong Kong's extradition bill

By Jerome A. Cohen

I've just written a commentary on Hong Kong's controversial extradition bill (SCMP link below). Comments are welcome, especially with regard to the solution proposed at the end of the article.

Jerome A. Cohen, If Beijing wants an extradition law with Hong Kong – and elsewhere – it should reform its judicial process, South China Morning Post, May 23, https://www.scmp.com/comment/insight-opinion/article/3011117/if-beijing-wants-extradition-law-hong-kong-and-elsewhere-it

Perhaps the most frightening aspect of the impending amendment is its application, not only to all SAR citizens and foreign and Chinese residents of the SAR, but also to anyone who passes through Hong Kong.

[New book] “Taiwan and International Human Rights: A Story of Transformation”

 By Jerome A. Cohen

I’ve had the pleasure of working with Professor William Alford of Harvard and Justice Chang-fa Lo of Taiwan’s Constitutional Court to edit this new book: “Taiwan and International Human Rights: A Story of Transformation”, which is published by Springer (Amazon link here).

The announcement of publication came today with the great news that Taiwan has just passed same-sex marriage legislation as the first country to do so in Asia! From a depressing island run by a dictatorship  that operated the world’s longest martial law regime to today’s vibrant constitutional democracy that actively engages universal human rights values, Taiwan is a testament to the resilience, endeavor and accomplishment of the Taiwanese people.

 

Washington Post: The forgotten victims of China’s Belt and Road Initiative

By Jerome A. Cohen

I played a minor role in the publication of an op-ed, The forgotten victims of China’s Belt and Road Initiative, with my colleague Aaron Halegua, a terrific Chinese labor law scholar whom I take credit for spotting many years ago, even before he started his JD study at the Harvard Law School! Here's the link to the op-ed online in the Washington Post. The Post was glad to have it and did a very careful job checking the facts and editing it, but I do not think it will appear in the paper because there are just too many Mueller Report-related op eds at the moment.

[New Article] Law and Power in China’s International Relations

By Jerome A. Cohen

I've just uploaded on my SSRN another recent article —"Law and Power in China’s International Relations," which is slated to appear in the New York University Journal of International Law and Politics (JILP) in the Summer of 2019.

This article follows the line of investigation in my 1974 two-volume book co-authored with the late Professor Chiu Hung-dah, People's China and International Law: A Documentary Study, which looked into China's attitudes towards international law. Of course, the book was published in a time when scholars had a challenge finding sources about China's theory and practice of international law in certain respects. Now we're confronted with a different challenge, which is how to thoroughly and thoughtfully investigate an expansive China as it is taking on an increasingly active role in the international arena. I hope that this article offers an up-to-date summary of some important aspects worth considering. I'm pasting the abstract below. Comments are welcome!

Law and Power in China’s International Relations

New York University Journal of International Law and Politics (JILP), Vol. 52, 2019 (forthcoming 2019)

33 Pages Posted:

Jerome A. Cohen

Date Written: April 17, 2019

Abstract

This Article offers a much-needed updated examination of China’s resort to international law in its international relations, one of the most important and controversial topics facing today’s world. The Article analyzes a range of significant subjects concerning China’s contemporary theory and practice, including its WTO experience, territorial and maritime disputes, bilateral agreements concerning civil and political rights and multilateral human rights treaties. Noting that the current rules-based order appears unable to significantly restrain the exercise of China’s growing power, I argue that Beijing’s present attitude toward international law, which thus far seeks piecemeal changes issue by issue, may be in transition, inching gradually toward a more innovative, broader approach that shapes international law in ways that some observers see as resurrecting traditional China’s prominence in East Asia and that others fear reflect even grander ambitions. China’s growing power, however, is not as securely-based as widely-assumed, and we should not underestimate the extent to which China’s views are influenced by its interactions with the United States and its perception of American practice of international law.

Keywords: China, international law, WTO, territorial disputes, maritime disputes, bilateral agreements, human rights treaties, US-China relations