Hong Kong, China and the United States: A Major International Issue

By Jerome A. Cohen

As widely expected, Hong Kong Chief Executive Carrie Lam’s very late withdrawal of the notorious extradition bill has had no pacifying effect. Perhaps it has even exacerbated the situation by demonstrating how reluctant the Hong Kong government and the Central Government are to make any reasonable concession to local public opinion. They are still relying on the attrition strategy that eventually ended the 2014 Umbrella Movement. They hope that even the most dedicated protesters will eventually wilt from exhaustion and despair.

Events in Hong Kong may someday add to the internal pressures for improving the Mainland system of criminal justice in practice as well as law but any significant changes will have to await a radical shift in the policies of the Chinese Communist Party, and that shift seems far from today’s horizon.

The currently contemplated Hong Kong Human Rights and Democracy Act in the United States is immediately of symbolic importance but will also add to American leverage over Beijing in practical terms because of its threat to eliminate Hong Kong’s special status under American law. The so called “nuclear option” it authorizes would significantly add to Hong Kong’s protection against the PRC’s use of military force to govern Hong Kong, but, as the “nuclear” name suggests, actual resort to this deterrent would substantially harm Hong Kong economically in order to “save” it politically.

It reminds me of the annual Congressional Most Favored Nation (MFN) review of China’s human rights actions that took place in the 1990s before Congress agreed to approve PRC entry into the WTO. Many in America regret the U.S. surrender of that option to withdraw the MFN access to the U.S. market of a China whose exports required it. The annual threat to deny the PRC this MFN treatment was one of the few tools the U.S. Government had to effectively express its support for human rights in China. While not as profound in its impact on China as the withdrawal of MFN might have been, the proposed Hong Kong Human Rights and Democracy Act would nevertheless  threaten to inflict serious damage on the PRC’s national economy as well as on Hong Kong by ending Hong Kong’s special customs status.

Hong Kong is surely not a matter of China’s exclusive domestic concern, as the PRC claims, but obviously a matter of great and legitimate international importance for many reasons. Not the least is the applicability of the International Covenant on Civil and Political Rights (ICCPR) to Hong Kong and the PRC’s obligations under various human rights treaties it has ratified, including the Convention against Torture and the International Covenant on Economic Social and Cultural Rights.

Hong Kong’s protesters are today’s greatest challenge to PRC efforts to persuade the world of its “soft power.” The outrageous suppressions of freedom, human rights and the rule of law throughout the Mainland and even the increasingly well-known repression in China’s Xinjiang as well as Tibet have not had as big an impact on world opinion as present events in Hong Kong. It is time for the PRC to recognize this, and it is time for President Trump to consistently communicate this to Beijing in public as well as in private.

Why were Joshua Wong, Agnes Chow and others arrested today?

By Jerome A. Cohen

Here’s a good story from today’s Washington Post on the arrest of Joshua Wong and other Hong Kong young democracy activists. I note that Joshua and Agnes were very promptly released on bail, in contrast to some arrests where Hong Kong police and courts have seemed very slow in granting bail. That was probably in order not to add to the provocation that the arrests would cause, increasing the likelihood that people will spill into the streets on Saturday.

Ironically, the timing of the arrests was evidently inspired by the desire to diminish the possibility of a major demonstration in defiance of the disapproval to hold it. The events that led to the arrest reportedly occurred on June 21. Why on August 30 did the arrests suddenly occur as everyone was preparing to hold the new demonstrations despite the refusal of approval? Not because Joshua et al were leading this Saturday’s preparations but because the authorities wanted to make clear to prospective violators what lies ahead for them if they take part despite non-approval. This is classic deterrence strategy.

Was the denial of approval of tomorrow’s events reasonable? For the assembly as well as the march? Are there leaders who intend to violate the prohibition? The Washington Post story notes that a prominent organizer disclaims any intent to go forward contrary to the denial of permission. Will thousands of ordinary people, without apparent leaders, nevertheless move forward to hold a rally and inevitably leave together in the streets after its conclusion?

The police have already arrested 800 over the past three months. Will they arrest several hundred thousand tomorrow for flagrantly violating a prohibition that huge numbers of people deem unreasonable? The legitimacy of the government refusal depends on its reasonableness in light of community values and customs.

And what about October 1? If two million citizens violate the denial to protest, can they all be arrested, detained and punished? This is where the system breaks down and where things are heading, and that is why Joshua et al were arrested today, seemingly irrelevantly on the brink of tomorrow’s events, for events that occurred June 21.

Finally, Beijing is of course calling the shots about the action of the Hong Kong police, although I hesitate to use that metaphor.

Arrest of Australian citizen in China: Beijing-Canberra tension

By Jerome A. Cohen

Protests against the formal “arrest” of former diplomat Yang turned Australian citizen are beginning to mount. Australian officials have vigorously denied the espionage charges and condemned the PRC prosecution. The PRC’s Ministry of Foreign Affairs has accused Canberra of impermissible interference with PRC justice. It claims that Yang, who has been held incommunicado for more than 6 months, is being treated in accordance with Chinese law. This is true. The problem, of course, is that Chinese law violates basic precepts of international human rights law.

Although, in conformity with the Sino-Australian consular treaty, Yang’s jailers allow him monthly half-hour consular visits that are strictly limited in topics that can be discussed and monitored, they have yet to permit him access to a lawyer, even one chosen by the jailers. “Arrest” usually means the detained suspect is headed for indictment, trial, conviction and imprisonment, and the espionage charge guarantees a very long sentence, although the death penalty is always a threat.

A lawyer will eventually be provided to decorate the proceedings if the authorities refuse to allow the accused a counsel of his choice. In any event the defense lawyer’s role will be restricted and the Party-controlled court will reach the conclusions instructed by the Party leadership.

One practical issue of special interest to international lawyers is whether the PRC will allow Australian consuls to observe the trial to the extent it is deemed “secret”. In the Stern HU case some years ago the PRC violated even its own internal regulation in refusing Australia access to the secret parts of naturalized Australian Hu’s trial. The PRC should have based that determination on a valid interpretation of a disputed provision of the bilateral consular convention but instead simply sought to justify it with a reference to China’s supposedly untrammeled judicial sovereignty. Apparently that sovereignty is not even subject to international commitments made by the PRC in the exercise of its sovereignty!!

Sidney Rittenberg

By Jerome A. Cohen

Yesterday’s wonderful obit in the New York Times was a balanced presentation of Sid’s long and complex life. I especially liked its references to his experiences on both sides of the scourge of mankind — arbitrary detention. Although, soon after his final release from prison, he and I discussed the prospects for his becoming a consultant to international business and I encouraged him to try, due to Sid’s modesty, I hadn’t realized the extent of his ultimate success. Also see the WashPost fine obit including Sid’s embellishment of a Confucian maxim, “Man who climbs out on limb should listen carefully for sound of saw.” Of course, like so many of us in the China field, I appreciated his contribution, intelligence and insights.

Has Simon Cheng been forgotten? Does he want to be?

By Jerome A. Cohen

Cheng returned home from Shenzhen to Hong Kong Saturday afternoon, apparently by car. The only reports I have since seen noted an understandable request from his family for a period of repose before being subjected to media interviews or other enlightenment of the public about the mysteries surrounding his detention and punishment for allegedly consorting with a prostitute. Has anyone had any subsequent news about the case? Has Cheng emerged? Returned to work at the UK Consulate? Told friends about his ordeal?

Has the media made attempts to interview him or otherwise obtain an explanation of one of the more unusual recent cases of PRC justice? How long can journalists and the public, at home and abroad, be expected to wait? HK must be a far more polite and thoughtful media environment than other cities of comparable size. Will the UK Consulate General issue an explanation? The Hong Kong Government? Cheng’s lawyers? Family or girlfriend?

Is there some widely-shared community expectation that we should forget about this important and curious incident that might tell us a great deal about PRC justice? Should we all act like it never happened? Can anyone recall similar situations? Do people only care about the extent of violent protests in Hong Kong and the US-China economic war? 

I understand the UK Government’s concerns, which is why I did not expect a statement from it, but that is only a part of the overall picture. What inference should the public draw from the eerie silence?

Do Hong Kong people just believe whatever they normally do about such incidents, with PRC sympathizers putting their faith in the China Daily and democrats passing the case off as another instance of phony Communist charges?

And what should the rest of us infer from the strange circumstances? Should we assume that Cheng’s silence means he was indeed guilty of colossal misjudgment -  from several perspectives? Should we assume that he is innocent but willing to accept scandalous defamation and to fall on his sword to avoid further damage to Sino-British relations and HK’s incendiary plight?

And what should we infer from the apparent passivity or lack of interest of the media? Are the London tabloids content with once again raking the Duke of York over the coals? Summer doldrums? Compassion fatigue? Overwork?

Is my impatience unique?

UK Consulate General employee Simon Cheng's case

By Jerome A. Cohen

This story in Global Times that the UK Consulate General employee Simon Cheng was detained for dallying with a prostitute was astounding. What a sensational mystery!

Cheng reportedly has been released today and returned to Hong Kong, after 15 days since his August 8 detention. I hope he will have the opportunity to make public his version of events. So many questions to answer.

If, as reported by his girlfriend, he was on a one-day visit to Shenzhen for a trade meeting on behalf of the UK Consulate General and if he was anxious about his prospects for being permitted to return to HK that night, when did the alleged contact with a prostitute occur? Was it a lunchtime quickie? A taxi rendezvous? A post-prandial digestif? A Soviet-style ”honey trap”? Could Cheng actually be guilty of such a colossal misjudgment?

Why did it take the Shenzhen police 13 days to come out with this story of what they now claim is the most ordinary type of tawdry violation?

Why did Cheng receive a sentence of 15 days rather than 5 or 10? Was he also fined?

What roles did his lawyer, UK consular authorities and the Hong Kong Government play? Was there an attempt to obtain court review?

Did the Shenzhen police and Ministry of Foreign Affairs comply with relevant law and agreements about timely notice of detention to the Hong Kong Government and to family? Will the police give the usual excuse that to have done so would have interfered with the investigation of the case?

Wasn’t there a case some years ago where the Shenzhen area authorities locked up a rising young HK politician for six months on a prostitution charge so that he couldn’t take part in a scheduled election? That case at least seemed less implausible than this one.

If the PRC is caught staging a phony charge in this one, it would be the scandal and laughing stock of the world, a risk that it would be unlikely to take after almost two weeks of consideration. What a case!! I wish I could join Cheng’s questioners today!

China’s detention of a Hong Kong employee of the UK’s Hong Kong Consulate: a preliminary explainer

By Jerome A. Cohen

The news that a Hong Kong employee of the UK’s HK Consulate (Guardian story) has already been detained by the Shenzhen police for 10 days is alarming and makes one wonder why it has taken so long to become public. The answer probably lies in the common reaction to such events in the Chinese context—the hope that quiet negotiations might resolve the problem while publicity might exacerbate it.

The Guardian story seems to be understandably confused by the use of the term “administrative detention” (AD) to characterize this deprivation of freedom and its possible link to “national security”. AD traditionally has referred to detention, now for a maximum of 15 days for each suspected offense, in accordance with China’s Security Administration Punishment Law. That law, the origins of which go back to the Anti-Rightist Campaign of 1957-58, allows the police to detain and punish anyone for a very broad range of possible offenses that are considered too minor to be deemed “crimes”. Police often resort to it as a preliminary processing device that allows them to interrogate and investigate a suspect for up to a couple of weeks before deciding whether to release the person or whether further steps may be necessary, usually prosecuting the suspect for a crime.

If they decide on the latter, they may choose to bring the prosecution under the usual criminal process or under the special provisions for prosecuting certain cases, often suspected of violating “national security”. If they choose the latter, the suspect can be transferred to “residential surveillance at a designated location” (the now notorious RSDL), under which the Criminal Procedure Law permits the police to hold someone incommunicado for up to six months before deciding whether to process the case further as a regular criminal case. In either case this further detention should be called “criminal detention” rather than AD.

Yet the Guardian’s reference to “national security” makes one wonder what is the status of this HK employee of the UK Consulate. Undoubtedly those who are seeking to assist him know the answer to this question, since visitation rights, access to counsel and other issues turn upon the status.

Chinese employees of foreign governments are especially vulnerable to suspicions of serving as foreign espionage agents since in practice the PRC applies a very broad and flexible definition of “espionage”, and it only takes a mere suspicion of such conduct to justify in PRC law a criminal detention of up to 6 months in RSDL before the regular criminal procedures (themselves deficient) come into place.

Let’s hope that this case is genuinely AD at this point, and that the detained person will be released today. AD detention itself is generally very unpleasant, even if often coercive interrogation techniques are not applied, since cells are crowded, conditions “basic” and the many companions not those one might choose.

“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.

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?

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.

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


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