In an address to the UN General Assembly today in which he announced his resignation, the UN Special Rapporteur on Torture, Sir Nigel Rodley, described how the Chinese government had frustrated his efforts to undertake a mission to the country after extending an invitation to him in February 1999. The record of two-and-a-half years of negotiations illustrates how China is going through the motions of cooperating with the UN human rights system, avoiding substantive actions to end rights abuses while doing just enough to allow China's partners in bilateral human rights dialogues to claim that progress is being made. Such cynical maneuvering makes no impact on the grim fate of those suffering from and dying under torture.
In the most recent example of this, after one of the regular dialogues between the European Union and China at the end of October, a diplomat involved in the talks said that "a breakthrough" had been achieved as China had agreed to a visit by the Special Rapporteur before the end of the year. But Rodley has evidently not been directly informed of this, as he said to the General Assembly, "[I]t is now up to the Government of China to inform the Special Rapporteur if and when it is willing to permit such a visit to take place".
It is worth noting that China's invitation to Rodley has repeatedly been touted as an "achievement" of the bilateral human rights dialogues in pushing the Chinese government towards "cooperation" with the UN human rights machinery, even while Rodley's mission was endlessly postponed.
What has stood in the way of the visit was the Chinese government's refusal to agree to the standard "terms of reference for fact-finding missions" collectively agreed by all UN experts, and Rodley's insistence on abiding by these guarantees of independence and impartiality. With this latest "invitation" being announced just before Rodley's resignation becomes effective on November 12, it is evident that the Chinese government hopes his as yet unknown successor will be more pliable.
However, it is hardly realistic for the new holder of this mandate to prepare and undertake his/her first fact-finding mission to a country as vast and complex as the PRC in less than two months. Furthermore, there is no indication the Chinese government has changed its position on the modalities of the visit. Speaking of the invitation, Beijing's spokesman continued to refer to the proposed mission as a "friendly visit", the term the Chinese government has used all along to describe its preferred form for such a trip by the rapporteur. Once the new rapporteur is selected, negotiations over the practical details of the visit will have to start from scratch again.
"Given the epidemic of torture in China, a UN monitoring visit is of crucial importance. But such a mission must be conducted under conditions that allow for independence and impartiality, or it will be nothing but a show," said Xiao Qiang, the Executive Director of HRIC.
The Special Rapporteur stated in the presentation of his interim report to the General Assembly at the UN headquarters in New York: "I regret that the Government of China did not confirm by the end of July [2001] as discussed during a meeting with a delegation from the Permanent Mission of China to the United Nations Office at Geneva in June the possibility of a visit in last September. I reiterated that I was happy to accept the February 1999 invitation by the Government of China to conduct a friendly visit to China, on the basis of modalities that would ensure that the visit would provide information capable of permitting me to make recommendations responding to the factual, institutional and legal obstacles to guaranteeing full respect for the prohibition of torture and other ill-treatment within my mandate. I consider that it is now up to the Government of China to inform the Special Rapporteur if and when it is willing to permit such a visit to take place."
HRIC believes that a mission of the Special Rapporteur to the PRC is crucial, given the systematic and widespread use of torture in the PRC. China ratified the UN Convention Against Torture in 1988, but since that time, the prevalence of torture has actually increased, some legal scholars say. The government has ignored the recommendations of the UN Committee Against Torture (which monitors the Convention) on necessary changes in law and practice to stamp out torture, and has not yet even incorporated the definition of torture contained in the Convention into Chinese law. Many Chinese legal scholars have raised the same points repeatedly, to no avail.
HRIC is particularly disturbed to note that during this year, the central government appears to have given tacit or explicit sanction to the use of torture, in contravention of China's international obligations. Official sources told journalists that earlier this year the central leadership explicitly sanctioned the use of physical violence to force Falungong members to denounce the sect.
The impact of this policy is apparent in the rapid rise in the number of deaths in custody reported by the Falungong organization. By the end of October 2001, the group had documented over 300 such deaths, with half occurring in the last six months. Fatalities were almost equally divided between men and women, with 69 percent being of people aged 20 to 49. HRIC knows of no case in which any official has been investigated or prosecuted for using physical force against Falungong members.
Physical pressure is used to break the will of political prisoners. Fang Jue, a former cadre who released proposals for political reform and was detained in summer 1998, is reportedly suffering from dementia after not being allowed to speak for eight months. In an effort to force him to acknowledge guilt, authorities in Beijing's Liangxiang Prison have prevented him from speaking since last year, through a combination of solitary confinement and pressure from other inmates. Fang, who is serving a four-year sentence, had already developed frostbite and other ailments after being held in sub-zero temperatures as a punishment, and now also has trouble walking.
Pressure on law enforcement agencies, prosecutors and courts to achieve results in the government's continuous "Strike Hard" campaign against crime has inevitably led to tortured confessions, and speedy executions. Over 3,000 executions have been reported between April and September alone, with as many as 191 in a single day, and given the prevalence of torture and the reliance on confessions to obtain convictions, there is a high likelihood that a substantial proportion of these people were innocent of the crimes for which they were convicted.
Chinese courts routinely ignore defendants' claims that they have been tortured, even when they can show evidence of abuse in scars on their own bodies. A combination of long-standing tolerance for abuse of detainees and suspects, poor police training, inadequate funding of law enforcement and pressure to produce "evidence" to satisfy courts no longer willing to convict on police say-so means police use of torture has reached epidemic levels. In many cases, perpetrators apparently enjoy impunity or, at best, leniency. Certain kinds of torture outside the regular judicial process, such as torture in administrative detention, are committed with complete impunity. China has yet to establish effective mechanisms to receive torture complaints, investigate them and prosecute and punish perpetrators.
The difficulty in gaining redress for victims of torture is illustrated by the case of Li Wangyang, a veteran labor rights activist from Hunan Province, who went on hunger strike in February 2001 because the authorities refused to pay for medical treatment he needed as a result of torture and ill-treatment in prison. As a result, in September Li was convicted of "inciting subversion of state power" in the Shaoyang Intermediate People's Court and sentenced to 10 years in prison. Li was a founder of the Shaoyang Autonomous Workers Union in 1989 during the democracy demonstrations, and served 11 years of a 13-year sentence for"counterrevolutionary crimes". By the time of his release last year, Li, who is 51, had developed heart disease, lost most of his hearing, shrunk in height by more than 10 centimeters and could not walk unaided. He had no job and no means of support.
HRIC commends Special Rapporteur Rodley for the independence and impartiality with which he discharged his mandate in the last eight years. We trust that the next Special Rapporteur on Torture will demonstrate the same commitment. As the UN High Commissioner on Human Rights is now visiting China, HRIC has called on her to impress upon the Chinese government that any mission by UN human rights mechanisms or experts must be conducted in accordance with the UN's own"Terms of Reference".
For more information on torture, see "Report" sesson on "Implementation of the Convention Against Torture in the PRC." at our website.