Although China has been a signatory to the UN Convention Against Torture for 12 years, the discussion over implementation of the treaty in the PRC is still focusing on the basics, such as whether or not the treatys definition of torture has been incorporated into Chinese law. Yet the government was given a remarkably easy ride when its report on implementation of the Convention was reviewed this spring, write Beatrice Laroche and Yu Ping, who were there representing Human Rights in China.
Chinas third periodic report on its implementation of the UN Convention Against Torture was reviewed by the Committee which monitors that treaty in Geneva from May 4 to 9, 2000. (Although both China and Hong Kong were under review, this article only deals with mainland China.)
The Committee Against Torture (CAT), composed of 10 independent experts (currently including Yu Mengjia from China), was established by the Convention, which sets clear legal standards that member states are required to incorporate into their domestic law. The Committees monitoring of the implementation of the treaty is carried out through the review of reports from governments that have acceded to the Convention, submitted every four years. This process is aimed at assisting governments in reducing and eventually eliminating torture.
China ratified the Convention in 1988, a progressive move, particularly considering the fact that this treaty has one of the lowest ratification rates of any UN human rights instrument. The Committee found Chinas initial report in 1990 inadequate, and requested that the government submit additional information on specified topics. Although this is an exceptional measure, the Committee has made similar requests to a few other countries. The supplementary report, submitted in October 1992, was reviewed at CATs 1993 session. The Committee scrutinized Chinas second periodic report in 1996.
Unlike other treaty bodies, CAT has no specific rule providing for any formal participation by non-governmental organizations (NGOs). However, NGOs may provide information to the experts and attend public sessions as observers. Human Rights in China (HRIC) was one of several NGOs that prepared shadow reports on Chinas implementation of the Convention. HRIC circulated its report, Impunity for Torturers Continues Despite Changes in the Law - which focuses primarily on questions of law that relate to torture preventionto experts prior to the sessions opening, and submitted further recommendations during the session.
In addition, the International Federation of Human Rights Leagues, Amnesty International (AI) and the Association for the Prevention of Torture hosted an informal briefing on the implementation of the Convention in China, Hong Kong and Tibet, to which Committee experts and NGOs were invited. Six out of ten experts attended, a welcome sign of growing interaction between CAT and NGOs. A broad range of issues were raised by the NGO representatives who spoke, from Amnesty, the Hong Kong Human Rights Monitor, HRIC and the Tibet Bureau for UN Affairs. Some key points were the prevalence of torture; the governments failure to address major institutional deficiencies - including an overly narrow definition of torture and the lack of effective complaint mechanisms - since Chinas last report to CAT; the negative impact of lack of transparency on efforts to prevent torture; torture in Tibet and Xinjiang; and the targeting of prisoners of conscience, such as Falungong practitioners.
As in other hearings on reports to the United Nations on human rights, during the CAT session the Chinese delegation questioned the use of NGO information. The Chinese Ambassador Qiao Zonghuai characterized NGO reports as groundless in his final statement to the Committee. But the questions posed by CAT members showed them to be receptive to NGO concerns. The rapporteur on China, Andreas Mavrommatis, highlighted the need for independent information: We can hardly work without NGO information and cooperation, adding that he hoped that during the next session at which the Committee considered a report from China, it would have the benefit of submissions from independent NGOs based in China.
During his opening statement, Ambassador Qiao, who led a 24-strong delegation, presented Chinas report, emphasizing that various NGOs had helped draft it, along with the Supreme Peoples Court, the Ministry of Public Security and the Ministry of Justice. His presentation mostly consisted of a list of laws and regulations, information on anti-torture training and on the supervision and prosecution of officials. The governments efforts, he claimed, had led to a decrease in torture cases over the last five years, and the number of officials who were found guilty of coercing confessions through torture and physical ill-treatment dropped from 193 in 1998 to 173 in 1999. In concluding, Qiao reminded CAT that China was still a developing country with uneven social and economic development and that deficiencies in its legal system persisted.
Mavrommatis initiated the debate by commending China on its ongoing legal reform program. Although the practical impact of the revised Criminal Law (CL) and Criminal Procedure Law (CPL) were not yet very apparent, he said, the country had taken a step towards greater harmonization of its legislation with international instruments. He dealt with Articles 1 to 9 of the Convention, while Articles 10 to 16 were reviewed by the alternate rapporteur on China, Antonio Henriques Gaspar. Other experts joined in to ask for further clarification.
Some Committee members had obviously done their homework; the experts had had to digest a voluminous quantity of information on China, according to Mavrommatis. A great deal of attention was devoted to the definition of torture in Chinese law, which experts found was not in accord with that contained in the Convention. On the issue of why only very serious cases of torture are actually investigated, Gaspar asked for some explanation about why NGOs reported a much higher number of cases of torture than were indicated by the official figures on instances in which torturers were subject to sanctions.
Administrative detention was a major topic throughout the review process, with experts raising concern about the broad grounds for committing a person to such detention and the lack of judicial supervision over it. Mavrommatis and Gaspar both emphasized that Article 16 (covering the prohibition on cruel, inhuman or degrading treatment or punishment) is very likely to be violated in cases of administrative detention such as Reeducation Through Labor (RTL). The Committee chair, Peter Burns, asked how the various forms of administrative detention related to the detention system as a whole. Felice Gaer, a new member of the Committee, asked whether those in administrative detention had access to lawyers and whether provisions prohibiting torture were applicable to administrative detention personnel. The Committee also requested information on the forced commitment of individuals to psychiatric institutions.
Due process was also a key concern during the session. Gaspar recommended that the length of time permitted for police custody be reduced, since torture is most likely to occur between the time of detention and formal arrest, when a charge is brought. The questions included the following: Can those in custody hire a lawyer, at what stage can they meet him/her, how are the exceptions for state secrets cases defined and can lawyers be present at the first interrogation? Are there rules allowing for confidentiality of lawyer-client meetings? Clarification was sought on the use of evidence obtained directly and indirectly through torture, and whether China had established an exclusionary rule. The Committee asked further questions on the right to remain silent, the right against self-incrimination and the transparency of the judiciary, in the light of limitations on the principle of public trials.
While pointing out that the Convention did not contain any express ban against the death penalty, Mavrommatis explained that the circumstances surrounding executions, including the methods used, could violate Article 16 of the Convention. Lethal injection, he said, should become the rule rather than the exception. Burns drew the governments attention to public executions and inquired about the exact number of people executed, repeating still unanswered requests made at the 1993 session for information on this.
Among its subjects of concern, the Committee mentioned Reports of coercive and violent measures resorted to by some local officials in implementing the population policy of the State party, echoing concerns raised by the Committee on the Elimination of Discrimination Against Women (CEDAW) at its 1999 session. The CAT Committee pointed at the total lack of information on women in the governments report, and inquired about the state and scope of the population policy, the results of son preference and the higher rate of abandonment and infanticide of female children, domestic violence and specific forms of torture suffered by women, including the alleged rape of detained Tibetan nuns.
The Committee has the power to seek clarification about allegations of torture deemed particularly urgent. Expressing broad concern about torture and ill-treatment used against practitioners of Falungong, the experts inquired about Chen Zixiu, who was reportedly beaten to death last February after having been detained in connection with her beliefs. For reporting publicly that Chen had died as a result of torture, her daughter Zhang Xueling spent two weeks in administrative detention and was released just before the CAT session.
Twenty-four hours after the experts had asked their questions, the Chinese delegation was required to reply. Although only two questions were directed at the Hong Kong report, representatives of the Special Administrative Region government took more than two hours to answer them. But the central government delegation completed its responses to the Committees extensive questions within an hour and a half. Members of the latter delegation included representatives of the Ministries of Justice, Public Security and Foreign Affairs, the Supreme Peoples Court and the Supreme Peoples Procuratorate.
For the most part, Chinese government representatives repeated the material in the report, defending Chinas record by citing laws and regulations or simply referring the experts to the reportsuch as on access of lawyers to detained clients. Government delegations are supposed to come to CAT sessions to provide information additional to what is contained in their reports, and China clearly failed, yet again, to do so.
The persistence of torture was blamed on cultural traditions and on local officials, as in the case of violent acts perpetrated by population control officials. Sensitive questions were answered vaguely or just ignored. Some replies were almost farcical. For example, in response to questions on prisoners in ethnic minority areas like Tibet, a delegation member said that festive activities according to Tibetan traditions and customs were organized to celebrate New Year, a measure deeply welcomed by Tibetan prisoners. The allegation that over 90 per cent of prisoners in Xinjiang were tortured and that nuns in the prisons in Tibet were raped is not worth refuting, he added.
The governments replies were sometimes misleading, including on lawyer access and RTL. This is not the first time that the Chinese government has denied reality before UN treaty bodies. In 1996, CAT commended China on the fact that the system of cell bosses did not exist, despite a wealth of evidence to the contrary. When asked again this year about cell bosses and legal responsibility in cases of inter-inmate violence, the government again denied the existence of such an informal system of control, and the Committee appeared to accept that reports that the practice was routine were merely anecdotal. Yet in his 1997 report, Special Rapporteur on Torture Nigel Rodley wrote that torture was allegedly carried out by inmates known as trusties, specifically to protect prison officers from having to assume legal responsibility. Such a lack of consistency within the UN system creates loopholes in monitoring that are easily exploited by governments.
The question on Chen Zixiu provided government representatives with an opportunity to reiterate the official line on Falungong, justifying the ongoing repression as follows: They stole state secrets, besieging and assaulting government organs, press organizations, disturbing social order and seriously endangering the society. Chen, they claimed, had died of a heart attack. It is worth noting that the delegation spent much more time on Falungong than on responding to the Committees questions regarding the definition of torture.
In all the CAT sessions so far, the Chinese authorities have failed to provide statistics on the prevalence of torture, despite the Committees repeated requests for such information. And again this year, CAT recommended that Chinas next report include detailed statistics, disaggregated, inter-alia, by region and gender.
Very little time was left for experts to pose additional questions following the governments responses. Just as Gaer was asking how consent is obtained from potential organ donors facing execution, CAT Chair Burns cut the dialogue short and instead invited China to reply later. This was unfortunate since in other treaty bodies, such as CEDAW, exchanges between experts and government officials proved most useful.
Russian expert Alexander Yakovlev put the problem of Chinas compliance cogently: Texts are one thing, reality is another thing. But the Committee gave China more credit than was warranted for its glacial progress in legal reform in this area.
The Committee commended China for having complied with its previous recommendations. Yet according to HRICs assessment of current laws, policies and practice, China has failed to act upon the majority of the Committees 1996 recommendations, most particularly that it enact a law defining the crime of torture in terms consistent with Article 1 of the Convention. Repeating the same arguments as in 1996, Chinese delegates contended that, since international treaties automatically become incorporated into Chinese law, the concept of torture as defined in the Convention can be cited directly by Chinese courts. The evidence does not support this contention (the rare instances in which treaties have been invoked in courts involve business-related agreements) and the delegation failed to present any case in which the treaty was actually used in this way. As in 1996, the Committee was also not convinced and again recomended that China incorporate a definition of torture into its domestic law that fully complies with the definition contained in the Convention.
Government representatives announced that starting in 1998, the National Peoples Congress had begun a process of examining laws and regulations governing RTL so they could be amended and improved. Those subject to administrative detention were identified as people who committed theft, gamble, ....provoke quarrels and troubles and unlawful acts of disturbing social order and security, as well as drug addicts and prostitutes. Despite these justifications, the Committee stated that the system of administrative sanctions that permits extrajudicial custodial orders in respect of individuals that have not committed, or are not charged with, a violation of the law was not in conformity with international standards. At its 1993 session, CAT had warned the Chinese authorities against the use of administrative detention. This time, the Committee went further and called upon China to consider abolishing, in accordance with relevant international standards, all forms of administrative detention.
CAT also acknowledged that despite the revisions to the CPL, defendants and suspects continue to be deprived of their rights to due process. It recommended that the State party consider abolishing the need to apply for permission, for any reason, before a suspect can have access to a lawyer whilst in custody. This reflects concerns raised by NGOs that the Chinese authorities frequently use loopholes in the CPL to deprive detainees of their most fundamental rights.
In addition, the Committee recognized that China has yet to establish effective mechanisms to receive torture complaints, investigate them and prosecute and punish perpetrators. It expressed concern about [T]he absence of a uniform and effective investigation mechanism to examine allegations of torture. The Committee recommended that China ensure the prompt, thorough, effective and impartial investigation of all allegations of torture.
In his 1994 report, Rodley wrote: The consistency of the reports reaching the Special Rapporteur and his predecessor over the years compels acknowledgment of the serious grounds for concern about the persistence of an extensive problem of torture and severe ill-treatment of prisoners in various parts of China, despite the existence of legal provisions aimed at repressing it. CAT reached a similar conclusion, albeit expressing this realization in a disappointingly weak and somewhat misleading way: The Committee is concerned about the continuing allegations of serious incidents of torture, especially involving Tibetans and other national minorities. The evidence shows that torture remains a systemic and widespread problem in China, one that potentially affects all individuals deprived of their liberty.
The reporting process and its review of how countries implement the Convention may turn out to be a pointless exercise if the Committee is not consistent and fails to take account of discussions and recommendations made at earlier sessions. HRIC welcomes CATs recommendation that China provide in its next periodic report answers to questions that it did not find possible to address during the 2000 session, as it implies that the Chinese government failed to address concerns raised by Committee members in a satisfactory manner. Sensitive questions, from the definition of torture and the use of the death penalty to extraction of prisoners organs, keep being asked in session after session.
But issues that generate questions or concern are not always the subject of recommendations. For example, although experts asked various questions on the use of illegal evidence and the related issues of the right to remain silent and the right against self-incrimination, these areas were not even mentioned in the Committees concluding observations. It is unfortunate that the Committee failed to recognize the importance of these rights in combating torture in China. Similarly, although the use of violence in connection with the population control policy was cited as a subject of concern in the concluding observations, the Committee stopped short of issuing a recommendation on this matter.
Overall, however, the Committee conducted a fairly comprehensive review of Chinas report on its efforts to fight torture and took up many of the concerns raised by human rights NGOs. The first part of the session, including the wide range of questions addressed to the Chinese delegation, was particularly effective. Some new subjects of concern on the situation in China were added to the agenda, such as the institutional limits placed on the initiation of prosecutions for the crime of torture.
The impact of CATs recommendations on the actual behavior of the Chinese government remains to be seen. The fact that the Committee repeated recommendations it had made both in 1993 and 1996on the definition of torture and on complaint mechanisms, in particulardoes not give much cause for optimism.
Although the CAT recommendations are not binding, they certainly provide sound benchmarks for all kinds of efforts aimed at eliminating the practice of torture in China. They can be used by the international community to provide support for the arguments of those in China who are advocating thorough reforms of their countrys legal framework and practice. In fact, many legal scholars inside China have long been calling for the adoption of the measures that CAT recommended, but the Chinese government has generally ignored their advice. So as to give their arguments more force, governments that are engaged in dialogues on human rights with China should include some of CATs most crucial recommendations in their programs: in particular, that China eliminate all forms of administrative detention and that detainees enjoy unhampered access to lawyers.
Yu Ping is HRICs legal adviser and Beatrice Laroche is UN Liaison.