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Paris
– New York – Hong Kong
28
October 2002
Excellencies,
Re
: next session of the EU/China dialogue – 13 November 2002
We
are writing you in view of the next session of the EU/China
dialogue, to take place on November 13 in Beijing.
In
view of the benchmarks fixed by the EU to assess the results
of its dialogue with China (see annex), and with regard to the
agenda of the forthcoming session of the EU/China dialogue,
we have the pleasure to send you enclosed a briefing note giving
a clear picture of the present situation in the fields which
are on the agenda of the November 13 session. The present document
evidences not only the lack of progress with regard to death
penalty, torture, freedom of expression, information and association,
discrimination against ethnic minorities, violations of refugees’rights,
and cooperation with the UN. It also shows clearly that the
human rights situation is continuously degrading.
As repeatedly
affirmed by the General Affairs Council of the European Union,
“the dialogue is an acceptable option only if enough progress
is achieved and reflected on the ground”
[1] .
We therefore
call on the EU to duly address our concerns on November 13,
and to make clear that the EU would draw the consequences of
the absence of genuine progress in those fields. In that regard,
we would like to recall that, according to the EU itself, “the
fact that there is a human rights dialogue between the EU and
a third country will not prevent the EU either from submitting
a Resolution on the human rights situation in that country (…)
nor will the fact that there is a human rights dialogue between
the EU and a third country prevent the European Union from denouncing
breaches of human rights in that country, inter alia in the
appropriate international fora”
[2] . Bearing that principle in mind, we believe
that the EU should play a much more active role at the next
session of the UN Commission on human rights with regard to
the human rights situation in China, in order to put its acts
in line with its declarations of principle.
By
tabling a resolution on the human rights situation in China,
the EU would draw the logical consequence of the lack of progress
under the dialogue. More generally, we believe that public scrutiny
necessary complements the dialogue in order to make it result-oriented.
We
hope that you will take the present submission into account
and remain available for any additional information.
Sincerely
yours.
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Qiang
Xiao
Executive Director
of HRIC
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Sidiki
Kaba
President
of the FIDH
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EU/China dialogue of November 13, 2002
BRIEFING NOTE
1.
Death penalty
The
death penalty continues to be used extensively, arbitrarily,
and frequently as a result of political interference. Executions
are carried out for non-violent crimes such as bribery, pimping,
embezzlement, tax fraud, selling harmful foods, as well as drug
offences and violent crimes. By the end of the year, with the
limited records available, Amnesty International had recorded
4,015 death sentences and 2,468 executions, although the true
figures were believed to be much higher. Execution was by shooting
or lethal injection and sometimes occurred within hours of sentencing.
Many of those sentenced are likely to have been tortured in
order to extract "confessions". There are also persistent
allegations of organs being harvested for transplantation from
the bodies of the executed without consent. In the Autonomous
Region of Xinjiang, Uighur political prisoners labelled as ''separatists''
or ''terrorists'' by the authorities continue. Most are executed
after secret or summary trials where convictions are based on
confessions extracted under torture. Xinjiang is the only region
of China where political prisoners are known to have been executed
in recent years
2.
torture
China
ratified the UN Convention against torture in 1988 ; that
ratification was a progressive move. However, torture remains
systemic and widespread : it potentially affects all individuals
deprived of their liberty. The government fails to address major
institutional deficiencies - including an overly narrow definition
of torture and the absence of effective complaint mechanisms
; torture remains widespread in Tibet and Xinjiang and prisoners
of conscience, such as Falun Gong practitioners, are particularly
targeted. The judiciary relies on forced confessions to obtain
convictions that might lead to the sentencing of innocents.
In
its last Concluding observations on China, the UN Committee
against torture (CAT) expressed its concerns about “the continuing
allegations of serious incidents of torture, especially involving
Tibetans and other national minorities” and about “the absence
of a uniform and effective investigation mechanism to examine
allegations of torture” (A/55/44, 9 May 2000, para 116 and 121).
The
Committee recommended notably that China “ incorporate in its
domestic law a definition of torture that fully complies with
the definition contained in the Convention” (para 123), “ consider
abolishing all forms of administrative detention” (para 127)
and “ ensure the prompt, thorough, effective and impartial investigation
of all allegations of torture” (para 128).
The EU should urge China to implement those recommendations, and to
allow the visit by the UN Special Rapporteur on Torture, in
full respect of the Rapporteur’s own terms. China gave its agreement
on that visit three years ago but no progress has been achieved
since the Rapporteur transmitted its terms of reference to concretise
that visit.
3.
Freedom of expression, information
and association
Hundreds
of people are still serving substantial prison terms for the
peaceful exercise of their fundamental rights and freedoms,
and many more have been sentenced administratively to Re-education
Through Labour (RTL), a form of detention qualified as arbitrary
by the UN working group on arbitrary detention (see below).
People calling for human rights improvements, from members of
the China Democracy Party to Falun Gong practitioners, are systematically
silenced. Efforts to organize independently, whether around
issues of religion, politics, human rights, or labour are ruthlessly
repressed.
The
FIDH and HRIC are particularly concerned about the situation
of Li Hai, a human rights defender detained in 1995 for
documenting the cases of some 900 Beijing residents sentenced
to long prison terms for their role in the 1989 demonstrations.
In 1996, Li Hai was sentenced to a nine-year prison term for
“prying into and gathering” state secrets. Li has suffered from
serious medical problems in prison, and has not received appropriate
medical treatment.
China
continues to crush any attempt to set up legal political parties.
China Democratic Party (CDP) founding members Xu Wenli, Wang
Youcai and Qin Yongmin, who tried to register their Party legally
with the Civil Affairs departments are currently undergoing
heavy prison sentences. Xu Wenli was sentenced to 13 years in
prison and three years’ deprivation of political rights. Wang
Youcai was convicted of violating Article 106 of the Criminal
Code and sentenced to 11 years in prison. His “crimes,” according
to the prosecution, included drafting the CDP declaration; being
the prime mover of the CDP; intending to hold a CDP meeting
in the form of a tea party; and sending 18 CDP documents abroad
by electronic mail.
Qin
Yongmin was sentenced after a two-and-a-half-hour trial on December
17, 1998, in the Wuhan People’s Intermediate Court. He was convicted
of, among other things, “preparing to organize the CDP, editing
[the newsletter] China Human Rights Watch, reporting on human
rights to the United Nations and linking up with foreign hostile
organizations.” He was given a 12-year prison term.
Since
July 1999, the Chinese government has forbidden the movement
and has launched a repression against Falun Gong practitioners.
They are victims of an increasing use of torture in order to
force them to renounce the group and reeducation through labour
is largely used in the brutal campaign against them.
According
to Falun Gong themselves (Falun Dafa Information Centre), on
26 September 2002, 485 practitioners are dead since the persecution
of Falun Gong in China began in 1999. According to the same
source, 100,000 people would have been arbitrarily detained,
20,000 would have been sent to labour camps without trial (for
terms up to 3 years), 500 would have been sentenced to extended
jail terms (some up to 18 years) 1,000 healthy practitioners
are being held in mental institutions [3] .
The
FIDH and HRIC call for the abolishment of Reeducation Through
Labour. It is worth to mention that the first workshop concerning
China held in the framework of the Office of the High Commissioner
for Human Rights’ technical cooperation program, in February
2001, focused on administrative detention. At that time, the
High Commissioner had publicly called on the government to abolish
RTL, following recommendations of the UN working group on arbitrary
detention. Since 1998, Chinese authorities have announced their
intention to pass a law to reform RTL, but no progress has been
achieved in that regard.
Another
method to curb dissenting voices is the use of forced incarceration
of dissidents in mental (psychiatric) facilities, without
a fair trial or an independent medical evaluation of their mental
state, merely because they exercised their rights to freedom
of expression and association.
One
of the preoccupying issues in that regard is “China's expansive
definition of the key legal determinant of involuntary psychiatric
committal, namely "social dangerousness." Whereas
under international standards, the applicable scope of the "dangerousness"
criterion is mainly restricted to situations where mentally
ill people pose a direct physical danger either to themselves
or to others, in China it is applied also to those, such as
certain types of dissidents, whom the government regards as
posing a political threat to "social order” [4] .
HRIC
has documented a list of four victims of psychiatric abuse (see
annex) who are still detained. The FIDH and HRIC call on the
EU to address that issue on each occasion with the Chinese authorities,
and ask for their immediate and unconditional release.
According
to Reporters Sans Frontières, to date at least 11 journalists
are in prison for having exercised their right to seek, receive
and impart information. In addition, according to the same source,
thirty one cyber-dissidents are currently in prison for
having published information regarded by the authorities as
too critical. The last cyber-dissident arrested is Chen Shaowen,
who was detained since August 2002, and formally arrested in
September for having published on the Internet “a lot of reactionary
articles and essays”. Chen has contributed regularly to several
Chinese-language websites based abroad, writing articles about
social inequalities, unemployment and the pitfalls of the legal
system. He has also written several essays supporting democracy
[5] .
“The
promulgation in 2000 of a drastic legislation on the Internet
was moreover the starting-point for an unprecedented crackdown,
which led to the suspension of numerous web sites and of two
search engines, Google and Altavista, a wave of closures of
Internet bars - more than 2000 in June 2002 - and strict surveillance
of Internet users”
[6] .
According
to recent information, keyword filtering has not replaced the
block on previously banned sites, but has been added as an extra
layer to selectively screen content on other sites [7] . That new technology allows the
government to block select portions of the sites. As a consequence,
if Google is now back on line in China, users can only access
search results that meet the authorities’ approval
[8] .
The
Chinese authorities continue to deny workers the right to set
up independent unions and arrest systematically the leaders
of workers’ protests. Labour representatives Yao Fuxin, Pang
Qingxiang, Xiao Yunliang and Wang Zhaoming, who were arrested
during the largest workers demonstration in March 2002 have
been detained for more than six months, and to date, they have
not been formally charged (On March 11 and 12, over 10,000 workers
hit the streets in Liaoyang to demand that the government ensure
their right to a decent standard of living).
The
FIDH and HRIC are also concerned about the health of labour
rights lawyer Xu Jian, who suffers from acute hepathisis. Xu
Jian was arrested and sentenced to four years for allegedly
“plotting to overthrow the socialist system and state power”.
A registered legal practitioner in Baotou, Inner-Mongolia, Xu
Jian’s only crime was to have provided legal counselling to
the workers at his office and via its hotline, as well as helping
in filing labour dispute cases for arbitration and litigation.
Xu's activities were open and legal.
4.
Ethnic Minorities
Since
the September 11 attack, Beijing has sought to link its suppression
of dissent in Xinjiang to the anti-terror campaign. In the treatment
of minorities, the Chinese authorities do not distinguish between
peaceful expression of dissent or cultural and religious identity
and violent acts. Ethnic minorities who seek to develop their
own national identity run the risk of being charged with engaging
in an “act of splitting the country” even if their actions are
entirely peaceful.
In
the Uighur Autonomous Region of Xinjiang, the “terrorist” and
“separatist” labels have mainly served to legitimate the suppression
of any form of dissidence through the use of unrestrained force
and violence. Members of minorities who advocate their national,
cultural or religious identity are most likely to be viewed
as engaging in an « act of splitting the country »
and therefore, to be tried under the category of crimes of endangering
state security defined by the Criminal Law. Discrimination in
minority areas such as Xinjiang, Tibet and Inner Mongolia has
been most manifest in the government’s effort to “eradicate
separatist organizations” in the name of national unity, which
has resulted in a variety of human rights abuses : arbitrary
arrest and execution after summary trials to restrictions on
freedom of expression, association and religion.
More
generally, there are wide discrepancies in terms of economic
status and living standards between ethnic minorities and the
dominant Han Chinese. In recent years, Xinjang, Tibet and Inner
Mongolia have seen a marked decline in the welfare of their
indigenous inhabitants.
Because
of their generally inferior economic conditions, their predominantly
rural status and the dominance of the Chinese language at higher
levels of education, minorities in the PRC are doubly disadvantaged
in access to education. Overall, the dominance of the Chinese
language—in the education system, in official affairs and in
business—affects members of minorities in all areas of public
and economic life, and their right to develop and use their
own languages is not respected. The huge disparity between urban
and rural regions in terms of funding allocated to education,
particularly in the western regions of the PRC where are predominantly
ethnic minorities, is another main reason why the condition
of the schools and the quality of education they provide is
inferior, as indicated by the high drop-out rate among minority
children or the lower literacy rate among rural children compared
with urban children.
Although
some posts in the autonomous governments are set aside for minorities,
top positions are usually reserved for Han cadres and Party
officials. Minorities are not represented in the highest decision-making
levels of the PRC, like the CCP Politburo. The process of selecting
government representatives is dominated by CCP committees, and
thus the Party, not the autonomous areas, set the priorities
for the governments that rule there.
The
long-term, highly controversial official strategy of encouraging
immigration of Han Chinese into autonomous areas has resulted
in increased economic discrimination; the unemployment rate
among Uyghurs is about 70%, while that of Han Chinese in the
region is less that 1%. Demographics in Xinjiang have shifted
dramatically : in Xinjiang’s capital of Urumqi, Han Chinese
comprise 80% of the 1.5 million inhabitants. In Inner Mongolia,
Mongols are a minority in the whole region as a result of Han
immigration.
In
its last Concluding observations concerning China
[9] , the CERD repeated its previous unimplemented
recommendation “that the State party review its legislation
to ensure the adoption of a definition of discrimination in
accordance with the Convention” (para 241) and “ensure the penalization
of racial discrimination, as well as access to effective protection
and remedies (…) against all acts of racial discrimination”
(para 242)
The
Committee noted “that economic development in minority regions
does not, ipso facto, entail the equal enjoyment of economic,
social and cultural rights in accordance with article 5 (e)
of the Convention” and required China to provide further information
“regarding steps taken to ensure that the minority population
benefits from the general economic growth. In this context,
the State party is requested to take all appropriate measures
to ensure that the local and regional cultures and traditions
are also promoted and the rights of the populations fully respected”
(A/56/18, para 243).
The
Committee urged China ‘to review legislation and practices that
may restrict the right of persons belonging to minorities to
freedom of religion’ (para 244) and recommended “that the State
party urgently ensure that children in all minority areas have
the right to develop knowledge about their own language and
culture as well as the Chinese, and that they are guaranteed
equal opportunities, particularly with regard to access to higher
education” (para 245).
The
EU should call on China to implement those recommendations as
well as to make the optional declaration under article 14 of
the CERD, by which it would recognise the competence of the
Committee to receive and consider communications from individuals.
5.
Cooperation with the
UN
China
has ratified a number of international human rights conventions
:
The
CAT has been ratified in 1988, the ICCPR has been signed in
1998, but has not yet been ratified. The CEDAW was ratified
in 1980, but China did not ratify the Optional Protocol allowing
for individual complaints. The CERD was ratified in 1981, but
no declaration has been made under art. 14 allowing for individual
complaints. The CRC was ratified in 1992. The ICESCR was ratified
in 2001, but with a reservation to Article 8.1 (a) of the Covenant
(the right to form and join a trade union of one’s choice),
referring to the contents of national legislation.
A
number of important steps might still therefore be achieved
by China with regard to commitments under the international
human rights law.
In
addition, ratification is the first step, but it must be followed
by implementation and by full cooperation with the UN treaty
bodies. In that regard, China has proven willingness to enter
in dialogue with the UN committees through recent reporting.
Yet, cooperation with UN treaty bodies is not satisfactory :
as stressed above, the vast majority of the recommendations
formulated by the UN treaty bodies have not been implemented
by China.
Cooperation
with UN thematic mechanisms is not satisfactory either. The
Special Representative of the Secretary general on human rights
defenders sent communications to the Chinese authorities concerning
18 individual cases of human rights defenders arrested because
of their activities in favour of the defence of human rights [10] . To our knowledge, up to now
she has received no answer to those communications.
As
referred above, the UN Special Rapporteur on Torture has still
not been allowed to visit China under its own terms of reference,
in spite of the fact that China formally agreed on that visit
three years ago…
In
June 1999, the Special Rapporteur on freedom of opinion requested
to visit China. To our knowledge, he has received no answer
up to now.
6.
refugees
In
its last Concluding observations on China, the CERD expressed
its concerns “that different standards of treatment are applied
to Indo-Chinese asylum-seekers, on the one hand, and asylum-seekers
of other national origins on the other, notably with regard
to the right to work and education. Particular concern is expressed
regarding the treatment of asylum-seekers from the People's
Democratic Republic of Korea, who are reportedly systematically
refused asylum and returned, even in cases when they have been
considered to be refugees by UNHCR. The Committee recommends
that the State party take the necessary measures to ensure that
all refugees and asylum-seekers receive equal treatment. To
this end, the Committee recommends that the State party consider
pursuing the adoption of formal legislative or administrative
provisions in order to implement objective criteria for the
determination of refugee status” ( ,para 246).
Although China has not fully acceded to very many international human
rights agreements, it happens to be a party to the United Nations’
1951 Convention on the Status of Refugees. That instrument defines
a refugee as a person who, “owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion, is outside
the country of his nationality and..., owing to such fear, is
unwilling to return to it.” The Convention prohibits the refoulement
(forcible return) of such people to countries where they risk
serious human rights violations. Article 33 puts it bluntly:
“No Contracting State shall expel or return (`refouler’) a refugee….”
In addition, there is the Protocol Relating to the Status of Refugees
(1967), Article Two of which obligates “the national authorities
to co-operate with the Office of the United Nations High Commissioner
for Refugees and… in particular [to] facilitate its duty of
supervising the application of the provisions of the present
Protocol.” Governments must also provide the UNHCR with information
concerning the condition of refugees.
There are also human rights treaties, declarations and instruments
which, although primarily dealing with other subjects, do bear
on the issue of refugees. Very important is the Convention Against
Torture, which China ratified in 1988. Article 3 of that Convention
provides that no government shall forcibly return “a person
to another State where there are substantial grounds for believing
that he would be in danger of being subjected to torture”. China
is a Party to that Protocol since 1982.
Unfortunately, China has been largely neglecting its obligations under
these instruments. People’s internationally guaranteed rights
to consult with United Nations representatives or lodge asylum
claims with the UNHCR have been denied. Indeed, the whole body
of international law on the subject has been ignored, with large
numbers of asylum seekers having been forced back to North Korea
where they face various forms of persecution including torture.
In 1999 the number returned was reported to be over 7,000 (about
ten percent of the new arrivals). Since then, and especially
this spring, the authorities have been stepping up their efforts
to capture the asylum seekers. In March alone, China is believed
to have sent back 5,000. By June it appeared that China had
saturated the frontier with guards and patrols, reducing the
number of people able to make it across.
7.
International criminal
court
China actively participated in the Preparatory Commission meetings,
and sources indicate that China may consider ratification in
the future.
In a statement at the Security Council on 10 July 2002, a representative
of China remarked, "Although China is not yet a state party
to the International Criminal Court, we support the independence,
impartiality, and competence of the ICC that enjoys universality.
We have continued to actively participate in the establishment
of the ICC and will continue to follow closely its operation".
A number of countries in Southeast Asia are presently looking up at
China as an example for their eventual ratification and implementation
of the ICC Statute. The impact of China’s ratification would
be very strong, especially now that the United States are trying
to get countries in the region to sign bilateral agreements
under article 98 of the Statute.
The FIDH and HRIC therefore ask the EU to raise the issue of signature
and ratification of the ICC Statute, as well as of the agreements
under art. 98.
ANNEXEs
ANNEX
I
General Affairs Council, 2327th Council meeting,
Brussels, 22-23 January 2001
In
order to make the dialogue more focussed and easier to evaluate,
the Council has decided to define the specific areas in which
the European Union will be seeking progress through the dialogue
process, and to make them public. They are [11] :
·
ratification and implementation of the Covenants
on Civil and Political Rights and on Economic, Social and Cultural
Rights;
·
cooperation with human rights mechanisms (visit
by the Rapporteur on Torture, invitation to other Rapporteurs,
follow-up to recommendations from conventional mechanisms and
recommendations by Rapporteurs, implementation of the agreement
with the Office of the High Commissioner for Human Rights);
·
compliance with ECOSOC guarantees for the protection
of those sentenced to death and restriction of the cases in
which the death penalty can be imposed, in keeping with Article
6 of the Covenant on Civil and Political Rights; provision of
statistics on use of the death penalty;
·
reform of administrative detention; introduction
of judicial supervision of procedures; respect for the right
to a fair and impartial trial and for the rights of the defence;
·
respect for the fundamental rights of all prisoners,
including those arrested for membership of the political opposition,
unofficial religious movements or other movements, such as the
Falun Gong; progress on access to prisoners in Chinese prisons,
including in the autonomous regions; constructive response to
individual cases raised by the EU;
·
untrammelled exercise of freedom of religion
and belief, both public and private;
·
respect for the right to organise;
·
respect for cultural rights and religious freedoms
in Tibet and Xinjiang, taking account of the recommendations
of the committees of the United Nations Covenants, halt to the
“patriotic education” campaign in Tibet, access for an independent
delegation to the young Panchen Lama, Gedhun Chohekyi Nyima,
who has been recognised by the Dalai Lama.
ANNEX II
Victims
of Psychiatric abuse
Source :
Human Rights in China, 23 May 2002.
WANG
MIAOGEN, a labor activist, has been forcibly held in a psychiatric
hospital since April 27, 1993. Wang was committed to the hospital,
which is run by the Shanghai PSB, to prevent him from disrupting
the Asian Games in May 1993. Because Wang has no family (he
is an orphan) to advocate on his behalf, his conditions in the
hospital are especially dire. Fellow activists who have visited
Wang say he is held in filthy conditions and given inadequate
food and water.
XING
JIANDONG was incarcerated in Shanghai’s PSB-run Ankang Psychiatric
Hospital on September 13, 1993. Xing was deported to China in
August 1992 after a failed attempt to win political asylum in
Australia. Xing was detained on September 7, 1993, outside the
Australian Consulate in Shanghai, where he had staged a series
of sit-ins to protest alleged violent mistreatment by Australian
authorities during his detention there. First served with a
seven-day administrative detention order, Xing was then forcibly
committed. Xing was allegedly tied to a bed for three days and
three nights, then locked up with mentally-disturbed patients.
His current situation is unknown.
HUANG
JINCHUN, a judge in Beihai, was reportedly put into a psychiatric
hospital in November 1999 and forced to take narcotics for refusing
to renounce his belief in Falungong. Huang was detained in September
for joining hundreds of Falungong practitioners in Beijing to
protest the government’s crackdown on the spiritual movement.
He was fired from his job on November 8 for refusing to sever
his ties with Falungong, and one week later two policemen took
him from his home to the Longqianshan hospital in Liuzhou. Huang
reportedly displayed no symptoms of mental illness either at
work or after being sent to the hospital, but medical personnel
gave him daily injections of a narcotic that left him sleepy
and muddled.
WANG
HONGXUE, who was active in a series of 1997 open letter campaigns
calling for political reform, was threatened with psychiatric
confinement in December 1997. Police summoned Wang’s wife and
parents to the Bengbu City PSB in eastern Anhui Province and
informed them that authorities believed Wang was suffering from
schizophrenia. The officers threatened to place Wang in a psychiatric
hospital, saying that they would make sure his employer — a
textile factory infirmary — would pay for a long-term stay.
Police also directly confronted Wang. Ultimately, he was not
committed because his family refused to say he was mentally
ill and because Wang made his fear of psychiatric confinement
public through HRIC. More recently, Wang was briefly detained
in 1999 for his membership in the Anhui branch of the China
Democracy Party.
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