This article was first published at www.Slaw.ca, Canada’s online legal magazine, on 16 November 2021.
Written by Catherine Morris
The “two Michaels,” Kovrig and Spavor, are not the only Canadians who have been unjustly imprisoned in China. Another Canadian, Huseyin Celil, has been jailed in China since 2006 on specious “terrorism” charges for peacefully advocating the rights of Uyghur people.
These cases provide windows into the morass of everyday violations against Chinese human rights advocates ensnared within China’s legal system. They also provide glimpses into some of the ways China flexes its international muscles to sustain its impunity for rights violations, including atrocity crimes.
China’s opaque legal system and international human rights law
China has no independent legal system. The Chinese Communist Party (CCP) controls all of China’s institutions, including the judiciary and court administration.
The CCP tolerates no dissent. China routinely subjects dissidents to arbitrary detention, enforced disappearance, torture, and ill-treatment. A commonly-laid criminal charge is “picking quarrels and provoking trouble,” a vague catch-all used to detain dissidents, journalists, human rights defenders, and lawyers. Another common charge is “inciting subversion of state power,” used to arbitrarily detain human rights defenders, particularly since the “709 crackdown” against hundreds of lawyers beginning on 9 July 2015. Defenders and dissenters are often detained under “residential surveillance at a designated location” (RSDL), which is incommunicado detention in a secret place – a form of enforced disappearance.
These practices seriously violate China’s international law obligations. As a member of the United Nations (UN), China is obligated to uphold the UN Charter and the Universal Declaration of Human Rights (UDHR). China has also ratified treaties that protect against torture (which includes the crime of enforced disappearance) and racial discrimination, and guarantee the rights of women and children.
China has signed but is not expected to ratify the International Covenant on Civil and Political Rights (ICCPR). Pending ratification, China’s signature obligates it to refrain from acts “which would defeat the object and purpose of a treaty,” including practices that defy the ICCPR’s key provisions for rights to liberty, fair trials, and freedom of expression, information, association, peaceful assembly, and political participation. China is also obligated to uphold customary international law which requires fair trials and prohibits arbitrary deprivation of the right to life, torture, enforced disappearance, and prolonged arbitrary detention.
Despite these obligations, arbitrary detention, enforced disappearances, torture, and ill-treatment are routine in China’s opaque legal system. According to a March 2021 op-ed by Lawyers’ Rights Watch Canada’s China monitor, Clive Ansley, with David Kilgour and Peter Lamont,
A saying known to every Chinese litigation lawyer is: “Those who make the judgements have not heard the case; those who hear the case do not make the judgement.” Chinese “courts” at all levels include an internal and invisible adjudication committee, consisting of the court president and several other judges.… The adjudication committee meets in secret and hears the recommendation of the presiding trial judge. The prosecutor is often present, but nobody represents the accused. The committee might also hear privately from party or state officials. The adjudication committee instructs the three trial judges, who then reconvene the “court” and solemnly pronounce the committee decision as their own, regardless of whether they agree with that decision.
This description shows that China’s legal system routinely violates fair trial rights set out in the UDHR which guarantees that: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of … [their] rights and obligations and of any criminal charge against …[them].”
China’s other unkept international human rights promises
In addition to being a permanent member of the UN Security Council, China is a member of the UN Human Rights Council. China has been repeatedly elected to the Council by the General Assembly (GA) despite a 2006 GA consensus Resolution 60/251 that requires all Council members to “uphold the highest standards in the promotion and protection of human rights” and to fully cooperate with the Council.
During China’s 2018 Universal Periodic Review (UPR) by the Human Rights Council, China accepted several recommendations, including respect for due process, freedom of religion or belief, and freedom of expression. Of particular note is China’s acceptance of recommendations to “[g]uarantee freedom of expression, assembly and association including in Hong Kong…”; to enhance “efforts to create an environment in which journalists, human rights defenders and NGOs can freely operate in accordance with international standards;” and to “[g]uarantee fair trials; allow all defendants unhindered access to their chosen lawyers, prompt notification of their families and transparent legal procedures…”
China has failed to take steps to implement these and other UPR recommendations they accepted for protection of lawyers and defenders.
Silencing lawyers: Disbarred, detained, disappeared, tortured
One illustrative case involves Chinese lawyer Chang Weiping who has been arbitrarily detained since 22 October 2020. Prior to his detention, he represented clients in cases of discrimination on the basis of religion or belief, gender, HIV, and LGBT issues. He had previously been detained in RSDL from 12-21 January 2020 on grounds of “subverting state power.” His licence to practice law was also revoked in January 2020.
On 16 October 2020, he revealed on social media that he had been tortured during the 10 days of his January 2020 detention in RSDL. He reported being confined to an interrogation “tiger chair” for 24 hours a day. Days later, he was rearrested and again placed in RSDL from October 2020 to April 2021 where he suffered further torture and ill-treatment. He now suffers serious ill health as a result of torture and ill-treatment.
Mr. Chang is reportedly now confined in Feng County Detention Centre in Baoji City, Shaanxi Province. The charges against him potentially carry a life sentence. He was finally allowed access to a lawyer for the first time on 14 September 2021.
Another lawyer, Zhang Zhan, had her law licence revoked in 2018 as a result of her human rights work. In May 2020, she blew the whistle on China’s harassment of independent reporters during the COVID-19 crisis in Wuhan. In December 2020 she was sentenced to four years imprisonment for “picking quarrels and causing trouble.” She is currently in Shanghai Women’s Prison. She has reportedly been tortured and ill-treated during detention, and her health has deteriorated to the point of being close to death.
Zhang Zhan’s lawyer, Mr. Ren Quanniu, was disbarred in early 2021 after representing 12 Hong Kong youth activists intercepted by China’s authorities while trying to flee Hong Kong in August 2020.
Persecution of lawyers after the takeover of Hong Kong’s legal system
China’s takeover of Hong Kong’s institutions has resulted in dramatic loss of rights and freedoms, especially after China bypassed Hong Kong’s legislature and adopted a draconian June 2020 National Security Law. Since then, the law has been used to charge and jail peaceful dissenters, human rights defenders and lawyers for vaguely-defined crimes such as “secession”, “subversion,” “terrorism” or “collusion with foreign forces.” Human rights lawyer Chow Hang-Tung was charged in July under Hong Kong’s Public Order Ordinance for organizing an annual candlelight vigil to mark the 1989 Tiananmen Square massacre. In October 2021, she was charged under the National Security Law with subversion and collusion with foreign forces.
Two Michaels: Vigorous “hostage diplomacy”
The arrest of Canadians Michael Kovrig and Michael Spavor in China on 10 December 2018 were a reprisal against Canada’s arrest of Huawei executive Meng Wanzhou in Vancouver. The United States (US) had requested that Ms. Meng be extradited to the US on bank “fraud” charges related to US economic sanctions against Iran.
The two Michaels were held for part of the time in RSDL and later in prison. They were falsely charged with spying, denied legal representation, held in solitary confinement much of the time, and subjected to harsh treatment including lengthy interrogations. They were granted limited consular access and communications with family.
Canada exerted exceptional energy to secure their release. Canada’s efforts included organizing a February 2021 Declaration by 58 countries calling for an end to the use of “arbitrary arrest or detention of foreign nationals to compel action or to exercise leverage over a foreign government” which, the statement noted, “is contrary to international law, undermines international relations, and has a negative impact on foreign nationals traveling, working and living abroad.”
Vigorous “hostage diplomacy” took place involving the US, China, and Canada. The US negotiated a “deferred prosecution agreement” for Ms. Meng, thus ending Canada’s extradition proceedings. A prisoner exchange took place on 24 September 2021 after more than a thousand days of imprisonment for the Michaels and house arrest for Ms. Meng.
Stark contrast: Jailed Canadian human rights defender Huseyin Celil
Canada’s response to the detention of Huseyin Celil has been in marked contrast to its intense advocacy for the two Michaels. China has steadfastly refused to recognize Mr. Celil’s Canadian citizenship and has denied Canada’s requests for consular access.
Canadian officials advocated vigorously for Mr. Celil under the former Harper government. But he appeared to drop off the radar of Canadian media and diplomats during the Trudeau government. In 2020, Canada’s ambassador to China, Dominic Barton, indicated a lack of awareness that Mr. Celil is a Canadian.
Who is Huseyin Celil? Born in China’s Xinjiang Autonomous Uyghur Region (XUAR), he is Muslim imam and an outspoken, peaceful advocate for Uyghur religious and political rights. In the early 1990s, his advocacy put him in the cross-hairs of China’s political sensitivity to any challenge to its sovereignty in XUAR.
He came to Canada as a UN-recognized refugee in 2001 with his wife Kamila Talendibaeva and their first child. He became a Canadian citizen in 2005. According to Ms. Talendibaeva, he renounced his Chinese citizenship. In March 2006, when his wife was pregnant with their fourth child, the family travelled to Uzbekistan to visit her family.
Mr. Celil travelled on his Canadian passport. Uzbek authorities arrested him and sent him to China where he was charged with separatism and terrorism because of his Uyghur rights activism. China held him in a secret location and denied him access to a lawyer, Canadian consular officials, and his family. He complained of being forced to sign a confession after days of torture. Canadian officials were not informed of his trial date in February 2007 and were not permitted to attend his sentencing hearing in April 2007 where he was sentenced to life imprisonment. The sentence was reduced to 18 years in 2017. Amnesty International reports that he has been subjected to solitary confinement, lacks adequate food, and is in poor health.
It is rarely mentioned that Huseyin Celil’s peaceful advocacy fits squarely within the framework of the UN Declaration on Human Rights Defenders. Religious and political rights and the right of peoples to self-determination are fundamental principles of international human rights recognized in the UDHR and many other human rights instruments. This means that Canadian advocacy for Mr. Celil must be measured against the commitments in Canada’s Voices at Risk Policy Guidelines on Supporting Human Rights Defenders.
Atrocity crimes against Uyghur people
Mr. Celil’s situation is complicated by the increased crackdown against Uyghur people since 2017. Mr. Celil’s family has not heard from him since around that time.
China has imprisoned an estimated 1.5 million Uyghur people in so-called “reeducation” camps. Many have been subjected to forced labour in which international businesses are implicated. There are allegations of crimes against humanity including mass surveillance, arbitrary detention, enforced disappearance, torture and ill-treatment, forced labour, erasure of culture and religion, family separation, and forcible suppression of Uyghur births.
Some scholars argue that China’s crimes against Uyghurs rise to the level of genocide. In February 2021, Canada’s House of Commons agreed. Canada’s cabinet was criticized for abstaining from the House of Commons consensus. However, in June 2021, Canada took the lead in a statement to the UN Human Rights Council joined by 43 other States urging China to “allow immediate, meaningful and unfettered access to Xinjiang for independent observers, including the High Commissioner, and to urgently … [end] the arbitrary detention of Uyghurs and members of other Muslim minorities.”
China resists the calls for such visits. Since mid-2020 there have been calls for creation of a UN investigative mechanism to address China’s grave human rights violations in XUAR, Tibet, and Hong Kong.
China’s attempts to weaken international human rights advocacy and norms
International rights advocates are not exempt from attacks. In March 2021, China announced sanctions against nine United Kingdom (UK) rights advocates who advocated for UK recognition of international crimes in the XUAR or spoke out for imprisoned human rights lawyers in Hong Kong.
China has also used its economic and diplomatic clout to weaken Security Council and Human Rights Council interventions to halt violations in other countries, including Myanmar and Afghanistan.
China actively undermines universal human rights, working to recreate international human rights in its own image – “ human rights with Chinese characteristics.” China uses its UN positions to try to “rewrite norms and manipulate existing procedures not only to minimize scrutiny of the Chinese government’s conduct, but also to achieve the same for all governments.”
Canada’s opportunities to stand up for human rights defenders
The cases of the two Michaels and Huseyin Celil provide opportunities for Canada to review its practices regarding China.
Canada could strengthen its insistence that China guarantee consular protection to all Canadians, including Mr. Celil.
Canada must ensure that Mr. Celil is firmly included in diplomatic and other support prescribed by its Voices at Risk Policy Guidelines. Canada must also use the policy to vigorously raise concerns with China about detained lawyers and defenders in China and Hong Kong.
Canada is to be applauded for its 2021 regulations banning imports of goods produced with forced labour of Uyghur people. Canada needs to go farther to ensure that Canadian corporations overseas are required to abide by the UN Guiding Principles on Business and Human Rights. Canada should provide the Canadian Ombudsman for Responsible Enterprise with full investigative powers to examine practices of Canadian corporations in China and elsewhere.
Canada must continue to join other States and support civil society actions to resist China’s undermining of international norms that have been hard won over the past 75 years of the UN’s existence. For example, Canada could develop its Action Plan to advance the recently established 58-State partnership to jointly tackle cases of politically motivated arbitrary detention. States, civil society, and businesses need to actively uphold international norms even in the face of international bullying. Otherwise, human rights defenders and journalists are silenced, impunity of perpetrators prevails, and suffering of victims of violations continues unhindered.
Catherine Morris, BA, JD, LLM, is LRWC’s main representative at the UN Human Rights Council. She is also serving as LRWC’s transitional Executive Director from June 2020 to January 2021.
