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International Law: A Look at China through a Western Lens of Justice

On the eve of the 2010 New Year, the nation of China executed a 53-year old British national. His crime: attempting to smuggle heroin into the country. Despite diplomatic efforts on behalf of the British man, as well as personal pleas made by his family, the Chinese government proceeded with the execution by lethal injection on Tuesday, December 29, 2009. Thus, Akmal Shaikh, a British citizen of Pakistani descent, became the first European to be executed in China in more than half a century.

According to international media outlets, Mr. Shaikh was apprehended in 2007 while carrying a suitcase with almost nine pounds of heroin into China on a flight from Tajikstan. Shaikh told Chinese officials that he did not know about the drugs and that the suitcase was not his. Despite questions concerning his mental status, as well as his knowledge of the contents of the suitcase, a Chinese court convicted Mr. Shaikh in 2008.

His trial lasted approximately half an hour.

In diplomatic appeals made to the Chinese government after his conviction, the British government and family members of the defendant painted a picture of a mentally ill man whose condition had rapidly deteriorated in the years leading up to his arrest. According to his family, the father of three had been living on the streets of Poland where he was unwittingly recruited into attempting to carry the drugs into China. Despite these reports, no mental evaluation was ever permitted before or after his conviction or at anytime during the consideration of appropriate sentencing. While Chinese law provides for mental evaluations, only the prosecution or judiciary has the authority to request such an evaluation. Unfortunately, counsel for Mr. Shaikh and, indeed all defendants in the Chinese criminal justice system, lack the authority to request and obtain mental evaluations.

According to reports, consistent with customary practice, the Chinese courts intended to advise Mr. Shaikh of his death sentence 24 hours before it was to be imposed. Indeed, at the time of his execution, Mr. Shaikh had been held for nearly two years without any contact from members of his family. However, two of his cousins were permitted to visit him the day before his execution. Those two family members broke the news to Mr. Shaikh that his death would come the next day.
British Prime Minister Gordon Brown issued a statement following the execution: “I condemn the execution of Akmal Shaikh in the strongest terms, and am appalled and disappointed that our persistent requests for clemency have not been granted. I am particularly concerned that no mental health assessment was undertaken.”

In response, the Chinese Foreign Ministry, while asserting that Mr. Shaikh’s “rights and interests were properly respected,” has stated that “[n]obody has the right to speak ill of China’s judicial sovereignty.” China continues to “express [its] strong dissatisfaction and resolute opposition over the groundless British accusations.”

Of course, condemnation of China’s record on human rights is not a new phenomenon. China maintains exact information on its use of capital punishment under strict lock and key, classifying such information as a state secret. However, Amnesty International reported that in 2008, of the 2,390 government executions carried out worldwide, China was responsible for 72% of them. Even a number this staggering, while it dwarfs the number of executions carried out by all other countries, does not paint what is thought to be a truly accurate picture of capital punishment in China. The Dui Hua Foundation, a United States based NGO, has estimated that the number of state sponsored executions ranges between approximately five and six thousand, based on information obtained from local Chinese authorities. Meanwhile, approximately 60 offenses, including non-violent crimes such as tax fraud, embezzlement, and drug offenses remain death-eligible in China and, until only recently, most executions were still carried out by firing squad.
Further, China’s court proceedings are often shrouded in secrecy. Family members are generally excluded from contact with the defendant and often no advance warning is given before a sentence—even the ultimate sentence—is imposed.

For China’s scholars, writers, and yes, even its lawyers, questionable prosecutions and procedures have started to hit home. In December of 2009, China tried and convicted an author for inciting subversion of state power. His secret trial—which lasted approximately two hours—resulted in a conviction and an 11-year prison term. Liu Xiaobo, described as a “scholarly essayist and literary critic,” will now serve 11 years in prison for publishing a manifesto calling for “human rights, free speech, and an end to one-party rule.” Interestingly, in November of 2009, during a visit to China, President Obama spoke directly to Chinese President Hu Jintao specifically about the case of Liu Xiaobo. Perhaps foreshadowing of the response we might expect in future human rights conflicts with China, despite Mr. Obama’s overtures, the trial proceeded against Liu Xiaobo only a month after Mr. Obama’s visit and the 11 year prison sentence was ultimately imposed. In February 2010, a Beijing court rejected Mr. Liu’s appeal and he remains incarcerated.

Chinese lawyers and legal reformers have also felt the fist of the regime. Elizabeth Lynch, attorney and editor of the blog “China Law and Policy,” followed on her website the disappearance of a leading Chinese public interest lawyer, 36-year old Xu Zhiyong. Mr. Xu was taken into custody by Beijing police just before dawn in July of 2009. The authorities alleged that Mr. Xu was to be questioned about possible tax evasion. However, he was detained for several weeks, leading many to wonder if he would ever re-surface. Ultimately, he was released approximately three weeks after his detention, but the prospect of re-arrest and formal charges remains a prospect for the young lawyer.

Mr. Xu’s legal work was of the type that we, in the USA, engage in regularly and without recrimination. However, he drew the unwanted attention of the Chinese Communist Party (CCP) by merely practicing as, essentially, a tort and criminal defense lawyer. He defended death row inmates; he exposed secret undeclared jails where inmates were being subjected to lengthy and secretive detention; he advocated on behalf of victims of police brutality; and he represented families who lost their infants through consumption of tainted milk products produced in China. According to a report in the Wall Street Journal, after his release, Mr. Xu’s name was blocked by Chinese Internet censors from online search engines in mainland China.

Concerning the CCP’s treatment of Mr. Xu, Ms. Lynch wrote as follows:

The apprehension of Mr. Xu, the forced closure of his legal assistance organization, Gongmeng (in English, the Open Constitution Initiative), the investigation of Yi Ren Ping, a non-profit law center that assists AIDS and hepatitis patients with anti-discrimination actions, the recent disbarment of over 20 public interest lawyers, the professional “exile” of a leading legal scholar and outspoken critic to a remote region of China: all of these actions paint the picture of a government that has become increasingly alarmed by a more vocal and organized group of lawyers.

Ms. Lynch concludes that these recent government attacks upon public interest legal practitioners are ultimately evidence that the CCP is “not looking to embrace the ‘rule of law,’ but instead seeking to contain it.”

The treatment of attorney Xu Zhiyong was, unfortunately, not an isolated incident. Shortly after Mr. Obama’s trip to China, Chinese public interest lawyer Jiang Tianyong was apprehended and beaten by Beijing police while walking his daughter to school. He was “detained” only days after returning from a trip to the United States where he gave Congressional testimony on what he termed the inhuman treatment of women, including forced abortions.

This begs the question, then, for all American citizens and, particularly, those of us charged with adherence to and respect for the rule of law: what should we expect if America finds itself in a human rights standoff with the Chinese superpower concerning the treatment of an American citizen? Will we find ourselves as powerless as England found itself when the fate of one of its own was on the line? What will happen if—let’s just say it—when an American citizen faces the potential for the ultimate punishment after a Chinese trial? How will we react to the thirty minutes of “due process” recently afforded a British national before his conviction and ultimate execution?

We, as Americans, are unaccustomed to being bullied. Americans reacted with collective anger and disgust when an American teenager got caned in Singapore in 1994 for vandalizing cars and stealing road signs. How will we react when, for instance, a mentally ill American father of three is put to death behind closed doors following a secretive process, all for a non-violent offense and, perhaps, for one in which actual innocence is an actual defense?

In early January of this year, Sidney Blumenthal, former senior adviser to President Clinton, wrote that the “greatest challenge for the early 21st century is that China’s leadership has contempt for much of the international order and many of the international organizations developed since the second world war.” Blumenthal pulled no punches, continuing, “China will constantly abuse and break international rules, protocols and bodies. . . . Its disdain for human rights and the rule of law generally are the obvious reflections of its despotism. . . . For now, the West has no policy to deal with China as it is.”

This inability of the West to “deal with China as it is” was certainly apparent in Britain’s inability to reach an accord concerning the execution of the presumptively mentally ill Shaikh. But other scholars and writers view the execution itself with even greater significance and, in particular, as a sign that an execution of this nature constitutes not only a threat to the rule of law, but also a less-than-subtle power play. Ben Cohen, editor of The Daily Banter.com and frequent contributor to the Huffington Post, recently wrote that China’s “execution of Akmal Shaikh was another use of indirect aggression, showing the West that China doesn’t care what it thinks and will do what it wants.”

Adding to the complexity of the China/America dynamic, Mr. Cohen reminds us in his recent article that “China is now the largest owner of US Treasury debt ($800.5 billion as of July of [2009]) and now wields considerable leverage over the world’s biggest super power. The US can no longer act as it pleases and must consider China’s interests whenever it makes a decision.”

Indeed, China now sits upon an astounding reserve upward of $2 trillion, according to a New York Times Op-Ed piece published in January of 2010. Furthermore, for the first time since Henry Ford introduced the Model T in 1908, the US is not the largest auto market in the world. As of 2009, China holds that title. And that’s not all. According to a Bloomberg News report from January 11, 2010, in addition to supplanting the US as the world’s largest auto market, China now maintains the world’s biggest markets for cell phones, microwave ovens, and, of all things, beer. The Financial Times also reported in early January of 2010 that Chinese banks have now cemented their position as the “most highly valued financial institutions” in the finance world. Thus, as Roger Cohen concluded in his January 11, 2010 New York Times editorial entitled “The Dragon’s Swagger,” the “painful condition of the United States and China is that they are codependent, through trade and debt, but antagonistic.”

Add this to a culture where approximately 27 million students are presently enrolled in technical colleges and universities (more than any other country in the world), and it is clear that the future holds more opportunities for China to flex its international muscles.

When looking at human rights issues such as these within the framework of international law, the debate takes the shape of one in which a system of national treatment is pitted against an international minimum standard doctrine. The United Nations supports the notion that certain international minimum standards concerning human rights should exist notwithstanding how a nation treats even its own citizens. Article 11 of the UN’s Universal Declaration of Human Rights states that anyone “charged with a penal offense has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.” By contrast, those nations who subscribe to the national treatment doctrine argue that aliens are entitled to no better treatment than its own nationals. It appears that China’s treatment of British national Shaikh squarely places its position into that of the national treatment doctrine, and there is no reason to expect or anticipate that an American citizen would fare differently following imposition of Chinese justice.

The intersection of our financial interests and our human interests is bound to occur sooner rather than later. According to Attorney Lynch, again writing for the blog China Law & Policy, “Every year, China receives more and more foreign visitors, as tourists, business executives or students. [In November of 2009], in his speech at the Shanghai townhall, President Obama announced his goal of sending 100,000 U.S. students to China.”

Send 100,000 American students to China, and we Americans are virtually guaranteed to be wrestling with issues of basic human rights and the rule of law sooner than we imagined. Our cultures and our commerce are inner-connected. The possibility for conflict is real. But, instead of the West contemplating the fate of a 53-year old British man, we could face the prospect of a 21-year old college student from Knoxville, Tennessee being subjected to China’s “justice.” Morally indignant yet financially dependent does not poise our nation for results dissimilar to those obtained by the Brits.