Foreign Victims Show the World Why China’s Judiciary Cannot Be Trusted

CommentaryJust before the anniversary of the Tiananmen Square massacre on June 4, the Chinese regime showed the world that it cares nothing for agreements when the rules do not serve them. Earlier this month, the partner of Cheng Lei—an Australian journalist held by China since 2020—revealed that the monthly consular visits to Cheng had been suspended again by Chinese authorities. She is not the only foreigner or Australian suffering from this blatant violation of Sino-Australian consular agreements. Pro-democracy activist Yang Hengjun, who has been held in China since 2019, was regularly denied consular access. Moreover, a verdict should have been reached in his trial, which took place almost a year ago. But in violation of even Chinese law, a ruling has yet to be announced. And were Australian officials granted access to Yang’s trial? Of course not, just like Cheng’s trial a few months ago when Australia’s ambassador was refused entry to the courthouse. The same situation happened years ago with another Australian, Stern Hu. So these violations are nothing new. Is this an Australia-only phenomenon? No. ­Canada is in a similar situation. The two most recent and renowned cases of Michael Spavor and Michael Kovrig followed similar patterns, with the denial of consular visits to them during their two years of detention and the refusal of Canadian officials to attend their trials. What do these and many more cases have in common? The Chinese regime’s actions are in blatant violation of legally binding rules under the bilateral treaties China maintains with both countries about these issues. Under no circumstance are any of these denials—visits to their citizens in detention, refusal to deliver food, medicine, or other supplies, blocking access to trials—allowed. The rules under the agreements are binding and absolute. No exceptions are outlined in either treaty. The denial of consular access or consular support at trial may not seem as severe as when Beijing violates the “diplomatic assurances” that it regularly offers when it wants someone deported or extradited to China, as in the case of Yang Fong (deported from Canada) or Wang Jianye (extradited from Thailand). In both cases, those countries were given “diplomatic assurances” that the person in question would not face the death penalty—but only to be executed upon their return. Yet these violations of legally binding treaties serve as ample evidence of Beijing’s consistent lack of commitment to international agreements. Suppose one cannot rely on ironclad rules formally subscribed to by both parties to provide protection and assistance to one’s own nationals. What are the chances Beijing would respect nonbinding “assurances” for Chinese citizens? The Chinese regime’s treatment of foreign citizens and willingness to ignore domestic and international law—such as the Vienna Convention on consular access and bilateral consular agreements—should alarm everyone despite the heightened media attention these cases generate. In fact, my own case speaks volumes. As some readers of this publication might know, I was detained and later placed into China’s feared secret jails (as was the case for Cheng, Yang, and the “two Michaels”): RSDL. According to Chinese law, while detention and RSDL cannot occur at the same place, I was never moved an inch. Either my detention or my time in RSDL was illegal. Likewise, my deportation under the “espionage act” and subsequent banning from China for 10 years could not possibly be legal because it was an administrative punishment, which cannot be issued while one is facing a criminal procedure. A young man holds a sign bearing photographs of Michael Kovrig and Michael Spavor, who have been detained in China for more than a year, outside the B.C. Supreme Court, where Huawei chief financial officer Meng Wanzhou attends a hearing in Vancouver on Jan. 21, 2020. (Darryl Dyck/The Canadian Press) This is not to say that Chinese authorities could not do everything they did in my case and remain within their own law—but it would have made it more complicated for them. So they didn’t. Multiple governments were involved in my case, and it received press coverage from major media almost daily, causing a PR nightmare for Beijing. Despite all the pressure and attention, China nonetheless chose to violate its own law. This should raise serious concern for all those who can never expect to get all that help and attention. Not long ago, New Zealand’s Supreme Court took an astounding decision in an ongoing extradition case when it declared that it had reason to believe that nonbinding “diplomatic assurances” from China could be trusted. The decision ignores how the Chinese regime has regularly and continuously violated its legally-binding commitments to neighboring Australia. Other courts have looked at this and decided that such assurances–or, for that matter, rules established in law in China—simply cannot be trusted since reality has

Foreign Victims Show the World Why China’s Judiciary Cannot Be Trusted

Commentary

Just before the anniversary of the Tiananmen Square massacre on June 4, the Chinese regime showed the world that it cares nothing for agreements when the rules do not serve them.

Earlier this month, the partner of Cheng Lei—an Australian journalist held by China since 2020—revealed that the monthly consular visits to Cheng had been suspended again by Chinese authorities. She is not the only foreigner or Australian suffering from this blatant violation of Sino-Australian consular agreements.

Pro-democracy activist Yang Hengjun, who has been held in China since 2019, was regularly denied consular access. Moreover, a verdict should have been reached in his trial, which took place almost a year ago. But in violation of even Chinese law, a ruling has yet to be announced.

And were Australian officials granted access to Yang’s trial? Of course not, just like Cheng’s trial a few months ago when Australia’s ambassador was refused entry to the courthouse. The same situation happened years ago with another Australian, Stern Hu. So these violations are nothing new.

Is this an Australia-only phenomenon? No. ­Canada is in a similar situation. The two most recent and renowned cases of Michael Spavor and Michael Kovrig followed similar patterns, with the denial of consular visits to them during their two years of detention and the refusal of Canadian officials to attend their trials.

What do these and many more cases have in common?

The Chinese regime’s actions are in blatant violation of legally binding rules under the bilateral treaties China maintains with both countries about these issues. Under no circumstance are any of these denials—visits to their citizens in detention, refusal to deliver food, medicine, or other supplies, blocking access to trials—allowed. The rules under the agreements are binding and absolute. No exceptions are outlined in either treaty.

The denial of consular access or consular support at trial may not seem as severe as when Beijing violates the “diplomatic assurances” that it regularly offers when it wants someone deported or extradited to China, as in the case of Yang Fong (deported from Canada) or Wang Jianye (extradited from Thailand). In both cases, those countries were given “diplomatic assurances” that the person in question would not face the death penalty—but only to be executed upon their return.

Yet these violations of legally binding treaties serve as ample evidence of Beijing’s consistent lack of commitment to international agreements. Suppose one cannot rely on ironclad rules formally subscribed to by both parties to provide protection and assistance to one’s own nationals. What are the chances Beijing would respect nonbinding “assurances” for Chinese citizens?

The Chinese regime’s treatment of foreign citizens and willingness to ignore domestic and international law—such as the Vienna Convention on consular access and bilateral consular agreements—should alarm everyone despite the heightened media attention these cases generate.

In fact, my own case speaks volumes. As some readers of this publication might know, I was detained and later placed into China’s feared secret jails (as was the case for Cheng, Yang, and the “two Michaels”): RSDL. According to Chinese law, while detention and RSDL cannot occur at the same place, I was never moved an inch. Either my detention or my time in RSDL was illegal. Likewise, my deportation under the “espionage act” and subsequent banning from China for 10 years could not possibly be legal because it was an administrative punishment, which cannot be issued while one is facing a criminal procedure.

Epoch Times Photo
A young man holds a sign bearing photographs of Michael Kovrig and Michael Spavor, who have been detained in China for more than a year, outside the B.C. Supreme Court, where Huawei chief financial officer Meng Wanzhou attends a hearing in Vancouver on Jan. 21, 2020. (Darryl Dyck/The Canadian Press)

This is not to say that Chinese authorities could not do everything they did in my case and remain within their own law—but it would have made it more complicated for them. So they didn’t. Multiple governments were involved in my case, and it received press coverage from major media almost daily, causing a PR nightmare for Beijing. Despite all the pressure and attention, China nonetheless chose to violate its own law. This should raise serious concern for all those who can never expect to get all that help and attention.

Not long ago, New Zealand’s Supreme Court took an astounding decision in an ongoing extradition case when it declared that it had reason to believe that nonbinding “diplomatic assurances” from China could be trusted. The decision ignores how the Chinese regime has regularly and continuously violated its legally-binding commitments to neighboring Australia.

Other courts have looked at this and decided that such assurances–or, for that matter, rules established in law in China—simply cannot be trusted since reality has shown, time and time again, that they are as worthless. Furthermore, the United Nations Special Procedures have repeatedly reiterated that “diplomatic assurances” cannot be used by domestic courts or governments to ignore the principle of nonrefoulement—that is, do not send people back if they stand a serious risk of torture or persecution.

Yet, in New Zealand, Poland (in the case of Liu Hongtao), Portugal (in the case of Zhang Haiyan), and possibly in Cyprus (in the case of Ma Chao), governments and courts tell us they stand ready to take such “assurances” at face value and raise no objections to them being used as the basis for sending people back to face the same rotten criminal justice system that was met by Cheng, Yang, the “two Michaels,” myself, and many others.

Suppose foreign citizens—protected by binding legal agreements, where diplomatic pressure and intense media scrutiny stand ready to expose the Chinese regime for its violations—don’t stand a chance of pressuring Beijing to respect legal rights. What chance do Chinese nationals have at standing up to Beijing when they are sent back to China?

Views expressed in this article are the opinions of the author and do not necessarily reflect the views of The Epoch Times.


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Peter Dahlin is the founder of the NGO Safeguard Defenders and the co-founder of the Beijing-based Chinese NGO China Action (2007–2016). He is the author of “Trial By Media,” and contributor to “The People’s Republic of the Disappeared.” He lived in Beijing from 2007, until detained and placed in a secret jail in 2016, subsequently deported and banned. Prior to living in China, he worked for the Swedish government with gender equality issues, and now lives in Madrid, Spain.