July 8, 2016
In April and early May 2016, I got the chance to speak to some twenty-odd old and new acquaintances amongst the targets of the so-called 709 Crackdown – the latest and largest crackdown yet on China’s already beleaguered human rights lawyers. Named after the 9th of July, the date it began with the night-time detention of Lawyers Wang Yu and Bao Longjun and their sixteen year old son, Bao Zhuoxuan, the 709 Crackdown mainly targeted three groups connected to rights advocacy: rights lawyers and assistants connected to Fengrui Law Firm;’ Lawyer Li Heping and his colleagues (with some overlap between these groups); and another group around activist Hu Shigen that included rights lawyers as well as more ‘grassroots’ human rights defenders.
In comparison with past crackdowns, 709 has affected a much larger number of lawyers, with human rights groups such as China Human Rights Lawyers Concern Group (CHRLCG) and Chinese Human Rights Defenders (CHRD) putting the total number affected at over 300 as of this week. It has also been much also more openly acknowledged and indeed, more widely advertised, by the Party-State than their other repression of human rights advocates since at least the 1990s.
How are we to understand these developments? What should we expect for the future not only of China’s human rights movement, but also for the wider legal profession and civil society more generally? And what next for the 23 lawyers and legal assistants still in custody now, a year later. Most of them are now officially held under suspicion of subversion or inciting subversion, and are still denied access to legal counsel of their own choosing as well as to their friends and family. The views and experience of those closest to the centre of the storm are surely relevant to how we answer these questions and understand the 709 crackdown. So, below, I share a few excerpts and impressions from my conversations with persons most directly involved, supplemented by recent updates. For obvious reasons, I have anonymised these comments.
Some of my interlocutors spoke from personal experience as they had, for example, themselves suffered forced disappearance and/or torture in the past. One major issue they commented on was how ‘residential surveillance in a designated location’ (Article 73 of China’s Criminal Procedure Law (CPL), revised in 2013) has changed the rules of engagement between human rights defenders and the party-state, by effectively legalising (or purporting to legalise) forced disappearances.. Article 73 purports to allow incommunicado detention without access to legal counsel for up to six months in cases of suspected crimes against national security (inter alia). The term ‘residential surveillance’ is a euphemism as detainees under such measures\\ may be held in any ‘designated location’ that is neither their home, nor one of the regulated police detention centres. We have assumed that it may, for example, be a safe-house, a guesthouse, or a police-operated training centre.
Conversations directly drawing on the experience of ‘709’ detentions corroborate many fears about residential surveillance. For example, in the case of at least one person detained in the context of the ‘709’ Crackdown, detention was nominally authorized under the revised under CPL article 73. Detention took place in the same building where rights lawyers had been forcibly disappeared before the CPL revisions, when Article 73 was not yet available; and it was apparently carried out by some of the same personnel, showing that CPL revisions had changed the name, but not the structure of the harassment. [1]
The residential surveillance also involved severe sleep deprivation and use of stress positions amounting to torture and threats of further, even more serious physical torture. As a result of these – if the allegations are correct – in part criminal methods, the detention led to basically the same kind of forced confessions and statements of repentance that had been used, for example, in the 2011 “Jasmine’ crackdown. Also, just as in earlier forced disappearances, the prisoner was forced to read the ‘confession,’ ‘statement of repentance’ and promises to desist from advocacy in future before a camera, before they could be released. Talking with their guards, they referred to their situation as an ‘abduction’ (绑架), and the guards ‘did not bother to object’ to this description.[2]
‘[In the ‘designated location’ during ‘surveillance’] I was not allowed to sleep for [a certain number of] days and nights on end after they had held me for some time. They also brought a pair of handcuffs and showed me how they could handcuff me … [interlocutor demonstrates a painful posture]. At that point I told them, “alright, leave it, I’m not resisting anymore” …Because of the sleep deprivation, I was already completely broken. I thought I was going to die.[3]
In several cases, the authorities provided insufficient or no information on where detainees were held to their families. In the case of Li Heping, for example, no official notification at all was provided for six months; he was for all intents and purposes disappeared. In other cases, the authorities acknowledged that ‘suspects’ were being held but refused to disclose where they were and what they were suspected or accused of. None of the detainees had access to legal counsel, family or friends during ‘residential surveillance.’ — In January 2016, the authorities formally ‘arrested’ (逮捕) the lawyers after the expiry of the six-month ‘residential surveillance’ period. Later they extended their arrest periods to give themselves additional time to decide whether or not to indict them; and, as discussed later, they sought to manipulate the procedures so as to continue denying the detainees access to counsel.
A second theme in comments on the crackdown was the weakening of communication and advocacy support structures for the now-detained principle targets of the crackdown, taken against a wider range of rights lawyers and supporters, including compulsory ‘chats’ and short-term detentions aimed to intimidate hundreds of rights lawyers and their sympathisers or supporters, as well as their families; strict surveillance and control of social media applications, [4] and measures to restrict movement, such as ‘soft detention’ at home and travel bans, apparently authorized effective from 6 July 2016, i.e. three days before the first detention.[5] Some interlocutors mentioned being explicitly told that these measures had been decided at ‘a very high central level,’[6] and concluded that they were integral parts of the crackdown.
Those forced to have ‘chats’ were typically ordered to meet the police in the late evening or in the middle of the night (sometimes through phone-calls, other times by officers coming to their homes). Two victimised interlocutors reported being tracked, effortlessly it seemed, through the monitoring of their mobile phone while travelling (on trains, to their hotels, etc.).[7] During their conversations with the (domestic security division) police, they were usually ordered to ‘promise’ not to take on the cases of fellow rights lawyers; not to communicate about these cases via the social media; and not to take media interviews about them.
At least during the first few days of the crackdown, the enforced chats had an intensely terrifying effect on the rights lawyer community,[8] also on those of its members who managed to escape. One lawyer was travelling in another city when the first news about the detention started reaching him. With trepidation, he stole back into his hotel and moved out, to avoid being detected through his registration log with the local police. Despite having many friends in the city he dared not ask any of them if he could stay the night. Instead he persuaded a guesthouse to accommodate him without registration for a few hours, and went to an internet café to check up on his WeChat messages.
When I opened my account, the first message I saw read ‘Flee at once.’ As I flicked through the messages they all read: ‘disappeared’—‘disappeared’—‘disappeared’ – over a hundred messages like that. And out of nine people reported disappeared, seven were good friends of mine, really close friends. I knew it took only three minutes, no more than five, to locate someone [via their account]; so I immediately closed it down again.
He then called on a few friends in person, keeping his mobile phone and other electronic equipment turned off all the time, and left the city as soon as he could. Some days later he went home due to an import occasion, and within a short time, the local police called him and demanded to speak to him. He had only managed to evade capture during the first panicked few hours and days of the crackdown. Among the lawyers I spoke to, only one had thus far entirely avoided the coerced ‘chat.’
‘I thought to myself, as a human rights defender in China, you live in fear without having done anything criminal at all.’
Anyone who was ‘caught’ and questioned might face intense pressure and the threat to be questioned again, or formally detained – as in Lawyer Xie Yanyi’s case, after he refused to make the required ‘promises.’ He was detained under Article 73 CPL after being initially allowed to go home. [9]
A particularly striking aspect in this context is how directly the police warned some lawyers against taking on the criminal defence of their detained colleagues. A lawyer who was ’caught’ when getting off a train and interrogated by domestic security police from his hometown, who had travelled there to meet him, described his conversation as follows.
‘I said, “first tell me what my status is, am I a suspect, or a witness, or what?” He said, “No status.” I said, “Well then what’s the procedure for asking me to speak to you?” He said, “There’s no procedure. But if you want a formal procedure, fine, we can do that.” Later I heard that [with other lawyers] they were using subpoena forms, but without bothering to enter a suspected crime on the form. So we “chatted.”’
The conversation revolved around the persons of the detained lawyers. Did he know them? Were they friends?
‘He said, “We are warning you herewith, warning you severely, you are not allowed to take part in this matter in any manner whatsoever.” I said, “What do you mean by ‘take part’?” He said, “Any manner whatsoever. Including online messaging or reposting messages – none of that. If you don’t listen, you will be a co-suspect with them.” …He said, “if you get involved you’re a fellow suspect with them. And we know exactly what you have been doing in the past.” …I asked him directly, “do you mean not even if the lawyer’s families asked me to act as someone’s criminal defence lawyer — defending their rights in accordance with law, that would be my job as a lawyer.” His reply was explicit., “No way. If you get involved, you’re a co-suspect.”’ [10]
In the social media chat groups devoted to discussing the crackdown, this sort of incrimination has since come to be sarcastically referred to as ‘the crime of legal defence’ (辩护罪).[11] Such threats to criminalise professional legal advocacy call to mind the widely criticized legislative changes introduced earlier this year, to expand the scope of crimes of disrupting the courtroom. Their underlying rationale also connects them to the highly suspicious purported ‘dismissals’ of originally appointed criminal defence lawyers by the lawyer detainees.
‘The greatest problem now is that the authorities do not allow the families to appoint lawyers, they want to use the lawyers they themselves like, to disrupt any channels of information and render meetings with the detainees impossible.’[12]
In some cases, family members of the detained were reportedly shown new defence lawyer appointment letters signed by the detainees;[13] but the previously appointed lawyers have not seen these documents for themselves and have not been sent letters informing them of their ‘dismissal’ so that they are unable to confirm if they have been dismissed.[14] Forced or faked ‘dismissals’ of the originally appointed lawyers would of course violate the detainees’ right to appoint a lawyer of their own choosing; and in the view of one interlocutor signals a significant weakening in the Xi Jinping era of respect for this right recognised, at least in principle, in earlier political cases including those of Wei Jingsheng, Liu Xiaobo, and Hu Jia.[15] It would also testify, in my view, to how much the authorities are worried about forceful rights advocacy.
A third theme has been what might be termed orchestrated crackdown propaganda, including broadcasts and reports vilifying the lawyers connected to Fengrui Law Firm, and TV ‘confessions’ or ‘trial by television’ (电视审判). [16]
Based on current information, all detained victims who have been released had to produce statements admitting guilt and expressing repentance in writing and read the statement out aloud in front of a camera before being released. This followed a well-established pattern also used in the 2011 Jasmine Crackdown, for example. The use of such materials to display lawyers and legal assistants such as Zhou Shifeng, Wang Yu, Bao Longjun, Zhang Kai, and others on television, showing them in the humiliating and terrifying circumstances of detention, is new. For example, Wang Yu and Bao Longjun are shown distraught and in tears over the rendition of their son. Zhou Shifeng is shown expressing repentance; and others are seemingly recriminating their colleagues. [17]
In these broadcasts, targeted individuals generally ‘confess’ to wrongdoing phrased in very general and at times incoherent terms rather than admitting specific crimes; and express repentance and submission. Visually if not verbally they also express fear, anguish, and despair. Confessions etc. were televised selectively, largely focusing on the activities of the Fengrui Law Firm circle and its methods of forceful, vocal and politically aware rights advocacy using methods such as flash-mob demonstrations and social media communication to draw attention to specific cases from wider audiences,[18] and, apparently to establish a public presumption of guilt,
One lawyer commented,
‘[These reports] have in the eyes of many [rights lawyers] done the worst harm to us, because many ordinary people will still be inclined to trust these official reports. They might generally have comes across some positive information about rights lawyers; but after these detentions they will be informed that these lawyers were working in their own interest, to earn foreign money and that this entire circle has actually been doing these things under the direction of foreign anti-China enemy forces. The majority of viewers might accept the message conveyed by these CCTV reports.’
The interlocutor added that fellow legal professionals would also be bound to be frightened by these reports, as they would have to consider the possibility that they would suffer similar consequences, even if all they engaged in was lawful rights advocacy.
We do of course hope that as many lawyers as possible will understand the background of these reports, that they [the detained] have not violated the law… [but they will also learn from these reports] that if they engage in these activities, they will inevitably encounter repression of this kind from the government.’[19]
This form of selective crackdown-related propaganda, of ‘TV confessions’ and ‘trial by television’ represents what some see as a conscious reversion to Mao era style denunciation of ‘enemies of the party-state.’[20] It is hard to see how the conduct depicted in the reports could be the basis for any credible charges of crime, let alone crimes ‘endangering state security.’ Charges of a public order offence, for example based on a few small and peaceful demonstrations for access to justice would seem still baseless, but – based on prior experience – less unlikely. Some interlocutors thought that the authorities had thus far not shown anyone ‘confessing’ to subversion because such ‘confessions’ would simply be too unconvincing or might ‘lead to more social controversy.’[21] But others thought that the state might bend the rules to make them fit whatever the detained rights defenders had done.[22] ‘Trial by TV’ allows the authorities not only to vilify particular individuals or groups like the Ruifeng law firm, but also to project and indeed propagate their power to extract meaningless, even irrational, statements from those it holds captive.
A fourth aspect commented on were the new transnational dimensions of repression, a sense that there was fewer places one could flee to/be safe in, because of the risks of cross-border abduction and forced retrieval, and the long arm of the authorities through putting pressure on family and friends in China.
For example, Bao Zhuoxuan (Mengmeng), the son of Wang Yu and Bao Longjun, originally detained along with his parents on 9 July, deprived of his passport and held under strict surveillance, left the country with the help of friends. From there, he and the two friends were forcibly taken back to China from the border region with Myanmar. Now seventeen, Mengmeng is living under strictest surveillance with his maternal aunt and grandmother’s family. It is impossible for his parents’ rights lawyer friends to get near him or provide support or counsel.[23] A friend described his state as ‘utterly desperate.’
‘There is no contact with them. Their phone is controlled. And the flat just opposite his aunt’s flat has been taken over by the domestic security police [国保], who got the previous tenants to move out. At his school, they use the head student, teachers, and other classmates to control him. It was exactly the same with Gao Zhisheng’s [daughter] at the time. So, the boy’s situation now is really under terrible strain. It ought to be the springtime of his life. But now, he has not been able to see his parent’s for such a long time; he has lost his freedom of movement, and his plan to go study abroad was disrupted when they abducted him [in the night of 9 July 2015, on the way to the airport]…his mobile phone was previously forcibly taken away by them so we dare not try to contact him. And [his entire family] is under their control. This family’s situation is really the worst…If Mengmeng could have left, if would have been a consolation for his parents and encouragement for others. The fact he was taken back has now also scared a lot of other lawyers, who are asking themselves, what if their own child has to go through this sort of collective punishment at some point.’[24]
An attempt to make contact attempt to make contact with Mengmeng and his family in late May was unsuccessful.
A fifth theme was apprehensions for the future. The hardest to talk about was the fear of torture. My conversations had, as noted earlier, confirmed that some of the detained who were later released had been tortured – by kicking and beating; sleep deprivation; excessively long interrogation , being blinded with light; stress positions; and threats of extremely painful further torture, before agreeing to make statements.[25] We still know nothing about the situation of others detained incommunicado. It is unfortunately likely that undue pressure has been and continues to be brought to bear on them (including those displayed ‘confessing’ and ‘repenting’.
‘Torture is probably unavoidable in the cases [of the still-detained]. Torture is just part of the system in China… [Someone who was released] believes that those who have not been released yet have suffered worse torture [than he], because they are more central figures in these cases.’[26]
Another concern was the possibility of de facto secret trials resulting from forced or faked lawyer ‘dismissals,’ even though the lawyers purportedly ‘dismissed’ refused to abandon their clients.
‘Legally speaking, it would have to be the client themselves issuing the dismissal. Emotionally, we all know these people… We’re emotionally connected, and we have the same ideals. We borrow and learn from each other in our legal defence work. So in a situation where they are facing the calamity of imprisonment, there is no way [the detained lawyers] would let the Lawyers’ Association find a completely unknown lawyer for them [in our stead]. And again, from a legal point of view, the Lawyers’ Association can only be approached for a recommendation when the detained suspect does not know any lawyer they could appoint…it is just unconvincing, legally, emotionally, and in terms of common sense.’[27]
Some interlocutors believe that the in substance extremely weak prosecution cases against their colleagues and friends might succeed (in a manner of speaking) if the entire criminal process from detention/abduction to final conviction remained effectively secret, with no public access whatsoever. This might be the reason why the authorities did not resort to refusing access to counsel on the grounds that the cases involved ‘endangering state security.’
‘If they used that reason, they would only be able to block access to counsel during the [police] ‘investigation’ period, but not after public indictment, before the trial hearing…So, what is the point of now telling us that they have appointed [other] lawyers already? It means that we, the families and so on, don’t get to participate in the procedure from beginning to end, because they do not recognize our status. This is very bad news. It means that the families and our own lawyers may not get to know anything at all about the entire process. They can go through first and second instance – they can finish the entire trial without us ever knowing a thing. They can make the trial hearing non-public on ‘state security’ grounds, exclude the family members as witnesses, and only let people attend who don’t understand what is going on…[in that case] we might not find out what happened to them, until they are released from prison. That’s what we really fear.’[28]
In the eyes of the interlocutors, this would be the worst possible outcome. It would be the scenario most likely to allow the authorities to convict those in this process of state security crimes and impose harsh punishments,[29] another feared outcome; and it was the reason why they felt it was important to insist on their status as criminal defence lawyers.
I was sometimes left struggling to understand how, in the face of so many difficulties, the lawyers, friends and family I spoke to managed to stay positive. All the lawyers, rights defenders, friends and family I contacted were happy to meet. Several pointed out that whatever promises had been extracted from them did not bind them, legally or morally. As always, they seemed eager to speak, to come together and work on the cases of their lawyer colleagues, as well as the cases their colleagues had been forced to abandon when detained. And while some of my interlocutors were old friends, there were others I met for the first time because, at a time when all of their ‘rights lawyer’ colleagues already known to the authorities had been warned not to get involved, they had come forward to take on the criminal defence of a colleague in detention, becoming ‘rights lawyers’ themselves at what seemed like the worst possible moment to join these circles. Perhaps, the very fact that my interlocutors were so willing to meet and put their views and experience on record is part of what explains their resilience. They feel sure that history is on their side.
[1] Conversation #120-16-1.
[2] Conversation #120-16-1.
[3] Conversation #120-16-1.
[4] For example the social media app ‘Telegram’ widely used amongst rights defenders, was suspended for a short period at the beginning of the crackdown, in addition to the existing intensive control of digital expression. Also, as of mid-April 2016, ‘Telegram’ was heavily firewalled and only partly functional, with human rights defender circles apparently specially affected. In addition, the authorities used mobile phones to track target persons down.
[5] Conversation #121-16-1.
[6] Conversation #138-16-1.
[7] Conversations #137-16-1, 138-16-1.
[8] Conversations #137-16-1; #138-16-1.
[9] Conversation #129-16-2, #121-16-1; #121-16-1; #137-16-1
[10] Conversation #137-16-1. Similar: e.g. conversations #121-16-1; #138-16-1.
[11] Screenshot on file with author (April 2016).
[12] Conversation #121-16-1
[13] Conversation #124-16-1.
[14] Conversations #125-16-1; #128-16-1 and 129-16-1.
[15] Conversation #138-16-1. This is not to say that the authorities did not attempt to put pressure on the defendants in these cases, for example, in Hu Jia’s case.
[16] See e.g. Cao Yin, ‘Lawyers “tried to influence verdicts”,’’13 July 2015,; CCTV 13, 北京锋锐律所“维权”黑幕利益链调查, 19 July 2015, 北京锋锐律所“维权”黑幕利益链调查; CCTV Dialogue, Interview with Global Times Editor Hu Jinin, 8 May 2016 .
[17] Some of the legal workers were also shown apparently recriminating colleagues. A lawyer commented, ‘Probably this video-clip was made when the domestic security police goaded [the detained lawyer] to talk about matters ‘unrelated to business’ and got him to make a few remarks about [his colleague]…and edited the recording to turn it into what looks like a denunciation. Conversation #121-16-1.
[18] Comments in conversation #129-16-1.
[19] Conversation #124-16-1.
[20] Conversation #122-16-1.
[21] Conversation #121-16-1, #122-16-1.
[22] E.g. conversations #138-16-1; 128-16-1.
[23] Conversation #121-16-1.
[24] Conversation #122-16-1/
[25] Conversations #120-16-1; #122-16-1.
[26] Conversation #122-16-1.
[27] Conversation #128-16-1.
[28] Conversation #129-16-1.
[29] E.g. Conversation #129-16-1.
Eva Pils is a Reader in Transnational Law at King’s College London’s Dickson Poon School of Law, a Non-resident Research Fellow at the U.S. –Asia Law Institute, New York University Law School, and author of China’s human rights lawyers: advocacy and resistance (Routledge, 2014).
