(New York, March 9, 2009) - The first extensive analysis of official Chinese accounts regarding the arrests and trials of Tibetan protesters from March 2008 shows that by the Chinese government's own count, there have been thousands of arbitrary arrests, and more than 100 trials pushed through the judicial system, Human Rights Watch said today. New Human Rights Watch research and analysis point to a judicial system so highly politicized as to preclude any possibility of protesters being judged fairly.
Human Rights Watch has examined dozens of court reports, statements by leading officials, local judicial statistics, and official Chinese press reports. These documents reveal that the number of protests was higher than previously acknowledged by the government, that protesters have been sentenced outside the Tibetan Autonomous Region in the provinces of Sichuan and Gansu, that protestors died or were killed in Lhasa, and that courts have sentenced protesters under state security charges for nonviolent acts such as waving the Tibetan flag and throwing pamphlets on the street.
"The Chinese government has refused every external request for a real accounting of the detention, arrest and sentencing of those involved with the Tibetan protests," said Sophie Richardson, Asia advocacy director at Human Rights Watch. "Both the arrests and the releases seem to have been arbitrary, and we still know next to nothing about those who are still detained or have been imprisoned."
Against a backdrop of ever-more intrusive controls over religious and cultural activities, accelerated state-led economic development, and large-scale compulsory resettlement of farmers and nomads, major protests against Chinese rule erupted on March 10, 2008, in Lhasa and spread across the Tibetan plateau. That date marked the anniversary of the failed 1959 uprising against Chinese rule. Over the next four days, hundreds of monks from Drepung, Sera, and Ganden temples peacefully protested. But on March 14 near Romoche temple, members of the public started protesting police who were preventing monks from leaving the compound; some protesters turned violent and burned several police cars. The police retreated and then inexplicably disappeared from Lhasa for much of the rest of the day. Rioters burned Chinese shops and government buildings and attacked Chinese-looking passersby. Dozens of protests were held in Tibetan communities across the plateau over the course of that week.
The Chinese government has framed all discussions about Tibet as a sovereignty issue, claiming that the country's territorial integrity and inter-ethnic relations were threatened by a secessionist movement supported by "hostile foreign forces." The government has consistently rejected all allegations of human rights abuses in Tibet, by claiming that Tibetans' rights are fully protected under the law; pointing to political, social and economic development over the past half-century; or rejecting the expression of such concerns as conspiracies to fan ethnic dissatisfaction against the Communist Party and the government.
"The government's national security concerns do not exempt it from its obligation to respect fundamental rights and freedoms and offer equal status before the law to all its citizens, whatever their ethnicity," said Richardson. "Yet Beijing's own official accounts reflect judicial defects so severe that it is not possible to deliver a fair trial to any one accused of having taken part in the protests last year."
Human Rights Watch said that the government's official figures about arrests and convictions suggested that several hundred suspected protesters are still in custody. The Chinese government, which says that the protests resulted in 21 casualties, has not responded to demands from the United Nations and international human rights organizations such as Human Rights Watch to account for these detentions. In a joint appeal on April 10, 2008, six United Nations special procedures mandate holders issued an urgent appeal calling on the government of China for "complete compliance with due process and fair trial rights according to international standards for those detained or charged with crimes, including provision of each person's name, the charges against them, and the facility where they are detained or imprisoned, as well as ensuring access to legal defense."
The official sources reviewed by Human Rights Watch are silent on vital aspects of the protests, such as the circumstances under which protests led to clashes with the security forces, or whether the government used only such force as was necessary to protect public order and safety. But the sources do shed light on several crucial dimensions of the handling of the protests, such as the largest number of incidents officially publicly acknowledged; the indication that some protesters were killed during the security operations in Lhasa around March 14; the previously unreported sentencing of several protesters in Gansu and Sichuan province; details about direct instructions given to courts and legal professionals by local officials, politicizing the judicial process; and how peaceful dissent was construed as criminal behavior.
The sources reflect a pattern of systematic political interference with legal and judicial processes in the name of an ideologically driven "anti-separatist campaign" under the Communist Party leadership. The principle of independence of the judiciary is thoroughly undermined by the leadership's demand that courts and police tailor their actions to political requirements.
"It is not in dispute that the Chinese government has the duty to maintain public order and prosecute violent protesters," said Richardson. "But it can and should accomplish this while respecting both the law and international human rights standards."
The key findings presented in this report - based exclusively on Chinese official sources - raise sufficient concerns on their own to warrant an immediate investigation into the protests and their aftermath. Human Rights Watch called on the government to:
· provide a full accounting of all those detained, released, tried and sentenced relating to public order disturbances in Tibet in the last year;
· allow immediate access for international observers, including access by the International Committee of the Red Cross to all detention facilities; and
· fully respect the rights of those who have been accused, detained, tried, or released.
Background and Findings
About 2.6 million Tibetans live in the Tibet Autonomous Region (TAR), which occupies about half of the distinctive geographic area known as Tibetan plateau. Most of the other 3 million Tibetans live on the rest of the plateau, in officially designated "Tibetan Autonomous Prefectures and Counties" under the jurisdiction of the provinces of Qinghai, Sichuan, Gansu and Yunnan.
More Than 150 Incidents of Protest Acknowledged
The Chinese government has never given a full and detailed account of the protests and of the response by the security forces. The number and extent of protests that took place, as well as the details of how they escalated and how the security forces responded, remain unknown. This lack of information is disturbing given the substantial reports of human rights violations documented by nongovernmental organizations outside China that ought to have prompted both domestic and international investigations into the reports.
Official sources reflect that the initial demonstrations by monks from Sera and Drepung monasteries on March 10-13 did not involve violence on the part of the protesters. Yet, following the violence that broke out in Lhasa on March 14, 2008, as security forces inexplicably left the center of the city to protesters and violent rioters for several hours, the Chinese Communist Party and the government quickly revised its characterization of all Tibetan protests as the "March 14th smashing, looting, beating and burning incidents" irrespective of whether they took place in Lhasa or elsewhere, before or after March 14, and involved violence or not. This far from neutral characterization, which still stands, permeates all official accounts and gives a high ideological tone that makes it difficult to establish the nature of the different incidents that took place over a period of several weeks across the Tibetan plateau.
The political skewing of official accounts was compounded by the government rapidly placing all Tibetan areas off-limits to foreign visitors and journalists for the subsequent months, which prevented independent observers and journalists from documenting the protests and their aftermath. Even basic information such as how many incidents were recorded by the authorities is unavailable.
However, in what might be the most authoritative acknowledgment of the number and extent of the Tibetan protests ever made by the authorities, a short mention in a Chinese-language only dispatch by the state news agency Xinhua on April 2, 2008, acknowledged that "150 incidents of 'smashing, looting, beating and burning' had taken place between March 10 and March 25 in the Tibetan areas of Qinghai, Gansu and Sichuan provinces and the Tibet Autonomous Region." No other estimate about the number of protests was ever made public. Other official accounts acknowledge specific protests in a least 18 county-level areas situated in the prefectures of Chandu (Tibetan: Chamdo), Aba (Tibetan: Ngaba), Ganzi (Tibetan: Kartze), Gannan (Tibetan: Kanhlo) and Guoluo (Tibetan: Guolok) in the Tibet Autonomous Region and the provinces of Qinghai, Gansu, and Sichuan.
In early April 2008, UN special rapporteurs urged the Chinese government to "respond ... positively to outstanding visit requests to enable mandate holders including the special rapporteur on extrajudicial, summary or arbitrary executions to carry out the responsibilities entrusted to them by the Human Rights Council." After a brief interval during which a limited number of visitors were allowed back, all Tibetan areas were closed again in late February 2009, and remain so today.
Acknowledgment that Protesters Died or Were Killed
The documents reviewed also show that, contrary to the government's insistence over the past year that no protester was killed during the security operations in Lhasa that followed the March 14 violence, a statement by Palma Trily (Chinese: Baima Chilin,) the vice-chairman of the Tibet Autonomous Region, had acknowledged the death of three protesters. "I can take the responsibility to inform you that, until now three law-breakers have died," Palma Trily told a reporter from the Hong Kong Chinese-language broadcaster Phoenix TV at a news conference in Lhasa on March 27, 2008. "Some tried to jump off a building during their arrest and died after arriving at the hospital." No public investigation into the incidents was conducted, and no official mention of these three deaths appears in other official documents and state-media reports.
Prosecutions in the Tibet Autonomous Region
Statements by government officials and state media reports present a confusing picture regarding the number of people arrested and sentenced for their role in the protests. The government claims that only 76 people have been sentenced and that all the 953 people initially taken into custody have subsequently been released, sometimes after having been given "public order punishment" and "education." But these figures cover only a fraction of the total number of arrests inside and outside the Tibet Autonomous Region.
The number of 953 people taken into custody - of which 362 were described by the authorities as having "voluntarily surrendered" - also excludes arrests that took place after April 2008, and is lower than figures appearing in some Chinese-language state media reports. In particular, it is lower than the number provided by Baema Cewang (Chinese: Baima Caiwang), vice-chairman of the regional government, on November 4, 2008, that 1,317 persons had been initially detained by the Public Security forces.
Basic information about the conduct of the trial of the 76 defendants remains unavailable. There are also serious doubts about the fairness of the procedures. In the case of the first group of alleged protesters sentenced, the government initially announced that the 30 defendants had been tried in an "open court session" on April 29, 2008. When Human Rights Watch challenged the account by pointing out that the verdicts had been reached covertly earlier, state media acknowledged that the trials had in fact taken place a week before (see "Tibetan Protesters Denied Fair Trial," at: http://www.hrw.org/en/news/2008/04/29/china-tibetan-protesters-denied-fair-trial). Isolated state media reports gave the names and sentences, but not the whereabouts, of a small number of people sentenced, such as seven people accused of being agents of the Tibetan government in exile and providing "intelligence" to overseas entities, and sentenced to prison terms ranging from eight years to life.
Arrests and Prosecutions in Gansu and Sichuan Provinces
Information about detentions and prosecutions in Tibetan areas outside of the Tibet Autonomous Region (TAR) is all the more limited.
In Gannan (Tibetan: Kanhlo) Prefecure, home to over half a million Tibetans, the authorities had publicly reported that through April 8, 2008, law enforcement agencies had put 432 protesters under criminal detention, accepted the "voluntary surrenders" of 2,224 people having taken part in violent protests, and released 1,870 people. The authorities gave no details about the status of the 334 people not released, including 106 monks. The names, whereabouts, charges and place of detentions of people detained and awaiting trial in Gannan were never detailed, and no conviction there was ever publicly reported by the government or national state media.
But official documents examined by Human Rights Watch now establish for the first time that courts in the provinces of Gansu and Sichuan sentenced several dozens of Tibetan protesters during the year 2008 under charges ranging from disrupting public order to "inciting separatism" to other state security crimes. Neither government officials nor national state media have so far publicly disclosed any sentencing outside the Tibet Autonomous Region.
An official speech obtained by Human Rights Watch, and delivered on January 6, 2009 by the head of the Gannan Tibetan Prefecture Intermediate People's Court, indicates that 27 people were sentenced in 2008. The Gannan courts tried 16 cases of "violent crimes of 'March 14' smashing, looting, beating and burning" involving 27 people. Sentences ranged from two to 20 years of imprisonment, including 10 sentences in the 10-15 year range and eight in 5-10 years range. The crimes listed included arson, looting, "collectively attacking state organs," and "inciting separatism." The identity of all the people sentenced, their whereabouts, and relevant details about their trials, such as whether they had benefited from adequate legal representation, also remain unknown.
There are similar concerns about detainees and protesters unaccounted for in the two Tibetan autonomous prefectures of Ganzi (Tibetan: Kardze) and Aba (Tibetan: Ngaba) in Sichuan province, home to another million Tibetans. In Ganzi prefecture, official reports state that 289 people had "voluntarily surrendered" after several clashes in mid-March 2008. In Aba county, 381 "law breakers" had "voluntarily surrendered" by March 24, 2008. Nothing has been since heard about the fate of these individuals, including how many were subsequently released or prosecuted.
Doubts Over 'Voluntary Surrenders'
There are also concerns that not all surrenders to the authorities described as "voluntary" in official sources were indeed voluntary. Under Chinese law, the term zishou, or "voluntary surrender," simply indicates that, at the outset of formal legal procedures, a suspect has already admitted to having broken the law. Tibetans arrested and detained in the course of the numerous paramilitary sweeps acknowledged by the authorities may have been first coerced into confessing their supposed crimes and only then transferred into police custody. The Chinese government has provided no details on the circumstances of these "voluntary surrenders." Given the unlikelihood that suspects had access to defense counsel at the time of their detention, and the numerous and persistent allegations of torture on the part of police in Tibet, it cannot be ruled out that many of these admissions of wrongdoing were coerced.
Systemic Flaws Render Justice Elusive for Political Crimes
Failure to protect peaceful dissent
Human Rights Watch said that the government's failure to distinguish between peaceful protesters and those committing acts of violence is rooted both in law and practice. Article 103 of the Criminal Law sets forth the crime of "inciting separatism and harming national unity," which is overtly interpreted by the authorities as precluding any written or oral advocacy of self-determination, including, in the case of Tibet, calls for the return of the Dalai Lama, and display of the Tibetan flag.
In the first speech after the March 14 violence, given the next day to top officials of the region, Zhang Qingli, the Tibet Autonomous Region's party secretary, listed activities carried out by "law breakers" on the previous day that included both violent crimes, such as "attacking innocent bystanders," state organs and police departments, and "setting fire to shops, cars and guest houses," as well as nonviolent actions, such as "brandishing the [Tibetan] Snow Lion flag, and shouting 'Independence for Tibet' and other reactionary slogans of this style."
A case in point is the official account of the arrest of the first group of monks to demonstrate in front of the Jokhang temple in Lhasa on March 10. Published on March 25, 2008 in a regional newspaper, the article cites the Lhasa procuratorate as recounting that "around 5 p.m. on March 10 a group of monks created a disturbance in the Jokhang square by shouting reactionary slogans and brandishing the [Tibetan] Snow Lion flag." "The police immediately arrested 15 monks, of which the Lhasa procuratorate approved the formal detention of 13." The account identified a monk going under the Chinese name of Luozhui (his Tibetan name was not provided) as the ringleader as "he had been the first to display the Snow Lion reactionary flag, and was ready to shout reactionary slogans when he was caught by the public security officers."
Other official accounts of protests similarly detail the shouting of "reactionary slogans," "illegal demonstration" and display of the "reactionary [Tibetan] flag" as illegal acts that prompted the intervention of law enforcement agencies and the detention of protesters, even though the term "reactionary" is a political rather than legal category and does not appear in China's criminal code.
A rare disclosure from the judicial authorities from Ganzi (Tibetan: Kardze) prefecture Party Committee, in Sichuan Province, reflect that the crime of "inciting separatism" was used against peaceful protesters to sentence them to lengthy jail terms. On November 20, 2008, a court in Ganzi prefecture sentenced Dorje Kangzho (Chinese: Duoji Kangzhu), a 34-year-old Tibetan nun, to seven years of imprisonment for having publicly thrown in the air pamphlets calling for Tibetan independence and for having shouted "Tibet independence" slogans with a group of people in the main street of Ganzi township on May 14, 2008.
On November 27, 2008, the same court sentenced Loden You (Chinese: Luodan You) to six years in prison for having distributed leaflets in several locations, and "written with a black marker on a bridge 'Tibetans are independent' and 'Independence for the Tibetan people' and 'other slogans.'" Several other people who allegedly had participated in the plan were also arrested, but it is not known if and when they were sentenced in separate cases.
The official account is unambiguous that the sole act of writing pamphlets and throwing them in public amounted to the crime of "inciting separatism":
"The Ganzi Tibetan Autonomous Prefecture Intermediate People's Court held that the defendant Dorje Kangzho (Chinese: Duoji Kangzhu) wrote pamphlets calling for Tibet independence, threw them on important roads of Ganzi County, brazenly inciting to split the country and destroy national unity and that her actions amounted to the crime of inciting separatism."
The cases above seem to indicate that the authorities have conflated nonviolent expression of political opinion and violent protests under the label of criminal separatist activities. Such failure raises serious doubts about the validity of the characterization of "criminals" of an unknown proportion of protesters detained and sentenced and suggests clear-cut human rights violations in a number of cases.
Orders to rush prosecutions from the Party
In addition to these statutory limitations on freedom of expression and assembly, a series of political instructions given to the courts also virtually voided the possibility that the courts adjudicate fairly and impartially in cases involving Tibetan protesters. On March 17, 2008, Zhang Qingli, the Communist Party secretary for the Tibet Autonomous Region, urged that there be "quick arrests, quick hearings, and quick sentencings" of the people involved in the protests. Such a political directive circumvents guarantees for a fair and impartial legal process.
On March 19, prior to any determination by a court, the Lhasa procuratorate announced that the violence in Lhasa "was organized, planned, and premeditated by the Dalai Lama clique," and that in the cases of 24 criminal suspects formally arrested that day "the crimes were clear and the evidence sufficient" to determine that they had committed "state security crimes." This stark pronouncement called into question whether the courts, which are also subject to Party control, could seriously uphold the right to be presumed innocent until proven guilty.
On April 2, 2008, TAR vice chairman Baema Cewang (Chinese: Baima Caiwang) reiterated Zhang Qingli's instruction to rush prosecutions at a work meeting of the regional High People's Court in which he also urged "[c]ourts at all levels to conduct their work under the strong leadership of the Regional Party Committee" and to "combine the application of the law with the application of the Party policies." Courts in the TAR subsequently established special taskforces to coordinate "March 14 cases" and reinforced the role of the Party-led adjudication committees to "direct" the trying of these cases.
Sichuan and Gansu Party authorities issued similar instructions to courts. The head of the Gannan Intermediate People's Court, for instance, stressed in his annual report in January 2009 that "courts at all levels [in the prefecture] had achieved excellent political, social and legal results" in trying protester cases "under the leadership of the Party, the People's Congress and the government."
In essence, this body of instructions required procurators and courts to tailor justice to what best served the Party's highly ideological "anti-separatism" campaign. They serve as a dramatic illustration of how the Party vitiates independence of the judiciary, a central requirement for the administration of justice and the conduct of fair trials.
Restrictions on adequate legal representation of defendants
There is also evidence that the right of the defendants to be represented by the lawyer of their choice was ignored by the judicial authorities. In April 2008, a group of 18 prominent civil rights lawyers issued an open letter offering to provide legal assistance to the detainees. "As professional lawyers, we hope that the relevant authorities will handle Tibetan detainees strictly in accordance with the constitution, the laws and due process for criminal defendants," the letter said. "We hope that they will prevent coerced confessions, respect judicial independence and show respect for the law."
Shortly thereafter, judicial authorities in Beijing threatened to discipline these lawyers and suspend their professional licenses unless they withdrew their offers of assistance. The authorities claimed that the Tibetan protesters were "not ordinary cases, but sensitive cases."
Defendants occasionally benefit from court-appointed lawyers, although those are generally Ministry of Justice employees, and they do not meet the standards of independence required of a defense counsel in a fair trial. In the context of the "anti-separatist campaign" local judicial authorities in Tibet explicitly required lawyers to follow policies set by the Party. For example, Aba (Tibetan: Ngaba) prefecture judicial authorities told lawyers at an April 29, 2008 meeting that, "[a]ll legal personnel should affirm a high degree of solidarity in thinking and motivation with the Central Party leadership and the provincial and prefectural Party organs," and "strengthen their attitude for the struggle against separatism in defense of the political stability in Aba prefecture."
Against this highly politicized background, Tibetan defendants accused of having participated in the protests stand little chance of benefiting from meaningful legal representation and the due process of law to which they are entitled under Chinese law.
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