‘If I lose my freedom’: preemptive resistance to forced confessions in China
Last month, lawyer Yu Wensheng (余文生) and activist Zhen Jianghua (甄江华) , both essentially in incommunicado detention, reportedly “sacked” their legal counsel. These are lawyers they pre-appointed in case they were detained, or trusted family members had hired. Sound suspicious? It’s well known that police will coerce detainees, especially human rights defenders who know how the law works, to revoke their right to a lawyer of their own choice. We know that police threatened them or faked their signatures because before they were detained both prepared statements to say they would never willingly give up their own lawyers: Lawyer Yu on video and activist Zhen on paper. Their actions are part of a growing trend in China for human rights defenders to make preemptive videos or statements to explain that once in detention their actions are not freely chosen. Once detained you cannot speak out. It seems timely then, to republish an article one of our co-founders, Michael Caster, wrote last year, on this practice. (It is republished here with the kind permission of Hong Kong Free Press).
Michael Caster
On 3 May (2017), police in Yunnan abducted human rights lawyer Chen Jiangang (陈建刚). He was forced to drive with security over 3,000 kilometres back to Beijing. He remained in their custody for over 80 hours, coincidentally missing the trial of his client, Xie Yang (谢阳) , whose torture he had exposed in January. At his trial, Xie “admitted” to having been brainwashed by foreign agents, and on Hunan state TV he repeated that he had sensationalised cases and denied that he had been tortured. Xie had anticipated his forced confession. Xie, detained in July 2015, wrote in a January 2017 affidavit, “If, one day in the future, I do confess – whether in writing or on camera or on tape – that will not be the true expression of my own mind. It may be because I’ve been subjected to prolonged torture, or because I’ve been offered the chance to be released on bail…” Soon after his trial, Xie was released on bail, but he is not free.
It seems police abducted Chen Jiangang to ensure his silence during Xie’s trial, but as soon as he was taken, reasonable fears circulated that he would be “disappeared”. Like Xie Yang, Chen’s understanding of the cruelty of China’s police state bred prescience. Three months earlier he had recorded a video statement to be released if he lost freedom. It was published on the China Change website soon after he was taken. A sombre five minutes, Chen states that he has committed no crimes and won’t accuse others. Any spoken, written, or video confession will only have been made under duress, threat, or torture. If, in the future, he ends up on television accusing others or revealing names, he asks for forgiveness. Emotionally, he ends with, “If I am seized, dear kids, your father loves you. If I lose my freedom, release this video.” While such prerecorded statements are becoming more common for human rights defenders in China, still more should learn from those like Chen Jiangang that protecting their clients or themselves also involves controlling narratives. Such statements are an important innovation in protection tactics in response to China’s increasing fetish for disappearances and forced confessions. China is a fan of forced confessions Forced confessions violate Chinese law and international norms. For those awaiting trial, broadcasting forced confessions violates their right to a fair trial. Many forced confessions come following hundreds of days in pretrial detention, which itself should be the exception, never the rule, and only for the shortest time necessary. The risk of torture is already high in a criminal justice system reliant on confessions, while the pursuit of forced confessions drastically increases the risk. Victims of enforced disappearance and secret detention are especially vulnerable to torture. Emblematic is the case of my friend and former colleague lawyer Wang Quanzhang (王全璋), whose exact fate and whereabouts have not been verified since police abducted him in August 2015. In January 2017, it was revealed that he has been tortured. Likely, Wang’s ongoing abuse is largely due to his refusal to perform a forced confession. Part of the “709 Crackdown,” several prominent human rights lawyers have been forced to deliver televised confessions, from Wang Yu (王宇) to Zhang Kai ( 张凯), who later disappeared a second time after he publicly recanted his initial forced confession. A couple months earlier, in June 2016, Hong Kong bookseller Lam Wing Kee (林榮基) also revealed that he and his colleagues at Mighty Current publishing had been forced into confessing, including Gui Minhai (桂民海) who remains incommunicado. In his televised “confession,” Gui, a Swedish citizen, asked not to receive diplomatic assistance and renounced his Swedish citizenship. This has been rightly dismissed as arising from coercion but what if Gui, like Chen Jiangang, had left a video preemptively dismissing such absurdity? For many who disappear into China’s Orwellian darkness, and reemerge to “confess,” their last credible speech act may be what they leave with others, which in turn may offer some protection. Scholars have identified the dramatisation of glaring state contradictions as creating opportunity for resistance. In practical terms, if preventive protection measures against certain forms of repression are increasingly adopted, the authorities are more likely to abandon them, ultimately protecting human rights defenders from being subjected to them in the first place. Preventive protection and forced confessions Video is powerful and rights defenders at risk of disappearance or forced confession should record their statements rather than just writing them down. Before recording, it is important to conduct a thorough threat assessment, which should be detailed and constantly reviewed and updated. Once taken, it is often too late to ask that person what assistance they want. Even if allowed to meet a lawyer, pressure often limits what one is able to say. This is why recording in advance is so important. The message depends on the individual. Gui Minhai could have expressed that he had already given up Chinese citizenship and would never renounce Swedish citizenship. For others it could be stating that they would never accept a state appointed lawyer. Some might want to issue a statement about family members, that except if subjected to threat or torture they would never deny access to the family bank account, a measure the state has used to target family members’ economic livelihood. It is also important that the video preempts likely accusations, such as noting that under no circumstances but duress or torture would one admit to being a criminal, or denounce colleagues. One might state they have never colluded with foreign forces to cause trouble, that they believe in human rights and the rule of law, respect their work, and would never denounce their efforts to strengthen the rule of law in China, except if under threat to do so. Human rights defenders should make sure they have a safe contact responsible for sharing the video if anything happens. Sorting out power of attorney issues before detention is vital, even if the state is likely to refuse a meeting with lawyers on other grounds. The person responsible for releasing the video, family members, and lawyers should all be in contact and aware of the video statement. It is a travesty of the rule of law that anyone would need to think of preemptively recording their own defence against baseless charges and forced confessions but if more human rights defenders did so then potentially the power of this repressive measure will ultimately be lost through the unmasking of contradictions.