VII. International Standards
The abuses documented in this report, including disproportionate use of force, torture and other cruel and inhumane treatments, and arbitrary detention, contravene international human rights law, as well as Chinese domestic law.
Use of Force in Police Operations
Governments have the right to use force to reestablish public order when confronted with violent protests. However, they are obligated to respect basic standards of human rights that govern the use of force in police operations. These universal standards are embodied in the United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, which, together with the UN Code of Conduct for Law Enforcement Officials, provide international standards governing the use of force in law enforcement.[147] These principles, while not legally binding, provide authoritative guidance, and reflect a high level of consensus within the international community about the standards that states are required to apply to the use of force and firearms by law enforcement officials.
The UN Code of Conduct for Law Enforcement Officials applies similar international human rights standards for law enforcement. Article 3 of the Code requires that “[l]aw enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.” The official commentary accompanying Article 3 sets forth detailed standards applying to the use of firearms, urging restraint in their use, and recognizing the principle of proportionality in the use of firearms.
The UN Basic Principles on the Use of Force and Firearms by Law Enforcement OfficialsThe Basic Principles state, inter alia, that: “Whenever the lawful use of force … is unavoidable, law enforcement officials shall … exercise restraint in such use and act in proportion to the seriousness of the offense.The legitimate objective should be achieved with minimal damage and injury, and preservation of human life respected.”[148] The Principles define “law enforcement officials” to include “all officers of the law, whether appointed or elected, who exercise police powers, especially the power of arrest or detention. In countries where police powers are exercised by military authorities, whether uniformed or not, or by State security forces, the definition of law enforcement officials shall be regarded as including officers of such services.”[149]
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Right to Peaceful Assembly and Expression
Not all Tibetan protests in 2008 and 2009 involved violence on the part of protesters. Yet the government has systematically characterized Tibetan protests as “illegal.” The right to peaceful assembly is a fundamental principle of international human rights law. Article 20 of the Universal Declaration of Human Rights states that, “Everyone has the right to freedom of peaceful assembly and association.” Article 21 of the International Covenant on Civil and Political Rights (ICCPR) provides that:[151]
No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals, or the protection of the rights and freedoms of others.[152]
While the covenant accepts that prior notification of a peaceful assembly can be required—as specified under Chinese law—the article also stipulates that restrictions on the right of assembly must be “necessary.” But given that there is no known case of a Tibetan demonstration having ever been approved by the government, it appears that the Chinese government regularly and gratuitously restricts this right. In fact, authorities often use intimidation and threats to discourage people from participating in protests or other peaceful assemblies.[153]
Arbitrary Deprivation of Liberty and Enforced Disappearances
International human rights law also prohibits the arbitrary deprivation of liberty. Article 9 of the International Covenant on Civil and Political Rights (ICCPR) defines as arbitrary and prohibits detention “except on such grounds and in accordance with such procedure as are established by law,” and states that detainees have the right to judicial review of their detention and compensation if it is found to be unlawful. [154] Even during recognized states of emergency, fundamental guarantees still apply, such as the right to appear before a judicial authority to have the legality of detention reviewed. [155]
Enforced disappearances constitute “a multiple human rights violation.”[156] They violate the right to life, the prohibition on torture and cruel, inhuman, and degrading treatment, the right to liberty and security of the person, and the right to a fair and public trial. These rights are set out in the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).[157]
The UN Declaration on Enforced Disappearances recognizes the practice of “disappearance” as a violation of the rights to due process, to liberty and security of a person, and to freedom from torture. It also contains a number of provisions aimed at preventing “disappearances,” stipulating that detainees must be held in officially recognized places of detention, of which their families must be promptly informed; that they must have access to a lawyer; and that each detention facility must maintain an official up-to-date register of all persons deprived of their liberty. [158]
The practice of enforced disappearances is often directly linked to the practice of arbitrary and unlawful arrests. In this respect, the ICCPR requires that a state specify the legal basis on which individuals may be deprived of their liberty, and the procedures to be used for arrests and detentions. [159] Only arrests and detentions conducted in accordance with such rules are considered lawful, thus restricting the discretion of individual arresting officers. The prohibition against arbitrary arrest or detention also means that deprivation of liberty, even if provided for by law, must be necessary and reasonable, predictable, and proportional to the reasons for arrest. [160]
The ICCPR also requires an arresting authority promptly communicate to detainees any charges against them. If a person is detained on suspicion of a crime, he or she must be charged within a reasonable time. In addition, international law grants a detainee the right to challenge the lawfulness of his or her detention by petitioning an appropriate judicial authority to review whether the grounds for detention are lawful, reasonable and necessary.
The responsibility of the competent authorities to inform families of the whereabouts of those detained and provide for a detainee’s communication with a counsel is further emphasized by the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment—an authoritative United Nations document summarizing international human rights standards in relation to detention.[161]
Torture and Ill-Treatment
Both customary international human rights law (such as that found in the Universal Declaration of Human Rights), as well as treaty law—including the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment—prohibit torture and cruel or inhuman treatment, among other abuses described in this report.[162] These prohibitions apply at all times, even during recognized states of emergency.[163]
The ban against torture is one of the most fundamental prohibitions in international human rights law. According to the Convention against Torture, torture is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person … by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.”
The UN Committee Against Torture, which reviews the compliance of states with the convention, has made it clear that “those exercising superior authority—including public officials—cannot avoid accountability or escape criminal responsibility for torture or ill-treatment committed by subordinates where they knew or should have known that such impermissible conduct was occurring, or was likely to occur, and they failed to take reasonable and necessary preventive measures.”[164]
No exceptional circumstances can justify torture. States are responsible for having effective systems in place for addressing victims’ complaints, and prosecuting those who torture, those who order them to, and those in positions of authority who fail to prevent or punish torture.
[147]United Nations Code of Conduct for Law Enforcement Officials, adopted December 17, 1979, G.A. res. 34/169, annex, 34 U.N. GAOR Supp. (No. 46) at 186, U.N. Doc. A/34/46 (1979).
[148]Basic Principles on the Use of Force and Firearms by Law Enforcement Officials, Eighth U.N. Congress on the Prevention of Crime and the Treatment of Offenders, Havana, August 27 to September 7 1990, U.N. Doc. A/CONF.144/28/Rev.1 at 112 (1990).
[149]Basic Principles, “Note.”
[150]Ibid, Principle 9.
[151]China is a signatory to the International Covenant for Civil and Political Rights (ICCPR). While it has not yet ratified the Covenant, it is already bound not to act in such a way as to defeat the objects and purposes of the Covenant. See Vienna Convention on the Law of Treaties, art. 18; Peter Malanczuk, ed., Akehurst's Modern Introduction to International Law (London: Routledge, 7th ed. 1997), p. 135.
[152]International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976. Article 21.
[153]“China: Police Detain Would-Be Olympic Protesters,” Human Rights Watch News Release, August 13, 2008, http://china.hrw.org/press/news_release/china_police_detain_would_be_olympic_protesters.
[154]ICCPR, Article 9.
[155]See ICCPR, Article 9 (prohibition on arbitrary detention) and Article 4 (states of emergency); see also Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001), reprinted in Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.6 at 186 (2003), para. 11 (the ICCPR provisions on states of emergency may not be invokes “as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence”).
[156]United Nations Commission on Human Rights, “Report submitted January 8, 2002, by Mr. Manfred Nowak, independent expert charged with examining the existing international criminal and human rights framework for the protection of persons from enforced or involuntary disappearance, pursuant to paragraph 11 of Commission Resolution 2001/46” (New York: United Nations, 2002), E/CN.4/2002/71, 36.
[157]ICCPR; Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (Convention against Torture), adopted December 10, 1984, G.A. Res. 39/46, U.N. Doc. A/39/51, entered into force June 26, 1987. China ratified the Convention against Torture in 1988. China signed the ICCPR in 1988 but has not yet ratified it. China is still legally bound to observe those rights in the treaty that amount to customary international law. Moreover, the act of signing the treaty is significant in terms of state obligations—according to the general principles of international law, by signing the treaty a state undertakes to refrain from any actions that would run counter to the object and purpose of the treaty until it has made clear its final intentions with regard to the treaty. Under the ICCPR, no one should be subjected to arbitrary arrest or detention. An arrested person should be informed, at the time of arrest, of the reasons for his arrest and is to be promptly informed of any charges against him. Anyone arrested or detained on a criminal charge must be brought in a timely fashion before a judge or other officer authorized by law to exercise judicial power, and every person deprived of his or her liberty by arrest or detention has the right “to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.” ICCPR, Article 9(4). Further protections are offered by Article 6 (the right to life), Article 7 (prohibition of torture), and Article 17 (protection from arbitrary interference with privacy, family and home).
[158]United Nations Declaration on the Protection of All Persons from Enforced Disappearances, adopted December 18, 1992, G.A. res. 47/133, 47 U.N. GAOR Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992), article 10. These provisions are further reinforced in the Article 17 of the Convention against Enforced Disappearances.
[159]ICCPR, Article 6.
[160]Manfred Nowak, UN Covenant on Civil and Political Rights, CCPR Commentary (Kehl/Strasbourg/Arlington: N.P.Engel, 2005), p.225.
[161]Principle 16(1), Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (Body of Principles), adopted December 9, 1988, G.A. Res. 45/111, annex, 45 U.N. GAOR Supp. (No.49A) at 200, U.N. Doc. A/45/49 (1990).
[162]Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).
[163]ICCPR, art. 4 (non-derogable rights and states of emergency).
[164] UN Committee against Torture, General Comment no 2, CAT/C/GC/2, January 24, 2008.