The Deep Void: China Must Conduct Credible Investigations of Torture in Tibet

Credit: Tibet.net (Students of Tibetan Children’s Village School in Gopalpur, India enacting a short drama on the Chinese authorities’ atrocities against Tibetans during the four-day Tibetan People’s Solidarity Campaign in New Delhi, India, in 2013)

China’s human rights violations in Tibet have been consistently condemned by international human rights bodies, including the U.N. Among these violations is China’s persistent failure to comply with its obligations under the Convention Against Torture (CAT), to which China has been bound since it ratified the treaty in 1987. A fundamental principle underlying the CAT, as stated in the preamble, is that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” Under Article 12, State Parties to the treaty must ensure “prompt and impartial” investigations into credible allegations of torture “in any territory under its jurisdiction.” In other words, when a Party to the CAT is made aware of credible allegations of torture, the State has a duty to establish adequate mechanisms to protect victims and hold perpetrators accountable. China has consistently failed to fulfill this duty under Article 12, as it has been continuously unwilling to investigate allegations of torture in Tibet despite numerous recommendations by international human rights bodies for more transparency.

China’s criminal procedure laws (CPL) on torture would, on their face, appear to show a commitment to the CAT and, more specifically, Article 12. For example, Article 50 of the CPL prohibits the practice of extracting confessions through torture, and Article 55 punishes state officials with up to three years’ imprisonment for extracting confessions through force. Since 1995, the Police Law of the People’s Republic of China proscribes extracting confessions through torture, corporal punishment or ill-treatment of criminal suspects, and subjects police officers and prosecutors to suspension or dismissal for committing such acts. In 2010, China passed a number of amendments to its CPL, putting in place new procedural rules purporting to address systemic torture in the country’s criminal justice system.

However, these laws remain woefully deficient not only for their vagueness but also because they are rarely complied with in practice. For example, there is no definition or category of the kinds of acts that may amount to torture, making it exceedingly difficult for detainees to claim they were tortured. China undoubtedly exploits such legal and practical gaps, particularly against Tibetans. But, to fully understand China’s failure to fulfill its Article 12 obligations requires peeling back the institutional and political layers that enable policies that prevent prompt and impartial investigations of torture with regard to Tibet.

Credit: Xinhua (China’s top legislature amending the CPL in 2018)

The Office of the Procuratorate (the public prosecutor’s department), which is tasked with investigating allegations of torture by or with the consent of government officials in China, is not independent from local governments or the Chinese Communist Party (CCP). Worse, the Office of the Procuratorate is both responsible for supervising law enforcement bodies and prosecutors. As prosecutors within the Office of the Procuratorate are not politically neutral, it is usually easy for law enforcement to circumvent legal protections against forced confessions. For example, Amnesty International, in detailing the implications of prosecutors and law enforcement being supervised by the same body, cited one Chinese based lawyer in a 2015 report on “Torture and Forced Confessions in China”:

“[P]ublic security officials are aware of the laws and regulations, but they selectively implement them and intentionally distort the meaning in implementation. And the procuratorate and the court are not independent. They are controlled by the party.”

These factors mean that serious investigations into allegations of torture depend on the political will of the CCP, which is primarily driven by the goal to swiftly prosecute political threats. There are no truly independent and impartial legal institutions in the criminal justice system. Nor has the Chinese government explained how procuratorates are able to function independently in response to these concerns. The political influence of procuratorates is particularly important in Tibet, where, as my colleagues have highlighted, the CCP exercises its political ambitions through aggressive suppression of Tibetans’ rights, including freedom of expression, culture, and language.

The Boston University International Human Rights Clinic (IHRC) will be highlighting, in partnership with the Tibet Justice Center (TJC) and the Tibet Advocacy Coalition (TAC), China’s violations of international law under the CAT in a joint report to the Committee Against Torture, including its failures to investigate credible allegations of torture in Tibet under Article 12. Joint reports from civil society organizations are an essential means through which the Committee Against Torture oversees compliance with the CAT. Through our joint report, we aim to draw further attention to China’s violations of the CAT in Tibet and, as a result, increase pressure on China to comply with its human rights obligations.

One example of China’s CAT violations in Tibet is the case of Tenzin Rinpoche, a Tibetan lama (Tibetan lamas are Buddhist spiritual leaders and teachers). Sentenced to twenty years in prison on charges of “terrorism and inciting separatism” without any evidence while denying him a lawyer of his choice, Tenzin’s family alleged he was tortured and, as a result of the torture, could only walk with a cane. He died in prison in July 2015, and international requests for an investigation into his treatment in prison have gone unheeded.

Credible allegations of torture, such as those by Tenzin Rinpoche and numerous others, highlight the dissonance between China’s claimed compliance with the CAT and the actual systemic practice of torture in Tibet. Although China’s laws purportedly outlaw torture and provide mechanisms for investigation, the laws are insufficient and their application non-existent in Tibet. In fact, torture and forced confessions of detainees are practiced with impunity in Tibet. More often, even, is China’s practice of releasing prisoners on medical parole while they are in critical condition and before they die in order for officials to evade allegations of torture and retain plausible deniability. And, rather than back up its claims of compliance with the CAT through credible evidence, China has refused to allow any U.N. Special Rapporteurs to visit Tibet since 2005.

In preparing our report to the Committee against Torture, we are emphasizing that China’s failure to engage in prompt and credible investigations of torture reflects a systemic refusal to comply with its obligations under Article 12. Further, it is imperative that the international community continue to compel China to align its behavior with the fundamental principles of the CAT. The most urgent call is for China to institute a transparent process for investigating and punishing torture carried out by state authorities, and bring to an end ongoing policies and practices of torture that systematically target Tibetans in the Chinese prison system.

Author Bio: Kiefer Kofman is a second-year law student in Boston University School of Law’s International Human Rights Clinic. He received his bachelor of arts in Political Science at Pace University and an MSc from the University of Oxford. Following graduation, he plans to pursue international human rights advocacy in South Asia and Latin America, and advocate for a stronger international human rights influence in U.S. constitutional law.

Boston University School of Law's International Human Rights Clinic.