‘If I lose my freedom’: How China’s human rights defenders are preemptively resisting forced confessions

Originally published on 16 May 2017 at Hong Kong Free Press, here.

On May 3, police in Yunnan abducted human rights lawyer Chen Jiangang. 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, whose torture he had exposed in January.

At his trial, Xie Yang “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 Yang 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, 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 to Zhang Kai, 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 also revealed that he and his colleagues at Mighty Current publishing had been forced into confessing, including Gui Minhai 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.


To strengthen digital security for human rights defenders, behavior matters

Article originally appeared on 9 May 2017 as part of the Data and Human Rights discussion at Open Global Rights, and is available here.

Most conversation about digital security for human rights defenders (HRDs) tends to focus on privacy and data protection. This is necessary, but what good is a strong passphrase or Virtual Private Network (VPN) when you are at risk of enforced disappearance and torture by the police? In such situations, even the most seasoned HRD is likely to give up access. A strong digital security strategy adds to protection from physical threats, but for many HRDs operating in hostile environments such threats are sadly inescapable and protection strategies need to be more practical.

The typical emphasis on privacy and data protection means that conventional digital security thinking often stresses technical advice for communication security to prevent detection and HRD detention.

The typical emphasis on privacy and data protection means that conventional digital security thinking often stresses technical advice for communication security to prevent detection and HRD detention. But technical tools only extend so far after an HRD is detained or subjected to torture by police intent on gaining access. I know very tech savvy HRDs who have quickly given over their passphrases at the threat of torture. No one can judge them. In such horrific, and sadly common, scenarios, a more holistic approach to digital security is needed.

Through ongoing support for local initiatives that take a practical approach to digital security, the hope is that more secure behavior will develop in tandem with technology for the authentic holistic security of HRDs in hostile environments.

The United Nations Special Rapporteur on the situation of human rights defenders, Michel Forst, addressed these multiple insecurities in a February 2016 report, calling for HRDs to foster a culture of ‘holistic security’ that interlinks physical security with digital security and psychosocial well-being. The notion of ‘holistic security’ has been gaining traction in HRD protection frameworks since before 2016 but often in otherwise compartmentalized ways.

On the ground, however, this often means transplanting digital security tools from one context into another alongside other physical or psychosocial strategies, and thinking less holistically about the physical and psychosocial realities of digital security.

This problem is crucial for HRDs operating within authoritarian regimes and shrinking civic spaces, where absent the rule of law there are no such legal protections as habeas corpus, the right to counsel, or freedom from torture. And, as Zara Rahman recently articulated, “technologies are sometimes mentioned or adopted not because they are the most strategic or necessarily useful tools for the job,” but due to uninformed pressure.

Take the most common technical advice offered for enhancing digital security: encryption. Most digital security literature recommends, among others, encryption tools like Protonmail, Signal Messenger, or Vera Crypt. Such tools are necessary but insufficient. Yes, encryption done right ensures that only the intended parties have access, protecting data from third-party monitoring, except the most sophisticated and time-intensive intrusion efforts. But this only offers short-term security in authoritarian regimes.

For several years, I have been working with rights defenders in China, and elsewhere, to develop practical approaches to various protection challenges, including digital security. The project I’m part of is based on the active participation of local feedback groups among the target beneficiaries, and is ongoing with support from Reporters Without Borders and others. Initial conclusions of this project arguably offer transferrable value for HRDs in other repressive environments.

After considerable reflection, my collaborators and I have found that more attention to behavior is critical in providing digital security for HRDs in hostile environments. This means addressing how HRDs relate to and act with the digital security tools they choose to use, how HRDs understand local realities, and how HRDs are supported (or not) based on their specific contexts and threats. This can be called localizing a behavioral approach to digital security.

Here are a few examples for securing behavior from our work so far.

For practical purposes, relying on secure communication tools is important under authoritarianism but, once in detention the concern is less about preventing access than limiting what is accessible. HRDs should adopt dedicated emails for work and maintain a Zero Inbox Policy—that is, always deleting content, either manually or through automatic destruction such as offered in Protonmail, or Signal and Telegram for chat-based communication. This should be standard HRD communication behavior.

Another, often-overlooked behavioral issue, is how HRDs delete sensitive information. Encrypting sensitive data from intrusion is meaningless if it is left easily accessible after deletion through file recovery programs. Several HRDs I spoke with recounted that during police interrogations they were questioned based on whole or partially recovered documents they had thought they had deleted. In short, the way we usually ‘delete’ something does not necessarily delete anything.

Ultimately, any approach to digital security must combine increasing security with a realistic understanding of what behavior is practical. For example, realistically, most people aren’t going to remember the login information to sign into every account they hold, including for shopping or friendly chatting. They would be happy for some passphrases or account details to be saved, and would quickly abandon a procedure that requires otherwise. As such, one of the most practical behavioral approaches is maintaining a dual browser strategy. HRDs should keep one browser, say Firefox, for all rights defense work. Here they use the relevant browser extensions and conventional best practices, with automatic erasure upon exit. On the other hand, they should keep a separate personal browser for entertainment, say Chrome or Opera, in which, for example, non-sensitive passwords can be saved for easy use.

The approach should also be local. This means language localization, as far too many technical tools remain available only with English language interfaces, but above all it means contextualization and regionalization. This is in line with a recent piece by Danna Ingleton, on the importance of recognizing agency and centralizing the experiences of HRDs in their own protection.

In this sense, developing practical digital security strategy requires extending a greater degree of agency to the HRDs who are most affected and who will most benefit. One way to achieve this is for donors to support the creation of local feedback groups, which has been the foundation of the project I have been involved with, whether to inform the creation of new versions of existing digital security guidebooks, identify the most practical behavior for how technology is used, or devise bottom up advise for institutional support.

Through ongoing support for local initiatives that take a practical approach to digital security, the hope is that more secure behavior will develop in tandem with technology for the authentic holistic security of HRDs in hostile environments.