‘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.

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Exposing falsehoods in Chinese law: Tibetan language advocate Tashi Wangchuk is no separatist

Originally published at Hong Kong Free Press on 27 January 2017. Here.

A year ago today, Tashi Wangchuk disappeared. He was recently indicted and is now awaiting trial, facing a 15-year sentence for the baseless charge of inciting separatism.

His crime: advocating Tibetan language rights in an interview with the New York Times – hardly a threat to national security.

tashi wangchuk

On 27 January 2015, two cars filled with men not wearing uniforms or presenting identification arrived at Tashi’s home, claiming he needed to go with them to handle some business registration. Two hours later, he was in police custody at the Yushu Public Security Bureau, locked into a tiger chair where he was kept until the following evening, continuously interrogated. They threatened him and his family. They demanded if he was in touch with Tibetan separatists abroad. A few days later, in a different detention center, he was subjected to a week of constant interrogation, during which he was repeatedly beaten by two Tibetan police officers. His family wasn’t notified of his detention until 24 March, 57 days later, when they were told that he was being charged with inciting separatism.

The charge arises from a distorted investigation into the New York Times video carried out in February by the Tibet research branch of the Ministry of Public Security, well before Tashi’s first meeting with his lawyers in June. According to the February investigation, in the video Tashi had intentionally acted to incite separatism, break Tibetan social stability, and discredit China internationally.

Tashi has also been active on Weibo and his last post before being detained is illustrative of the type of vocabulary in the video that the government claims discredits China and incites separatism. As reported by the New York Times, on 24 January, Tashi reposted a comment urging Chinese legislators to enhance bilingual education and hire more bilingual civil servants – hardly the rhetoric of an insurrectionist. The charge against Tashi is absurd.

Tashi does not advocate separatism. He only sought to promote Tibetan language education, guaranteed under Chinese and international law, and to use Chinese law to pressure officials to faithfully implement Tibetan language rights.

International standards are quite clear. Advocating Tibetan language rights is not a crime. The International Covenant on Civil and Political Rights, which China has signed, holds that minorities shall not be denied the right, among others, to use their own language. The Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, which provides further guidance on international standards, also calls on states to take positive measures to create favorable conditions for minorities to develop their language.

In 2013, UN Special Rapporteur on minority issues Rita Izsák voiced concern that defending minority language rights has been associated with separatist movements by some countries where the unity of the state is largely influenced by the political narrative of a “single national language as a means of reinforcing sovereignty, national unity and territorial integrity.” In such countries, assimilationist narratives often extend to every aspect of minority culture, from language to religion, subsuming it under the oppressive myth of national unity through the forced adoption of majority culture. Minority language, as with folklore or custom, are downplayed to the level of tourist attraction for majority amusement. This is widespread in China.

Rather than treating efforts to reclaim rights for minority language and culture as acts of separation, Izsák explains, protecting the language rights of minorities is not only a human rights obligation but also essential to good governance, conflict prevention, and social stability.

That Chinese law supposedly guarantees minority language rights only makes the charges against Tashi all the more ludicrous. The constitution provides that all nationalities have the freedom to use and develop their own written and spoken language. This is also protected in the Regional Ethnic Autonomy Law, which goes on to note educational organizations with mostly ethnic minority students should strive to rely on textbooks and instruction in their own language. The national plan on education reform places similar emphasis on linguistic minority rights. It states that no effort shall be spared to advance bilingual teaching and that minority rights to education in their native language shall be ensured.

Despite such protections, China has incrementally repressed Tibetan language rights with the same increasing ferocity with which it has assaulted virtually every other aspects of Tibetan culture.

Tashi told the New York Times that his passion for language rights campaigning, in part, began with his desire to find a place for his two nieces to study Tibetan after local officials closed a small school where monks had offered Tibetan language classes. Public schools throughout Tibet have largely abandoned bilingual education, approaching Tibetan the same way it would a foreign language, says the International Campaign for Tibet.

Regulations in 2010, that severely limited the use of Tibetan language in schools sparked major protests in Qinghai and lead to an urgent appeal before the Human Rights Council. In 2015, regulations on bilingual education instructed officials to “unswervingly implement the national common language [Mandarin]…to ensure that minority students master and use the basic national common language.” Such policies give rise to the accusations that advocacy for minority language is a separatist attack on politically crafted national unity. This is wrong.

On 10 December, international human rights day, U.S. Ambassador Max Baucus asked, “China’s constitution states that ‘all nationalities have the freedom to use and develop their own spoken and written languages.’  So I ask why Tashi Wangchuk, a Chinese citizen who is deeply interested in education, remains in jail for his peaceful advocacy of Tibetan language education.”

Now, more than a month later, with the stakes for Tashi highly increased, the answer to Ambassador Baucus remains the same, because in China the law only matters as far as it suits the interests of the state.

Indicting Tashi for insisting on nothing more than for the government to uphold its own laws on language rights is as much an indictment against China’s claims to be a laws-based society. Tashi should be released immediately. Instead, the state now seems likely to condemn him to prison to cover its own falsehoods.

Taiwan: Can Tsai Ing-Wen Change the Politics of Death?

This article was originally published at the Diplomat on February 10, 2016.

Following Tsai Ing-wen’s electoral victory last month, KMT lawmakers have been challenging Ms. Ing-wen, who will be inaugurated as Taiwan’s first female president on 20 May, and her Democratic Peoples Party on several issues. Among them, Ms. Ing-wen has been demanded to reveal her stance on the abolition of the death penalty. While capital punishment remains relatively popular in Taiwan, Lin Hsinyi, Executive Director of the Taiwan Alliance to End the Death Penalty, has pointed out that none of the KMT lawmakers who attacked the DPP over the abolition of the death penalty have been reelected. For her, “this congress is more friendly to human rights.” What will this mean for the death penalty in Taiwan?

In early June 2015 six death row inmates were executed at four locations around Taiwan. Their executions attracted some positive domestic attention but raised numerous concerns internationally. Taiwan has come under criticism several times by international human rights organizations for failing to adhere to procedural guidelines and the apparent use of capital punishment for political purposes. Such accusations could amount to violations under international law but this could change with Tsai Ing-wen and the DPP, which has tended to support abolition.

The Politics of Death

The Taiwan Alliance to End the Death Penalty (TAEDP) has observed that, “all the executions since 2010, when the four-year moratorium was lifted, took place when the government approval rate was low.”

Taiwan had a moratorium on capital punishment from 2006 to 2010.

In March 2010, then Minister of Justice Wang Ching-feng voiced support for the abolition of capital punishment and stated she would refuse to sign any execution warrants. This fueled a pro-death penalty social movement lead by entertainer Pai Ping-ping whose daughter had been murdered in 1997 and lead to Wang’s resignation. Tseng Yung-fu assumed the role of Minister of Justice and reinstated the death penalty. In April, negotiations surrounding a trade agreement between China and Taiwan caused high public disaproval. On 30 April 2010 the first executions since 2006 took place.

The Ministry of Justice consistently denies allegations of impropriety but has refused to provide records of its meetings on death row inmates or the criteria for deciding the timing of an execution.

There have been executions, timed around episodes of low government approval, every year since the moratorium was lifted. The executions in June are emblematic.

In March 2015 four subway commuters were killed in Taipei and in May an 8-year-old girl was killed at her school. Public outcry demanded the death penalty for the attackers. Abolitionist politicians and rights campaigners were harassed and threatened. In early June, then opposition party chairperson, Tsai Ing-wen drew considerable domestic media attention for a high profile trip to the United States, at the expense of the already unpopular KMT. Amid public outrage over the heinous murders and growing popularity for the opposition party, the timing of the 2015 executions is suspect. There were also several legal irregularities.

The initial list of those to be executed included Chiou Ho-shun, who had been sentenced in 1989 following four months of secret detention and reports of being tortured into confession. Amnesty International has repeated called for his release.

Three of the men who were executed, Huang Chu-wang, Wang, and Cheng Chin-wen, had filed special appeals on the day of their executions. This could reflect either a cursory or non-existent review. There has never been a successful case of a death row inmate filing a special appeal or commutation.

Lawyers for the three inmates were not notified of the rejection of appeal until after the executions. More concerning, two of the men executed in June, Wang Hsiu-fang and Wang Chun-chin, had no legal representation at their final trial before the Supreme Court.

Taiwan’s Criminal Procedure Code does not guarantee legal defense for final appeals. In 2012 a draft was proposed that would change this in cases involving a minimum punishment of three years but it has not yet become law. Many current death row inmates did not have lawyers at their final trials.

In 2012, the final appeal retrial in one death row case found the three defendants not guilty of the 1991 murder for which they had spent more than 20 years in prison.

This raises concern over the right to a fair trial, which includes the right to legal defense and appeal. If political calculations have been behind the timing of executions since 2010, it could constitute an arbitrary imposition of the death penalty, which would amount to a violation of the right to life.

International law does not explicitly ban capital punishment but places strict procedural guidelines on those countries that have not abolished the death penalty.

Taiwan and International Law

In 2009, Taiwan announced the ratification of the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). Taiwan is not a State Party to the United Nations but effective ratification was accomplished through the Implementation Act, establishing that all domestic law align with the Covenants.

Article 6 of the ICCPR guarantees the right to life and protection from arbitrary loss of life. It prohibits the death penalty when it may constitute a violation of other rights, most notably the prohibition against torture.

Preventing the arbitrary deprivation of life requires that any decision to impose the death penalty must be narrowly circumscribed by clear and transparent principles in line with the Covenant.

This requires strict adherence to Article 14’s right to a fair trial. The Human Rights Committee has noted that, “the imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.”

Anyone sentenced to death is entitled to seek pardon. This is enshrined in ICCPR Article 6(4). Number 8 of the 1984 Safeguards guaranteeing protection of the rights of those facing the death penalty adds that no execution shall be carried out pending an appeal, pardon, or commutation. The right to seek pardon carries the expectation that in some circumstances a pardon may be granted, otherwise the right is relatively empty.

Although not legally binding, UN General Assembly resolution 65/206 calls upon all states to “make available relevant information with regard to their use of the death penalty, which can contribute to possible informed and transparent national debates.” This is important for ensuring a fair trial and strict adherence to procedural rules at every stage of the process, from the initial trial to final appeal and scheduling of the execution.

Tsai Ing-wen’s Challenge

While advocates for the abolition of the death penalty have felt Tsai Ing-wen hasn’t been explicit enough in her position, KMT lawmakers have challenged her for supporting abolition. Such with Alex Tsai, for example, who was quite vocal on pro-death penalty issues during his campaign but was ultimately not reelected. Such failure for pro-death penalty lawmakers points to a possible decrease of importance for maintaining the death penalty for voters. This presents the best opening for a return to a moratorium and steps toward abolition without sacrificing political capital for the DPP.

Tsai Ing-wen is likely to face conflicting pressure moving forward, says Hsinyi of TAEDP. The new president may face public pressure to carry out an execution from those in favor of continuing the death penalty.

On the other hand, there is international pressure. In 2013, Taiwan received a delegation of independent experts to review its implementation of the ICCPR and ICESCR. The second review will take place in early 2017 and the death penalty is likely to be a high priority. If Tsai Ing-wen wants to demonstrate her commitment to human rights she will need to consider Taiwan’s implementation of the two Covenants.

Who Tsai Ing-wen appoints as the Minister of Justice is among the first key indicators. Lawyer Gu Lixiong, known for his support for abolition, was assumed my many to be a likely appointee but his election into the Legislature rules him out.

In 2009, abolition minded Justice Minister Wang Ching-feng created a working group on the death penalty, which included NGOs, lawyers, and academics. Although the working group was dismantled shortly after her resignation, Tsai Ing-wen has been advised to reestablish such a working group, which could also support public education and participate in a national dialogue on abolishing the death penalty.

Even if abolitionist minded lawmakers are able to float a bill, there’s too little understanding and support for the passage of any such law, which is where the importance of such a working group can be seen.

Moving Forward

Until a more thorough investigation into the use and potential political abuse of the death penalty, Taiwanese human rights groups say Tsai Ing-wen should announce an immediate moratorium. She should promise to more closely implement the ICCPR and encourage the Legislative Yuan to establish a National Human Rights Commission in line with the Paris Principles. Although in December the Executive Yuan granted a Freedom of Information Request filed by TAEPD last August requesting the Ministry of Justice to reveal its decision making process on signing execution orders, the system remains far from transparent. How Tsai Ing-wen responds to these issues leading up to and following her inauguration in May will matter.

The Truth About Myanmar’s New Discriminatory Laws

This article was originally published 26 August 2015 at The Diplomat. Available here.

Last Thursday, Myanmar’s parliament approved the remaining two of four “Protection of Race and Religion” bills. ASEAN Parliamentarians for Human Rights Chairperson Charles Santiago prefers to call them the “Race and Religion Discrimination bills.” Their passage—which would allow local governments to impose a host of repressive measures—comes at a time of ongoing racial and religious discrimination and violence, part of a concerning trend in systematic Rohingya persecution. It is only more alarming as it coincides with the widespread disenfranchisement of previously registered Rohingya voters, including former parliamentarian U Shwe Maung.

These bills are inconsistent with international norms and standards and represent a clear violation of Myanmar’s obligations under the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Myanmar is a party to both conventions. The bills are likely to not only legitimize anti-Muslim sentiment but also provide a legal framework for increasing discrimination of Rohingya.

The package of laws has been a long time coming. They were first proposed following the establishment of the nationalist Buddhist organization known as Ma Ba Tha, which presented them as a draft to President Thein Sein in mid-2013. In December 2014, the laws were tabled for parliamentary debate beginning in January. Civil society and the international human rights community campaigned against their adoption and encouraged the Government of Myanmar to observe its human rights obligations rather than succumbing to nationalist hysteria.

Despite such concerns, in May the Population Control Healthcare Bill was the first to be approved. UN Special Rapporteur on the Situation of Human Rights in Myanmar,Yanghee Lee cautioned that the “Protection of Race and Religion” bills “risk deepening discrimination against minorities and setting back women’s rights in Myanmar.”

The bill grants regional officials the ability to establish 36-month birth spacing for target groups. The bill lacks human rights safeguards and raises serious concerns for abuse against Rohingya Muslims, who have already been subjected to decades of similarly abusive local orders.

Muslim couples that wish to marry must obtain official approval, which can sometimes take years to secure and require bribes. The Two Child Policy requires them to sign an agreement that they will not have more than two children, under threat of fine or imprisonment. The policy has led to amateur abortions that threaten women’s lives, influenced the number of women refugees, and led to the birth of blacklisted children who may never be registered, explains Engy Abdelkader, an expert on freedom of religion with the OSCE. The CRC requires birth registration and establishes the right to a nationality and identity, noting that the state is obligated to ensure these rights “in particular where the child would otherwise be stateless.”

The desire to control Muslim populations in Myanmar comes from the widespread belief in the Buddhist-majority country that Muslim communities have exceedingly high birthrates and are planning a population takeover. However, as Abdelkader points out, based on official government data, researchers at Harvard University have revealed that Rohingya actually have one of the country’s lowest population growth rates. Unconvinced by such data, Ma Ba Tha founder and ultra-nationalist monk U Wirathu continues to infuse his Buddhist millenarian sermons with narratives of Muslim population growth, and the forced conversion or widespread rape of Buddhist women.

In July, parliament passed the Buddhist Women’s Special Marriage Bill, which requires Buddhist women and men from other religions who wish to marry to register their intention publicly. They may only get married if there are no objections. It will apply retroactively to existing unions who must register as interfaith marriages. This violates the universally recognized rights to marriage and privacy, as well as equal protection of the law by applying only to Buddhist women and non-Buddhist men. It is a blatant attempt to curb interfaith marriages says Phil Robertson, deputy Asia Director for Human Rights Watch.

The justification for protecting Buddhist women in marriage appears to arise from a gender discriminatory narrative that equates women with purity and assigns a patriarchal society with the task of protecting a Buddhist women’s purity at the expense of her agency.

In August, parliament approved the final two bills, the Religious Conversion Bill and the Monogamy Bill. The conversion bill requires anyone who chooses to change their religion to apply with a district level “Registration Board,” submit to an interview and a 90-day waiting period. Such restrictions violate the right to freedom of thought, conscience and religion and the right to freely have or adopt religion. It is an assault on privacy, also found in the monogamy bill, which targets religious minorities who are often seen as sexual deviants.

According to Human Rights Watch, at least the most recent bills are still awaiting final signature by President Thein Sein. As the November election approaches he will likely come under increasing pressure, along with the rest of his USDP Party, from Ma Ba Tha to enact them into law.

Throughout the drafting period and especially once the package of bills was introduced to parliament, Ma Ba Tha was active in campaigning for their enactment. In October, U Wirathu organized thousands in Mandalay to demand the passage of the bills. May Sabai Phyu, a human rights defender and member of the Kachin ethnic minority, revealed that Ma Ba Tha challenged parliamentarians who did not approve the bills. Senior monks told their congregations not to vote for those who did not support the bills. Some critics were labeled “traitors” and at least four civil society leaders reported receiving death threats.

Article 364 of Myanmar’s Constitution forbids the abuse of religion for political purposes, and several sections of the Penal Code criminalize deliberate assaults on religious feelings and the incitement of hatred or violence against racial or religious groups. However, there has been no investigation into these activities.

One problem that remains seemingly unanswered, as pointed out by Amnesty International and the International Commission of Jurists, is whether and how the bills would apply to non-citizens. This is a particular concern for the Rohingya, who have been denied citizenship and subjected to unofficial discriminatory local orders for decades.

When asked whether non-citizens living in the country would be burdened with the requirements under the religious conversion or the marriage bill, U Win Mra, Chairman of the Myanmar National Human Rights Commission, merely stated “that it is a very complicated thing, which the state must consider carefully.” The inability of the national human rights commission to conclusively dissuade concerns that the law would disproportionately target non-citizens raises serious concerns about implementation.

For Wai Wai Nu, a Rohingya rights defender and founder of Women Peace Network Arakan, there is little uncertainty. For her, the central government’s intent with the adoption of the “Protection of Race and Religion” bills is precisely to legalize discrimination.

Against Letpadaung: copper mining in Myanmar and the struggle for human rights

 This article was originally published at OpenDemocracy on 3 August 2015. Available here.

Credit: http://www.e-paolive.net/galleries/images/misc/2012/12/Bur-protest-1-Dec.jpg (All rights reserved).

The Letpadaung copper mine in the Sagaing Region of central Myanmar has become a major fault line in the struggle for human rights in that country. It is also emblematic of a global problem: the damage caused by exploitative resource extraction coupled with impunity for state violence.

Although the complex which houses the mine is some 20 years old, it has attracted increasing resistance since Myanmar began its ostensible transition away from strict military rule in 2011. Fed up with massive forced relocation and environmental degradation, residents have taken advantage of gradual political liberalization to begin staging demonstrations at the mine. But state brutality promptly tramples these actions, including at least one police assault on civil resisters — civilians — using military weapons. Abusive state officials have escaped prosecution while activists have been sentenced for exercising their fundamental rights.

Contention around the project — and especially police treatment of those engaging in nonviolent civil resistance to put an end to it — has grown into a real challenge for President Thein Sein’s rhetoric of civilian government and the development of rule of law. How the situation is eventually resolved will be a serious barometer for democratic transition in Myanmar.

But already its unraveling has revealed the potential for several innovations in rights defense in Myanmar. These innovations include increasing regional networking to facilitate deeper exchange between human rights defenders in neighbouring countries engaged in similar struggles, and developing more sophisticated advocacy and lobbying skills for drawing on the support of the international community. Domestic civil resistance can benefit both from the development of a culture of litigation and from a stronger network of professional human rights lawyers.

How civil resistance and litigation converged

Thein Sein, President of Myanmar. Demotix/Alexander Widding. All rights reserved.

Following a police crackdown on several hundred monks, students and farmers nonviolently protesting the Letpadaung mine in November 2012, an independent investigation by a group of Burmese lawyers and the US-based human rights organization Justice Trust revealed that the police had used white phosphorous grenades against the nonviolent resisters — a chemical weapon of complicated legality under international law. The monks, many shielding the other protesters, suffered the worst injuries: deep burns and lasting pain. “There was something specific about the particular fire,” one of the monk organizers, U Teikkha Nyana, told a group organized by several human rights organizations at Harvard Law School this past April.

This assault strengthened the ties between two groups — civil resisters and human rights lawyers — that have become increasingly inseparable fronts in the struggle for democratic transition in Myanmar. With modest political liberalization, and a generally decreased risk of lengthy prison terms, more Burmese lawyers are willing to take on potentially sensitive rights cases.

Following long periods of hospitalization, victims of the violent repression were finally in a place to embark upon the challenge of holding perpetrators accountable. On 11 March 2015, a group of monks led by U Teikkha Nyana filed criminal and civil suits against Home Minister Lieutenant General Ko Ko, who ordered the crackdown, and others. The case is a “fight for justice and to highlight human rights violations and the lack of rule of law in Myanmar,” Aung Thein, a lawyer involved with the case, explained to me at the same meeting in April.

Monks have become increasingly common litigants in Myanmar, although sometimes causing major polemics such as the ultra-nationalist monk U Wirathu. Civil resistance can help weaker groups increase their leverage over oppressors, while rights lawyers can serve to both maintain activists’ legitimacy and offer some protection against arbitrary abuse. Legal procedures force the state to articulate its persecution in legal terms. When the state clumsily insists on the legality of arbitrary persecution of civil resisters, for example, it often produces a backfire effect and further delegitimizes the state’s position.

On 24 March, the monks’ charges against the Home Minister and police were rejected on the grounds that no lawsuit can be filed against officials who are operating in good faith — a blow to hopes of institutionalizing accountability. Nevertheless, I have been told further legal challenges are likely to follow.

Meanwhile, protests spread as repression intensifies

Police violently evict farmers working near Letpadaung copper mine in 2013. Flickr/Han Win Aung. Some rights reserved.

Despite the police crackdown, demonstrations continued at Letpadaung and began to swell around the country as others joined in solidarity, directing their resistance toward the Chinese companies involved in exploitative environmental projects in Myanmar.

Small outbursts at the Chinese embassy in Yangon have continued since November 2013, the one-year anniversary of the violent crackdown on monks. At that time, Tin Htut Paing, a leader of the youth movement Generation Wave, burned a Chinese flag in front of the embassy. He was charged with violating Myanmar’s Penal Code and the Law on Peaceful Assembly and detained.

The next year, demonstrating with the “Black Campaign” students, Tin Htut Paing was arrested again for protesting outside of the embassy along with five others. His lawyer Robert San Aung explained that the six protesters were being charged disproportionately for exercising their freedom of expression.

The group of activists was convicted and sentenced to four years and four months in a May 2015 trial condemned by the International Commission of Jurists (ICJ), a Geneva based organization that promotes human rights through the rule of law, and others. Amnesty International called for their immediate and unconditional release while others asserted that the convictions seriously tainted the legal system in Myanmar.

Naw Ohn Hla, one of the women convicted, said she would continue to fight for others’ rights as soon as she is freed but assumed that the government deliberately gave them lengthy sentences to keep them imprisoned during the countrywide general elections in November 2015. The next day, the court added hard labour to the sentence.

Strategic opening for international diffusion

Myanmar protestors in Yangon. Demotix/Manaw Htun. All rights reserved.

The mine at Letpadaung is a joint venture between Wanbao, a subsidiary of Norinco, a Chinese industrial manufacturing company that also specializes in high-tech weapons, and the military-owned Union of Myanmar Economic Holdings Company. This is a reminder of the important role foreign firms and governments play in developing or hindering the rule of law in Myanmar. This is not just about China.

A 2015 Amnesty International report criticized the Canadian firm Ivanhoe Mines, now Turquoise Hill Resources, and others for profiting from a corrupt or unregulated legal climate for resource extraction in Myanmar.

Ivanhoe Mines was involved in the Monywa Complex since the joint venture began in 1996. Between April 2003 and January 2005, it may have violated Canadian, US, and European sanctions for large amounts of copper sales to blacklisted military firms.  Amnesty has called for Canadian authorities and the securities commission to investigate.

In 2007, Ivanhoe Mines claimed that it was divesting from the Burmese mine and transferred its shares to an “independent third party,” the independence of which has been contested by Amnesty.

A 2009 cable published by WikiLeaks shows Ivanhoe was simultaneously negotiating with Burmese and Chinese buyers but was eventually forced to sell to the Burmese state-owned ME-1 for $100 million, on the grounds that ME-1 had already agreed to sell the mine to the Chinese interest for $250 million plus $50 million in consulting fees and $100 million in upgrades. The sale was finalized in 2011.

Turquoise Hill is currently invested in two mining projects in Mongolia. In May 2015, a deal to sell its shares in the underperforming SouthGobi Mine to a Chinese firm fell through. Meanwhile the company has faced domestic opposition at another of its mine sites. Noted in a recent report by the Minority Rights Group, the Oyu Tolgoi Mine has sparked resistance by local herders, environmental and minority rights groups over the destructive impact of the mine on the surrounding landscape. The parallels to Letpadaung don’t need elaboration.

In their 2015 World Report, Human Rights Watch commented on the “enormous collective impact on the human rights of vulnerable communities worldwide” of Canada’s mining industry. HRW expressed concern that the Canadian government neither regulates nor monitors the respect for human rights of Canadian firms overseas. In 2009, Canada did establish a corporate social responsibility advisory, but has yet to empower it with oversight or investigatory powers over Canadian firms operating domestically or in foreign countries, such as Myanmar.

Broadening resistance strategies

Myanmar will continue to open up to more foreign trade and investment in the coming years. And the government is currently in the process of negotiating a contentious Investment Law. In early July, ICJ hosted a workshop with Myanmar’s Attorney General and others to discuss the investment law and protection of human rights in the country. Daniel Aguirre, ICJ Legal Adviser, commented that, “Myanmar needs to update its regulatory system to protect the environment and human rights.”

At the same time, civil society and human rights defenders may consider updating their strategies of resistance and rights defense. A targeted boycott of foreign-made products from host countries responsible for exploitive industries is one possible next step for national coordination of resistance. Increasing civil society pressure on the political and financial elite of select countries has its limits, as long as Myanmar protects elite interests over those of Myanmar citizens. Resistance to exploitative foreign involvement will require improving transnational activism and communication with activists engaged in similar struggles abroad. Ideally, it would also entail coordinating with networks of human rights defenders in countries whose foreign presence is targeted by civil resisters in Myanmar. This requires financial and logistical support.

International funders interested in supporting rule of law development in Myanmar will play an important role in regional exchange. Organizations like Amnesty and Frontline Defenders have long provided platforms for this type of exchange, but the demand is growing. Imagine the learning potential of combining activists and lawyers who have struggled against Letpadaung with their Mongolian counterparts who have resisted Oyu Tolgoi, or with the organizers of the thousands of Tibetans who have resisted the destruction of sacred or farming land by mining operations across western China. There are other transferable case studies for Myanmar from rights defenders around the world, such as Oscar Olivera who organized the successful resistance campaign against exploitive privatization in Cochabamba, Bolivia by the US construction firm Bechtel.

The upcoming Universal Periodic Review of Myanmar in November, wherein the Human Rights Council will review Myanmar on the totality of its human rights record, presents an opportunity for rights defenders from Myanmar and around the world. It might also provide a platform for putting pressure on other governments to examine their human rights records in Myanmar.

The UPR is a truly unique opportunity for universalizing domestic rights campaigns and forging links with supportive foreign governments. Unfortunately, reports indicate Home Minister Ko Ko will lead Myanmar’s delegation, seriously calling into question the country’s commitment to the process.

Building bridges to broaden tactics of nonviolent resistance

Protesting outside of embassies or burning country flags draws attention but is insufficient for sustainable coalition formation. To guarantee greater accountability for foreign companies operating in Myanmar, and the state officials tasked with protecting the interests of the local and international elite, domestic human rights defenders can target their activism at those firms’ countries of origin and strengthen their networks among human rights defenders in those countries. To complement these efforts, foreign governments with embassies in Myanmar can ensure they are accessible for civil society and guarantee they will not prioritize economic or political alignment with the elite at the expense of substantive commitments to human rights and the rule of law. But international action can only augment domestic mobilization; it cannot replace it.

In the narrative above we see the importance of bridging nonviolent civil resistance with the community of human rights lawyers. While the rule of law is barely poking through the soil in Myanmar, the country has made limited advances in terms of domestic and international law. While such concessions may be more to placate the international community toward abandoning sanctions and stimulating investment, they have created openings for challenging oppression. Addressing resistance to Letpadaung, Ant Maung, a popular poet, commented, “Five years ago this would have been impossible; such a movement would have been cruelly crushed.”

Myanmar has a long way to go but, as Aung Thein noted at our meeting in April, it is time to nurture a domestic culture of litigation. Belief in the rule of law must come from below and strategic litigation should be calculated alongside other tactics of resistance. Through greater training, made increasingly possible by support from international organizations, Myanmar civil society will gain more rights awareness, allowing for more informed rights demands.

At the same time, just as the international community must perform due diligence when supporting top-down initiatives or large-scale investment, it must be cautious in supporting bottom-up programming. Sitting in his apartment in Yangon, Robert San Aung, the idiosyncratic human rights lawyer and six-time political prisoner under the ancien régime, shared his concern with me. Entrepreneurs have emerged to take advantage of legal aid and development funds, just as in other contexts of post-conflict or development, which is upsetting the network of nascent domestic lawyers. For San Aung, funders truly interested in supporting human rights in Myanmar must ensure checks and balances, which can be achieved through deeper engagement on the ground, meaning more language officers and interactions with civil society.

Arguably the way forward for rights defenders in Myanmar is to continue augmenting domestic rights defense with transnational activism and international law, and to continue finding ways to take advantage of the same international opening that has benefited the government.

In Myanmar, students test the sincerity of democratic transition

Originally published at openDemocracy on 10 June 2015. Also available here.

Students demand change in Myanmar. Creative Commons. Some rights reserved.

Students demand change in Myanmar. Creative Commons. Some rights reserved.

In Myanmar, as university students around the world begin to exalt their summer freedom, a national student movement continues to demand greater political freedom. At the end of May 2015 Myanmar’s parliament was still discussing proposed amendments to a National Education Law put forth by a coalition of student groups. The students have expressed their concern over the lack of academic freedom and the centralized control inherent in the law, which was passed in September 2014. Since its adoption, students and other activists have been campaigning around the country. In many ways, the struggle around education reform can be seen as a prism through which to assess the sincerity of democratic transition in Myanmar today.

It began in March 2014 with the release of the draft law. Later, a national coalition of student groups issued an 11 point manifesto. They demanded, among other things, student representation in enacting education legislation, teaching that ensures the freedom of thought, multilingual education for ethnic minorities, inclusion of children with disabilities, and the expansion of compulsory education from primary school to middle school. In November 2014, students in Yangon, the capital, issued a statement explaining that if the government failed to negotiate within 60 days there would be nationwide mobilization.

With little progress toward their demands, on January 20, 2015, they held true to their word. Several hundred students from Mandalay and elsewhere began marching the some 400 miles to the capital to demand negotiation. Less than a week later the government agreed to hold four-party talks. As a show of faith several of the groups marching on Yangon agreed to halt their processions. However, after only a few days the talks stalled. More than 250 civil society organizations pressed for their resumption and several protests were staged around the capital in solidarity with the marching students.

Sustained pressure appeared successful in mid-February when government negotiators surprisingly agreed to the students’ demands. A few days later a new version of the law was sent to parliament for discussion.

Throughout the months of demonstrations students overwhelmingly maintained nonviolent discipline with one noting: “we don’t have any weapons, not even a needle, so if there is a crackdown we will just have to bow our heads and face it.”

A tradition of student activism

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

These students are following a long tradition of student-led nonviolent civil resistance dating back to pre-independence Myanmar. Not long after General Ne Win’s March 1962 coup, students at Yangon University began demonstrating against the military dictatorship and the sudden loss of academic freedom. In early July that year, the military cracked down savagely, massacring between 100 and 1000 students and dynamiting the student union building, the epicentre of student activism since the colonial period. There would be no student unions again until 2010.

In 1974, following the death of U Thant, the United Nations Secretary General from 1961 to 1971, the regime denied him a burial with honours. Thousands of students and monks seized his body and marched to Yangon University, where they buried him close to where the student union stood. The armed forces soon drove tanks onto the university campus and exhumed his body. Upwards of 4,500 students were arrested in the ensuing melee, and some 100 were killed.

Student mobilization was salient in the better-known 1988 pro-democracy movement from March to August. In Unarmed Insurrections, Kurt Schock calls this period the “Rangoon Spring” — Rangoon is the former name for Yangon — in reference to the 1968 Prague Spring, a brief period of political liberalization in Czechoslovakia that ended with military intervention. Amnesty International even established a short-lived office in Yangon at this time. But by September the state responded with pure brutality. The military assumed control under General Saw Maung and the State Law and Order Restoration Council (SLORC). More than 3,000 were killed by the end of the month. Human Rights Watch’s Asia Director, Brad Adams, has called the ongoing impunity for these mass killings an unaddressed wound challenging the rhetoric of reform.

The inspiration and guidance of what became known as the 88 Generation would inspire incremental episodes of resistance and repression that followed. And in 2007, scattered demonstrations that began in April spread around the country reaching around 100,000 demonstrators in Yangon on September 24. This episode is known as the Saffron Revolution, in reference to the overwhelming presence of bright orange and red-clad Buddhist monks among the demonstrators. The spread of images, made possible by social media, of police and military savagely beating monks contributed to the international outcry and condemnation of the regime. In addition to monks, students made up sizeable numbers, as new student organizations such as Generation Wave, inspired by the 88 generation, began to organize and innovate strategies of resistance.

The government loses patience

Myanmar police stage crackdown. Thet Htoo/Demotix. All rights reserved.

Myanmar police stage crackdown. Thet Htoo/Demotix. All rights reserved.

Despite a long tradition of student-organized civil resistance, those who began in November 2014 exhibited a stark difference with their predecessors. They were engaging in collective action in an ostensibly democratizing Myanmar.

In November 2010 Myanmar held its first general election since 1990, although they took place amid concerns of intimidation and corruption, as well as laws that strongly favored the military. International election monitors and foreign journalists were banned. Anyone serving a prison sentence was barred from party membership, a questionable regulation in light of the more than 2,000 political prisoners. In April, Lieutenant General Thein Sein resigned from the military and formed the ‘civilian’ Union Solidarity and Development Party (USDP), absorbing several military organizations. USDP won vast Parliamentary representation. A week later Aung San Suu Kyi was released from house arrest, although she is still banned from running in the 2015 election. In the years following, Thein Sein released hundreds of political prisoners and has presided over certain welcome legislative reforms. In response, the United States and European Union have restored diplomatic relations and lifted decades of economic sanctions.

In light of this narrative of political liberalization, one would have hoped that the negotiation of a National Education Law would comport with Thein Sein’s attempts to maintain legitimacy by appearing more sympathetic to political reform. Unfortunately, after the student’s preliminary successes at convincing the Parliament to review their demands, the trajectory began to take a familiar arc.

In February 2015, even as positive negotiations were under way in the capital, several hundred security personnel were being deployed along the route of those marching south from Mandalay. Kyaw Thet, a student from Pathein, about 60 miles from Yangon, told The Irrawaddy: “if they shoot, we will be hit… We have no plans to back down, but we want to say there is no benefit to anyone if violence is used against students. If the government agrees to our demands, we will call off our strike and go home.”

Despite the agreement at the four-party talk, it soon became clear that the Parliament would not welcome student representatives. A few days later the government warned that action would be taken and Minister of Home Affairs Lieutenant General Ko Ko cautioned the organizers that demonstrators would be considered a threat to national stability. On February 16 two foreign freelance journalists were expelled from the country for documenting protests. In early March, police in Letpadan, about 85 miles from Yangon, surrounded the students marching from Mandalay. A tense standoff ensued with students demanding to continue, and the police, who outnumbered them 5 to 1, refusing to abandon their blockade. In Yangon, police assaulted a small group of activists on March 5 who had gathered in solidarity with those at Letpadan. Then, despite the authorities and students appearing to have reached a consensus in Letpadan, violence erupted on March 10.

In a move that was widely condemned by human rights organizations and governments, police and hired thugs, armed with truncheons and riot gear, mercilessly beat back the some 200 assembled students. Some passed out and others were badly cut from barbed wire or suffered broken bones, some were dragged into trucks, chased into the fields, or later snatched from their homes at night. The police also chased away journalists from documenting the abuse but evidence quickly spread through traditional and social media, such as the “We Support Myanmar Students” Facebook page, which, at the time of writing, has generated more than 25,000 likes. Soon afterwards, the Ministry of Information claimed to have arrested 127 people.

By truncheon or by gavel, the law as a repressive tool

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

The police violence at Letpadan, although thankfully low in casualties, bears a striking similarity to the state-sponsored violence of previous military governments. It is a disturbing return to past tactics of repression, says Human Rights Watch. But what seems equally, if not more troubling, is the instrumentalization of domestic law as a repressive tactic. This is part of what Thomas Risse and Kathryn Sikkink call a tactical concession. Repressive regimes will make certain concessions such as signing international treaties, passing new legislation, or releasing a few political prisoners. They do so to attempt to gain a little standing in the international community, to get human rights organizations off their backs, while not necessarily fully implementing such reforms. What this often means is that repressive regimes favour political crimes and show trials over mass killings or disappearances. It is a midpoint between traditional state repression and rule-consistent behaviour.

Of the 127 people arrested over Letpadan some 70 were later charged, such as Po Po, who had evaded initial detention but was rounded up in the weeks following. After the crackdown, the 20-year-old history student Po Po had gone home, where she was arrested on April 8 and brought to the infamous Insein Prison, while many others were held at Tharrawaddy Prison. Most of them have been charged with violations of the Penal Code and Peaceful Assembly Law, some facing the possibility of 10 years in prison. Enraged by the audacity of the state, activists and students in 11 cities around the country carried out protests in solidarity with the detained, prompting further arrests and charges of violating the outdated Penal Code.

The previous UN Special Rapporteur on the Situation of Human Rights in Myanmar, Tomás Ojea Quintana, has called for the abolition or amendment of the antiquated Penal Code, in many ways identical to when it was first enacted in 1860, to ensure that it complies with international human rights standards if there is to be a transition to democracy. Assessing Myanmar’s transition should be based on far more than the upcoming election. As we move closer to the November election we should remain cognizant of the growing numbers of activists behind bars who have done nothing more than engage in nonviolent civil resistance.

In testimony to premature talk of transition, the number of political prisoners since Thein Sein’s much touted amnesty at the end of 2013 has actually increased by nearly 600 percent, according to some figures – the vast majority of whom have been placed behind bars for their parts in various nonviolent campaigns, for violations of the Penal Code and the 2011 Peaceful Assembly Law. This law requires, in Article 18, that organizers obtain permission from township police chiefs five days prior to any demonstration and for any slogans or signs they intend to display. Each violation is prosecutable based on township, which means the students marching from Mandalay could theoretically be charged with a violation for each township they passed through without prior permission. As an indicator of scale, there are 33 townships in Yangon alone. A coalition of more than 50 activists and civil society organizations have been campaigning for years to amend Article 18. The group includes the 88 Generation Peace and Open Society and Generation Wave.

“I would say that Article 18 is related to everything, every issue. Because when people are repressed, while people’s rights are violated, they must have the right to express themselves.” Over an avocado smoothie at a roadside café in Yangon I speak with Moe Thway, co-founder of Generation Wave, one of the more active student movements that came out of the Saffron Revolution, about the detrimental impact of the Peaceful Assembly Law. “My worry about Article 18 is the first rank. It is the most important thing because it is the freedom of expression.”

The freedom of expression is a fundamental right enshrined in Article 19 of the Universal Declaration of Human Rights, which in Article 20 also recognizes the freedom of peaceful assembly and association.

Reform must come from below

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Myanmar students protest. Thet Htoo/Demotix. All rights reserved.

Students have been mobilizing around the country, seizing the right of free, peaceful expression and assembly by protesting, marching, sending open letters, engaging through social media, and negotiating with the state. Those who have been beaten and detained are engaged in active civil resistance to renegotiate the meaning of political participation in a changing Myanmar. In many ways, it is about more than just the National Education Law. In their expression of resentment toward the state, and in the level of national coordination unachieved in decades, the opportunity for civil society to influence social or political policy in Myanmar is great, even in the face of Thein Sein’s demonstrably thin commitment to democratization.

While much of the international attention regarding democracy in Myanmar remains focused on whether Aung San Suu Kyi will be allowed to participate in the elections in 2015 or who will be the next president, the real hope for transition in Myanmar arguably rests with the burgeoning civil society seizing every political opening to demand accountability. The movement around the National Education Law has managed to do what few in Myanmar have achieved since independence: to create a lasting national, cohesive social movement united around a core set of grievances and demands. Students, monks, and other civil resisters will continue to face repression from the state. But Myanmar’s desire to reconnect to the world after more than two decades of isolation also guarantees that the state will be forced to make increasing tactical concessions, leaving further openings for civil resistance.

Matching resistance to repression in China

Pu Zhiqiang

First Published at openDemocracy on April 8, 2015. Also available here.

Prominent human rights activist Pu Zhiqiang has languished in pre-trial detention since his arrest last May – in the lead-up to the twenty-fifth anniversary of the Tiananmen Square massacre – on charges for several crimes including “picking quarrels and provoking trouble”. His case remains at a crossroads today. Any day now prosecutors should decide whether to indict and begin his trial or hand the case again back to the police for further investigation – meaning more time to conjure up criminal intent. It is unfortunately highly unlikely that he will be released.

Pu Zhiqiang is another high-profile prisoner of conscience suffering under a severe crackdown on civil society under President Xi Jinping since 2013. But is this vocabulary of a crackdown, with its connotations of sudden escalation, constructive?

Throughout 2013 to 2014, I remember many grassroots activists around China relating to me their perceptions that the ferocity of government repression should be understood as steadily increasing pressure, not as a swift crackdown. It is severe and inexcusable, without question, but in this sense it is more similar to the ‘frog in boiling water’ folk tale than the sudden purges of past dictatorships.

For domestic rights defenders, the challenge has therefore become matching their resistance efforts to this sort of slow-onset repression. Rather than pursuing tactics of sudden unrest and demanding high-profile victories, more can arguably be achieved – especially within a high-capacity authoritarian regime such as China – through strategic actions, producing limited but sustained improvements.

The importance of such realizations is universal. Activists and movements that demand sudden systemic change can become upset when they fail in their mission, causing participation to dissipate or making participation in successive waves harder to secure. They may refuse to abandon or adapt their tactics accordingly, such as refusing to evacuate a public occupation until all their demands are met. The world witnessed the gruesome consequences of this logic in Beijing in the early hours of 4 June, 1989.

Observers and analysts began to issue similarly cautious remarks regarding Occupy Central and the Umbrella Revolution in late 2014. Victoria Hui, speaking with the International Center on Nonviolent Conflict, for example, outlined the need for tactical evolution in the form of methods of dispersion, which might garner less publicity but ultimately have more impact. Focusing on more systematic, grassroots, or small-scale change can ultimately be more productive for civil resistance and rights campaigns.

Broad resistance is harder to repress

Mark Lichbach came up with the five percent rule, that no regime can withstand the collective force of five percent of its population mobilized against it. Research by Erica Chenoweth and Maria Stephan actually puts that number even lower, showing that the sustained active participation of 3.5 percent of a population is sufficient for a successful campaign.

While 3.5 percent is a lot larger than it sounds (nearly 45 million people in China), it is not an impossible number. As Chenoweth and Stephan have shown, it’s been done before. But it does require diverse tactics that can appeal to broad sections of society, and the ability to outmanoeuvre repression and think in terms of grand strategy over immediate rewards.

The Chinese government is likely aware of the possible threat posed by sustained collective action achieved through small-scale victories for activists. This, in part, explains the sophisticated attempts to circumscribe collective action and to respond with draconian measures against even minor civil dissent. Indeed, the government is notorious for issuing harsh sentences for moderate voices and activists.

The year 2014 was marked by a procession of reprisals against all manifestations of nonviolent civil resistance and domestic rights defenders, from Xu Zhiyong’s four year prison sentence and Liu Ping’s six and a half year sentence to Ilham Tohti’s life sentence. Figures released by the US-based Chinese Human Rights Defenders indicate nearly 1000 cases of detention and torture of Chinese rights defenders in 2014, with more than 100 detentions drawn from seven provinces and three municipalities as simple reprisals against those who supported the Hong Kong demonstrations.

Much of this repression has come through the manipulation of Chinese law. In this sense it is persecution through prosecution, or what is called legalist repression. The vaguely worded crimes of “Picking Quarrels and Provoking Trouble” or “Disturbing Public Order,” outlined in Chapter VI, Section I of the Criminal Law, articles 290 to 293, have become a canvas applied to virtually anything the state finds discomforting. However, far more serious crimes have also been conjured to silence rights defenders, such as the appalling life sentence for Ilham Tohti on absurd charges of separatism.

There are several lessons in this for domestic actors and those who would support them – particularly the importance of steady, strategic development and a focus on details. This requires recognizing the dynamic between rights abuse and repression on the one hand, and the interconnectivity of resistance tactics on the other. Put another way, because repression is most often the context for a series of rights abuses, resistance that is too narrow is also more susceptible to persecution. The Chinese rights defence community has begun to recognize this.

For example, what begins as a land rights violation or forced eviction can escalate into a situation of arbitrary detention or disappearance of villagers who intervene between developers, hired thugs, police and local officials. Village petitioners might blockade township government offices or issue open letters. Some have resorted to mass public suicide. They also travel from the village or township to cities seeking government redress, file open information requests to expose the corrupt development negotiations, or organize small campaigns against corruption. By doing so, they may find themselves detained in black jails and abused by thugs or charged with illegal assembly.

Some turn to citizen lawyers or licensed lawyers for support at different stages. More tech-savvy petitioners and rights defenders post evidence of land theft and abuses to Weibo and other social media, or communicate with domestic or international media and organizations, at which point some might be arrested on charges of sharing state secrets. Sometimes the victim, jaded by an endless petitioning cycle, sees independent candidacy in local elections as a means of holding officials accountable.

How to protect a movement from state repression

Effective rights defence campaigns and civil resistance must prepare for the protection challenges of steady state repression. For a time, certain civil society actors such as lawyers, journalists, scholars, petitioners and labour, land or LGBT rights activists were focused on narrower solutions to their own causes. The mentality is shifting, however, in favour of more coordination and horizontal networking between groups.

This is not to say that issue-specific rifts don’t still exist. I’ve been frustrated in conversations with licensed rights lawyers who claim that grassroots ‘barefoot’ lawyers aren’t worth collaborating with. Similarly, freedom of religion activists have told me that gender issues aren’t an important civil society concern or that women don’t make as good ‘barefoot’ lawyers as men. But the broader preference is a trend toward more integrated communication and exchange.

These are among the lessons I have learned from nearly five years of supporting civil society and human rights in China.

The main protection challenges stem from the government’s manipulation or outright disregard of domestic law. However, despite the more traditional inclination of civil resisters to work outside of established state institutions, couching resistance in Chinese law has a demonstrated benefit.

The police often illegally detain rights defenders and activists. In some cases merely the presence of a lawyer or ‘barefoot’ lawyer may force the police to release the arbitrarily detained individual or at least begin proper legal proceedings. While the charges may still be contrived, operating within the legal system is preferable to disappearances or prolonged detention and is also advantageous to sustained rights defence and gradual normative change. Furthermore, even a flawed trial often supports greater coordination of civil resistance or advocacy campaigns than more illegal alternatives such as disappearance or detentions without trial.

The degree of international attention and domestic pressure and the profile of the activists are important factors in the effectiveness of rights defence. The Nobel Peace Prize-winning Liu Xiaobo is unlikely to be released from prison any time soon nor will Gao Zhisheng realistically be free of revolving detention and harassment despite considerable domestic and international advocacy. These high-profile cases are important to the central government and maintaining a strong stance is related to demonstrating their supremacy. On the other hand, in 2005 Rebiya Kadeer was released from prison and permitted to leave China following international advocacy. More recently, in 2011, following sustained domestic and international efforts, journalist Qi Chonghuai was transferred out of Tengzhou prison where he was being savagely beaten under direct order of local officials.

While Beijing likely later grew to regret releasing Rebiya Kadeer, these cases demonstrate that concessions have been made but only in cases where the central government doesn’t have a direct interest in the detention. One of the most successful tactics in rights defence and civil resistance to date is recognizing and capitalizing on cases where central and local government interests do not overlap. Although no easy task, identifying targets for support within the pillars of the state can have a drastic impact.

What role can the international community play? Recognizing the differences on the ground and the specific needs of Chinese rights defenders and civil resisters is essential. This can be accomplished through greater support of civil society, especially through increasing attention to activists outside of Beijing and Shanghai, supporting less high-profile rights defenders and activists throughout the country. Pressure must also come from within Chinese society. The greater rights defence campaign successes have tended to come most from domestic organizations working from the grassroots.

This can be achieved through the creation of space. Chinese rights defenders and activists must be provided greater opportunities to simply come together and exchange ideas and skills. This can be done through more training programmes and experience sharing but also just through creative ways to gather freely. While digital networking is important for direct exchange in individual cases, the sustainability of a rights movement is built on face-to-face interaction. This increases trust and supports more intimate exchanges about grievances and tactics.

Furthermore, as activists around the world know, you don’t always need a strict schedule of events and curriculum; sometimes just facilitating gatherings of activists is the best way to support the development of rights awareness and resistance tactics. Again, the government of China is aware of such moves, which is why it responded mercilessly to the New Citizens’ Movement dinner meetings and the small apartment gathering organized by the Tiananmen Mothers in 2014 for which Pu Zhiqiang was detained.

Additionally, increasing awareness of the needs and limitations of front line rights defenders in China can be reflected in more flexible donor contributions, through international organizations or government mechanisms, to support small initiatives and start-up organizations. The Chinese government investigates and has persecuted foreign funded Chinese organizations and individuals receiving money from abroad. Leaking state secrets continues to be an opaque legal charge and method of repression, as with Gao Yu, and many activists have been detained or had funding seized for collaborating with international donors. Financial security for domestic activists is a serious challenge and should be part of the agenda of international rights defence support moving forward.

This assessment is far from comprehensive. These are some of the principal means of state repression and small tactical changes that Chinese rights defenders and activists engaged in civil resistance campaigns have begun to recognize. Focusing on more daily routines and details rather than higher profile events is an important step for the sustainability of civil resistance and rights defence in China. The utility of such principles, however, is not confined to China.

A common refrain among activists in many countries is that their struggle is unique, oppression too institutionalized, dictatorships too brutal, or causes not well supported by the international community. One can differentiate between the conditions for domestic resistance in China, Zimbabwe and Russia from the United States, Spain and Australia but civil resistance trainers are wont to repeat that conditions do not dictate outcomes.

While specific country conditions do not determine the outcomes of resistance, they do affect the availability of tactical options for a given act or campaign of resistance. And recognizing the importance of building sustainable campaigns through a series of small-scale victories, matching resistance to repression, and horizontal networking are therefore not only important guidelines for civil resistance in China. They also have universal value.