Xinhua Article Claims Liu Xiaobo Case Meets International Standards

December 9, 2010

Official Chinese media have argued that the 11-year sentence for "inciting subversion," imposed last year on Nobel Peace Prize recipient Liu Xiaobo in connection with his writings, is consistent both with international human rights standards and with the practices of other countries, notably North American and Western European countries. The Chinese central government's news agency, Xinhua, published an article on October 25, 2010, that makes this claim based on the arguments of a noted Chinese legal scholar who specializes in criminal law. The Commission has translated this article into English and provides the full text and translation here. As the Commission noted in its 2010 Annual Report, Chinese officials increasingly have sought to portray their practices as consistent with international human rights standards.

On October 25, 2010, Xinhua News Agency issued a news article (in Chinese) aiming to rebut foreign media criticism of the imprisonment of prominent Chinese intellectual and Nobel Peace Prize recipient Liu Xiaobo. Liu is a writer and democracy advocate who was sentenced to 11 years in prison in December 2009 for "inciting subversion of state power," a crime under Article 105, Paragraph 2, of the Criminal Law. His sentence was based on six essays he wrote and his help drafting Charter 08, a document calling for political reform and human rights, as well as the dissemination of the writings over the Internet. Liu was awarded the Nobel Peace Prize (announcement via the Nobel's official Web site) on October 8, 2010. The Xinhua article is based on an interview with Professor Gao Mingxuan, who argues in the article that Chinese courts acted correctly in convicting Liu and that restrictions on free speech are common throughout the world. Gao is a professor at the Renmin University of China Law School whose research interests include Chinese criminal law and international criminal law, according to the school's Web site.

[Note: Quotes below from the Xinhua article are based on the Commission's English translation found here. It is unclear whether some of Gao's remarks in the Xinhua article are direct quotes or are paraphrased. We treat them below as direct quotes unless otherwise specified. On November 5, Xinhua's English Web site posted an English-language article covering Gao's remarks, which was posted on the Web site of the Chinese Embassy in the United States that same day. China Daily, a state-controlled English newspaper, ran an op-ed titled "A Crime In Any Other Country As Well" on November 3 that includes some of the same arguments as the Xinhua article, but is attributed to "Zhang Zhengyi, a commentator in Beijing."]

Gao's Arguments

According to the Xinhua article, Professor Gao argues Chinese courts acted correctly in Liu's case because Liu sought to incite the overthrow of the Chinese regime and posed a serious threat to society. As evidence of Liu's intent to subvert the Chinese regime, Gao points to passages in Liu's writings, including: "the Chinese Communist Party's dictatorship brings calamity to the country and the people," and references to "changing the regime" and "establishing a Chinese federal republic." To support his contention that Liu's actions posed a serious threat, Gao cited Liu's use of the Internet to disseminate and gain support for his views and Liu's prior activism, which officials had also punished. According to Gao, "[fo]reign, anti-China forces used Liu's words and deeds to launch attacks against China, leading in fact to serious harmful effects and consequences." Gao provides no further details regarding such attacks or their effects.

Gao also argued that the Chinese government is not the only government that punishes incitement as a crime or restricts speech. "The laws of nearly every nation in the world and relevant international conventions" have provisions criminalizing some speech, and "'freedom of speech' in any nation has its limits," the article paraphrases Gao as saying. Gao cites laws and cases from the United States, Great Britain, Germany, Italy, Canada, Australia, Singapore, France, Austria, Denmark, and the United Nations International Criminal Tribunal for Rwanda, as well as provisions from the International Covenant on Civil and Political Rights (ICCPR), American Convention on Human Rights, and Council of Europe Convention on the Prevention of Terrorism. At the end of the article Gao argues that under U.S. case law, Liu would also have been found guilty. Citing the 1919 U.S. Supreme Court case Schenck v. United States (via Findlaw), which set forth the "clear and present danger" test, Gao reportedly said "[e]ven if we use the American standard to judge the case of Liu Xiaobo, the decisions of the Beijing courts at the two levels [in the case of Liu] are not in doubt."

International Human Rights Standards and the Liu Case

China has signed and committed to ratify the ICCPR, which specifies the conditions under which states may restrict freedom of expression. Article 19 of the ICCPR provides that such restriction must: (1) be provided for by law, (2) address one of the aims enumerated in paragraph 3 (a) and (b) of Article 19, which include protecting national security, and (3) be necessary to achieve the legitimate purpose. The UN Human Rights Committee, established under the ICCPR, has interpreted Article 19 in specific cases, providing guidance on what states must show in order to prove that a restriction is "necessary." States must specify the nature of the threat posed by the expression with some precision. For example, in the 1998 case of Keun-Tae Kim v. Republic of Korea (via UNHCR Web site), the Committee found that the state had failed to specify the precise nature of the threat to national security in a case involving a citizen convicted for "having read out and distributed printed material which were seen as coinciding with the policy statements" of North Korea. The Committee faulted South Korean courts for failing to address questions of the nature and extent of the risk to national security or "whether the contents of the speech or the documents had any additional effect upon the audience or readers such as to threaten public security, the protection of which would justify restriction within the terms of the [ICCPR] as being necessary." The UN Human Rights Council recently cautioned states against imposing restrictions inconsistent with Article 19, including restrictions on "[d]iscussion of government policies and political debate; reporting on human rights, government activities and corruption in government;...peaceful demonstrations or political activities, including for peace or democracy; and expression of opinion and dissent...." (see Resolution 12/16, available by clicking on Symbol Number at this link).

In Liu's case, Chinese officials charged him with violating a crime of endangering national security, Article 105, Paragraph 2 of the Criminal Law. Neither the lower court nor the appeals court, however, specified how Liu's actions posed a threat to China's national security. (See Human Rights in China's English translations of the lower court's December 25, 2009, judgment, and the appeals court's February 9, 2010, judgment.) Those courts instead rely on general claims that Liu used the Internet's features to "incite others to overthrow our country's state power and the socialist system" and that "his articles were widely linked, reproduced, and viewed, spreading vile influence." The courts do not specify who was incited or the specific nature of the "vile influence," much less the extent of the risk posed to national security. The courts do not cite any language in which Liu advocates violence. As noted above, Gao offers his own explanation of the harm caused to China's national security, namely attacks from "[f]oreign, anti-China forces" but that explanation is also unspecific and in any case was not specifically cited by the courts. Finally, the courts did not indicate what weight, if any, they gave to Liu's constitutional right to free speech.

Furthermore, neither Gao nor the courts acknowledge other language in Charter 08 or the essays for which Liu was convicted that contradict their characterization of Liu's writings as inciting the overthrow of the current regime. The essay from which the phrase "changing the regime" is taken, for example, argues for gradual political change. In that essay, titled "Changing the Regime by Changing Society" (via Observe China, HRIC translation), Liu writes that: "[i]n terms of opposition to the might of the Chinese Communist regime...there is no way to cultivate in a short time a political force adequate to the task of replacing the Communist regime." Instead, Liu advises Chinese citizens to "pursue the free and democratic forces among the people; do not pursue the rebuilding of society through radical regime change, but instead use gradual social change to compel regime change." Moreover, he emphasizes non-violence:

  • "The greatness of non-violent resistance is that even as man is faced with forceful tyranny and the resulting suffering, the victim responds to hate with love...and to violence with reason";
  • "The non-violent rights defense movement does not aim to seize political power, but is committed to building a humane society..."; and
  • "The non-violent rights defense movement need not pursue a grand goal of complete transformation."

In addition, while Charter 08 calls for changes in China's political system it does not specify a process or timetable for achieving this. Instead, it sets forth certain "fundamental principles" and "recommendations": human rights, equality, democracy, constitutional rule, separation of powers, freedom of expression, and an independent judiciary, among others.

China's application of the inciting subversion provision used in Liu's case repeatedly has fallen short of international standards. While Article 105(2) is intended to protect national security, numerous cases in recent years indicate that the law has been used instead to punish peaceful critics of the Chinese government and Communist Party, including Tan Zuoren, an advocate of victims of the May 2008 Sichuan earthquake, Hu Jia, a human rights activist, and Yang Chunlin, a land rights activist. The law is subject to abuse because, as Chinese defense lawyers, the UN Special Rapporteur on Torture, and human rights organizations have found, its wording is vague, Chinese officials have not clearly delineated constitutionally protected speech from subversive speech, and courts make no effort to show the "potential or real subversive effect" of the speech. China lacks an independent judiciary and officials commit frequent abuses in their handling of cases they deem to be politically sensitive, as evidenced by the numerous ways in which officials in the Liu case ignored legal protections for suspects and defendants and made it difficult for Liu to mount a defense.

While equating China's practices with those of other countries and jurisdictions, Gao draws parallels to laws and cases that diverge widely from the facts and setting of the Liu case. For example, Gao cites a decision of the International Criminal Tribunal for Rwanda (ICTR) against George Ruggiu, a Belgian journalist who worked at a radio station in Rwanda during the 1994 genocide. According to the ICTR's judgment in the case, the court found that Ruggiu's radio broadcasts had "incited massacres of the Tutsi population" (Paragraph 50). While such case supports the general proposition that international law permits restrictions on expression, it provides no further information regarding whether the restriction as applied in Liu's case comports with international law.

Finally, Gao's contention regarding the hypothetical outcome of Liu's case under U.S. law is without basis. As noted above, the courts in Liu's case did not undertake to determine the nature or extent of the threat to national security posed by Liu's actions or indicate the weight given to Liu's constitutional right to free speech. Furthermore, as noted in the Congressional Research Service's Constitution of the United States of America, Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States, there have been a number of cases since Schenck that have provided additional guidance on the boundaries of free speech in the United States (see pp. 1091-1110). For example, in Brandenburg v. Ohio (1969, via Findlaw) the U.S. Supreme Court notes that the advocacy of force or of law violation is permissible "except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." It is unclear why Gao cites only to the Schenck case and fails to mention the later precedents.

As noted in the Commission's 2010 Annual Report, Chinese officials "increasingly tend to declare the Chinese government's compliance with international norms, even in the face of documented noncompliance." In June 2010, for example, the State Council Information Office released a white paper discussing the state of the Internet in China, claiming that the government "guarantees citizens' freedom of speech on the Internet" and that its regulation of the Internet is "consistent with international practices." In another example, China's foreign ministry denied the existence of "black jails," or secret detention sites, even though official Chinese media had reported on their existence, as recently noted by George Washington University Law School Professor Donald Clarke. For more information on the compliance of China's restrictions on freedom of expression with international standards, see Section II―Freedom of the Expression, in the 2010 Annual Report.

Additional CECC Resources on Liu Xiaobo: