China: Hundreds of Tibetan Detainees and Prisoners Unaccounted For

The first extensive analysis of official Chinese accounts regarding
the arrests and trials of Tibetan protesters from March 2008 shows that
by the Chinese government's own count, there have been thousands of
arbitrary arrests, and more than 100 trials pushed through the judicial
system, Human Rights Watch said today. New Human Rights Watch research
and analysis point to a judicial system so highly politicized as to
preclude any possibility of protesters being judged fairly.

Human Rights Watch has examined dozens of court reports, statements by
leading officials, local judicial statistics, and official Chinese
press reports. These documents reveal that the number of protests was
higher than previously acknowledged by the government, that protesters
have been sentenced outside the Tibetan Autonomous Region in the
provinces of Sichuan and Gansu, that protestors died or were killed in
Lhasa, and that courts have sentenced protesters under state security
charges for nonviolent acts such as waving the Tibetan flag and
throwing pamphlets on the street.

"The Chinese government has refused every external request for a real
accounting of the detention, arrest and sentencing of those involved
with the Tibetan protests," said Sophie Richardson, Asia advocacy
director at Human Rights Watch. "Both the arrests and the releases seem
to have been arbitrary, and we still know next to nothing about those
who are still detained or have been imprisoned."

Against a backdrop of ever-more intrusive controls over religious and
cultural activities, accelerated state-led economic development, and
large-scale compulsory resettlement of farmers and nomads, major
protests against Chinese rule erupted on March 10, 2008, in Lhasa and
spread across the Tibetan plateau. That date marked the anniversary of
the failed 1959 uprising against Chinese rule. Over the next four days,
hundreds of monks from Drepung, Sera, and Ganden temples peacefully
protested. But on March 14 near Romoche temple, members of the public
started protesting police who were preventing monks from leaving the
compound; some protesters turned violent and burned several police
cars. The police retreated and then inexplicably disappeared from Lhasa
for much of the rest of the day. Rioters burned Chinese shops and
government buildings and attacked Chinese-looking passersby. Dozens of
protests were held in Tibetan communities across the plateau over the
course of that week.

The Chinese government has framed all discussions about Tibet as a
sovereignty issue, claiming that the country's territorial integrity
and inter-ethnic relations were threatened by a secessionist movement
supported by "hostile foreign forces." The government has consistently
rejected all allegations of human rights abuses in Tibet, by claiming
that Tibetans' rights are fully protected under the law; pointing to
political, social and economic development over the past half-century;
or rejecting the expression of such concerns as conspiracies to fan
ethnic dissatisfaction against the Communist Party and the government.

"The government's national security concerns do not exempt it from its
obligation to respect fundamental rights and freedoms and offer equal
status before the law to all its citizens, whatever their ethnicity,"
said Richardson. "Yet Beijing's own official accounts reflect judicial
defects so severe that it is not possible to deliver a fair trial to
any one accused of having taken part in the protests last year."

Human Rights Watch said that the government's official figures about
arrests and convictions suggested that several hundred suspected
protesters are still in custody. The Chinese government, which says
that the protests resulted in 21 casualties, has not responded to
demands from the United Nations and international human rights
organizations such as Human Rights Watch to account for these
detentions. In a joint appeal on April 10, 2008, six United Nations
special procedures mandate holders issued an urgent appeal calling on
the government of China for "complete compliance with due process and
fair trial rights according to international standards for those
detained or charged with crimes, including provision of each person's
name, the charges against them, and the facility where they are
detained or imprisoned, as well as ensuring access to legal defense."

The official sources reviewed by Human Rights Watch are silent on vital
aspects of the protests, such as the circumstances under which protests
led to clashes with the security forces, or whether the government used
only such force as was necessary to protect public order and safety.
But the sources do shed light on several crucial dimensions of the
handling of the protests, such as the largest number of incidents
officially publicly acknowledged; the indication that some protesters
were killed during the security operations in Lhasa around March 14;
the previously unreported sentencing of several protesters in Gansu and
Sichuan province; details about direct instructions given to courts and
legal professionals by local officials, politicizing the judicial
process; and how peaceful dissent was construed as criminal behavior.

The sources reflect a pattern of systematic political interference with
legal and judicial processes in the name of an ideologically driven
"anti-separatist campaign" under the Communist Party leadership. The
principle of independence of the judiciary is thoroughly undermined by
the leadership's demand that courts and police tailor their actions to
political requirements.

"It is not in dispute that the Chinese government has the duty to
maintain public order and prosecute violent protesters," said
Richardson. "But it can and should accomplish this while respecting
both the law and international human rights standards."

The key findings presented in this report - based exclusively on
Chinese official sources - raise sufficient concerns on their own to
warrant an immediate investigation into the protests and their
aftermath. Human Rights Watch called on the government to:

• provide a full accounting of all those detained, released,
  tried and sentenced relating to public order disturbances in Tibet in
  the last year;
• allow immediate access for international
  observers, including access by the International Committee of the Red
  Cross to all detention facilities; and
• fully respect the rights of those who have been accused, detained, tried, or released.

Background and Findings

About 2.6 million Tibetans live in the Tibet Autonomous Region (TAR),
which occupies about half of the distinctive geographic area known as
Tibetan plateau. Most of the other 3 million Tibetans live on the rest
of the plateau, in officially designated "Tibetan Autonomous
Prefectures and Counties" under the jurisdiction of the provinces of
Qinghai, Sichuan, Gansu and Yunnan.

More Than 150 Incidents of Protest Acknowledged

The Chinese government has never given a full and detailed account of
the protests and of the response by the security forces. The number and
extent of protests that took place, as well as the details of how they
escalated and how the security forces responded, remain unknown. This
lack of information is disturbing given the substantial reports of
human rights violations documented by nongovernmental organizations
outside China that ought to have prompted both domestic and
international investigations into the reports.

Official sources reflect that the initial demonstrations by monks from
Sera and Drepung monasteries on March 10-13 did not involve violence on
the part of the protesters. Yet, following the violence that broke out
in Lhasa on March 14, 2008, as security forces inexplicably left the
center of the city to protesters and violent rioters for several hours,
the Chinese Communist Party and the government quickly revised its
characterization of all Tibetan protests as the "March 14th smashing,
looting, beating and burning incidents" irrespective of whether they
took place in Lhasa or elsewhere, before or after March 14, and
involved violence or not. This far from neutral characterization, which
still stands, permeates all official accounts and gives a high
ideological tone that makes it difficult to establish the nature of the
different incidents that took place over a period of several weeks
across the Tibetan plateau.

The political skewing of official accounts was compounded by the
government rapidly placing all Tibetan areas off-limits to foreign
visitors and journalists for the subsequent months, which prevented
independent observers and journalists from documenting the protests and
their aftermath. Even basic information such as how many incidents were
recorded by the authorities is unavailable.

However, in what might be the most authoritative acknowledgement of the
number and extent of the Tibetan protests ever made by the authorities,
a short mention in a Chinese-language only dispatch by the state news
agency Xinhua on April 2, 2008, acknowledged that "150 incidents of
'smashing, looting, beating and burning' had taken place between March
10 and March 25 in the Tibetan areas of Qinghai, Gansu and Sichuan
provinces and the Tibet Autonomous Region." No other estimate about the
number of protests was ever made public. Other official accounts
acknowledge specific protests in a least 18 county-level areas situated
in the prefectures of Chandu (Tibetan: Chamdo), Aba (Tibetan: Ngaba),
Ganzi (Tibetan: Kartze), Gannan (Tibetan: Kanhlo) and Guoluo (Tibetan:
Guolok) in the Tibet Autonomous Region and the provinces of Qinghai,
Gansu, and Sichuan.

In early April 2008, UN special rapporteurs urged the Chinese
government to "respond ... positively to outstanding visit requests to
enable mandate holders including the special rapporteur on
extrajudicial, summary or arbitrary executions to carry out the
responsibilities entrusted to them by the Human Rights Council." After
a brief interval during which a limited number of visitors were allowed
back, all Tibetan areas were closed again in late February 2009, and
remain so today.

Acknowledgment that Protesters Died or Were Killed

The documents reviewed also show that, contrary to the government's
insistence over the past year that no protester was killed during the
security operations in Lhasa that followed the March 14 violence, a
statement by Palma Trily (Chinese: Baima Chilin,) the vice-chairman of
the Tibet Autonomous Region, had acknowledged the death of three
protesters. "I can take the responsibility to inform you that, until
now three law-breakers have died," Palma Trily told a reporter from the
Hong Kong Chinese-language broadcaster Phoenix TV at a news conference
in Lhasa on March 27, 2008. "Some tried to jump off a building during
their arrest and died after arriving at the hospital." No public
investigation into the incidents was conducted, and no official mention
of these three deaths appears in other official documents and
state-media reports.

Prosecutions in the Tibet Autonomous Region

Statements by government officials and state media reports present a
confusing picture regarding the number of people arrested and sentenced
for their role in the protests. The government claims that only 76
people have been sentenced and that all the 953 people initially taken
into custody have subsequently been released, sometimes after having
been given "public order punishment" and "education." But these figures
cover only a fraction of the total number of arrests inside and outside
the Tibet Autonomous Region.

The number of 953 people taken into custody - of which 362 were
described by the authorities as having "voluntarily surrendered" - also
excludes arrests that took place after April 2008, and is lower than
figures appearing in some Chinese-language state media reports. In
particular, it is lower than the number provided by Baema Cewang
(Chinese: Baima Caiwang), vice-chairman of the regional government, on
November 4, 2008, that 1,317 persons had been initially detained by the
Public Security forces.

Basic information about the conduct of the trial of the 76 defendants
remains unavailable. There are also serious doubts about the fairness
of the procedures. In the case of the first group of alleged protesters
sentenced, the government initially announced that the 30 defendants
had been tried in an "open court session" on April 29, 2008. When Human
Rights Watch challenged the account by pointing out that the verdicts
had been reached covertly earlier, state media acknowledged that the
trials had in fact taken place a week before (see "Tibetan Protesters
Denied Fair Trial," at: https://www.hrw.org/en/news/2008/04/29/china-tibetan-protesters-denied-fair-trial).
Isolated state media reports gave the names and sentences, but not the
whereabouts, of a small number of people sentenced, such as seven
people accused of being agents of the Tibetan government in exile and
providing "intelligence" to overseas entities, and sentenced to prison
terms ranging from eight years to life.

Arrests and Prosecutions in Gansu and Sichuan Provinces

Information about detentions and prosecutions in Tibetan areas outside
of the Tibet Autonomous Region (TAR) is all the more limited.

In Gannan (Tibetan: Kanhlo) Prefecure, home to over half a million
Tibetans, the authorities had publicly reported that through April 8,
2008, law enforcement agencies had put 432 protesters under criminal
detention, accepted the "voluntary surrenders" of 2,224 people having
taken part in violent protests, and released 1,870 people. The
authorities gave no details about the status of the 334 people not
released, including 106 monks. The names, whereabouts, charges and
place of detentions of people detained and awaiting trial in Gannan
were never detailed, and no conviction there was ever publicly reported
by the government or national state media.

But official documents examined by Human Rights Watch now establish for
the first time that courts in the provinces of Gansu and Sichuan
sentenced several dozens of Tibetan protesters during the year 2008
under charges ranging from disrupting public order to "inciting
separatism" to other state security crimes. Neither government
officials nor national state media have so far publicly disclosed any
sentencing outside the Tibet Autonomous Region.

An official speech obtained by Human Rights Watch, and delivered on
January 6, 2009 by the head of the Gannan Tibetan Prefecture
Intermediate People's Court, indicates that 27 people were sentenced in
2008. The Gannan courts tried 16 cases of "violent crimes of 'March 14'
smashing, looting, beating and burning" involving 27 people. Sentences
ranged from two to 20 years of imprisonment, including 10 sentences in
the 10-15 year range and eight in 5-10 years range. The crimes listed
included arson, looting, "collectively attacking state organs," and
"inciting separatism." The identity of all the people sentenced, their
whereabouts, and relevant details about their trials, such as whether
they had benefited from adequate legal representation, also remain
unknown.

There are similar concerns about detainees and protesters unaccounted
for in the two Tibetan autonomous prefectures of Ganzi (Tibetan:
Kardze) and Aba (Tibetan: Ngaba) in Sichuan province, home to another
million Tibetans. In Ganzi prefecture, official reports state that 289
people had "voluntarily surrendered" after several clashes in mid-March
2008. In Aba county, 381 "law breakers" had "voluntarily surrendered"
by March 24, 2008. Nothing has been since heard about the fate of these
individuals, including how many were subsequently released or
prosecuted.

Doubts Over 'Voluntary Surrenders'

There are also concerns that not all surrenders to the authorities
described as "voluntary" in official sources were indeed voluntary.
Under Chinese law, the term zishou,
or "voluntary surrender," simply indicates that, at the outset of
formal legal procedures, a suspect has already admitted to having
broken the law. Tibetans arrested and detained in the course of the
numerous paramilitary sweeps acknowledged by the authorities may have
been first coerced into confessing their supposed crimes and only then
transferred into police custody. The Chinese government has provided no
details on the circumstances of these "voluntary surrenders." Given the
unlikelihood that suspects had access to defense counsel at the time of
their detention, and the numerous and persistent allegations of torture
on the part of police in Tibet, it cannot be ruled out that many of
these admissions of wrongdoing were coerced.

Systemic Flaws Render Justice Elusive for Political Crimes

Failure to protect peaceful dissent

Human Rights Watch said that the government's failure to distinguish
between peaceful protesters and those committing acts of violence is
rooted both in law and practice. Article 103 of the Criminal Law sets
forth the crime of "inciting separatism and harming national unity,"
which is overtly interpreted by the authorities as precluding any
written or oral advocacy of self-determination, including, in the case
of Tibet, calls for the return of the Dalai Lama, and display of the
Tibetan flag.

In the first speech after the March 14 violence, given the next day to
top officials of the region, Zhang Qingli, the Tibet Autonomous
Region's party secretary, listed activities carried out by "law
breakers" on the previous day that included both violent crimes, such
as "attacking innocent bystanders," state organs and police
departments, and "setting fire to shops, cars and guest houses," as
well as nonviolent actions, such as "brandishing the [Tibetan] Snow
lion flag, and shouting 'Independence for Tibet' and other reactionary
slogans of this style."

A case in point is the official account of the arrest of the first
group of monks to demonstrate in front of the Jokhang temple in Lhasa
on March 10. Published on March 25, 2008 in a regional newspaper, the
article cites the Lhasa procuratorate as recounting that "around 5 p.m.
on March 10 a group of monks created a disturbance in the Jokhang
square by shouting reactionary slogans and brandishing the [Tibetan]
Snow Lion flag." "The police immediately arrested 15 monks, of which
the Lhasa procuratorate approved the formal detention of 13." The
account identified a monk going under the Chinese name of Luozhui (his
Tibetan name was not provided) as the ringleader as "he had been the
first to display the Snow Lion reactionary flag, and was ready to shout
reactionary slogans when he was caught by the public security
officers."

Other official accounts of protests similarly detail the shouting of
"reactionary slogans," "illegal demonstration" and display of the
"reactionary [Tibetan] flag" as illegal acts that prompted the
intervention of law enforcement agencies and the detention of
protesters, even though the term "reactionary" is a political rather
than legal category and does not appear in China's criminal code.

A rare disclosure from the judicial authorities from Ganzi (Tibetan:
Kardze) prefecture Party Committee, in Sichuan Province, reflect that
the crime of "inciting separatism" was used against peaceful protesters
to sentence them to lengthy jail terms. On November 20, 2008, a court
in Ganzi prefecture sentenced Dorje Kangzho (Chinese: Duoji Kangzhu), a
34-year-old Tibetan nun, to seven years of imprisonment for having
publicly thrown in the air pamphlets calling for Tibetan independence
and for having shouted "Tibet independence" slogans with a group of
people in the main street of Ganzi township on May 14, 2008.

On November 27, 2008, the same court sentenced Loden You (Chinese:
Luodan You) to six years in prison for having distributed leaflets in
several locations, and "written with a black marker on a bridge
'Tibetans are independent' and 'Independence for the Tibetan people'
and 'other slogans.'" Several other people who allegedly had
participated in the plan were also arrested, but it is not known if and
when they were sentenced in separate cases.

The official account is unambiguous that the sole act of writing
pamphlets and throwing them in public amounted to the crime of
"inciting separatism":

The Ganzi Tibetan Autonomous Prefecture Intermediate
People's Court held that the defendant Dorje Kangzho (Chinese: Duoji
Kangzhu) wrote pamphlets calling for Tibet independence, threw them on
important roads of Ganzi County, brazenly inciting to split the country
and destroy national unity and that her actions amounted to the crime
of inciting separatism.

The cases above seem to indicate that the authorities have conflated
nonviolent expression of political opinion and violent protests under
the label of criminal separatist activities. Such failure raises
serious doubts about the validity of the characterization of
"criminals" of an unknown proportion of protesters detained and
sentenced and suggests clear-cut human rights violations in a number of
cases.

Orders to rush prosecutions from the Party

In addition to these statutory limitations on freedom of expression and
assembly, a series of political instructions given to the courts also
virtually voided the possibility that the courts adjudicate fairly and
impartially in cases involving Tibetan protesters. On March 17, 2008,
Zhang Qingli, the Communist Party secretary for the Tibet Autonomous
Region, urged that there be "quick arrests, quick hearings, and quick
sentencings" of the people involved in the protests. Such a political
directive circumvents guarantees for a fair and impartial legal
process.

On March 19, prior to any determination by a court, the Lhasa
procuratorate announced that the violence in Lhasa "was organized,
planned, and premeditated by the Dalai Lama clique," and that in the
cases of 24 criminal suspects formally arrested that day "the crimes
were clear and the evidence sufficient" to determine that they had
committed "state security crimes." This stark pronouncement called into
question whether the courts, which are also subject to Party control,
could seriously uphold the right to be presumed innocent until proven
guilty.

On April 2, 2008, TAR vice chairman Baema Cewang (Chinese: Baima
Caiwang) reiterated Zhang Qingli's instruction to rush prosecutions at
a work meeting of the regional High People's Court in which he also
urged "[c]ourts at all levels to conduct their work under the strong
leadership of the Regional Party Committee" and to "combine the
application of the law with the application of the Party policies."
Courts in the TAR subsequently established special taskforces to
coordinate "March 14 cases" and reinforced the role of the Party-led
adjudication committees to "direct" the trying of these cases.

Sichuan and Gansu Party authorities issued similar instructions to
courts. The head of the Gannan Intermediate People's Court, for
instance, stressed in his annual report in January 2009 that "courts at
all levels [in the prefecture] had achieved excellent political, social
and legal results" in trying protester cases "under the leadership of
the Party, the People's Congress and the government."

In essence, this body of instructions required procurators and courts
to tailor justice to what best served the Party's highly ideological
"anti-separatism" campaign. They serve as a dramatic illustration of
how the Party vitiates independence of the judiciary, a central
requirement for the administration of justice and the conduct of fair
trials.

Restrictions on adequate legal representation of defendants

There is also evidence that the right of the defendants to be
represented by the lawyer of their choice was ignored by the judicial
authorities. In April 2008, a group of 18 prominent civil rights
lawyers issued an open letter offering to provide legal assistance to
the detainees. "As professional lawyers, we hope that the relevant
authorities will handle Tibetan detainees strictly in accordance with
the constitution, the laws and due process for criminal defendants,"
the letter said. "We hope that they will prevent coerced confessions,
respect judicial independence and show respect for the law."

Shortly thereafter, judicial authorities in Beijing threatened to
discipline these lawyers and suspend their professional licenses unless
they withdrew their offers of assistance. The authorities claimed that
the Tibetan protesters were "not ordinary cases, but sensitive cases."

Defendants occasionally benefit from court-appointed lawyers, although
those are generally Ministry of Justice employees, and they do not meet
the standards of independence required of a defense counsel in a fair
trial. In the context of the "anti-separatist campaign" local judicial
authorities in Tibet explicitly required lawyers to follow policies set
by the Party. For example, Aba (Tibetan: Ngaba) prefecture judicial
authorities told lawyers at an April 29, 2008 meeting that, "[a]ll
legal personnel should affirm a high degree of solidarity in thinking
and motivation with the Central Party leadership and the provincial and
prefectural Party organs," and "strengthen their attitude for the
struggle against separatism in defense of the political stability in
Aba prefecture."

Against this highly politicized background, Tibetan defendants accused
of having participated in the protests stand little chance of
benefiting from meaningful legal representation and the due process of
law to which they are entitled under Chinese law.

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