Doubling Down on Hong Kong
In an interview with the US network CNBC on January 28, airing one week after President Biden’s inauguration, Hong Kong Chief Executive Carrie Lam expressed optimism that the new administration would give Hong Kong a “fair hearing” on the National Security Law imposed on the territory at the end of June 2020.
Her optimism proved to be misplaced. Not only has the Biden administration not changed the position of the Trump administration on Hong Kong, it has doubled down on sanctions and other actions targeting the Special Administrative Region.
At the same time that Biden assumed office, the 117th Congress convened. In the subsequent four months, lawmakers in both the House of Representatives and Senate introduced legislation targeting Hong Kong. In the previous Congress, a staggering 550 bills or resolutions with China and/or Hong Kong content were debated. Several became law in the previous Congress after President Trump signed them. They included the Hong Kong Human Rights and Democracy Act of 2019.
By the end of May 2021, more than 170 bills or resolutions with China content had already been introduced in the 117th Congress. It is likely that the number of China-related legislation introduced in this Congress will exceed the number debated in the last Congress.
Fireworks in Anchorage
The first sign that the Biden administration would not change the Trump administration’s Hong Kong policy took place on the eve of the meeting of the two countries’ diplomats that took place in Anchorage, Alaska, on March 18 and 19, 2020. On March 17, the United States Department of State announced that it was sanctioning 24 officials (both mainland and Hong Kong-based) for eroding Hong Kong’s freedoms. Announcing the sanctions on the eve of the talks was viewed by Chinese officials as an insult meant to derail them. They were furious.
The talks themselves were contentious. The US team of Secretary of State Blinken and National Security Advisor Sullivan issued a long list of alleged human rights grievances, central of which was the treatment of Hong Kong. The Chinese team of State Counselor Yang Jiechi and Minister of Foreign Affairs Wang Yi rejected the US remarks on Hong Kong, asserting that they represented interference in China’s internal affairs.
For a complete list of individuals in mainland China, Hong Kong, and Macau sanctioned for committing human rights offenses, see the accompanying table. Of the 42 individuals sanctioned to date, 36 have been sanctioned for abusing human rights in Hong Kong. The remainder have been sanctioned for abusing rights in Xinjiang and for violating religious freedoms.
The next indication that there would be no change in policy took place on March 31, with the release of the report required under the Hong Kong Policy Act. The report confirmed the Trump State Department position that Hong Kong doesn’t deserve special privileges in the United States.
On May 11, 2021, the Department of State reissued the Level 3 Travel Advisory for Hong Kong, warning Americans to use increased caution when visiting Hong Kong. Some in Washington want this advisory to rise to Level 4 – “Don’t Travel,” but thus far the Department of State has declined to do so. This is largely a gratuitous gesture as travel from the United States and Hong Kong has slowed to a trickle. Few Americans are willing to quarantine for three weeks upon arrival in Hong Kong.
On June 9, 2021, the Department of State lowered the travel advisories for dozens of countries but those for mainland China and Hong Kong stayed in place, as did the rationale: the risk to Americans of arbitrary detention.
Senate and House Bills to be Merged
Most but not all the China bills introduced in the 117th Congress have been folded into the Senate’s Innovation and Competition Act (ICA) or its House companion piece, the Ensuring American Global Leadership and Engagement Act (EAGLE) introduced by Chairman Meeks of the House Foreign Affairs Committee. Since the Senate and House bills will have different content, a conference will be held to merge the two versions (along with even more amendments). The final bill to come out of the conference will doubtless be considerably more than 2,000 pages in length. President Biden has already stated his intention to sign the conference bill when it lands on his desk.
Among the provisions of the ICA that rankle Beijing and the Hong Kong SAR the most are those which establish a $10 million fund to promote democracy in Hong Kong and a “Safe Harbor” provision to grant Hong Kongers who participated in the 2019-2020 protests refugee status in the United States. Others include provisions to develop and deploy internet freedom and Great Firewall circumvention tools for the people of Hong Kong, prohibition on sales of munitions and arms to the Hong Kong police, and reports on how the Chinese government uses Hong Kong to circumvent US laws and the applicability and effectiveness of sanctions imposed on Chinese and SAR officials who allegedly abuse Hong Kong human rights.
The 2,400-page ICA passed the Senate in a lop-sided vote on June 8, 2021. A number of China-related bills, including EAGLE, will be debated and voted on in House committees in June and July.
As debates over China roiled Washington, the American Chamber of Commerce in Hong Kong issued a survey that revealed that 42 percent of expatriates in the former colony were considering leaving the city. An oft-cited reason was the introduction of the National Security Law. It appears that many foreign businesspeople are voting with their feet.
Exchanges is a feature that explores Dui Hua’s expert exchanges and dialogues.
“These girls have suffered…before they committed a crime”
There are many factors that lead girls to enter the justice system. During the International Symposium on Girls in Conflict with the Law (GICL), several contexts recurred across the 12 webinars. Understanding these factors is key to combating recidivism and what one panelist referred to as the “sex abuse to prison pipeline.”
Participants of the GICL overwhelmingly recognized that most girls who come into conflict with the law do so after experiencing some form of trauma or family turbulence. Gena Castro-Rodriguez, Chief of the Victim Services Division at the San Francisco District Attorney’s Office, noted that girls are twice as likely as boys to report significant histories of trauma and multiple experiences of trauma in childhood. Superior Court Judge Susan Breall said, “Most girls who are arrested are arrested for non-violent, non-serious crimes, but they have been victimized in very serious and violent ways before they ever come into the juvenile justice system or the dependency system.” Breall added that, “Studies show that the familial turbulence experienced by a young girl in the home has a greater effect on her than boys…and a greater effect on her when she comes into the juvenile justice system.”
Poverty and neglect often face youth before they enter the justice system. Professor Zhang Hongwei noted that much of China’s juvenile offending comes from left-behind children and those dealing with poverty while journalist Nicholas Kristof offered that one in seven US children has a parent dealing with a dependency problem, with the vast majority not receiving treatment. Christa Big Canoe, Legal Advocacy Director for Aboriginal Legal Services of Toronto, identified neglect and inadequate government responses as problems: “Indigenous children are more often removed from home when they fall into the neglect category and it’s not like that they’re being left or abandoned, it’s that they don’t have enough food or they’re not meeting the levels legally required.”
These factors can lead to offending and recidivism, but they also contribute to developmental issues. Social worker Michelle De Young spoke of her experience saying that “most of my girls don’t know how to process emotions or even know what they are… When we ask, they will talk and say, “I’m irritated or angry.” Those will be the only emotions they know and the easiest to feel. That’s how they have survived.” Professor Elizabeth Cauffman, who has researched how girls desist from crime, found that incarceration compounds the harm resulting from abuse and unsafe environments: “Our research has shown that incarceration settings, particularly secured confinement, actually arrest development and don’t promote it.”
Many of the presenters identified a strong connection between sexual abuse and offending. Kasie Lee, Assistant District Attorney for San Francisco’s Juvenile Unit said, “In my work here at the District Attorney’s Office, as I encounter the girls that come into our system, I have seen that almost all, the large majority, if not all, are part of the [commercial sexual exploitation of children, CSEC] population or CSEC victims or at-risk.” Photographer Richard Ross recounted a similar experience during his art-as-advocacy work: “I went to Maryville Residential Program, I asked the director, ‘What percentage of the girls here have been sexually abused when they come here? What percentage?’ he replied ‘Everyone. All 88 of the girls in our custody have been sexually abused.’”
Offending girls have often had experience in the child welfare system. Assistant District Attorney Lee underlined this trauma by pointing to the high number of “cross-over girls”—those living as a dependent of the welfare system who then enter the criminal justice system— that she sees. Similarly, Judge Leonard Edwards referenced a study in Santa Clara County, California, that found that girls coming into the juvenile justice system had multiple instances of contact with the welfare system. “What that told us,” Edwards said, “was that these girls have suffered. They have had a very difficult life before they committed a crime.”
Girl crime is also highly relational. Castro-Rodriguez offered that “young women engage in criminal or risk-taking behavior for, with, or because of other people. Their motivation for criminal behavior is relational.” Eric Chui, citing his study of gang-related girls in Hong Kong, observed that weakened belief in legal systems and Triad affiliation are positively associated with theft among girls. Elizabeth Cauffman noted the effects of romantic relationships on girls’ decisions to persist with crime:
“One of the best predictors of that persistence [in crime] was that their romantic partner was engaged in antisocial behavior or was influencing them to be antisocial…If girls were dating a romantic partner who was deviant, they kept right on doing their own delinquent behavior.”
Finally, while trauma and abuse are important trends to help us understand girl offending, these are often framed in ways that ignore social factors that incentivize the abuse of girls. Both Michelle Burman and Susan Batchelor at the University of Glasgow said that the overemphasis on trauma, familiar turbulence, and adversity can obscure underlying causes of the trauma or abuse. This leads to environments in which, as Burman says, “gendered abuse and exploitation are reconstructed as the outcome of young women’s own risky choices, rather than structural inequalities and injustice.”
Journalist Nicholas Kristof, speaking about the sex trafficking of girls, identified one root cause of child exploitation accordingly:
“The pattern for teenagers is often quite similar, and it involves a boy or girl who is in a situation that is intolerable at home. Maybe it’s somebody abusing them, maybe somebody neglecting them. They run away and they go to the bus station. The only person looking out for kids like them at the bus station is a pimp, [who] gives them food and a place to stay. If it’s a girl, he tells her that he loves her and then he controls her. We should be able to compete with pimps in providing social services at bus stations.”
To learn more about the panelists, watch their individual webinars and read a full list of recommendations visit girlsjustice.org.
PUBLICATIONS ROUND UP
Featured: Human Rights Journal, June 3, 2021: Juvenile Justice for Girls with Chinese Characteristics: Juvenile Convictions Drop, Number of Offending Girls Remains High
The United States is increasingly mainstreaming gender-specific justice reform, and the need has been identified in China as well. In 2019, Dui Hua found that even as the number of girls convicted by courts decreased until the end of 2016, the number of girls convicted as a percentage of juvenile convictions had increased.
When Dui Hua published its research and analysis in December 2019, it expressed concern that the draft of a proposed law on the Prevention of Juvenile Delinquency released that autumn omitted gender-specific measures, saying that “it is increasingly accepted that gender-specific needs require different approaches.” The International Symposium on Girls in Conflict with the Law, organized by Dui Hua and its partners, explored issues related to girls’ justice in the Chinese justice system with representatives from China’s Supreme People’s Court (SPC). The webinar “China’s Supreme People’s Court: Special and Priority Protection of the Legitimate Rights and Interests of Underage Girls in Accordance with the Law” featured Dr. Jiang Jihai, Director of Juvenile Offender Office of Research Office of SPC, and Ms. Dai Qiuying, Director of Center for the Protection of Minors of Applied Law.
Remarks by both panelists, speaking through an interpreter, provide insight into the causal factors of female juvenile offences and new laws for juvenile offenders, particularly girls. These remarks, statistics discussed during the webinar, and Dui Hua’s research provide a more informed understanding of juvenile female crime rates in China and changing approaches to juvenile crime.
JOHN KAMM REMEMBERS
John Kamm Remembers is a feature that explores Kamm’s human rights advocacy prior to and since Dui Hua’s establishment in 1999.
Before starting my human rights work in China, I prided myself on being a pioneering businessman. In 1979, I placed the first advertisement for Western products in China since the Cultural Revolution. In the same year, I opened two of the first offices in Chinese cities – Guangzhou and Shanghai – outside Beijing, before regulations on foreign offices were enacted. I made some of the first direct sales to Chinese county foreign trade corporations. These were sales of vaccines for pigeons raised in Zhongshan County, Guangdong, in the early 1980s.
I negotiated the first 50:50 joint venture between a Chinese chemical plant and a Western chemical company. The Chinese partner was the Qingdao Chemical Plant and the Western company was Occidental Chemical Company, which I served as vice president of the Asia Pacific region from 1986 to 1991. The product we joint ventured to produce was sodium silicate, a simple, low-risk inorganic chemical with wide applications in the detergent and glass industries.
Mixing Business and Human Rights
The negotiations began in 1988. I made a number of trips to Qingdao, a seaside city known, among other things, as a base for American navy vessels before 1949. (President Carter served there in the years immediately after the Second World War. There was a large Eurasian population in Qingdao as a result of American sailors being stationed there.)
I took the train from Hong Kong to Guangzhou where I boarded a flight to Qingdao on October 14, 1991. I stayed in the Qingdao Flower Stone House, a Gothic-style structure built in 1936 for a wealthy merchant family. Our joint venture negotiating sessions took place at the sodium silicate factory. Between sessions I and my team were hosted to lunch by the Qingdao Economic and Trade Department and to dinner by Qingdao’s mayor.
On October 18, I was invited to give a speech at Qingdao University, where I had been made an honorary professor in April 1990. I spoke on US-China Relations to the university faculty, toured the campus, and was invited to lunch by the university president. At lunch I raised the names of Qingdao students who had been imprisoned for their actions in the May-June 1989 protests. (Shandong courts were known for passing some of the harshest sentences on students and workers.)
I flew to Beijing that evening and settled into the Jianguo Hotel. This was my third visit to Beijing in 1991.
Over the next three days I met with the Ministry of Justice to arrange a visit to Guangdong Meixian Prison; we discussed the fates of several prisoners including Wang Xizhe and Liu Shanshing. After this meeting I met with the head of the Foreign Affairs Department of the Supreme People’s Court to discuss the Lo Haixing and Han Dongfang cases, the situations of imprisoned Catholic clergy, and the abolition of counterrevolutionary crimes.
I then met with the Ministry of Foreign Economic Relations and Trade to discuss prison labor exports by Chinese factories, illegal in the United States. I had broached the topic of prison exports with the Ministry of Justice earlier in the day and been told that the ministry would take action against a Chinese factory that had been caught shipping products to the United States.
I also had a working dinner with the Ministry of Foreign Affairs (MFA) and the State Council.
The Issue of Exit Bans
At my meetings with the Supreme People’s Court, the State Council, and the Ministry of Foreign Affairs, I raised the issue of exit bans placed on relatives of dissidents who had fled China after the events of May and June 1989. I pressed my Chinese counterparts to let them join their family members who were living in exile in the United States.
At the dinner with the MFA and State Council on October 17, 1991, I was advised that several family members had, over the previous month, been allowed to leave China for the United States. I was told I would be given a full accounting the next day. The accounting would be given to me in a fax sent by the Supreme People’s Court to my hotel room.
On October 18, I debriefed the American Embassy and spoke to the American Chamber of Commerce. (It was a cool reception.) Upon my return to the Jianguo, I collected the fax from the Supreme People’s Court in the business center. The fax advised that family members of five leading dissidents had been allowed to leave China in recent weeks. The five dissidents were:
- Chen Kuide (陈奎德), director of the Institute of Culture at the Eastern University of Chemistry;
- Ma Bo (马波), an investigative journalist who wrote under the pen name Lao Gui (老鬼 “Old Ghost”). He had authored Blood Red Sunset, an early example of Cultural Revolution “scar literature;”
- Ruan Ming (阮銘), a researcher at the Central Party School;
- Su Xiaokang (苏晓康), an influential intellectual and scholar who was named as one of China’s seven most-wanted intellectuals involved in the 1989 protests. Su wrote the script for River Elegy, a controversial, six-episode television program that criticized Chinese culture; and
- Yuan Zhiming (远志明), a student protest leader who worked with Su Xiaokang on River Elegy.
Both Su and Yuan were wanted by police when they fled China. I was told by American diplomats that the public security authorities wanted to force exiled dissidents to return to China in a naked display of hostage politics.
The families eventually reunited. The exiles had relocated to the East Coast of the United States. Chen Kuide and Su Xiaokang set up shop in Princeton New Jersey where they became core members of the Princeton China initiative. (At one point, more than 20 Chinese exiles had joined the initiative in Princeton.) Ma Bo became a writer in residence at Brown University. Yuan Ziming also settled in Princeton before becoming a Christian pastor. He stepped down from his ministry in 2015 after being accused of sexual misconduct, an accusation he denied. Ruan Ming was at Columbia University where he continued his research and writing on Chinese leadership politics.
After I received the fax I gave interviews to Jeff Parker of the UPI, Chris Yeung of the South China Morning Post, Cathy Wilhelm of the Associated Press, James Miles of the BBC, and David Holly of the Los Angeles Times. I continued my work with journalists the following day, giving radio interviews to Hong Kong media and filming a segment for ABC News at Ryh Tan, a park in central Beijing. After wrapping up the segment, I left for the airport, where I boarded a flight back to Hong Kong.
The Right to Travel
Article 13 of the Universal Declaration of Human Rights states that “Everyone has the right to leave any country, including his own, and return to his country.” Nevertheless, many countries, including the United States and China, restrict this right for a number of reasons. In the United States, a ban on leaving the country is imposed by a judge in an open hearing and is accomplished by forcing the defendant in a criminal or civil trial to surrender his or her passport.
In China, there is a long history of exit bans placed on both Chinese citizens and foreigners. One of the most famous examples of exit bans were those placed on British bankers who managed the Hong Kong Shanghai Bank and Chartered Bank in Shanghai. The exit bans, which were in place for decades, were accompanied by other restrictions, especially during the Cultural Revolution years, and were supposedly imposed to ensure that the head offices of the banks in London didn’t confiscate the holdings of Chinese banks—an early example of hostage politics. As soon as the bankers’ replacements arrived, the exit bans were lifted.
Exit Bans Today
At least six laws and several regulations allow Chinese courts to impose exit bans. While there is a legal basis for imposing exit bans, the wording of applicable laws and regulations is vague, and their application is arbitrary and opaque. The most important law is the Exit and Entry Administration, the most recent version of which took effect in 2013. An individual can be barred from leaving China if he or she is involved in an ongoing civil or criminal case, or if his or her departure might impact national security. The law also provides for exit bans “in other circumstances in which exit from China is not allowed in accordance with laws or administrative regulations.” An aggrieved party in a divorce proceeding can ask a court to impose an exit ban. An angry official who thinks that an individual has insulted the official can apply for an exit ban.
Individuals can be banned from leaving China without their knowledge. They typically don’t attend the hearing at which the court imposes the ban. There is no right of appeal, nor is there any reliable way to learn how long the ban will be in place. Even if the ban is lifted by the court that originally imposed it, a different court can impose another ban. Individuals often don’t know they are living under an exit ban until they arrive at the airport and approach the immigration counter. That is when they first learn that they are forbidden from leaving the country. They are advised to return to their hotel and wait for instructions.
There are doubtless many people, Chinese citizens and foreigners alike, who don’t know that they are living under an exit ban. Based on my work on several cases, I believe that there are at least two dozen Americans living under exit bans in China today. Among the saddest cases are those of Cynthia and Victor Liu, siblings banned from leaving China as part of an effort by the police to force their father, who abandoned the family years ago and whose present location is unknown, to return to the country to face prosecution for corruption.
In another case, that of a Chinese American woman whose father is a Chinese citizen suspected of endangering state security, the exit ban was only lifted after she signed a document pledging not to reveal details of her ordeal. In yet another case, an American of Chinese descent was forced to sell all his assets and hand the proceeds over to the Chinese government before he was allowed to leave the country, poorer but wiser.
While most exit bans are imposed against foreigners of Chinese descent, there are examples of foreigners who are not of Chinese descent living under exit bans in China. Irish businessman Richard O’Halloran has been forbidden to leave China for more than two years over a business dispute involving his employer, even though he was not employed by the firm when the dispute took place. He was advised by the police that if he pays more than $50 million, he can leave. The Irish president raised his plight with Chinese president Xi Jinping, to no avail.
The application of exit bans against American citizens has become a major irritant in US-China relations. The subject is raised as a priority issue in high-level discussions between officials of the two governments, including the March 2021 meeting in Anchorage between senior officials of the Department of State and the National Security Council and their Chinese counterparts.
In December 2020, the Department of State issued a Level Three Travel Advisory – “Reconsider Travel” – for American citizens considering visiting China in large part because of the danger of being subjected to an exit ban. The advisory states that “the PRC government uses exit bans to:
- Compel individuals to participate in PRC government investigations,
- Pressure family members to return to the PRC from abroad,
- Influence PRC authorities to resolve civil disputes in favor of PRC citizens, and
- Gain bargaining leverage over foreign governments.”
Under regulations that take effect on August 1, 2021, Hong Kong’s immigration authorities have the power to bar people from entering and leaving the territory, another sign that the legal systems of both the mainland and Hong Kong are moving closer together.