By David Matas
November 25, 2009
The Asia Pacific region combines states with widely varying human rights records and institutions. There are both democratic states with strong human rights records and undemocratic states which violate the rights of their citizens in a gross and flagrant manner.
Is it possible, with such a stark contrast, to construct a human rights institution which functions effectively across the region? We can attempt to answer this question by considering the experience of the Universal Periodic Review of the United Nations Human Rights Council. The Universal Periodic Review is a new element of the United Nations Human Rights Council created in 2006 to replace the failed UN Human Rights Commission.
A. Universal Periodic Review
The Universal Periodic Review brings together all states of the United Nations. The review is conducted by the Council itself, in a working group composed of all member states of the Council  . Though only states members of the UN Human Rights Council can vote on the reports of the Universal Periodic Review Working Group, any state can speak during the deliberations of the Universal Periodic Review Working Group and the Human Rights Council  . Non-governmental organizations are not allowed to speak.
Each state member of the United Nations comes up for review once in a four year cycle . A state under review both receives recommendations from other states and responds to those recommendations.
The label "review" is misleading. Unlike an expert mechanism report, the review produces no evaluation or assessment of the human rights record of the state under scrutiny, no overall recommendations, observations or statements of concern. All that happens during the course of the review is that other states comment on the human rights record of the state subject of the review. The state under review decides on its own which recommendations from other states to adopt. The remaining recommendations are just noted .
The Universal Periodic Review Working Group began its work in April 2008. Since then, it has had five sessions. At each session, the human rights record of sixteen states is reviewed. The number of states records which have been reviewed by the Working Group now totals eighty.
Many of those eighty states come from the Asia Pacific region. The Universal Periodic Review is a laboratory for an Asia Pacific human rights institution, because, in that Review, Asia Pacific states comment on the human rights record of other Asia Pacific states, state by state, across the human rights normative spectrum, and the states under scrutiny respond, either accepting or rejecting the recommendations of commenting states, recommendation by recommendation.
The documents on which the review are based include information contained in the reports of treaty bodies . The worst violators, which sign no or few treaties, have little or nothing in reports from treaty bodies. The states which show the greatest respect for international human rights by signing all human rights treaties have the greatest volume of reports from treaty bodies. Looking at reports of treaty bodies creates an inherent bias in favour of violators and against those who attempt to respect international human rights.
The documents on which the review are based also include reports from special procedures. While the Israel specific mandate has been continued indefinitely, country specific special procedures for countries other than Israel have been fast disappearing.
The duration of the review for each country in the working group is three hours . The review is an interactive dialogue . That is to say that during those three hours, the state the subject of the review responds to interventions. Given the time allowed for this response, if the chairs limits state interventions to two minutes, as has become a common practice, 60 state interventions at maximum can fit within the three hours.
Each member state which wishes to make a statement is allocated a time slot on a first come first serve basis. States who can not intervene are allowed to post their statements on the relevant UN website. Yet, the country under scrutiny is obliged to respond only to those states which have intervened. The comments of the remaining states are effectively ignored.
It did not take long before gross violators states figured out how to game the system. They lined up their friends or those they could bully to register to speak during the two hours, chewing up the time with praise or even justifications for the violations. The Universal Periodic Review interactive debate has become a rush to the microphone. Since the pool of potential speaker states is the full UN membership and not just the Council membership, the three hours can become quickly consumed with organized filibustering.
B. Falun Gong and other UN Bodies
If we focus in on this intra‑regional human rights exchange both at the Universal Periodic Review Working Group and at the Human Rights Council when the Council considers the reports of the Working Group, then to what extent does the region shares human rights views and practices which could provide a foundation for an effective, functioning regional human rights institution? As a case study, I will single out the report of China to the Universal Periodic Review in February 2009 and the abuse of killing Falun Gong practitioners for their organs. How was that abuse dealt with by other Asia Pacific states in the context of the Universal Periodic Review?
Falun Gong is a set of exercises with a spiritual foundation. It is a subset of the Chinese qi gong exercise tradition. Tai Chi is perhaps the best known of these exercises.
The spiritual foundation is a blending and updating of ancient Chinese spiritual traditions - Buddhism and Taoism. In its joining of exercise and spiritualism, Falun Gong is a Chinese version of yoga.
The practice of Falun Gong began in 1992 with the writings and teachings of Li Hong Zhi. The Government of China initially encouraged the practice because its health benefits.
The practice grew from a standing start in 1992 to from 70 to 100 million practitioners in 1999, according to a Government of China leaked estimate. The large numbers and the non-Communist beliefs of its practitioners in 1999 frightened the Communist Party Central Committee, and the practice in June 1999 was banned.
Those who did the exercises after June 1999 or protested the banning were arrested and asked to denounce the practice. Those who did so were released. Those who did not were tortured. Those who still refused to recant after torture disappeared.
What happened to the disappeared? David Kilgour and I concluded, in a report released in a first version released July 2006, in a second version dated January 2007 and a third version in book form launched in November this year, that disappeared practitioners were being killed for their organs which were sold for large sums to people in need of transplants.
Various elements of the United Nations system took our report seriously and confronted China with its findings. The United Nations Rapporteur on Torture, Manfred Nowak, and the UN Rapporteur on Religious Intolerance, Asma Jahangir, addressed our concerns in their 2007 and 2008 reports. They wrote in 2007:
"Allegation transmitted: Organ harvesting has been inflicted on a large number of unwilling Falun Gong practitioners at a wide variety of locations, for the purpose making available organs for transplant operations.... It is reported that there are many more organ transplants than identifiable sources of organs, even taking into account figures for identifiable sources, namely: estimates of executed prisoners annually, of which a high percentage of organs are donated, according to the statement in 2005 of the Vice Minister of Health Mr Huang Jiefu; willing donor family members, who for cultural reasons, are often reluctant to donate their organs after death; and brain‑dead donors. Moreover, the reportedly short waiting times that have been advertised for perfectly‑matched organs would suggest the existence of a computerized matching system for transplants and a large bank of live prospective donors. It is alleged that the discrepancy between available organs and numbers from identifiable sources is explained by organs harvested from Falun Gong practitioners, and that the rise in transplants from 2000 coincides and correlates with the beginning of the persecution of these persons...."
The Government of China responded but without addressing the concerns raised. As a result, the Rapporteurs reiterated their concerns in 2008 with these words:
"A critical issue was not addressed in the Government's previous responses, in particular: It is reported that there are many more organ transplants than identifiable sources of organs, even taking into account figures for identifiable sources, namely: annual estimates of executed prisoners by whom a high percentage of organs are donated, according to the statement in 2005 of the Vice Minister of HLTH, Mr. Huang Jiefu; willing donor family members, who for cultural reasons, are often reluctant to donate their organs after death; and brain‑dead donors. Moreover, the short waiting times that have been advertised for perfectly‑matched organs would suggest the existence of a computerized matching system for transplants and a large bank of live prospective donors. It is alleged that the discrepancy between available organs and numbers from identifiable sources is explained by organs harvested from Falun Gong practitioners, and that the rise in transplants from 2000 coincides and correlates with the beginning of the persecution of these persons. The Special Rapporteurs note reports that on 15 November 2006, Vice‑Minister Huang reiterated at a conference of surgeons in Guangzhou that most organs harvested come from executed prisoners. And notwithstanding the reported stringent criteria in place for donors, including for those sentenced to death, the Government informed in its response of 28 November, that voluntary donations, and donations between relatives are the two other legitimate sources of transplant organs. According to the allegations, based on data from the China Medical Organ Transplant Association, between the years 2000 and 2005 there were 60,000 transplantations performed, or approximately 10,000 per year for six years. This period coincides with the alleged rise in the persecution of Falun Gong practitioners. In 2005, it is reported that only 0.5% of total transplants were accounted for by donations by relatives; non‑relative brain dead donors were around nine in 2006; and estimates-given that the Government does not make public statistics on executions-for 2005 indicate 1770 executions were carried out, and 3900 persons sentenced to death. It is alleged that the discrepancy between the number of transplants carried out and the number of available sources is made up from the harvesting of organs from Falun Gong practitioners. However, it is also reported that the true number of executions is estimated to be around 8,000 to 10,000 per year, rather than the figure of 1770 executions referred above. As the Special Rapporteur on torture recommended in his report on his visit to China, he reiterates that the Government (E/CN.4/2006/6/para. 82, recommendation q) should use the opportunity of the restoration of the power of review of all death sentences by the Supreme People's Court to publish national statistics on the death penalty. A full explanation of the source of organ transplants would disprove the allegation of organ harvesting of Falun Gong practitioners, particularly if they could be traced to willing donors or executed prisoners. The request for an explanation for the discrepancy in the number of transplants between the years 2000 to 2005 and the numbers from identifiable sources of organs is reiterated."
The Chinese government, in a response sent to the Rapporteurs by letter dated March 19, 2007 and published in the report of Professor Nowak to the UN Human Rights Council dated February 19, 2008, stated that
"Professor Shi Bingyi expressly clarified that on no occasion had he made such a statement or given figures of this kind, and these allegations and the related figures are pure fabrication."
Moreover, the Government of China, lest there be any doubt, asserted that
"China's annual health statistics are compiled on the basis of categories of health disorder and not in accordance with the various types of treatment provided."
Shi Bingyi was interviewed in a video documentary produced by Phoenix TV, a Hong Kong media outlet. That video shows Shi Bingyi on screen saying what the Government of China, in its response to Nowak, indicates he said, that the figures we quote from him he simply never gave. He says on the video:
"I did not make such a statement because I have no knowledge of these figures I have not made detailed investigation on this subject how many were carried out and in which year. Therefore I have no figures to show. So I could not have said that."
Yet, the actual source of the quotation is footnoted in our report. It is a Chinese source, the Health News Network. The article from the Network was posted on the website for transplantation professionals in China . The text, dated 2006-03-02, stated, in part, in translation:
"Professor Shi said that in the past 10 years, organ transplantation in China had grown rapidly; the types of transplant operations that can be performed were very wide, ranging from kidney, liver, heart, pancreas, lung, bone marrow, cornea; so far, there had been over 90,000 transplants completed country‑wide; last year alone, there was close to 10,000 kidney transplants and nearly 4,000 liver transplants completed."
This article, in June 2008, remained on its original Chinese website, though it has been taken down since. The original source of the information remained available within China through the internet at the time Shi Bingyi denied the information.
Moreover, the information in this article continues to be recycled in Chinese publications. The official web site of the Minister of Science and Technology of the People's Republic of China posts a newsletter of June 20, 2008 which states:
"Up to date, China has performed some 85,000 organ transplants, only next to the United States in number. In recent years, China performed organ transplants on more than 10,000 patients a year...Liver transplants have exceeded 10,000 in number... Heart transplants went over 100 in number..."
The number of 90,000 total transplants in 2006 and only 85,000 total transplants in 2008 are not consistent and call for an explanation only those who provide the statistics can give. What is striking about the later article, aside from the statistical mismatch, is that it flies in the face of the official Chinese statement to the Rapporteurs that China's health statistics are compiled on the basis of categories of health disorder and not in accordance with the various types of treatment provided.
So what we have is a statement from Shi Bingyi on a Chinese based web site which was extant at the time of the denial, a statement which Shi Bingyi publicly denied ever having said. Moreover, despite the continued presence on this website of a statement showing that Shi Bingyi said what we wrote he said, the Chinese government accused us of fabricating the words we attributed to Shi Bingyi.
Neither the Government of China nor Shi Bingyi claim that the Health News Network had misquoted or misunderstood what Shi Bingyi said. At the time of the denial, there was no effort to hide or mask or take down from the internet the publicly posted article of the Health New Network where Shi Bingyi was quoted. The continuation of this article on a Chinese web site at the same time as China was removing from the internet so much other information about organ transplants which we used to come to our conclusions amounted to a continuation to assert what is to be found in that article.
The United Nations Committee against Torture picked up the baton from the special rapporteurs. In its November 2008 concluding observations, it wrote:
"While noting the State party's information about the 2006 Temporary Regulation on Human Organ Transplants and the 2007 Human Organ Transplant Ordinance, the Committee takes cognizance of the allegations presented to the Special Rapporteur on Torture who has noted that an increase in organ transplant operations coincides with "the beginning of the persecution of [Falun Gong practitioners]" and who asked for "a full explanation of the source of organ transplants" which could clarify the discrepancy and disprove the allegation of organ harvesting (A/HRC/7/3/Add.1). The Committee is further concerned with information received that Falun Gong practitioners have been extensively subjected to torture and ill‑treatment in prisons and that some of them have been used for organ transplants (arts. 12 and 16).
The State party should immediately conduct or commission an independent investigation of the claims that some Falun Gong practitioners have been subjected to torture and used for organ transplants and take measures, as appropriate, to ensure that those responsible for such abuses are prosecuted and punished."
We are independent from the Government of China and the Falun Gong community. The Committee against Torture did not mean to suggest anything different. What they were proposing was an investigation independent from the Government of China with which the Government of China would nonetheless cooperate by giving access to Chinese territory, documents, places of detention and witnesses in China without fear of intimidation or reprisals.
C. Falun Gong and the Universal Periodic Review
When China came up for scrutiny under the Universal Periodic Review in February 2009, I went to Geneva and lobbied states to raise the violations identified in our organ harvesting report. At the very least, I1 asked states to request China's compliance with foundational rights, the respect for which would have made the violations we identified impossible. Many states did speak out for these foundational rights during the two hours of the Universal Periodic Review Working Group allocated to these speeches, but to no avail. The Government of China rejected virtually all these rights.
What with time consumed in Chinese government statements and chair interventions, 60 states were able to make interventions. Fifty‑five states who wanted to make interventions were at the end of the queue and were not able to say anything.
The Asia Pacific states which managed to intervene in the China debate were Australia, Canada, Singapore, the Philippines, Russia, Sri Lanka, Uzbekistan, Viet Nam, India, Indonesia, Japan, New Zealand, Pakistan, Thailand, Myanmar, and Malaysia. The Asia Pacific states which wanted to intervene but were too far back in the line were North Korea, South Korea, Laos, Bangladesh, Nepal, Afghanistan, Kazakhstan, Cambodia, East Timor, Kyrgyzstan, Tajikistan and Mongolia.
States which participated in the Universal Periodic Review were more timorous than the UN specialized mechanisms. States were not prepared to go as far as either the UN Rapporteur on Torture or the UN Rapporteur on Religious Intolerance or the UN Committee against Torture.
Canada came the closest. It was the sole country to note that respect for freedom of belief includes respecting the freedom of belief of the Falun Gong. It was also the sole country to recommend that China implement the recommendations of the Committee against Torture which had in turn addressed directly organ transplant abuse.
The Universal Periodic Review Working Group came out with a report tabulating the recommendations of states which spoke during debate. As the beginning of the Review, the Government of China representatives endorsed acceptance of human rights "in light of China's national realities" . They said that China works towards "Chinese-style democracy" rather than just democracy. They added: "It is natural for different countries to have different views on the question of human rights." The Government of China reaction, which followed immediately upon release of the report, gave us a clear idea of what those earlier weasel words had meant.
The Chinese government accepted some recommendations, mostly from other gross violator states which commended the Government of China for its efforts and encouraged it to keep on doing what it was doing. The Government of China said it would consider other recommendations. There was also a long list of recommendations the Government of China rejected out of hand.
Here is a partial list of the recommendations the Government of China rejected :
Germany and Canada recommended that China guarantee all citizens of China the exercise of religious freedom, freedom of belief and freedom of worshipping in private. The Government of China said that it would not accept this recommendation.
Canada, the United Kingdom, Hungary, the Czech Republic, France, Sweden and New Zealand recommended that China abolish all forms of arbitrary detention including re-education through labour camps.
These forced labour camps produce goods at prices with which the US and other countries can not compete, leading to global unemployment. Falun Gong practitioners in all forms of detention are blood tested, organ examined and, if they refuse to recant, even after torture, killed for their organs. We interviewed many Falun Gong practitioners who did recant after torture and were released and who told us of this blood testing and organ examination. This blood testing and organ examination are unique to Falun Gong practitioners. Former prisoners who are both Falun Gong practitioners and who are not tell us of this distinctive treatment.
Arbitrary detention facilities are forced organ donor banks. Getting rid of administrative detention and re-education through labour camps will do more than just end abusive labour practices; it will go a long way to ending abusive organ harvesting.
The Government of China said no to this recommendation. It also rejected the Canadian recommended that China implement the recommendations of the UN Committee against Torture.
Finland recommended that China take effective measures to ensure that lawyers can defend their clients without fear of harassment. One example we gave in the chapter on strategy is the case of Gao Zhisheng. To this recommendation of Finland also, the Government of China said no.
So with the Government of China, we have more than just a denial of the facts. There is a rejection of the standards.
The Government of China, relying on its own particularity, says no to freedom of belief, yes to forced labour, yes to arbitrary detention, no to an independent investigation into the allegations that Falun Gong practitioners are being killed for their organs, no to explaining the discrepancy between sources of organs and volume of organ transplants, no to bringing perpetrators of organ transplant abuse to justice, no to allowing human rights lawyers to defend their clients without harassment.
When the Government of China talks about acceptance of human rights "in light of China's national realities", working towards "Chinese-style democracy", having its own "different views on the question of human rights", this is in practice what it means. It is noteworthy that Sudan, Egypt and Algeria, all states with poor human rights records, commended the Government of China during the Universal Periodic Review interactive debate for implementing human rights in harmony with its national realities