By Dr. Michelle Miao
Over the past few decades, promoting anti-death penalty norms on a global scale has gradually become a central plank of the diplomatic and political policies of the European Union (EU) and its member states. Beyond the geographical confines of the EU, abolitionist advocacy has gained more salience and meaning as the frontier of the campaign moves to an increasing number of retentionist countries. This article links this shifting global landscape with the most recent developments in one of the retentionist jurisdictions in Asia – the People’s Republic of China (hereinafter China). China ranks top on the list of countries that currently retain and actively use the death penalty (Johnson and Zimring, 2009: 10; Hood and Hoyle, 2015: 75). The sheer volume and frequency of death sentences and executions it annually produces warrant a serious investigation there on the implication of the EU-led, global anti-death penalty advocacy, an important policy development in the field of human rights and international relations.
The EU’s rising role as a “normative power” (Manners, 2002) on the international arena has great promises for the campaign against the death penalty. Across the discursive space within the EU, reasoning centering on how “we” should appropriately treat our own criminal fellow-citizens – a question intensely debated during the incremental abolition of the death penalty by individual Western European states, and subsequently, the Eastern enlargement process - has helped advocates to conceive and formulate a set of minimum standards according to which criminals in non-EU countries should be treated. The process of exporting abolitionist norms to countries outside of the EU coincides with a trend in which policy discourses on the death penalty have been elevated from domestic criminal justice agenda to transnational forums of human rights. Framing the abolitionist policy campaign in the universal language of human rights (Hood and Hoyle, 2015) helps to disseminate anti-death penalty norms across national borders and plant the seeds of abolition in foreign soils.
One way to examine the impact of the EU-led campaign against the death penalty in China is to explore China’s relatively recent reform on the death penalty. Since the mid-2000s, China has launched a series of reform initiatives aimed at both reducing the use of the death penalty and enhancing the due process safeguards during the adjudication of capital cases. The death penalty reform was motivated by a blend of domestic events and foreign influences. Domestically speaking, after the turn of the century, a string of high-profile capital cases involving miscarriage of justice was exposed by the mass media. In order to repair broken public faith in the regime and minimize errors, a top-down revamp of the death penalty system seemed necessary. Internationally, since the turn of the century, greater monitoring and scrutiny of China’s death penalty regime by abolitionist advocates, experts and scholars inspired domestic rethinking of the function of capital punishment as an instrument to deter crimes and express retributive values.
The direct impact of international intervention and influences on the shaping of Chinese capital punishment practices, policies and legislation are visible in at least three ways. First, via professional training and academic exchanges, international anti-death penalty ideals and knowledge have gradually trickled down from the top of the information access chain to lower levels (Miao, 2013). Sensitive information, such as the international human rights standards on the use of capital punishment by retentionist countries, the global trends in the use of capital punishment, and the criticisms on China’s excessive use of capital punishment by the international community (which were previously withheld in certain political, academic and professional circles) are now accessible to persons who are indirectly involved in the administration of capital punishment regime, as well as finally known by the general public.
On the level of policy and law making, high-level academic exchanges are forums where international human rights standards on the administration of the death penalty meet with Chinese domestic practices and law. Chinese representatives of the forums normally include renowned academics, national-level legislators and judges from the Supreme People’s Court and provincial people’s courts. They all play important roles in reshaping capital punishment policies, law and practices in different ways. Renowned Chinese scholars, in particular those who are well connected to governmental authorities, have immense impact in law and policy making processes. Invited to various committees as special consultants, their opinions are valued and taken seriously. Participants from the legislature and judiciary are also key players in the reform of capital punishment regime. They are best positioned to translate international standards and ideals into the practices, law and policies in China. Over the past decade, with the intensification of international academic exchange and professional training, China’s top court and legislature worked hand in hand to promote policies of “kill fewer, kill cautiously” (Trevaskes, 2008) and “temper justice with mercy” (Zhao, 2011). The attitudes of cautiousness and leniency, cultivated by judicial, academic and legislative elites, led to a limitation of the scope of capital punishment in law and reduction of its use in judicial practice. Human rights languages and standards, which are a central theme in the forums of debates and exchanges, have been increasingly used to justify the elite-led, top-down reform.
Specifically, the legislature, through two amendments to the Chinese Criminal Law, has made efforts to align Chinese law with the international standards that the scope of “the most serious crimes” which are punishable by the death penalty should be limited to intentional crimes with lethal or other extremely grave consequences. Once the draft of the Ninth Amendment to the Chinese Criminal Law takes effect later this year, the number of capital offenses in China will drop to 46 types of offenses, which signifies a 32.4 % decrease over the past five years. Property offenses, fraud and financial crimes, crimes endangering the order of the economic market, crimes threatening social order, and military crimes have been gradually removed from the law, with violent crimes against the person and crimes against public security becoming the main categories of capital offenses. Judicial endeavor to reconfigure and reduce the use of capital punishment focuses on the defendant’s right to a fair trial. Since the mid-2000s, China’s top judiciary, the Supreme People’s Court regained, from provincial high courts, the power to review capital cases. According to the spokesperson of the Supreme People’s Court, this heightened judicial review providing due process safeguards for capital defendants, in combination with new judicial policy oriented towards minimal use of the death penalty, has effectively reduced the number of death sentences by 50% from 2007 to 2011 (Dui Hua Foundation, 2011).
Second, the process of information dissemination from those who are directly exposed to the original sources of information to members of the larger society is also a process of public education. In the recent high-profile and controversial case of Lin Senhao, a Fudan University graduate student who poisoned his roommate, 177 voluntary signatures appealing for lenient treatment of the defendant were gathered across the university and submitted to the appellate court in Shanghai. One of the student leaders of the petition who was courageous enough to speak out in the middle of a whirlwind of media attention and public debate said that the petition was inspired by both the international trend to abolish the death penalty and respect for the sanctity of human life (Han, 2015). Although these individual petitions failed to sway public opinion towards empathy and tolerance in this particular case, they illustrate how domestic discourses in China begin to be shaped by international influences with the gradual diffusion of international trends, standards and information.
Admittedly, there are numerous occasions when international human rights advocacy and persuasion fell on deaf ears. This was the case when harsh criticism of China’s practice was rejected by the Chinese authorities at diplomatic channels. Paradoxically, alongside with the process of attitudinal transformation induced by international abolitionist forces was the retention of censorship and secrecy on the administration of capital punishment. Statistics on the death sentences meted and executions carried out by courts have been classified as top secret and the disclosure of it a criminal offense. With the Chinese capital punishment regime gradually moving towards greater due process protections under international pressure, understandably, naming and shaming has a great influence in damaging the reputational capital China holds on the international stage. In the recent few years, even Amnesty International has stopped guessing the number of executions in China as it has been increasingly difficult to either extrapolate the national numbers of executions from statistics from a local county, or to gather the figures from newspaper reports across the country. That high-profile naming and shaming acts as a double edged sword, cutting both ways, has also been illustrated by cases where citizens of abolitionist countries are under threat of executions. In 2009, the failure of the high-profile diplomatic row over the case of Akmal Shaikh, a Pakistani-British businessman who was convicted and executed for trafficking four kilos of heroin in China, proves that high-profile coercion can be counterproductive compared to softer and interactive mechanisms of persuasion in fostering compliance and attitudinal shift.
In sum, the role of international human rights forces in shaping Chinese death penalty practices and norms have been significant. During the past decade, China’s top policy and law makers have made great efforts to align Chinese practice with international human rights standards through incremental judicial and legislative reform. International abolitionist norms and trends have inspired and guided the elite-led adjustment of Chinese capital punishment machinery. As identified above, the first two approaches, via which international intervention and influences have had a direct impact on Chinese capital punishment practices, have been successful in general. Persuasion and equal dialogues, other than the conventional methods of naming and shaming, between advocates and experts from the international community on the one hand as well as Chinese policy makers and elite scholars on the other hand, proved to be the most effective and fruitful mechanisms to promote and strengthen attitude shift towards compliance with international standards. It seems that the Chinese authorities are sensitive and susceptible to moderate pressures and well-crafted strategies. It is also suggested that international human rights advocacy needs to maintain a delicate balance in inducing attitudinal changes and arousing resistance and suspicion by framing discourses on capital punishment within a human rights language.
Dr. Michelle Miao is a British Academy Postdoc Research Fellow at University of Nottingham, School of Law. She was a Global Research Fellow at New York University, School of Law and a Howard League post-doctoral fellow at Oxford University’s Centre for Criminology. Her research interests are the intersections between the domains of criminology, human rights, socio-legal studies and international law. Her doctoral thesis (2013) presents material from one of the first empirical studies on China’s recent death penalty reform under the influences of international human rights law. The core empirical component of the thesis was a series of elite interviews with penal professionals at national and lower levels in China, including judges, prosecutors, and legislators, who are proximate to the sources of information held by state authorities, or closely involved in the day-to-day administration of capital punishment. Michelle holds a doctoral degree from University of Oxford and two Masters Degrees, one from Renmin University of China Law School and the other from New York University Law School.