China engages systematically in forced labour in all forms of detention facilities - prisons which house sentenced criminals, administrative detention for those not yet charged, and re-education through labour camps. A 1998 declaration of the International Labour Organization (ILO) commits all member states, including China, to eliminate forced labour. The Government of China reported to the ILO that its constitution prohibits forced labour and that there is a national policy of eliminating all forms of forced labour.
Yet, forced labour in detention is not an abuse of Chinese law. It is the law. The Chinese Law on Prisons stipulates that prisons may punish a prisoner who is able-bodied but refuses to work1.
The United States signed a memorandum of understanding with China in 1992 committing the Government of China to ensure that prison labour products are not exported to the United States. The US in 1994 signed a statement of cooperation which in principle allowed US officials to gain access to Chinese production facilities suspected of exporting prison labour products. The US China Economic and Security Review Commission in its report to Congress for 2008 wrote that
"the Chinese government has not complied with its commitments" under the 1992 and 1994 agreement "making it impossible for U.S. officials to conduct complete and useful investigations of such allegations".
Speaking to US journalists in November 1993, in answer to a question about the desire by rights groups to inspect prisons, then Chinese Foreign Minister Qian Qichen said, "I believe that if the Red Cross does put forward such a request..., we would give positive consideration to that request." The Red Cross did put forward such a request, and there was no positive consideration.
Persons are routinely detained without charge or for long periods before a charge is laid. Forced labour occurs in administrative detention as well in prisons where sentenced criminals are kept.
Repression of Falun Gong included sending thousands upon thousands of its practitioners to prisons and labour camps beginning in the summer of 1999. The US State Department's 2005 country report on China2 indicates that its police run hundreds of detention centres, with the 340 re-education-through-labour ones alone having a holding capacity of about 300,000 persons. The Department of State's Country Reports for 2008 state:
"Some foreign observers estimated that Falun Gong adherents constituted at least half of the 250,000 officially recorded inmates in the country's reeducation-through-labour camps...."3
Once the practice of Falun Gong was banned in 1999, hundreds of thousands of Falun Gong practitioners travelled to Beijing to protest or to unfold banners calling for the group's legalization. People came almost daily. Author Jennifer Zeng, formerly of Beijing and now living in Australia, writes that by the end of April 2001 there had been approximately 830,000 arrests in Beijing of Falun Gong adherents who had been identified. There are no statistics available of practitioners who were arrested but refused to self identify. From our interviews with released Falun Gong practitioners, we know that the number of those who did not self identify is large. But we do not know how large.
Large numbers of Falun Gong adherents in arbitrary indefinite secret detention alone do not prove the allegations of Organ Harvesting of Falun Gong Practitioners in China. But the opposite, the absence of such a pool of detainees, would undermine the allegations. An extremely large group of people subject to the exercise of the whims and power of the state, without recourse to any form of protection of their rights, provides a potential source for organ harvesting of the unwilling. These detention facilities are not just forced labour camps. They are also potential forced organ donor banks.
For us, the investigations which led to this work had many chilling moments. One of the most disturbing was the discovery of this massive prison/detention/labour camp population of the unidentified. Practitioner after practitioner who eventually was released from detention told us about this population. A collection of some of their statements is set out in the report David Kilgour and I wrote.
What these practitioners told us was that they personally met the unidentified in detention in significant numbers. We have met many Falun Gong practitioners who were released from Chinese detention. Yet, except for those detained during the early days of Falun Gong repression, we have yet to meet or hear of, despite their large numbers, a practitioner released from detention who refused to self identify in detention from the beginning to the end of the detention period. What happened to these many practitioners? Where are they?
The problem of enforced disappearances is distinguishable from the problem of the unidentified, because, in the case of enforced disappearances, families know that the state is involved. For the unidentified, all the families know is that they have lost track of a loved one. For those victims of enforced disappearances, the families or witnesses know more. They know that the person was at one time in the custody of the state. The state either refuses to acknowledge that the person was ever in their custody or conceals the fate or whereabouts of the person4.
There are some Falun Gong practitioners who have disappeared, abducted by the authorities. However, the only disappearances case of which we know are people who were subsequently released and then spoke of their abduction. We know that these victims were made to disappear only after the fact, once they reappeared. It is likely that there are other such practitioners who were never released.
For the unidentified, because family members know only that they have lost contact with a loved one, they do not necessarily turn to the state to ask if the person has been detained. When the person who is missing is the adherent to a practice which is brutally repressed by the state, the tendency of the family to avoid the government is heightened. Nonetheless a few have sought out Chinese government help to find a missing Falun Gong practitioner family member.
The United Nations Committee against Torture, in its November 2008 concluding observations, 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 punished5."
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.
I went to Geneva in January this year and lobbied governments to raise the violations identified in our organ harvesting report when China's turn came up at UN Universal Periodic Review Working Group. At the very least, I asked states to request China's compliance with foundational rights, the respect for which would have made the violations we identified impossible. Many delegates 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.
The Universal Periodic Review Working Group came out with a report tabulating the recommendations of states which spoke during debate. The Government of China reaction, which followed immediately upon release of the report, gave us a clear idea of what its earlier words had meant. It 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. It added that it would consider other recommendations. There was also a long list of recommendations the Government of China rejected out of hand.
At the Universal Periodic Review Working Group, Canada recommended that China implement the recommendations of the Committee against Torture. The Government of China explicitly, in writing, rejected 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. The Government of China said no to this recommendation.
China has chosen to reject recommendations which would prevent the killing of Falun Gong practitioners for their organs to be used in transplants. It has refused to end forced labour camps. And it refuses to allow anyone to visit those camps. Only through putting in place precautions to prevent abusive organ sourcing from Falun Gong practitioners is it possible to be satisfied that this abuse is not occurring.
David Matas is a Winnipeg based international human rights lawyer. He is the co-author with David Kilgour of Bloody Harvest: Report into Allegations of Organ Harvesting of Falun Gong Practitioners in China
