Arbitrary Detention: The Attorney Who Challenged China

Alessandro Amicarelli

Bitter Winter, the magazine specialising on Religious Liberty and Human Rights in China, has interviewed our Chairman regarding the situation of religious freedom in China with a specific focus on the cases of arbitrary detention of the members of The Church of Almighty God (CAG) heavily persecuted in China.

Dr Amicarelli has been asked to provide some information about how the United Nations Working Group on Arbitrary Detention (WGAD) operates when dealing with individual complaints and has also provided some details about an elaborate complaint he has recently filed with the United Nations WGAD in Geneva on behalf of two members of this Christian new religious movement.

He concludes the interview by recalling that China is a great country where religion and spirituality have played a vital role and positively influenced the society for centuries and that China is then expected to honour its international obligations by allowing freedom of religion and belief to all without exceptions.

Alessandro Amicarelli, a member of the firm Obaseki Solicitors in London, is a solicitor of the Senior Courts of England and Wales, and a barrister in Italy, specializing in International and Human Rights Law and Immigration and Refugee Law.

Having earned a doctorate on International Order and Human Rights from La Sapienza University of Rome, with a dissertation on the protection of religious freedom in international law, he has dedicated the last twenty years to issues related to the protection of freedom of religion and belief, the rights of refugee and displaced persons, and other human rights and immigration matters.

He has extensively lectured in human rights, and has also taught a course on Human Rights, Minorities and Religious Freedom at Soochow University, Taiwan (ROC). He is a frequent speaker at academic and legal events and conferences in different countries.

He is the current chairman of the European Federation for Freedom of Belief (FOB), a non-sectarian body independent and autonomous of any faith, which operates throughout Europe advocating full and equal freedom of religion and belief for all individuals and groups.

Amicarelli has recently filed a complaint for arbitrary detention against China on behalf of two members of The Church of Almighty God before the Working Group on Arbitrary Detention of the United Nations. We have interviewed him about this procedure, which is taking place in Geneva, Switzerland.

What is the Working Group on Arbitrary Detention?

The Working Group on Arbitrary Detention (WGAD) is a body of the United Nations, established by the former Human Rights Commission with its resolution 1991/42 and entrusted, subsequently, to the Human Rights Council, with a single specific mandate “to receive and examine cases of arbitrary deprivation of liberty,” to use the UN’s own words.

The WGAD is composed of five individual members appointed by the Human Rights Council, in representation of all the five continents.

The WGAD presents annual reports to the Human Rights Council, carries out field missions, issues deliberations, and carries out investigations on individual complaints of arbitrary detention.

How are requests for examining specific cases filed with the WGAD?

Requests for examining complaints of arbitrary detention are filed by following some rules and guidelines provided by the WGAD.

Specifically, with the aim of helping the complainants and their representatives, the WGAD has created a model questionnaire to fill out, in order to provide as much detailed information as possible, so as to smooth the process and allow the WGAD to have all the necessary information about the case in first instance.

Following the model questionnaire is however not mandatory and in most cases, particularly when the complainants are represented by law firms, the complaints are more detailed and not just limited to the representation of facts.

How does the WGAD decide?

The WGAD follows a specific working method with special rules. After reviewing the complaint, the WGAD transmits a communication to the concerned state, giving it a chance to comment and reply to the complaint, and to provide information relating to the actual case.

The WGAD may decide to use the ordinary route, or the urgent one if the case suggests the urgent action would be appropriate in the specific case. The WGAD does take into account all information received in any way from the complainant, and also the views of the governments are considered in order to take a decision on the case. The government may decide not to comment nor to reply, but its behavior will still be taken into account by the WGAD.

Further comments from the complainant, or from the other “source” that submitted the complaint, and from the government, may be solicited by the WGAD, which will then render a final decision based on facts and evidences, and comments from both the source and the government.

How are WGAD decisions enforced?

It is important to bear in mind that even though the WGAD, when deciding on individual complaints, does not act as a jurisdiction or semi-jurisdiction, nonetheless its opinions are in fact decisions of some relevance and value. The WGAD, if a contravention of the Universal Declaration has been declared in the disposition, will detail the actions that the state will have to take to remedy the situation of the complainants, such as by releasing them, by providing effective remedy in form of reparations in accordance with international law, and by other means as well.

The procedure does not end when the opinion is issued by the WGAD. In fact, the working method of the WGAD also includes a follow-up procedure. The source and the government should provide the WGAD with up-to-date information about the actions taken by the authorities following the recommendations made by the WGAD in its opinion. They should report whether the detainee was released, or whether an investigation was conducted into the violations, and the outcome of such investigation, whether there were any changes or amendments in the legislation that had caused the violation, or any other actions were taken.

The WGAD does its best to help the states to comply with its decisions, and in fact does also offer assistance in the form of visits by the Working Group, should the authorities encounter any problems, for instance in amending the legislation or in taking some other actions.

Even though the sources and the governments are expected to follow up providing up-to-date information, however, the WGAD reserves the right to take any further actions following its own decisions, should new concerns be brought to its attention at any time.

We can then say that, while the WGAD officially issues opinions, these opinions are in fact decisions, including details about the actions to be taken by the governments that will have to comply with the WGAD recommendation. The WGAD will inform the Human Rights Council about the progresses, or failure to take actions by the state. Persuasion by the WGAD itself, and by lobbying groups, plays a vital role in the enforcement of the WGAD decisions by the concerned state.

You filed two WGAD requests concerning members of The Church of Almighty God. Can you shortly describe the cases?

The Church of Almighty God (CAG) is a Christian new religious movement that originated in China in the 1990s. Several hundred members of the CAG are detained in China on the ground of their faith only. About one year ago, I was contacted by some members of this group who were seeking some help from the European Federation for Freedom of Belief (FOB), which I am currently chairing, in respect of members escaping from China and willing to get refugee status in Europe. Recently, in my capacity as a lawyer specializing in international human rights law, I was instructed by The Church of Almighty God and filed two complaints on behalf of members of this minority who are being detained in China on the ground of their faith only. No other allegations whatsoever have ever been formulated in their respect, and they were arrested without warrant and detained pending a trial for several months. Both complainants were subject to torture, and denied any contact with their families and co-religionists after their arrest. They were arrested for being members of a xie jiao, the Chinese expression for “heterodox teachings,” often mistakenly translated as “evil cults” in Western literature. Art. 300 of the Criminal Law of the People’s Republic of China punishes activity in a xie jiao, for the sole and only fact of religious activity there. The law refers to “utilizing a superstitious sect or secret society to sabotage the law,” but there is evidence that simply being an active member is enough to be considered as someone “utilizing” a group to “sabotage the law.”

I offered evidence that the provisions of Art. 300 conflict with the Universal Declaration of Human Rights, as well as with the articles of the Constitution of China guaranteeing freedom of religion (art. 36) and prohibiting arbitrary detention (art. 37). More importantly, the provisions of Art. 300 and all arrests made on the basis of this provision of law do conflict with customary international law, by which China is bound.

We understand that collecting evidence is always the main problem in WGAD cases. Totalitarian regimes do not give “certificates of persecution” to their victims… What evidence did you collect in support of these cases?

Collecting evidence is not easy, and it’s not even easy to receive detailed information about these cases, since the authorities prohibit any contact of the families and fellow members of the group with the detainees, to avoid in fact the collection of information. However, in both cases we were able to collect detailed information and affidavits. Very importantly, I was also able to obtain expert opinions by scholars and researchers who have been working in contact with this community for enough time to provide all the necessary information about their systematic persecution in China. They include an expert opinion by Professor Massimo Introvigne, who visited China twice in 2017, invited by the Anti-xie-jiao Association, which has direct connections with the government. I also relied on scholarly works and obviously articulated my legal assertions on the basis of precedents and of international law provisions in this field.

Probably, China will answer that the prisoners belong to a “cult” accused of serious crimes. How do you plan to counter this argument?

Following my method of work, I have anticipated some obvious arguments that the government may raise, including the claim that a “cult” has no right to freedom of religion and that other allegations may justify the arrests and detention. The answer is very clear and that is, being member of a religious group that is disliked by a government cannot justify the denial of basic principles, like the presumption of innocence and the right to a fair trial. Likewise, this does not justify torture, nor justifies forced labour, nor would allow the authorities to erase all basic human rights on the basis of a law that is inherently unjust and relies on discriminatory grounds, to use the WGAD jargon.

Furthermore, in these specific cases, as well as in hundreds of cases concerning members of The Church of Almighty God, the detainees were only arrested and sentenced to several years of detention because of their faith. Every time cases concerning members of The Church of Almighty God are brought to the attention of the People’s Republic of China, its representatives reply that in the past members of The Church of Almighty God were accused of severe crimes, hinting at a case of murder occurred at a McDonald’s restaurant in 2014, which has been proven to have been committed not by this religious community but by another one with a similar name.

Finally, according to international human rights law, all individuals have a right to freedom of religion or belief, no matter what they believe in. Any restrictions must comply with international human rights standards. Obviously, arresting people and detaining them for several years on the basis of their faith only does not comply at all with the international provisions.

I and my team are ready to counter other arguments that may be raised by the state in these matters.

What do the cases tell us about the situation of religious liberty in China in general?

China is a great country, with a long history, and where religion and spirituality have developed for centuries positively influencing the society.

Religious liberty is guaranteed by the Chinese Constitution whose art. 36 reads, “Citizens of the People’s Republic of China enjoy freedom of religious belief. No State organ, public organization or individual may compel citizens to believe in, or not to believe in, any religion; nor may they discriminate against citizens who believe in, or do not believe in, any religion. The State protects normal religious activities. No one may make use of religion to engage in activities that disrupt public order, impair the health of citizens or interfere with the educational system of the State. Religious bodies and religious affairs are not subject to any foreign domination.”

Some religious groups have obtained recognition, and are allowed by the state to carry out their activities throughout the country under the direction of the Chinese Communist Party (CCP).. However also in China, like in some other states, there are issues about some groups that are denied the right to freedom of religion and belief, and whose members are heavily persecuted, tortured, and arrested and detained for many years in contravention to all basic human rights provisions.

The Church of Almighty God is one of the several religious minorities labelled by the Chinese government as xie jiao, and as such part of official lists of xie jiao complied and updated by the government on a regular basis.

The role played by the WGAD and by other international bodies, primarily at UN level, and by lobbying groups and by scholars and researchers, is vital to foster the change, persuading China to comply with the international human rights standards and stop the labelling, to repeal these lists, to stop persecution and torture, and to finally release all the prisoners of conscience, and allow freedom of religion and belief to all individuals and groups without exceptions.