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China’s Criminal Law Reform from the Perspective of the International Covenant on Civil and Political Rights
July 06,2017   By:CSHRS

China’s Criminal Law Reform from the Perspective of the International Covenant on Civil and Political Rights

JIAO Yang*

Abstract: The International Covenant on Civil and Political Rights reflects the world’s perception of human rights, and is of vital importance in the field of international human rights. The covenant has been signed by Chinese government. Although not ratified yet, it will definitely have an impact on the reform of China’s Criminal Law. Therefore, it is necessary to further change our notion of the criminal law system by defining the boundary between public power and civil rights and developing the view of human rights protection. In terms of the specific system, it is necessary to further reduce the number of crimes punishable by the death penalty and limit the application of the death sentence, improve China’s Criminal Procedural Law to protect the fundamental rights of suspects and defendants in terms of compulsory measures, investigation means and judicial form, and add some charges like enslavement and illegal human experimentation, which are criminalized around the world, so as to be in line with the requirements of international human rights protection.

Keywords: International Covenant on Civil and Political Rights ♦ death penalty reform ♦ criminal procedure ♦international crime

I. Introduction

The term human rights originates from the West. For a long period of time, human rights were considered to be a feature of capitalism and China’s history of human rights protection was long the subject of criticism. In fact, China has been involved in international human rights practice for a long time. Chang Pengchun, the former representative of the Chinese government to the United Nations, was the vice chairman of the drafting committee of the International Covenant on Civil and Political Rights of the United Nations, and he made outstanding contributions to its drafting and formulation, which indicates that human rights are not solely a Western concept, but the common achievement of all mankind.1 Therefore, human rights as the basic requirements for human survival are shared by all.

The Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights and the International Covenant on Civil and Political Rights (hereinafter referred to as the ICCPR), as well as its Optional Protocols are regarded as the “International Charter on Human Rights”, and they are the cornerstones for human rights protection. With the advent of the information age and the increasingly close contact of countries around the world, human society has found more and more common ground, and a common understanding of human rights, especially the evaluation criteria for fundamental human rights, will gradually be developed. The signing of the ICCPR by the Chinese government  reflects this trend.2

As one of the most universal human rights conventions, the ICCPR prescribes the minimum international standards for the civil rights and political rights enjoyed by individuals in a systematic and comprehensive manner. The Chinese government became a signatory to the ICCPR on October 5, 1998, but it has not yet been ratified. The Standing Committee of the National People’s Congress ratified the International Covenant on Economic, Social and Cultural Rights, although with reservations over some of the provisions, on February 28, 2001. Together the two covenants form a complete system of human rights protection, ranging from the right to life to the right to development, from basic political rights to economic, social and cultural rights. With the increasing expansion of the scope of human rights, the protection of human interests has achieved a new standard.

To abide by a treaty is the fundamental principle of international law and an obligation for all the signatories. In 2004, “respecting and protecting human rights” was formally incorporated into the Constitution of the People’s Republic of China. To improve the fundamental rights of citizens is a goal of Chinese development. In general, with the development of China’s rule of law in recent years and the steady progress of human rights undertakings, the ratification of the ICCPR would not harm the interests of China. The Criminal Law is a basic framework for the law in China, and it is closely related to protecting the basic rights of citizens. The third part of the ICCPR lists the fundamental human rights at the international level and provides a general direction for the development of China’s Criminal Law. In order to prepare for the ratification of the ICCPR, it is necessary to improve the existing Criminal Law and eradicate the provisions that do not conform to the spirit of the Covenant, so as to comprehensively promote the improvement of the cause of human rights protection in China.

II. The Innovation of China’s Criminal Law Concept

The Criminal Law works to guarantee other branches of the law, so it is stringent, mandatory and the last resort. The Criminal Law grants public authority the power to deprive citizens of their property, freedom and even their lives through due process. In this sense, the Criminal Law is most closely related to human rights. For a long time in history, there was no written penal code in China. To punish a crime based on policies and ordinances was the practice at that time. In 1979, China’s first penal code was formally promulgated and criminal justice practice entered a new era. In 1997, China’s current penal code was promulgated, which establishes the principle of a legally prescribed punishment for a specified crime, and excludes making analogies, so that there are laws to abide by and citizen protection can be predicted in terms of the Criminal Law.

In terms of the functions of the Criminal Law, there are disputes over the protection of legal interests and the protection of human rights in the theoretical sphere. In the eyes of ordinary people, the Criminal Law is a tool used to combat bad guys. However, the Criminal Law restricts power and more importantly the charter of criminals. If there was no Criminal Law, combating crime would be more direct and simpler. It is the statutes of the Criminal Law that clearly present crimes and punishments to the public and make the handling of crime subject to substantive and procedural laws rather than in an arbitrary manner. Through its strict rules on punishment and legal procedures, the Criminal Law ensures even if a person is investigated and charged with a crime, it is necessary to be prudent so not to arbitrarily convict an innocent person, even if he or she is morally bad.

The Criminal Law restricts the exercise of public power. The exercising of punishments for crimes, as the most stringent public power, must have a clear basis. The principle of a legally prescribed punishment for a specified crime, the principle of the punishment matching the seriousness of a crime, responsibility and punishment, the presumption of innocence, due process, and the doctrine of no punishment when there is doubt, all emphasize the protection of suspects and defendants, because once a person is convicted of a crime, he or she will meet with the intervention of public power and the deprivation of civil rights. Punishment power and the personal rights of citizens are contradictory by nature. There is a great difference between criminal behaviour and non-criminal behaviour. Because of the above-mentioned principles, the fundamental rights of defendants can be protected.

In China, both the Criminal Law and Criminal Procedure Law were adopted after reform and opening up. A large-scale fight against crime was launched in the late 1980s. Reform of the Criminal Law started with legislation and went through a long process. The international covenants and the Charter of the United Nations, as well as all human rights practices, have formed a worldwide human rights charter. Under the guidance of this broader notion of human rights, a new understanding needs to be adopted in China’s criminal justice system. The recognition of the norms of culture in the ICCPR implies its commitment to safeguard human rights and civil rights by restricting the state’s power to punish. The significance of criminal law doesn’t only lie in embodying the will of a state through sanctions and crime prevention, it is also a promise made by a state to the whole of society that it will restrict its power of criminal punishment.3 Recognizing the spirit of the ICCPR not only reflects China’s recognition of human rights protection, but highlights China’s reconsideration of the relationship between civil rights and its power to mete out criminal punishments. To improve the provisions of the Criminal Law, it is necessary to take this spirit as a guide to restrict the state’s power of criminal punishment and clarify its scope.

Chinese society is still in transition, with new forms of crime and a severe social security situation. Under these circumstances, the expansion of the Criminal Law seems to be inevitable. Judging from the experience of Western countries, as criminalization becomes a trend to cope with a changing society, it is necessary to define criminality. There has also been a trend in recent years for China’s Criminal Law Amendments to increase the number of charges and criminalize infractions, which do not necessarily infringe on human rights, but surely reduce the scope of civil rights. Since the rule of law has not yet been fully established in China, and the concept of human rights protection is far from being well accepted by the people, there is still a long way to go to clarify the boundaries of public power and restrict arbitrary infringement of public power on individual rights. Therefore, both legislators and the judiciary need to have a clear idea of China’s development stage, change the previous practice of emphasizing punishments while overlooking human rights protection, and meanwhile be in line with the inherent spirit of the international conventions. Only in this way can a paper convention be implemented for the protection of human rights.

III. Improvement of the Specific Provisions of the Criminal Law

Compared with the ICCPR, there are some gaps in the field of criminal law in China: the death penalty and the right to life, the prohibition on torture and forced labour, criminal procedure and human rights protection of criminal suspects, and the improvement of criminal charges. This paper will focus on the comparative analysis of the above-mentioned aspects.

A. The death penalty and the right to life

Only when one is alive, can a person enjoy other rights. Article 6 of the ICCPR expressly states that “every human being has the inherent right to life”. People should not be arbitrarily deprived of this right.

From the last century, the abolition of the death penalty has become a trend throughout the world. The legitimacy and rationality of the death penalty have been constantly challenged and whether the death penalty can act as a deterrent has been questioned as well.

The ICCPR does not directly require member states to abolish the death penalty. Instead, it provides that “in countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes…” That is to say, even in countries where the death penalty is retained, the application of the death penalty should be extremely limited, with only the most serious crimes punishable by the death penalty. According to Article 48 of the existing Criminal Law of the People’s Republic of China, the death penalty applies to offenders committing “extremely serious crimes”. An extremely serious crime refers to a crime whose nature is extremely serious, the circumstances of the crime are extremely serious and the criminal is extremely dangerous.4 It can be seen that the application of the death penalty stipulated in Criminal Law of the People’s Republic of China mainly concerns the criminal circumstances of the offenders, which is a case-specific situation. It does not limit the scope of capital crimes. “Extremely serious crimes” differs greatly from “the most serious crimes” in the ICCPR, as the former mainly focuses on judicial judgment, while the latter requires the legislation in various countries to limit the use of the death penalty to the most serious crimes.

China is in the critical period of restricting and gradually reducing the use of the death penalty. In terms of legislation, some capital crimes have been gradually abolished and in terms of criminal justice, the use of the death penalty has been strictly limited. Amendment (VIII) to Criminal Law of the People’s Republic of China adopted in 2011 abolished the death penalty for 13 crimes, and Amendment (IX) to Criminal Law of the People’s Republic of China adopted in 2015 abolished the death penalty for nine crimes. The process of the two amendments indicates that the leadership has shifted from concept to practice in terms of reducing the use of the death sentence. Accordingly, the most serious crimes should be limited to violent fatal crimes. Capital crimes are limited to violent fatal crimes in other countries that have retained the death penalty. In China’s Criminal Law, the crime of drug trafficking is not a serious violent crime. Such types of crimes being punishable by death do not accord with the notion of the punishment suiting the crime or the spirit of the international convention. Even if the death penalty can’t be completely abolished in China at present, it should only be retained for the most serious crimes.

The Criminal Law does not stipulate a clear system for death penalty pardons. After a criminal is sentenced to death, he has no right to seek a pardon except through a review of the case by the Supreme People’s Court. A pardon means seeking an administrative reprieve after the death sentence has been handed down. It can prevent the death sentence from being carried out and thus creates another approach to limiting the use of capital punishment. It is noteworthy that during the celebration of the 70th anniversary of the victory of the World Anti-Fascist War in September 2015 in China, the procedure of amnesty for offenders was initiated at the national level, which was the first activation of the pardon system for more than 40 years. Pardons should be a system in which all those sentenced to death have the right to seek a pardon, which would also have the effect of limiting the use of the death penalty.

As to the reasons for reducing the use of the death sentence, there is a dispute over retribution and prevention in terms of the purposes of the penalty. According to the primitive notion of “retribution”, except for intentional homicide, the death penalty should not be retained for other crimes which are not fatal. Moreover, the existence of a large number of capital crimes hasn’t actually prevented these crimes from being committed, nor has social stability been significantly improved due to any increase in the number of executions. Neither retribution nor prevention can prove the necessity for retaining the death penalty for nonviolent crimes.

Recent years have witnessed a rise in humanitarianism. The disclosure of misjudged cases where the death penalty has been applied, such as the case of Hugejiletu, who was executed for a rape and murder he did not commit, has shocked the society again and again, alerting the public to the sacred nature and irreversibility of the right to life since once the death penalty is wrongly rendered and carried out, it cannot be undone, so the sentence of death and its execution should be prudent. The right to life is the most fundamental right, and the deprivation of this fundamental human right should follow due process and be strictly limited to the scope of the most serious crimes.

The death sentence with reprieve is a sentence created by China. It emphasizes both the seriousness of the crime and the mercy of the court. The death sentence with reprieve, is a suspended death sentence with a two-year stay of execution, it is handed down to those guilty of capital crimes “who are not necessarily to be executed immediately”. It gives the perpetrators of extremely serious crimes another chance, as their execution is not carried out immediately and their sentence is commuted to life imprisonment if they do not intentionally commit a crime during the two-year reprieve period. In practice, it means that the vast majority of criminals who receive a death sentence with reprieve are not executed and their lives are preserved. Moreover, Amendment (IX) to Criminal Law of the People’s Republic of China adopted in 2015 changes the conditions for the death sentence with reprieve to “intentionally committing a crime with terrible circumstances”, which means that even if a criminal intentionally commits a crime again during the reprieve period, he or she will not be executed without a comprehensive judgment of the circumstances. The advantage of the death sentence with reprieve is that it addresses both the seriousness of the crime while offering flexibility should there be changes in evidence and/or behaviour. It is an alternative to the immediate execution of the death penalty, and reduces the need to immediately carry out a death sentence.

In the future revision of the law, China should reduce capital crimes in a progressive and orderly manner and only retain the death penalty for serious violent crimes. The criteria for serious violence should be limited to “being violent and fatal”. Other crimes that may be fatal, such as robbery, and trafficking in women and children, can be turned into intentional homicide, through which the death penalty is limited to intentional homicide so as to ensure the compatibility of crime and punishment.

The implementation of the provisions of the ICCPR should focus on administration of justice. After the legislative amendment, the judiciary in China should have more stringent control over the use of the death penalty by limiting it to only the most serious crimes. The judiciary should develop a notion of “more serious future crimes”, focusing on the comparison of the actual circumstances of the crimes with the same name. After comparison, only those crimes that fall under the category of a crime with the most serious circumstances and consequences should be punishable with the death penalty. The supreme judicial organ should keep the procedures open and use uniform standards in the process of the approval of the death penalty, and gradually enact operational standards for the approval of the death penalty.

The death penalty is not only a legal issue, but also a political issue. Reform of China’s death penalty system should be done gradually; public opinion should be considered and guided, and the leadership should play a more significant role in the reform of the death penalty. As the ICCPR plays a leading role in the reform of the death penalty, its principles should be integrated into China’s legal practice. The increasing reduced application of the death penalty in China specifically manifests the spirit of the ICCPR.

B. Criminal procedure and human rights protection of criminal suspects

The ICCPR provides a wide range of rights for criminal suspects. Article 9, Article 10 and Article 14 of the ICCPR respectively provide for the international practice of criminal proceedings rights. Article 9, paragraph 3 of the ICCPR states that “[i]t shall not be the general rule that persons awaiting trial shall be detained in custody...” This provision regards the detention as an exceptional measure of investigation. Paragraph 4 states that “[a]nyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”. This provision manifests the doctrine of mandatory measures. Article 10 provides that “[a]ccused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons; Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication”. This provision primarily deals with the treatment of the detention and custody.

Article 14 of the ICCPR mainly stipulates the basic principles and systems in the trial. This Article provides that “[a]ll persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.” This provision reflects the principle of justice in international criminal proceedings.

The Criminal Procedure Law of the People’s Republic of China needs to be improved substantially. Historically, criminal proceedings were misunderstood and the purpose of criminal procedure law was believed to be to prosecute offenders, combat crime, and prevent criminals from escaping. Of course, it is right to seek the truth from facts in handling cases, but human rights protection should be the essence of procedural law. Under the existing legal provisions and evidence, to abide by the law requires adhering to the equality of rights and truthfulness of the law, which is in line with the essence of criminal procedure law.

What makes the situation even more complex is that the legislation of criminal proceedings and law enforcement tend

to be different in essence. In China, the relationship between the specialized organs of criminal proceedings is cooperation, checks and mutual supervision. This pattern of cooperation renders criminal proceedings a pipeline, making some functional organs likely to make up case facts in order to achieve a common goal. Under the influence of such thinking, the supervision between the organs is relatively weak and it is also difficult for external supervision to play a role. Because of the closeness of the law enforcement process of the public security and the procuratorate and the isolation of criminal suspects after detention, the function of criminal proceedings to protect human rights is weakened, and criminal procedure becomes the procedure of identifying and determining crime. Transparent criminal proceedings are replaced by a procedure of stealth, and the unspoken rules in criminal proceedings mean part of the law is set aside.

In China, once a citizen is suspected of committing a crime, he or she is deprived of his or her civil rights. It is a touchstone to test the bottom line of human rights how individuals achieve their own demands when faced with powerful organs of public power. Because this state of depriving suspects of their civil rights is not open or subject to external supervision, there is often a hidden risk. The major miscarriages of justice disclosed in recent years, such as the Du Peiwu case, in which Du was wrongly convicted of the 1998 murder of his wife and a policeman based on a coerced confession; the Zhejiang uncle and nephew case, in which Zhang Gaoping and his nephew were coerced to confess to the rape and murder of a 17-year-old girl; and the aforementioned Hugejiletu case, were all the result of forced confessions obtained by the investigative organs. Under the circumstances where the public security organs, procuratorates and courts are essentially unified and court trials sometimes become a mere formality, the protection of defendant’s rights is naturally ignored, and the rights stipulated by law are not recognized.

With regard to the provisions of arrest, improvements have gradually been made in the practice in China. The current Criminal Law provides for the conditions of arrest. After the arrest, there will be a review of the necessity for detention. If there is no need for detention, then there should be a change of mandatory measures or release. In addition, the Criminal Law also expressly provides for the objects of the mandatory measures and how to change them. But the provisions on the separate detention and management of juvenile offenders and adult offenders cannot be implemented in some regions of China because of their economic and social development level.

It can be seen from the existing provisions of Criminal Procedure Law of the People’s Republic of China that the principle of people’s courts exercising judicial power independently in accordance with law refers to the independence of courts rather than judges. The collegial panel responsibility system is adopted in court trials, and major and hard cases need to be discussed by a review committee. Legal decisions tend to emphasize conclusions while overlooking reasoning and without showing any dissenting opinions of the case, which affects the fairness and justice of court trials to some extent.

 As to the Criminal Procedure Law’s protection of criminal suspects in the law enforcement process, there are few provisions, and they tend to be unworkable and hard to implement in practice. The implementation of this part of the ICCPR is very difficult, because it is not in line with tradition and the legal system of China. To achieve the modern transformation of this part, besides the improvement of the Criminal Procedure Law, overall judicial reform needs to be considered.

 The newly amended Criminal Procedure Law was passed in 2012 in China. The large-scale and in-depth amendment sums up the drawbacks of practice and reflects the trend of human rights protection. The newly amended Criminal Procedure Law incorporates “respecting and protecting human rights” in the general rules. In terms of the defence system, the role of lawyers in the investigation phase is strengthened and their defence rights are clarified. The law expressly provides for the privilege against self-incrimination, which is conducive to preventing forced confessions. Meanwhile, the obligation of witnesses appearing in court and the corresponding safeguard measures are strengthened, so as to promote substantive trials. The aforementioned measures are in line with the principles of international conventions and tackle the practical problems in China. They are quite suitable, so to speak.

This series of legal amendments has been a process of compromise. China’s inherent historical legal tradition, the interests of various departments and the long-term common practice at work have all impeded the comprehensive implementation of human rights protection, making reform unable to be achieved overnight. In contrast to the above-mentioned provisions of the ICCPR, the principle of non-custody hasn’t been established in China and there are no judicial orders concerning the mandatory measures restricting freedom. Although the amendment provides for the privilege against self-incrimination, the requirement of the obligation of the defendant to truthfully confess is still retained in the Criminal Procedure Law in China. It can be seen that the gap is still evident. In order to be in line with the provisions of the ICCPR, it is necessary for Chinese organs to establish the notion of respecting the authority of judicial neutral adjudication, believe in the judiciary, and change their role from active prosecutors to equal litigants under the guidance of maximizing the protection of the fundamental rights of criminal suspects and defendants. There is still a long way to go to reform the Criminal Procedure Law.

Specifically, the future reforms of the Criminal Procedure Law should focus on changing the status of the defendant being the litigation object, by according the defendant the right to remain silent, guaranteeing the appearance of witnesses, and promoting substantive aspects of the trial, which would not only highlight the procedural value of criminal proceedings, but also promote human rights protection of the defendant in line with international practice.

C. Improvement of the system of charges and protection of human rights

The task of criminal law is to protect legal interests and human rights. To establish a strict criminal law network is in line with the international practice and necessary to successfully protect legal interests.

An international crime is a crime that violates the common interests of all mankind. The two world wars of the last century have served as a wake-up call for mankind and provided painful lessons that needed to be learned. The international community is now more likely to reach a consensus on combating and preventing international crimes. For the sake of the future of the world, it is necessary for China to take on greater responsibilities. China’s current Criminal Law classifies crimes into ten categories according to the different violations of legal interests. The crimes violating fundamental human rights are mainly tackled in Article 4 on infringing personal rights and democratic rights of citizens. International crime is not a separate crime in China’s Criminal Law. Although universal jurisdiction is adopted in China’s Criminal Law, international crime has not been directly incorporated in the country’s criminal code. In terms of international crime, the present practice is to handle it in accordance with the relevant provisions of the domestic Criminal Law. This approach does not take into account the characteristics of international crimes, and the charges and sentencing do not reflect the special dangers of this type of crime. It is necessary to specifically provide for international crimes in a separate article. The following part will expound the connection of the common international crimes such as enslavement and crime of racial hatred and discrimination with China’s Criminal Law.

1. Amend and add the crime of enslavement

The opposition to slavery is the result of the progress of human society. Freedom from enslavement has become a part of international customary law. Article 8 of the ICCPR expressly states that no one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited; and no one shall be held in servitude. Under this provision, the slave trade in which people are traded as a commodity is a violation of the fundamental rights of people. In the Rome Statute, enslavement is expressly stipulated as a crime endangering humanity.

Charges such as forced labour and trafficking in women and children are stipulated in China’s Criminal Law. The crime of forced labour stipulated in Article 244 of the Criminal Law refers to the act of forcing others to labour by means of violence, threats or restrictions on personal freedom. This charge mainly regulates the traditional violations of personal freedom, without indicating the nature of “slavery”. The object of forced labour is a worker, which indicates that the forcing party and the forced party have formed a kind of contract. Enslavement is different. It not only deprives personal freedom, but entails more powerful confinement by more violent means. Enslavement is a long-standing system of personal control, which is the deprivation of human dignity and the most fundamental interests of an individual. In terms of the statutory penalty, the crime of forced labour is generally punishable by less than three years imprisonment or criminal detention and a fine, and where the circumstances are serious, more than three years and less than ten years imprisonment and a fine. Such penalties are too light compared with the consequences of enslavement, so the punishment does not match the crime.

The object of trafficking in women and children stipulated in Article 240 of the Criminal Law is limited to women and children; it does not include adult men. In practice, trafficking in men occurs frequently, and the enslavement of men is not covered by the existing charge of forced labour. Trafficking violates the personal rights of citizens, seriously infringes on the normal life of citizens and can have an irreparable impact on people’s lives, which is true either for men, women and children. It is suggested that Article 240 of the Criminal Law be amended to “trafficking in human beings”, so that the object of trafficking is all the population. The corresponding charges in Articles 241 and 242 of the Criminal Law also need to be amended.

It is suggested that the above-mentioned provisions be integrated in the existing Criminal Law and a special charge of “enslavement” added. The charge of enslavement should be in line with that in international criminal law. Specifically, “enslavement” means the exercising of any powers attaching to the right of ownership over a person including trafficking, renting, exchange, forced labour, forced prostitution, and exploitation, etc., regardless of whether the enslavement is of men or women. Enumeration and general clauses can be used in the legislation, and the statutory penalties that are more stringent than the existing legislation based on circumstances can be stipulated.

2. Adding the charge of illegal human experimentation

Illegal human experimentation refers to the act of illegally conducting medical experimentation on human beings. “Illegally” means that such acts have not been approved by the relevant departments, and the experimentation is carried out in violation of the current medical laws and regulations. In the field of new drug research and development, and biological experiments, various types of human experimentation result in major harm to human health due to a lack of supervision and the existing medical technology being unable to control the process of each experiment.

Illegal human experimentation is a serious violation of ethics and has had serious consequences in history. However, China’s current Criminal Law does not specifically stipulate the charge of this crime. If the perpetrator has committed an illegal human experimentation resulting in serious damage, he or she can only be held criminally liable for intentional battery or intentional homicide.

In the international community, international documents such as the ICCPR and the European Convention on Human Rights and Biomedicine in the 1970s, and the Vienna Declaration and Program of Action, adopted by the World Conference on Human Rights in 1993, all have provisions prohibiting illegal human experimentation. The atrocities of the past should always remind mankind of the necessity of criminalizing illegal human experimentation by means of criminal law and effectively punishing the act of illegal human experimentation. Article 7 of the ICCPR provides that, in particular, no one shall be subjected without his free consent to medical or scientific experimentation.

In recent years, the biotechnology industry has developed rapidly in China. The state supports industrial innovation, and the biotechnology industry is promising. However, it is noteworthy that some enterprises desperately take the advantage of legal loopholes for the sake of profit and even damage the physical health of citizens and violate the Criminal Law for the sake of commercial interests. To uniformly regulate such acts and be in line with the international conventions, it is necessary for China to add the charge of illegal human experimentation. Specifically, the offense of illegal human experimentation refers to medical or scientific experimentation conducted without the free consent of the person, which is of a bad nature or may have serious consequences. The bad nature of the acts is sufficient to constitute the crime, irrespective of whether the method used involves degrading human dignity.

3. Amend and add the charge of racial hatred and discrimination

Article 20, paragraph 2 of the ICCPR provides that “any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law”. Historically, due to ethnic, racial and religious issues, some people used to be treated inhumanly and disputes and wars were common. In recent years, terrorist organizations have used religious issues to make extreme interpretations of religion, spread hatred and induce a worldwide panic. The essence of human rights is based on the equality of all human beings. Openly inciting discrimination, hostility and violence undermines the values shared by all mankind, and thus should be condemned and punished.

Article 249 of the Criminal Law of the People’s Republic of China provides for the crime of incitement to ethnic hatred and discrimination. Article 250 provides for the crime of publishing discrimination and the insulting of any ethnic group. Article 251 provides for the crime of unlawful deprivation of citizens’ freedom of religious belief and violation of the customs of any ethnic group. These counts are stipulated in the article on violating the personal and democratic rights of citizens, mainly targeting special groups of “ethnic minorities”, taking into account the particularity of China’s national conditions.

Compared with the provisions of the ICCPR, there is no special count of racial discrimination in China’s Criminal Law. The subjects of the crime involving religions, such as unlawful deprivation of citizens’ freedom of religious belief, can only be state functionaries. To be in line with the provisions of the ICCPR, it is necessary to reform the existing provisions of the criminal law by expanding the crime of incitement to ethnic hatred and discrimination in Article 249 to the crime of incitement to ethnic, racial and religious hatred and discrimination, changing Article 251 to unlawful violation of citizens’ freedom of religious belief and defining its subject as a general subject. In addition, the crime of apartheid in international criminal law should be incorporated into China’s Criminal Law. “The crime of apartheid means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.”5 The crime of apartheid is targeted at other racial groups, spreading discrimination and hatred. Although there is no apartheid in China, to be in line with the international practice, it is necessary to make timely regulation of the crime, which is against the common interests of all mankind, so as to voice China’s opinion in the international community and participate in the discussion and development of international rules in an orderly manner.

There is a unified criminal code in China, with the tradition of unified regulation of crime and criminal responsibility. Therefore, the addition or modification of the above-mentioned charges should be carried out directly in the existing Criminal Law. A special article on “international crime” can be added to the Criminal Law to address the above-mentioned crimes against fundamental human rights.

(Translated by ZHAO Hongfang)

*JIAO Yang ( 焦阳 ), lecturer at Department of International Law, China Foreign Affairs University.

1Lu Jianping, Wang Jian, and Zhao Jun, “Chinese Representative Chang Pengchun and the Universal Declaration of Human Rights”, Human Rights, no. 6 (2003).

2See Zhang Xu, “Human Rights and International Criminal Law”, Journal of Social Sciences of Jilin University, no. 6 (1998).

3Su Huiyu and Sun Wanhuan, “The Significance of Criminal Law and Adjustment of State Power of Criminal Punishment — Explanation of the Two Human Rights Conventions from the Perspective of Criminal Law”, Journal of East China University of Political Science and Law, no. 2 (2001): 6.

4Gao Mingxuan and Ma Kechang, eds., Criminal Law (The Fifth Edition) (Beijing: Peking University Press & Higher Education Press, 2011), 237.

5See Article 7, paragraph 2(i)of the Rome Statute.