First, They Came for the Lawyers

China's newest campaign of repression.

It's open season on lawyers in China today. To be sure, not on most of the almost 200,000 who foster economic development and international business, but on those unwise enough to become involved in human rights, criminal justice, and controversial public-interest cases. For them, law has become an increasingly hazardous profession. They risk informal warnings, 24/7 monitoring, interference with client and law firm relations, loss of their right to practice, hooded abductions, beatings, torture, "thought reform," coerced "confessions" and "guarantees," criminal prosecution, imprisonment, and incommunicado incarceration at home both before and after imprisonment.

Gao Zhisheng, once praised by the government as one of China's outstanding lawyers, suffered all of the above and more, including an alleged assassination attempt, after he began handling sensitive cases. Incredibly, he remained unbowed even after emerging in March 2010 from a mysterious yearlong extrajudicial detention. So, a few weeks later, the authorities "disappeared" him for the second time. Nothing has been heard from him since.

The families of Chinese lawyers often suffer along with them. Spouses are harassed and restricted in their movements; children are humiliated and denied educational opportunities. To end their nightmare, Gao's wife and children secretly fled to the United States. More sinister threats against families seem to have recently silenced some formerly outspoken rights defenders. Although no statistics are available and many incidents go unreported, the current campaign has directly interfered with at least several hundred lawyers, and thousands of their colleagues have felt the fear and been inhibited.

None of this is entirely new, of course -- China is still China -- and some abuses reflect the customary backlash of local authorities against "troublesome" lawyers. But the repression, and its focus on lawyers, has only intensified since the 17th National Congress of the Chinese Communist Party in the fall of 2007, when growing party concerns over internal security appear to have increased the influence of those responsible for police organizations. The subsequent publication of Charter 08, a courageous declaration of democratic principles that was ultimately signed by more than 10,000 people, added to the party's anxiety, as did the award of the Nobel Peace Prize to the activist Liu Xiaobo, who had been imprisoned for helping to draft the charter. The 2010 government budget for the first time allocated more funds to internal security than to national defense, and when the impact of the Arab world's "Jasmine Revolutions" reached China this February, the country's increasingly insecure leadership cracked down even harder on lawyers as well as their controversial clients.

Yet these events only partially explain China's recent attack on lawyers. What's happening is fundamentally an effort to spare the party the consequences of its own success in rapidly transforming China's economy, opening its society, and raising the Chinese people's awareness of their rights. The extraordinary modernization process set in motion by Deng Xiaoping in 1978, which has improved the lives of hundreds of millions, has come at great cost in terms of social change and has spawned ever greater tensions and disputes in Chinese life. The alarming and widening gap between rich and poor, endemic official corruption, widespread police abuses, intolerable bureaucratic arrogance, displacement of both urban dwellers and farmers in favor of new real estate construction, migration to the cities of more than 200 million workers, and devastating land, air, and water pollution are only some of the causes of unprecedented protests and social conflicts.

Accompanying these profoundly upsetting changes have been dramatic improvements in not only popular living standards, education, and exposure to the world but also the country's legal system. Three decades of legislative and institutional progress have overcome the chaos left by the 1957-1958 Anti-Rightist Movement, the Great Leap Forward, and the Cultural Revolution, giving China the apparatus of a formal legal system. This year, party propaganda trumpeted the completion of what the Chinese state calls the "socialist rule of law," including constitutional amendments endorsing respect for human rights and property rights. The National People's Congress, China's version of a legislative body, and government agencies continue to promulgate substantive and procedural rules enhancing protections as well as regulations for individuals and enterprises in civil, administrative, and criminal matters. China now boasts well over 600 law schools. Several hundred thousand people take the annual bar exam. There are more than 200,000 judges and almost as many prosecutors. Every legislative and executive office and every significant business needs legal specialists. Books, print media, and radio and television news and entertainment are awash with legal themes, as are Internet discussions.

The Chinese have thus become more aware of their rights and the possibility that courts might enforce them, whether as plaintiffs seeking civil and administrative remedies or as defendants in criminal prosecutions. Their system allows few other outlets for preventing arbitrary punishments and resolving the rising number of grievances. Democratic political institutions remain little more than a gleam in the eye of reformers. The media are under strict surveillance and are generally of limited use. Petitions to government agencies are a frustrating farce and have now become dangerous because of the establishment of "black jails" -- extralegal detention facilities to prevent petitioners from disturbing the "harmony" that the party incessantly preaches. Mass street protests, though sometimes successful, usually result in harsh punishment of their organizers and cannot settle individual disputes. In any event, criminal prosecutions, a standard party response to social unrest, cannot be avoided.

Yet involvement in the courts, at best an uphill battle in sensitive cases, requires legal assistance. This is the price of China's newly acquired legislative and procedural sophistication. Without skilled defense lawyers, few democratic activists, religious adherents, or alleged gangsters can possibly refute official accusations. Without skilled plaintiffs' lawyers, no victims of tainted milk, shoddy school construction, illegal housing demolition, or environmental destruction can hope for judicial relief. Nor can the public even be informed of unjust judicial decisions if lawyers are intimidated from participating in such cases or informing the media about them.

This is the logic underlying the current campaign against "rights lawyers," criminal defense lawyers, and public-interest lawyers. Party leaders want the best of both worlds. They crave the reinforced status that comes from the legitimacy that a rule of law confers on governments at home and abroad. But they also want to avoid the embarrassment and loss of dictatorial control that might occur if lawyers were permitted to challenge their power, even if only before courts that remain under the party's thumb. So their response is to mobilize all the instruments at their command -- informal and formal, legal and extralegal -- to intimidate lawyers from taking positions not endorsed by the party.

Some Chinese legal professionals, including judges and other officials, sympathize with the plight of the persecuted lawyers, and a few law professors and lawyers have occasionally shown their opposition. Fear, however, is corrosive, and indifference is safe. Thus, prospects for a serious pushback are dim.

In a world where the "people's democratic dictatorship" is losing its struggle against transparency, this attack on lawyers provides further evidence that China's "socialist rule of law," imported from the Soviet Union, is an oxymoron. No matter how many Confucius Institutes the Chinese government finances on foreign campuses, it will never attain the "soft power" it craves until it stops persecuting lawyers and starts recognizing the prerequisites of a genuine rule of law.



Knesset of Fools

A harsh new anti-boycott bill will help achieve the exact opposite of what its advocates intended: the delegitimization of the Jewish state.

In the latest of a series of extraordinarily self-defeating moves, Israel's legislature, the Knesset, has just adopted the so-called "Boycott Bill," penalizing any call within Israel to boycott Israel or its settlements in the occupied Palestinian territories. The new law allows for civil suits against boycott supporters, denies them state benefits, and prevents the Israeli government from doing business with them. For a society terrified of what it sees as an international campaign of "delegitimization," its own parliament could not have produced a more stunning blow to Israel's legitimacy by conflating Israel as such with the settlements and the occupation.

Of course this law could not have been otherwise, since virtually all effective BDS (boycott, divestment, sanctions) efforts in the West have been targeted against the occupation and the settlements, not against Israel. Some BDS activists would clearly like to extend this campaign to target Israel proper, but such efforts have met with extremely limited success in Western societies. On the other hand, efforts to express disapproval of Israel's illegitimate settlement activities and therefore also illegitimate goods produced in the settlements have been meeting with a modest but increasing degree of effectiveness.

The "Boycott Bill," therefore, was never really about Israel at all, but about protecting the settlements and the settlers from a growing international campaign to refuse to subsidize a project that is a dagger aimed at the heart of prospects for a viable peace agreement between Israel and the Palestinians, as well as a blatant violation of international law. City councils and governments in Europe are increasingly distancing themselves from commercial activities connected to the occupation. Norway, for example, divested from Elbit Systems, a company that manufactures sensor devices for the West Bank separation barrier, and subsequently from Africa Israel Investments, which is heavily involved in settlement construction.

The campaign against Israeli settlements is real, but this new law will almost certainly backfire. By crudely conflating Israel -- which is almost universally regarded as a legitimate member state of the United Nations -- with its occupation and settlements in the West Bank -- which are almost universally regarded as illegitimate and indeed illegal, as well as a threat to peace -- the Knesset has yet again provided an official Israeli argument for those who would extend the boycott campaign to include all Israeli institutions and not just aspects of the occupation.

The Israeli government has done this numerous times in the past. For example, when Israel applied for OECD membership, the national economic statistics it presented included the entire settlement economy, but no statistics reflecting the Palestinian villages surrounding the settlements throughout the West Bank. What this suggests is an official Israeli perspective in which there is a virtual Israel that exists wherever a settler happens to be at any given moment, and an undefined, unresolved occupation everywhere else. This legally and politically untenable and indeed preposterous position is similarly reflected in the new "Boycott Bill."

Some of the boycott activities that Israel points to as "delegitimization" were forced by its own refusal to distinguish between itself and the settlements. In several instances, European vendors have made it clear that they are happy to sell Israeli products, but not those from the settlements, which they quite properly decline to support because they are illegitimate and dangerous. Israel has refused to provide any markings, identifying characteristics, or other indicators that would assure these vendors that the products in question were indeed from Israel and not from settlements in the occupied territories. As a consequence, several European vendors, particularly in Italy, simply stopped stocking Israeli imports, not because they objected to goods from Israel, but because they refuse to unwittingly sell settlement products and Israel will not distinguish them.

Perhaps the greatest irony is that the Knesset members who passed the "Boycott Bill" and their supporters do not seem to understand that boycotts, divestment, and sanctions that are carefully targeted against the occupation and the settlements but scrupulously avoid targeting Israel legitimize rather than delegitimize the Israeli state. They say, in effect: We do not want to buy or sell the products of the illegitimate settlement program, but we are happy to buy or sell Israeli goods because Israel is a legitimate state. By carefully targeting the occupation and the settlements, such boycotts implicitly recognize the legitimacy of Israel itself. But to supporters of the settlements, this is of little or no importance. To them, it's all simply Israel.

The Palestinian Authority (PA) has been engaged in precisely this kind of boycott in the small areas under its control in the West Bank. Beginning in March 2010, it circulated brochures to every household in "Area A" complete with color images of the logos of the banned settlement companies so that no one could have any doubts about which products were unlawful. After an initial grace period, the PA began forcibly removing these products from Palestinian shops and then shortly afterward began prosecuting those distributing them. Palestinians have been effectively urging people the world over, including sympathetic Israelis, to join them in seeking clarity, and drawing a sharp distinction between Israel on the one hand and the settlement project on the other.

This Palestinian boycott of settlement goods is an integral part of the program of nonviolent resistance to occupation currently under way in the West Bank, and the international campaign is an extension of that. The "Boycott Bill" is an attack on precisely this kind of nonviolent protest, which is, of course, the appropriate alternative to the self-destructive and self-defeating violence of the past. But, as with other forms of nonviolent resistance, Israel is proving as intolerant to this nonviolent tactic as it has been to all other forms of combating the occupation. For Israel, it seems, the only accepted response is to submit and stop making a fuss of any kind.

It's no surprise that large numbers of prominent Knesset members were unaccountably missing from the "Boycott Bill" vote, most notably Prime Minister Benjamin Netanyahu. This is not only because the law is an obvious affront to freedom of speech and other principles of democracy, but also because of the high likelihood it will be struck down by the Israeli Supreme Court. Canny Israeli politicians no doubt also understand that rhetorically conflating Israel and the settlements in such a crude manner is a very dangerous thing to do in the immediate term, and potentially disastrous in the long run.

Given the powerful international consensus against the settlements -- including the United States, which unequivocally holds that the settlement project is at least illegitimate, if not outright illegal, and which clearly distinguishes between Israel and the occupation -- this crude law inflicts the most powerful delegitimizing blow against Israel in living memory.

When the Knesset itself says it does not recognize the difference between any effort to boycott Israel and those that target the settlements, it invites the rest of the world to see things in the same light. It encourages those who would not stop at expressing disapproval of the occupation but wish to target Israel and Israelis generally. Moreover, by making Israel indistinguishable from the illegitimate settlement project, it raises the banner of delegitimization higher than any group of non-Israeli activists could ever have hoped to.