Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
China’s PLA Rules of Discipline (1947) which regulated the behaviour of the Red Army during the Chinese civil war, and were later used by the People’s Liberation Army (PLA), provided that prisoners of war were not to be maltreated.
China’s Law Governing the Trial of War Criminals (1946) provides that “torturing of non-combatants … inflicting on them inhuman treatment [and] ill-treating prisoners of war or wounded persons” constitute war crimes.
The Criminal Law of the People’s Republic of China (1979), as amended in 1997, states:
Article 247 Any judicial officer who extorts confession from a criminal suspect or defendant by torture or extorts testimony from a witness by violence shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention. If he causes injury, disability or death to the victim, he shall be convicted and given a heavier punishment in accordance with the provisions of Article 234 or 232 of this Law.
Article 248 Any policeman or other officer of an institution of confinement like a prison, a detention house or a custody house who beats a prisoner or maltreats him by subjecting him to corporal punishment, if the circumstances are serious shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years.
If he causes injury, disability or death to the victim, he shall be convicted and given a heavier punishment in accordance with the provisions of Article 234 or 232 of this Law.
Any policeman or other officer who instigates a person held in custody to beat or maltreat another person held in custody by subjecting him to corporal punishment, the policeman or officer shall be punished in accordance with the provisions of the preceding paragraph.
Article 446 Any serviceman who, during wartime, cruelly injures innocent residents in an area of military operation or plunders their money or property shall be sentenced to fixed-term imprisonment of not more than five years; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years; if the circumstances are especially serious, he shall be sentenced to fixed-term imprisonment of not less than 10 years, life imprisonment or death.
Article 448 Whoever maltreats a prisoner of war, if the circumstances are flagrant, shall be sentenced to fixed-term imprisonment of not more than three years.
China’s Prison Law (1994) states:
The people’s police of a prison shall not commit any of the following acts:
(3) to use torture to coerce a confession, or to use corporal punishment, or to maltreat a prisoner;
If the people’s police of a prison commits any act specified in the preceding paragraph and the case constitutes a crime, the offenders shall be investigated for criminal responsibility; if the case does not constitute a crime, the offenders shall be given administrative sanctions.
China’s Public Procurators Law (1995), as amended in 2001, states that no public procurator may “extort confessions by torture”.
In its judgment in the Takashi Sakai case
in 1946, the Chinese War Crimes Military Tribunal of the Ministry of National Defence at Nanking found the accused, a military Commander of the Japanese 29th Infantry Brigade, guilty of having incited his subordinates to commit acts of torture against prisoners of war, wounded soldiers, and nurses and doctors of the Red Cross, thereby violating the 1907 Hague Regulations and the 1929 Geneva Conventions.
During the Chinese civil war, the People Liberation Army’s (PLA) policy forbade the killing, torture and insulting of prisoners of war.
The same policy was adopted in the context of the conflict between China and Japan.
In an interview conducted by a British journalist in 1937, the Chairman of the Chinese Communist Party stated:
We still leniently treat the captured ordinary Japanese soldiers and those lower ranking officers who were forced to fight, they shall not be insulted or condemned and would be set free after being informed of the consistency of the interests of the Japanese and the Chinese people.
In 2004, in a white paper on “Progress in China’s Human Rights Cause in 2003”, China stated:
Public security organs have practiced strict enforcement of the law and emphasized law enforcement in the interests of the people. They have … firmly dealt with violations of human rights involving the extortion of confessions by torture … and seriously dealt with law and discipline violations, so as to ensure that law enforcement by public security organs is strict, just and humane, and to protect and guarantee human rights.
In 2005, in a white paper on “China’s Progress in Human Rights in 2004”, China stated:
Since May 2004, the Supreme People’s Procuratorate has carried out a special campaign to severely deal with criminal cases involving government functionaries’ infringement upon human rights by misusing their powers, focusing on cases of illegal detention and search, extorting confessions by torture, gathering evidence with violence, [and] abusing people in custody.