Updated: Aug 28, 2020
Since April 2017, approximately eight hundred thousand to two million Uyghurs and other Muslim ethnic groups like Kazakhs and Uzbeks have been arbitrarily detained by the Xinjiang Government in more than 85 identified internment camps. The number of camps and internment facilities to host the detainees has proliferated drastically evidence of which according to Reuters, is that the site on which these camps are built was initially a desert and has now rapidly grown into a complex since 2017 with the increasing expanse of building construction. Further, this arbitrary detention of Muslim ethnic groups along with other Genocidal acts and crimes against humanities committed against them has been brought to the limelight by various activists. However, their efforts towards gathering International support for the issue have been overshadowed by the emergence of the Pandemic. Further, amidst these testing times, the detainees continue to be the most vulnerable due to the overcrowding and unsanitary conditions prevalent in detention camps. The article provides a detailed analysis of the atrocities committed against these communities with special reference to the human rights violations committed on them in the re-education camps.
Protection from Arbitrary Detention:
In August 2018, China had initially denied the allegations imposed upon it by the UN panel (The Committee on the Elimination of Racial Discrimination), of secretively detaining at least a million Uyghur Muslims in massive internment camps that resembled a ‘no rights zone’. However, later on account of the various available satellite images of these internment camps, leaked government documents on the same and other eyewitness accounts testifying their presence , a White paper titled-“Vocational Education and Training in Xinjiang” was issued by the government, which affirmed the existence of these “re-education centers” (internment camps) but portrayed the “re-education programme” carried out in it as an initiative to combat Terrorism and Religious extremism.
According to The Working Group on Arbitrary Detention, detention and deprivation of liberty, in any case, may be said to be arbitrary if:
1. There is no legal justification for the same.
2. Such detention is due to exercise of rights and freedoms granted by articles 7, 13, 14, 18, 19, 10 and 21 of the UDHR and articles 12, 18, 19, 21, 22, 25, 26 and 27 of ICCPR.
3. The right to a fair trial and judicial review is not granted, thus arbitrarily depriving right to liberty. (Art. 9 ¶¶3-4, ICCPR; Art. 10 UDHR)
The detention of Uyghurs at the re-education centers portrays such arbitrary nature and thus stands in contravention to international human rights instruments which prohibit arbitrary detention (Art. 9, ICCPR; Art. 9, UDHR) and enshrine the Right to liberty and security of persons (Art. 9, ICCPR; Art.3 UDHR).
Detention Due to Exercise of Right to Freedom of Religion, Thought, Conscience and Expression
Freedom of religion thought and conscience as well as right to manifest one’s religion granted by Art. 18 of both ICCPR and UDHR, is also enshrined in Article 36 of the Chinese Constitution. Art. 36(3) of the Constitution being consonant with Art. 18(3) of the ICCPR, however, limits this right to ensure “public order”. Similarly, Freedom of speech, opinion and expression granted by Art. 19 of both ICCPR and UDHR is embedded in Article 35 of the Chinese Constitution but is subject to criminalization under the various provision of Chinese Criminal Law. Also, under Article 20(2) of the ICCPR, States may prohibit “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence”, only if the restrictions imposed passes the test of legality, necessity and legitimacy.
a. Xinjiang Regulations on De-extremification:
The“Xinjiang Uyghur Autonomous Region Regulation on De-extremification” under the pretext of extremism that tends to spread radicalistic religious ideologies, incite hatred and advocate violence, prohibits certain speech and actions, which may also form a part of an individual’s right to manifest religion or belief in worship, observance, practice and teaching (2017 Regulations, Art. 3 and 9).
Wearing Burqas or veils, which forms a part of the beliefs of Muslim women, is also prohibited under the regulations (also equating the same to extremist symbols). Further, the prohibition is not only limited to public places but also extends to private homes and is thus disproportional to the objective sought to be achieved. Such an action to prevent a person from wearing religious clothing in private or in public spaces may also constitute a violation of the prohibition on coercion that may impair an individual’s freedom to have or adopt a religion as laid down by Article 18 para 2. (Hudoyberganova v. Uzbekistan, ¶ 6.2)
The prohibition on “growing abnormal beards”, which although ambiguous in its wordings, tends to target the practice of Muslim men of not shaving, with the intent to prevent ‘religious fanaticism.’ With similar intent of religious suppression, selecting Islamic names is also prohibited under the garb of restriction to select “irregular” names. Another such prohibition is distorting, generalizing or expanding and mutating the concept of Halal (lawful or permitted food in Islam) into social life and other areas which targets the practice of Halal on the pretext of interfering with the ‘secular life of others’ [ Article 9 subclause (vi), (vii), (viii)].
According to Article 50(5) and 51(4) of the 2016 "Xinjiang Uighur Autonomous Region Implementing Measures of the Counter-Terrorism Law of the People's Republic of China”, such restrictions are also imposed as part of Counter-terrorism measures. All of such restrictions when imposed, nullify the individual’s right to manifest religion. As most of such restrictive practices overtly or in a camouflaged manner discriminate against practices of Islamic minority groups including the Uyghurs, they also fall under the “aggravating indicators” which determine that they are inconsistent with International Human Rights. [Commission of Human Rights, Report of the Special Rapporteur on freedom of religion or belief, Asma Jahangir, ¶ 55]
Further, Article 9(9) of the 2017 regulations read with the 1980 regulations on marriage (Articles 5, 6 and 7) criminalizes the payment of dower (mahr), which forms an important part of Islamic marriage contract. Similarly, read with Article 6 of the 1980 regulations, the provision may also prohibit the unilateral divorces in verbal or written format (the practice of Talaq).
Also, under Article 9(13), “ Publishing, printing, distributing, selling, producing, downloading, storing, reproducing, accessing, copying, or possessing articles, publications, audio or video with extrimification content” is prohibited. According to the China Cable Documents (Bulletin no. 20), officials are instructed to screen the users of ‘Zapya app’ (that allows to download the Quran and share religious teachings) if they spread extremist and terrorist contents. Further, testimonies of ex-detainees and views of experts concretize that sharing or downloading of any religious content, through the app has helped the authorities to frame shreds of evidence of religious extremism and thus detain people. Similarly, according to a judgement in the China Cables Documents, a regional criminal court sentenced an Uyghur man for telling his co-workers not to watch pornography or say dirty words, or else they would become non-believers. Hence, such restrictions need to pass the tests under Article 19(3) of the ICCPR, as it may infringe an individual’s right to “seek, receive and impart information and ideas of all kinds” (Art. 19, UDHR; Art. 19(2) ICCPR).
b. Vague Definition of Terrorism and Link with Extremism:
The definition of ‘Terrorism’ under Article 3 of the Xinjiang Implementing Measures for the P.R.C. Counter Terrorism Law is wide, vague and ambiguous. The definitions fails to stand in consonance with the guidelines laid down by the United Nations Counter Terrorism Implementation Task Force which suggests that the National Counter-Terrorism Legislation must conform to International law standards (including International human rights law). Also, Article 7 of the Counter-Terrorism Law, as a part of its counter-terrorism strategy, refers ‘extremism’ as a precedent to terrorism and makes efforts towards curbing the same. This may also cover the peaceful religious expressions and exercise of the right to manifest religion by the ethnic minority communities. Such broad and vague definitions of extremism that lack clarity and the element of “violence,” have been disapproved by Human Rights bodies. [Mariya Alekhina And Others v. Russia, ¶257; Special Rapporteur] It has been asserted by the Committee on the Elimination of Racial Discrimination(¶ 36) that these broad definitions need to be narrowed down in scope so as to not discriminate against race or ethnicity.
c. Are the Restrictions Justified?
For restrictions to be imposed on a person’s right to manifest religion under Article 18(3), they need to be explicitly based on grounds of public safety, order, health, morals, or the fundamental rights and freedoms of others. Whereas restrictions on freedom of expression under Article 19(3) need to be only for respecting the rights or reputations of others, national security, public order, public health or morals.
The explicit aim of the De-extremification measures as described under Article 4, is to make “religion more Chinese” and compatible with the socialist society, which does not qualify as a legitimate aim that restrictions under Article 18(3) and 19(3) seem to impose Even if broadly construed that the aim of the measures is to maintain public safety and order and national security (in case of restrictions on Freedom of expression), such restrictions still need to pass the test of legality, necessity and proportionality. Similar criteria apply to the Counter-Terrorism Laws that aim to achieve ‘national security’ and social stability. [Human Rights Committee, General Comments 22(¶8) and 34(¶21), Siracusa Principles(¶10), Special Rapporteur]
The restriction laid down do not qualify the test of legality as neither are they clear and precise (e.g. definition of terrorism, the term “abnormal beards”, etc.) nor are they interpreted by independent judicial authorities. States while interpreting such limitation clauses need to emphasize on the right to equality and non-discrimination as laid under the Convention [General Comment 22, ¶ 8]. Further, these restrictions, as stated before, tend to discriminate against ethnic minorities and are thus violative of Article 2 of the International Convention on elimination of all forms of Racial discrimination(ICERD) and Article 2 and 26 of ICCPR. They not only negate the essence of the rights and freedoms granted by the Conventions but are also discriminatory in nature. They are certainly not the least intrusive instruments to achieve their respective aims of public safety, order or national security, hence making them neither necessary nor proportionate. Therefore, the restrictions imposed on the right to manifest religion and right to expressions under the De-extremification regulations and Counter-terrorism law stand unjustified.
Right to a Fair Trial: A Neglected Principle
The right to a free trial has been embedded in Article 10 of the UDHR and Article 9 of the ICCPR. Article 46 of the De-extremification regulations lays the legal responsibility behind acts of extremism expounded under Article 9. Extremist conduct may constitute a criminal charge and related liabilities under Article 48 of the De-extremification principles, Article 79 of Counter-Terrorism Law and Article 52 of the "Xinjiang Uighur Autonomous Region Implementing Measures of the 'Counter-Terrorism Law’. However, non-criminal liabilities are as follows:
1. In case of minor situations, public security organs may correct, criticize and impart legal education.
2. In case of more serious situations that do not constitute a crime, public security organs may give public security administrative sanctions according to the Counter terrorism law and Xinjiang implementing measures.
Similarly, such religious extremist activities, that do not constitute a crime, are liable for 10-15 days of detention and fine up to 10,000 yuan according to Article 80 and 81 of the Counter-Terrorism Laws read with Article 53 and 54 of its Xinjiang implementing measures.
Further, Article 15 of the Counter-Terrorism Laws elucidates that personnel or organizations designated as terrorist may apply for a review of the decision through the national leading institution of counter-terrorism efforts, which itself is established by the State (Article 7). Thus, no effective judicial review is available to the people under detention and this negates the right to take proceedings before a court under Article 9 ¶ 4, ICCPR, which also extends to all detentions (General Comment 35, ¶ 40) in pursuance of official authorization (including security detention and counter-terrorism detention).
Under Article 29 and 30 of the Counter-Terrorism Laws, persons that are dangerous to the society, are placed in re-education centers after the completion of their criminal sentence with no specification of the time limit of such placement. However such detention after the completion of a sentence, without any legal justification, is considered to be unlawful.[ Mpandanjila et al. v. Zaire , ¶ 9]. In China, the state of affairs is such that there is no legal justification to keep the detainees in re-education camps. Their only folly is the difference of religious ideologies in a state known for its extremist government.
Title Image Source: Abc.net
The article has been written by Manav Bhatt who is an undergraduate law student at Hidayatullah National Law University(HNLU), Raipur. He has a keen interest in Public International Law, International Relations and Human Rights Law.