China’s ADD: Arbitrary Detention Deficit

By Jerome A. Cohen 

Cao Shunli, Courtesy of openDemocracy

Cao Shunli, Courtesy of openDemocracy

Year after year Chinese Human Rights Defenders has done a marvelous job of flagging the PRC’s human rights violations. This most recent report, 5 Years After Death in Custody of Cao Shunli, Human Rights Defenders in China Continue to Face Same Pattern of Abuse, taking off from the anniversary of one of many infamous instances of arbitrary detention and coming on the eve of next week’s UN Human Rights Council session (the Ides of March!), is long but definitely worth the time. 

Canada’s just begun extradition proceeding in Vancouver illustrates what the antidote to arbitrary detention should be — a fair and public judicial hearing. The embattled Prime Minister Trudeau was surely right in condemning the PRC for its arbitrary detention of the two Canadians in retaliation for Canada’s civilized legal process. The PRC and every other country that engages in systemic arbitrary detention give new definition to ADD, which should stand for Arbitrary Detention Deficit! For this the PRC should be brought to account in the media as well as in international legal institutions. In our interdependent world, extradition and its functional kin, whatever the label employed such as rendition, repatriation, deportation, removal etc, is intimately related in many ways to ADD, as currently illustrated in the PRC’s relations with not only Canada but also the United States, Sweden, Hong Kong, Taiwan and other jurisdictions. (See my article co-authored with Yu-Jie Chen on how the two questions are closely connected in the context of Taiwan-China cooperation as an example.)

Xinjiang Initiative

From today’s South China Morning Post [click to view in browser]

Muslims in Xinjiang are facing human rights abuses: time for China scholars to break the silence

By Kevin Carrico and Jerome A. Cohen

Since 2016, Xinjiang’s ongoing “re-education” campaign against local Muslims has expanded into a vast system of concentration camps, currently estimated to hold nearly 10 per cent of the area’s roughly 11 million Uygurs, as well as many of the smaller Kazakh minority. Prisoners are detained not because of any crime, but because of their ethnicity, their Muslim faith, their seemingly irreconcilable difference from China’s ethnic Han majority.

Countless lives have been destroyed, as people are held indefinitely in these camps, without due process. Detainees are pressured, under the watchful eyes of guards, to abandon their religious beliefs, and sing songs and repeat slogans praising the Communist Party of China and President Xi Jinping. Families have been torn apart. In some cases, they have no idea where relatives are held: people simply disappear.

At this intersection of indefinite arbitrary detention, political indoctrination, family destruction and forced eradication of customs, an entire culture is being erased. These are horrific developments that should have no place in the 21st century.

What can be done? The silence of most China specialists is disturbing, yet also unsurprising. Those of us who know China best have many reasons to rationalise not speaking out. Doing so risks the wrath of a rising power that is determinedly hostile to criticism, and that closely monitors what scholars say and write about sensitive topics. Yet, none of these reasons should be sufficient to warrant silence in the face of crimes against humanity.

To encourage greater awareness and discussion of the ongoing abuses in Xinjiang, with more than a hundred other scholars, authors, artists, and other public speakers, we have begun a “Xinjiang Initiative” – pledging to use our public platforms to speak for those who suffer but cannot be heard.

Participants pledge to use every public event in which they appear to remind their audiences that roughly a million people are being held in extra-legal internment camps, and that these detentions are solely due to detainees’ ethnicity or religion. Participants are also encouraged to share personal stories of detainees to put a human face on these inhuman policies.

If you have a public platform to raise awareness of this appalling repression, please join us. Information about the Xinjiang Initiative, how to join and a list of signatories to date is at www.xinjianginitiative.org.

Kevin Carrico, lecturer, Macquarie University, and Jerome A. Cohen, director, New York University US Asia-Law Institute

Xinjiang & the Global Magnitsky Act

By Jerome A. Cohen

Here is a terrific, comprehensive explanation from SupChina of helpful reports and articles about Xinjiang’s “re-education camps” . While China tries hard to conceal information, the materials currently available should prompt the United Nations and its human rights regime—including human rights treaty bodies, the Human Rights Council and its Special Procedures—to investigate and to condemn with confidence these atrocities in Xinjiang.

The outside of a newly built internment camp in Turpan, Xinjiang. Picture by Wall Street Journal reporter  Josh Chin .

The outside of a newly built internment camp in Turpan, Xinjiang. Picture by Wall Street Journal reporter Josh Chin.

It also makes one ask: what evidence is necessary under the Global Magnitsky Act in the United States to apply sanctions not only against those who are actually carrying out these abuses, starting with Chen Quanguo, the Party chief in Xinjiang, but also against those in Beijing who are instructing Chen to do so? We all know who runs China today!

This reminds me of the time in 1964 that I had an opportunity to have coffee in Hong Kong with Zhang Guotao (Chang Kuo-tao), one of the founders of the Chinese Communist Party who later split with Mao and remained in exile. I wanted to understand why Communist leaders had such mistrust of law and a genuine legal system. Zhang said that, while he did not know much about law and neither did Mao, perhaps he could give me an example that might help answer my question. In effect he then said: “If A kills B, no system would have trouble punishing A. But what if A merely tells B to kill C and B does it, how could a legal system punish A?” That, Zhang said, was probably the kind of thinking that underlay Mao’s mistrust!

The U.S. legal system usually is not troubled by such a simplistic challenge!

How to describe what's happening in Xinjiang?

By Jerome Cohen

Earlier this month, Josh Rogin wrote in the Washington Post­, Ethnic cleansing makes a comeback — in China, which provoked quite a lot of discussion, especially with regard to Rogin’s use of “ethnic cleansing” in describing China’s continuing campaign to abuse hundreds of thousands of Uyghurs in “re-education camps“ in the Xinjiang region as well as other efforts to destroy the social and religious life of Uyghur communities.  

Should we use ethnic cleansing to describe this horrendous situation? It is important to “rectify names” (zhengming), but there are so many aspects to this repression that it is not possible to find words that can adequately encapsulate it. What, for example, about reports that large numbers of Uyghurs from certain areas are being displaced and sent elsewhere outside of Xinjiang?

I personally believe, despite the views expressed otherwise, that we should not confine “ethnic cleansing” to its past notorious uses, for what is taking place is the attempted destruction of an ethnic group. This attempt has about as good a chance of success as the attempts to “convert” LGBT people to heterosexuals, and perhaps that is where we should look for better vocabulary!  

What can be done regarding Xinjiang’s mass detentions?

By Jerome A. Cohen

I have discussed Xinjiang’s horrific detentions on my blog. There should be more investigative reporting that looks into various important questions. We do not know all the types of detention resorted to. They may include: simply lawless detentions, i.e., not based on any regulations or laws; detentions authorized by some written document even if issued only by low level police; detentions based on special legal provisions under the new Supervision Law; detentions based on the usual Criminal Procedure Law; and detentions based on special provisions of the Criminal Procedure Law, i.e., residential surveillance.

It would be difficult to convincingly argue that these detentions are consistent with the PRC Constitution if such arguments could be made before an impartial tribunal, which, of course, does not exist in the PRC. These detentions are very similar to those imposed for decades under “re-education through labor” (RETL), which, like several other notorious administrative detention procedures, finally had to be abandoned by the regime, at least in name. Yet similar detentions still take place under various rubrics such as “re-education” for drug offenders, prostitutes and their customers and political offenders who continue to be given “black jails” and other types of confinement.

We are purposely being kept in the dark about the unique, massive detentions in Xinjiang, which have confined many hundreds of thousands of closely-settled people on many specious charges. Perhaps the last time so many people have been detained outside the formal criminal process was in the 1957-59 “anti-rightist” campaign where RETL was first used.

Given the Communist Party’s domination of the judicial system, the legal impossibility of getting the courts to consider constitutional claims and the refusal of the National People’s Congress Standing Committee, which, unlike the courts, is authorized to interpret the Constitution, to consider such claims, there is no prospect for challenging the Xinjiang measures domestically. It is worth noting, however, that what is being done should be understood as violating procedural rights under Article 37 of the Constitution as well as various freedoms enshrined in the Constitution, not to mention relevant provisions of China’s Criminal Procedure Law and other national legislation.

To be sure, the Xinjiang measures also violate public international law in many respects. China has signed but not ratified the International Covenant on Civil and Political Rights, which plainly prohibits arbitrary detentions. The PRC has ratified the Convention Against Torture and the International Covenant on Economic, Social and Cultural Rights, and the Xinjiang actions are clear violations of these international treaties in many respects. Other international human rights violations can also be established. Relevant treaty bodies, such as the Committee Against Torture and the Committee on Economic, Social and Cultural Rights, should review the Xinjiang detentions in their dialogues with China, ask the Chinese government to provide accurate information and condemn violations in Xinjiang.

Additionally, other UN human rights agencies are the obvious fora in which to move, including the UN Human Rights Council, the UN independent human rights experts such the Working Group on Arbitrary Detention and other special rapporteurs, and the Office of the High Commissioner for Human Rights. Unfortunately China has moved skillfully to dominate the UN Human Rights Council and the U.S. Government has certainly not risen to the challenge of effectively opposing China’s maneuvers. The departure of Mr. Zaid, the energetic and courageous High Commissioner for Human Rights, is greatly to be regretted.

Individual countries, of course, can take actions, which is why I recommend that the U.S. Government adopt Magnitsky Act sanctions against those responsible for Xinjiang, starting with Xi Jinping.

Various concerned countries can also act in concert outside the UN, for example excluding China from major economic and political meetings. It is a particular disgrace that Turkic, Muslim countries and their organizations have done so little to condemn China for what it is doing to their kinsmen.

There should also be many public protests by ordinary citizens, i.e., NGOs and popularly-inspired meetings in free countries whose people support human rights.

“In China, they call it a political camp but really it was a prison in the mountains.”

By Jerome A. Cohen

(Photo credit:  AFP ; the 41-year-old said she had been tricked into working in one of the camps)

(Photo credit: AFP; the 41-year-old said she had been tricked into working in one of the camps)

Here’s a valuable AFP report on Xinjiang, China’s 'reeducation camps' in spotlight at Kazakhstan trial. There have been occasional references to the mass detention of Kazakhs as well as Uyghurs but this report tells more. It is especially interesting to learn much new information through the medium of a public trial allowed to be held in Kazakhstan despite the politically explosive nature of the charges for the country and its dictatorial government that functions under China’s shadow.

In China a similar case, IF a formal criminal prosecution is used instead of simple arbitrary detention, would usually be closed to the public on grounds of national security. In this case, by contrast, Kazakhstan held an open hearing, apparently attended by foreign media, in which the accused had the benefit of an active defense lawyer who was allowed to question his client extensively. The court, for political reasons, might have curtailed the scope of the testimony to avoid discussion of the Chinese “re-education centers” but instead properly allowed the questioning to take place in order to make clear the background of the defendant’s resort to false travel documents. The defendant, who seems to have made an excellent witness, aptly summed up the terrible Xinjiang situation when she said: “In China, they call it a political camp but really it was a prison in the mountains.” !!! 

Perennial problems with corruption cases in China

By Jerome Cohen

There have recently been increasing signs of popular dissatisfaction with judicial handling of corruption cases in China. Of course, corruption cases are politically sensitive in every country and often involve influential defendants as well as accusers. Chinese courts are generally weak and unable to withstand political pressures to go along with what the Party-state demands. How can they overcome the instruction of the Party discipline and inspection teams and now the Party-run government supervisory commissions? It is much harder to vindicate rights in China’s corruption cases than in ordinary criminal cases, even if the case really involves only corruption rather than the continuing, if non-transparent, political struggle, local or national.

Thus far specific legislative improvements do not have much effect in Chinese practice. Moreover, it’s like putting a band-aid on a gaping wound. The new supervisory system does not offer significant protections against the arbitrary and lengthy incommunicado detention and torture that mark the criminal process even now, almost 70 years after the founding of the People’s Republic of China.

The fear that the current corruption investigation system engenders in the business and bureaucratic elites is undoubtedly slowing economic development. Certainly, democratic countries that are the principal hiding places for absconding corrupt elements are very reluctant to return fugitives to a country that plainly will not allow them a fair and independent criminal process.

China should face up to the need for genuine reforms in the administration of justice from the moment of detention through the appeal procedure. China should consider establishing special procedures for the handling of cases of returned suspects that could inspire the confidence of foreign countries and provide a model for reforming the regular criminal process.

What is happening in Xinjiang?

By Jerome A. Cohen

Here's a campaign launched by the Lantos Foundation and Uyghur NGOs. Bravo for their efforts to highlight the stunning, outrageous detention of hundreds of thousands of innocent Uyghurs in Xinjiang. But why is the international academic community largely silent about the current atrocities??? I hope that journalists are silently working to confirm the few reports that are published about what has to be the worst current abuses being committed in China, which says a lot! 

Who are the targets of the round-up? What are conditions in the concentration camps like? How long are people being held? What is the content of their “re-education”? What happens to those who are released? How many are transferred to the formal criminal process, either to “residential surveillance at a designated location” or to the regular detention, arrest, indictment, prosecution and punishment after “trials”??? What should be done to alert the world and to mobilize vigorous responses?  What are foreign governments doing in public and behind the scenes? I am proud of the U.S. Government’s very recent condemnation of Beijing’s shameful measures. Do the Turkic/Muslim countries feel no special obligation to speak out and act?

China sends Uyghurs to re-education camps as a “preventive measure”

By Jerome Cohen

Here is a Radio Free Asia report on the hundreds of thousands of Uyghurs who have been detained in “re-education” camps. The number detained may have reached one million, according to the estimate. This is far beyond the number of those who were retained for “re-education through labor” (RETL) at any given time in what were supposedly the last years of that notorious punishment. As I recall, there were usually said to be about 300,000 detained for RETL at that time.

We need to know much more about who has been recently detained in Xinjiang, for what reasons, by what procedures, for how long, for what type of “education” etc. Is it really true that people under 40 are being preventively detained without any basis for suspicion other than the fact that, because of their relative youth, they might be susceptible to evil thoughts and actions? This is a horrendous situation that makes a mockery of the Party’s claim that it is pursuing the “rule of law”. It invites comparisons with the early years of Hitler’s attack on the Jews.

It also makes me think of Lee Kuan-yew’s Singapore. Until the early ‘80s, when he changed his views, Lee prohibited Singaporeans under 40 or 45 (I forget which) who had been educated in the PRC from returning to Singapore, regarding them as security risks. Lee also resorted to preventive detention, but on a very limited scale and with respect to people who had at least demonstrated what he regarded as “left wing” sympathies. I hope those of us who observe developments in China will not look away from this ugly, worsening phenomenon in the Central Realm.