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EFSAS Commentary

OHCHR High Commissioner Bachelet’s indictment of Beijing for 'crimes against humanity' in Xinjiang deserves effective follow-up


The last occasion when a report of the Office of the United Nations High Commissioner for Human Rights (OHCHR) merited comprehensive comments, even if of the unflattering kind, was in June 2018 when the then outgoing High Commissioner for Human Rights Zeid Ra'ad Al Hussein published a rushed, one-sided, highly flawed and obviously agenda-driven report on the situation in Jammu & Kashmir (J&K). As had been underlined in the EFSAS commentary of 22-06-2018 titled OHCHR Report on Jammu & Kashmir: ‘Remote Monitoring’ fraught with serious methodological and analytical flaws, that report had been conjured up by its author without as much as having set foot on one vast half of the territory that formed the subject of his supposedly comparative study. He hid behind the convenient pretext that “restrictions on the freedoms of expression, opinion, peaceful assembly and association” imposed by the security State of Pakistan had rendered it impossible for the OHCHR to “assess the human rights situation there”. He also admitted that his report was primarily based on secondary sources of information. With such grave shortcomings, it came as no surprise that the author’s version of accounts came across as so one-sided and biased that it detracted not only from the quality of the reading but also from the credibility of the entire exercise and, indeed, the very standing of the OHCHR.

It was on account of this experience, as also the rather Beijing-friendly statements that were made by Michelle Bachelet, the recently retired UN High Commissioner for Human Rights, at the conclusion of her much debated visit to China in May this year, that many feared her anticipated report on China’s treatment of its Uyghur people in Xinjiang would take a similar casual and shallow approach as that of her predecessor, Al Hussein. Amnesty International, for example, felt that during Bachelet’s “highly choreographed” China visit, which included a stop in Xinjiang, she had failed to acknowledge serious human rights violations in the country and her statement at the end of her trip “undermined efforts to advance accountability in the region, instead giving the impression she had walked straight into a highly predictable propaganda exercise for the Chinese government”. While expressing concern over issues relating to Xinjiang, Tibet, Hong Kong, human rights defenders and labour rights, she had nevertheless praised China’s “tremendous achievements” in alleviating poverty, and eradicating extreme poverty 10 years ahead of its target date. A number of other developments in the country were welcomed by her, including legislation that improved protection for women’s rights. After a visit to a prison in Kashgar, Bachelet had said that the authorities had been “pretty open, pretty transparent”.

Those questioning Bachelet’s attempts at neutrality, however, seem to have wanted the High Commissioner to only say what they wanted to hear. They glossed over the pressure that Bachelet had to contend with, despite the High Commissioner candidly admitting last week that she had been under “tremendous pressure to publish or not to publish”. They also overlooked the efforts Bachelet undertook to plug the gaping gaps of her predecessor’s report and to produce a more thoroughly researched assessment that commanded a lot more respect. For a start, Bachelet made the effort to travel to China and try to learn firsthand what the situation was like in Xinjiang. An unwelcoming China, without doubt, is a much more difficult territory to access than an unwelcoming Pakistan is, or could be. Further, during her visit in May, Bachelet spoke with a range of government officials, several civil society organizations, academics, and community and religious leaders. In addition, ahead of the visit she held online meetings with several organizations on issues relating to Xinjiang, Tibet, Hong Kong, and other parts of China. Bachelet also underlined in an end-of-mission statement on 28 May that the visit was not an investigation, which she noted would require “detailed, methodical, discreet work of an investigative nature”. The professionalism displayed by Bachelet, which found expression in her report and her statements, was acknowledged and rewarded when most members of the Uyghur activist Diaspora, including those that had earlier criticized the United Nations Human Rights Council (UNHRC) for not doing more to pressure China over human rights violations, said that the report helped renew their faith in the organization. The new report, they feel, lays a solid foundation for further UN and Human Rights Council action towards accountability in China.

The pressure that Bachelet came under from China to stop her from publishing the report did delay its eventual release till about 10 minutes before she demitted office on 31 August. Given the explosive contents of the report, China had persistently and aggressively been opposing it. In a draft letter to Bachelet leaked by the media last month, Chinese authorities had reportedly urged the High Commissioner “not to publish” her office’s assessment of Xinjiang. The reasons behind the Chinese apprehensions became clear when the 46-page report was released. The report covers the period during which Chinese authorities arbitrarily detained up to 1.8 million Uyghurs and other Turkic minorities in internment camps in Xinjiang, according to numerous investigative reports by rights groups, researchers, foreign media and think tanks. The OHCHR based its assessment in part on 40 in-depth interviews with individuals with direct and first-hand knowledge of the situation in Xinjiang, 26 of whom said they had been detained or had worked in various facilities across the region since 2016. In each case, OHCHR assessed the reliability and credibility of these persons, the report says.

The report found there was an acute risk of arbitrary detention and that it was “reasonable to conclude that a pattern of large-scale arbitrary detention occurred in [vocational education and training centre] facilities, at least during 2017 to 2019”. It pushed back on Beijing’s claims that the facilities were schools or training centres where participants were free to join and leave. The report said such “placements” amounted to a form of deprivation of liberty – “A deprivation of liberty occurs when a person is being held without his or her consent. Consistent accounts obtained by the OHCHR, however, indicate a lack of free and informed consent to being placed in the centres; that it is impossible for an individual detained in such a heavily guarded centre to leave of their own free will”. China mischievously termed the internment camps as “training centres”.

The report averred that predominantly Muslim groups have been subjected to torture, forced sterilizations and forced labor, as well as the eradication of their linguistic, cultural and religious traditions, in what the United States and several Western parliaments have called genocide. Some of the centres have since been closed but there are still thought to be hundreds of thousands incarcerated. In several hundred cases families had no idea about the fate of relatives who had been detained. The report asserted, “Even if the [vocational education and training centers, or VETC] system has since been reduced in scope or wound up, as the government has claimed, the laws and policies that underpin it remain in place. There appears to be a parallel trend of an increased number and length of imprisonments occurring through criminal justice processes, suggesting that the focus of deprivation of liberty detentions has shifted towards imprisonment, on purported grounds of counter-terrorism and counter-‘extremism’”.

The report says that “serious human rights violations” have been committed in the Xinjiang Uyghur Autonomous Region (XUAR) in the context of the Chinese government’s application of counter-terrorism and counter-“extremism” strategies. It added, “The implementation of these strategies, and associated policies in XUAR has led to interlocking patterns of severe and undue restrictions on a wide range of human rights. These patterns of restrictions are characterized by a discriminatory component, as the underlying acts often directly or indirectly affect Uyghur and other predominantly Muslim communities”. The report goes on to say that the human rights violations documented in the OHCHR assessment flow from “a domestic ‘anti-terrorism law system’ that is deeply problematic from the perspective of international human rights norms and standards”. The system contains vague and open-ended concepts that give officials wide discretion to interpret and apply broad investigative, preventive and coercive powers, amid limited safeguards and little independent oversight, the report said.

Two-thirds of the former inmates interviewed by UN investigators “reported having been subjected to treatment that would amount to torture and/or other forms of ill-treatment”. The abuses described included beatings with electric batons while being strapped in a “tiger chair” (to which inmates are strapped by their hands and feet), extended solitary confinement, as well as what appeared to be a form of water boarding, “being subjected to interrogation with water being poured in their faces”. The report also described China’s “invasive” surveillance network, with police databases containing hundreds of thousands of files with biometric data such as facial and eyeball scans, which it says indicate “widespread surveillance of the ethnic language population”.

The report did not mention genocide, but said allegations of torture, including force medical procedures, as well as sexual violence were all “credible”. It said that the authorities had deemed violations of the three-child official limit on family size to be an indicator of “extremism”, leading to internment. The report also said that “Several women interviewed by OHCHR raised allegations of forced birth control, in particular forced IUD [intrauterine device] placements and possible forced sterilisations with respect to Uyghur and ethnic Kazakh women. Some women spoke of the risk of harsh punishments including ‘internment’ or ‘imprisonment’ for violations of the family planning policy.  Among these, OHCHR interviewed some women who said they were forced to have abortions or forced to have IUDs inserted, after having reached the permitted number of children under the family planning policy. These first-hand accounts, although limited in number, are considered credible”. The report noted that while the average rate of sterilization per 100,000 inhabitants in China as a whole was just over 32, in the XUAR it was 243.

The report, which made  13 recommendations to the Chinese government, including promptly releasing those detained arbitrarily in VETCs, prisons or other detention facilities, concluded that “The extent of arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslim groups, pursuant to law and policy, in context of restrictions and deprivation more generally of fundamental rights enjoyed individually and collectively, may constitute international crimes, in particular crimes against humanity”. Further, observing that Chinese Government policies in the region have “transcended borders”, separating families, “severing” contacts, producing “patterns of intimidations and threats” against the wider Uyghur diaspora who have spoken out about conditions at home, the OHCHR said that the Chinese Government “holds the primary duty to ensure that all laws and policies are brought into compliance with international human rights law and to promptly investigate any allegations of human rights violations, to ensure accountability for perpetrators, and to provide redress to victims”.

Other than some questions on the repeated delays in releasing the report, Bachelet’s reluctance to term the atrocities against the Uyghurs as genocide, and her use of the word “may” when suggesting that Chinese atrocities constituted international crimes and crimes against humanity, the report has been well received by most. In a statement signed by more than 60 groups, campaigners said the report by the world’s leading human rights body offered a confirmation of the abuses that human rights groups have documented in Xinjiang for years now. World Uyghur Congress President Dolkun Isa believes that “This UN report is extremely important. It paves the way for meaningful and tangible action by member states, UN bodies, and the business community. Accountability starts now”.

China, which had attempted until the last moment to stop the publication of the report, was furious. It claimed in an official response that the report was “based on the disinformation and lies fabricated by anti-China forces” and that it “wantonly smears and slanders” China and interferes in the country’s internal affairs. This reaction ignored the fact reported in the media that  90% of the facts in the report were taken from China’s own documents, bulletins, and white papers; 5% were from the UN’s own interviews; and 5% were from the reports of independent experts. The Chinese response was accompanied by a 121-page counter-report which sought to stress on the threat of terrorism and the stability that the State programme of “de-radicalisation” and “vocational education and training centres” has brought to Xinjiang. It also called for the UN and other international organizations to investigate “the human rights disasters caused, and numerous crimes committed, by the United States (US) and some other Western countries, both at home and abroad”.

UN Secretary-General António Guterres commented that the OHCHR assessment “clearly identifies serious human rights violations in the Xinjiang region of China”, and expressed the hope that “the Government of China will take on board the recommendations put forward in the assessment”. US Secretary of State Antony Blinken averred that the report “deepens and reaffirms our grave concern regarding the ongoing genocide”. Others, including the European Union, Japan, Germany, and Britain have welcomed the report’s publication.

The OHCHR made several recommendations to the Chinese government in the report, including the release of arbitrarily detained individuals and clarification of the whereabouts of missing individuals. It urged the government to curb its surveillance so it doesn’t violate fundamental rights and freedoms, and to provide reparations for victims. It also called for urgent attention by “United Nations intergovernmental bodies and human rights system, as well as the international community more broadly”. The report called on China to undertake a full legal review of its national security and counter-terrorism policies in XUAR, “to ensure their full compliance with binding international human rights law” and repeal any laws that fall short of international standards. It also called for a prompt Government investigation into allegations of human rights violations in camps and other detention facilities, “including allegations of torture, sexual violence, ill-treatment, forced medical treatment, as well as forced labour and reports of deaths in custody”.

As for what lies ahead after the report’s release, while the OHCHR assessment has no legal underpinning and is unlikely to prompt any significant change in Beijing, Justine Nolan, Professor of Law and Justice and Director of the Australian Human Rights Institute, believes that the significance of the report comes with the imprimatur of the United Nations. She feels what is needed is international action and pressure to force change. Activists and overseas Uyghurs have also welcomed the report as a symbolic step and a new level of recognition by the UN of the human rights violations in Xinjiang. Some hope the report can act as an international wake-up call.

Human Rights Watch was of the view that the report laid a solid foundation for further UN action to establish accountability for the abuses by China. John Fisher, Global Advocacy Deputy Director at Human Rights Watch, opined that “Never has it been so important for the UN system to stand up to Beijing, and to stand with victims. Governments should waste no time establishing an independent investigation and taking all measures necessary to advance accountability and provide Uyghurs and others the justice they are entitled”. Sophie Richardson, China director at Human Rights Watch, felt that “it’s the report that is essential, we think, to mobilizing international support for actual investigations and accountability”. She added, “This report obliges Human Rights Council member states, and indeed other states too, to urgently respond. This is a sober assessment of serious human rights violations committed by a powerful State and it is imperative that they respond to that the way they would to violations anywhere”.

Agnès Callamard, Secretary General of Amnesty International suggested that “Now that the OHCHR has finally made its findings public, it is time for the UN Human Rights Council to set up an independent international mechanism to investigate these crimes under international law and other serious human rights violations in Xinjiang.  All member states have a moral obligation to support proposals to discuss the report and establish an investigatory mechanism, or else be left on the wrong side of history. There must be accountability for the Chinese government’s crimes against humanity, including through the identification and eventual prosecution of those individuals suspected of responsibility”.  

Uyghur leader Rebiya Kadeer conveyed the expectations of many Uyghurs when she said, “I believe that today the world accuses China of committing crimes against humanity, and tomorrow it will be able to punish China for these crimes”. Kok Bayraq, a political émigré from Xinjiang and an opponent of the Sinicization of his homeland, prophesied that “a country that commits crimes against humanity and commits genocide cannot be a world leader. Humanity is not foolish and ignorant enough to allow this”.

As for South Asia, in spite of the OHCHR report, Pakistan, which is otherwise a champion of Muslim causes across the world, is hardly likely to lose much sleep over the incongruity of its gross inability to speak even a word in favour of the 12 million Muslim Uyghurs in its immediate neighbourhood that are having to endure “crimes against humanity” at the hands of Islamabad’s “all weather friend”, China.