The treatment of the Uyghur population by the CCP has been an ongoing concern for the last 5 years. Over this time information has leaked from government and security sources which indicates that grave human rights violations and potentially even crimes against humanity have been committed. The UN High Commissioner has recently visited China and the Xinjiang region and in this context the newest significant trove of information was released, showing once more the human rights abuses. Yet it is unlikely that any multilateral action will be taken, outside of diplomatic efforts. As there are few avenues to address these human rights violations in international law, the more diplomatic approach that can be seen in the visit of the High Commissioner should be supported.
The Situation in Xinjiang
The Xinjiang Autonomous Region is the only region in China that has a majority Muslim population. Since 2016 the Chinese government has detained significant numbers of the Uyghur population in the Xinjiang autonomous region. The exact number of detained Uyghurs is unknown but could be up to 12% of the adult Uyghur population. This came after several instances of terrorist groups inciting riots and committing attacks on Han Chinese citizens. These groups, which include the Turkistan Islamic Party, seek the secession of Xinjiang from China. The Chinese government stated that a significant number of the Uyghur people had become polluted by religious extremist forces and needed to be re-educated. The Chinese government has subsequently systematically arrested Uyghurs and put them in so-called “transformation through education centers”. Individuals have generally been arrested and sent to these centers without due process. These re-education centers appear to be focused on erasing the existing culture and religion amongst Uyghur people. Reports of severe ill-treatment, torture and forced labour have become common. Multiple parliaments have even recognized the situation as an ongoing genocide.
Xinjang Police Files
Over the last few years there have been several instances in which official documents have been leaked, such as notably the China Cables. In May 2022 the latest leak became available: the Xinjiang Police Files. These files are purportedly from Xinjiang police servers and include speeches, images, detainee records, training and instruction manuals for guards, and other documents revealing widescale abuses. Many photos of detained individuals are included, as well as images from inside the detainment camps. The images and documents clearly show that the detention centers are not simply vocational training facilities – as is often claimed by Party officials – instead they reveal the presence of armed guards and detail the authorization to use force. These documents appear to be legitimate and corroborate with existing reports and known evidence. The publication of these leaks seems to have been coordinated to coincide with the visit of the UN High Commissioner, in order to ensure more attention to the plight of the Uyghur population and increase public pressure on the visit of the UN High Commissioner. This has been at least somewhat successful, as several states made comments that the release of these documents showed the importance for unfettered access for the High Commissioner.
The Visit of the UN High Commissioner
Last week the UN High Commissioner for Human Rights visited China and the Xinjiang region specifically, marking the first visit of a UN High Commissioner to China in 15 years. The original call for access was made over 3 years ago, and the visit was preceded by long and difficult negotiations between the High Commissioner and the Chinese government, concerning the exact access and purpose of the visit. The High Commissioner has made clear that this is a visit and not an investigation. The exact details of the conditions for this visit have not been made public. The visit has received significant critiques from NGOs, such as Human Rights Watch, and several states, among which the US, have mentioned that the visit will be used for propaganda purposes, showing only an idealized picture.
Are There Avenues to Address the Violations?
Chinese treatment of the Uyghur people has long been of interest to the international community. Many NGOs and several states have publicly made claims that crimes against humanity have been committed and the US has even stated that it was an ongoing genocide. NGOs, such as Amnesty International, and Uyghur interest groups have argued that action should be taken to ensure better protection of the Uyghur population and to ensure that those that have potentially committed crimes against humanity should be prosecuted. However, little has been done. Human Rights Watch has argued that human rights abuses in China have worsened, because there is no fear of accountability.
Materials have been submitted and lobbying attempts have been made by groups, such as East Turkistan Government in Exile and the East Turkistan National Awakening Movement, to involve the ICC and have the office of the prosecutor start an investigation into whether crimes against humanity have been committed. This has not been successful, as the Office of the Prosecutor argues that there is no potential jurisdiction for the court. This is because China is not a party to the Rome Statute and any potential crimes have only been committed by Chinese nationals on Chinese territory, preventing the exercise of jurisdiction. The new information in the Xinjiang Police Files will not change this fact.
Another option could have been to start proceedings against China before the International Court of Justice (ICJ), similar to the case against Myanmar brought by Gambia on the basis of a potential violation of the Genocide Convention, or the case brought by Ukraine against Russia on the basis of the International Convention on the Elimination of All Forms of Racial Discrimination. However, a case cannot be brought against China on the basis of either of these treaties, as China made reservations to both conventions, excluding disputes on the basis of these treaties from the mandatory jurisdiction of the ICJ.
Other avenues have also been blocked due to a lack of access. While many international human rights conventions allow for either complaints to be brought by states parties against other states parties or by individuals against states parties, China has consistently not accepted such procedures. This has been done by either not becoming party to a protocol setting up such a mechanism, not submitting a declaration to accept the competence or through making specific reservations against such procedures.
Consequently, there is no route within international law towards any potential consequences for the treatment of the Uyghur people. This leaves the possibility for creating a solution within the context of political bodies. It is unlikely that action will be taken by the Security Council, due to the fact that China is one of its permanent members. Other international bodies could play a significant role in putting pressure on the Chinese government through their actions, yet this would again be mainly diplomatic pressure. So far, the situation has been mentioned in the Human Rights Council and the General Assembly, however China has also received significant support from many states with which it has strong economic ties. On top of that, even if actions were to be taken, these would not be binding.
Conclusion
However, even with the lack of forceful measures, it appears clear that consistent diplomatic pressure on this issue from many western states has had an effect on the Chinese government, as it has allowed the UN High Commissioner of Human Rights to visit Xinjiang. This is the first visit of a UN High Commissioner to China since 2005 and it could be seen as a potential for further progressive development in this regard. It could form the basis of increased diplomatic pressure on the Chinese government to act in accordance with its human rights obligations. Unilateral sanctions have so far proven to be unsuccessful and binding measures within the context of the Security Council are impossible. The lack of a real potential for more forceful measures makes it necessary to employ a lighter touch. The visit could be considered as a real point of progress in this regard. Even though there already appears to be some incongruence in the manner in which China and the UN High Commissioner present the result of the visit, the visit itself could provide inroads for further diplomatic efforts to improve the human rights situation. It could also be seen as a move by China towards a potentially more open dialogue about its compliance with human rights obligations. While it certainly is a relatively small step, there appears to be some progress at least in providing more information, which could pave the way for potential future efforts and continued dialogue. Therefore, even if a sanitized view has been presented, the potential of progress in the future must not be rejected and efforts such as the visit of the UN High Commissioner should be supported.
Barry de Vries
