How China is Violating Human Rights Treaties and its own Constitution in Xinjiang

The global community is finally starting to describe China’s “Strike Hard” campaign against Uighurs and other Muslim minorities in Xinjiang accurately, normalizing usage of terms including “genocide” and “concentration camps” to describe it. The campaign, questionably framed by the Chinese government as a counterterrorism operation, violates a half dozen international treaties, along with China’s own constitution. While recent condemnation by liberal democracies is much-needed progress, a crisis of this magnitude will require a whole-of-community response, along with continual legal and policy enforcement, to hold the Chinese Communist Party (CCP) accountable for the full scope of atrocities it’s committing in Xinjiang.

New research has revealed that Uighur labor is being trafficked in supply chains relied on by major multinationals brands, driving more global attention to Xinjiang. And as Lisa Reinsberg recently wrote in Just Security, China’s official policies to dilute and reduce the Uighur population appear to violate international human rights law.

But these policies also violate the Universal Declaration of Human Rights (UDHR); the International Covenant on Economic, Social and Cultural Rights (ICESCR); the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD); and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), all of which China has ratified. And unsurprisingly, the campaign appears to violate China’s constitution, despite its oft-ambiguous wording. Studying the full spectrum of violations of international and Chinese constitutional law committed by the CCP in its treatment of Uighurs in Xinjiang could help inform diplomatic strategy and inspire popular support.

Diluting and Dissolving Uighur Culture

China has made a concerted effort to dilute and dissolve all traces of Uighur culture through suppression of religious freedoms and forced assimilation. Prisoners have described being forced to renounce their ideologies and pledge allegiance to the CCP through tactics akin to brainwashing. Even outside of the camps, Muslims are prevented from: performing traditional religious burial rites, marriage ceremonies, and circumcisions; giving their children Muslim names; growing long beards; wearing head and face coverings; fasting during Ramadan; and making pilgrimages to Mecca. China has even gone as far as to force Muslims to eat pork and drink alcohol, and launched a campaign against halal food, making it more difficult to find in Xinjiang.

Rights to religious, cultural, and social self-determination are protected as fundamental freedoms by several treaties China is party to, including Articles 1, 2, and 15 of the ICESCR; Articles 2 and 5 of the ICERD; and Articles 18-20 of the UDHR. China’s constitution also (rather ambiguously) provides for religious freedoms: Article 36 expressly states that “no state organ, public organization, or individual may compel citizens to believe in, or not believe in, any religion.” But the same section cautions that the state only protects “normal” religious activities that do not “disrupt public order, impair the health of citizens, or interfere with the educational system of the state.”

Violations of Family Life

Lisa Reinsberg has more than adequately covered China’s forced sterilization of Uighur women. But China is also engaging in a handful of other brazen disruptions of family life in Xinjiang.

Over the last several years, Beijing launched the “Pair Up and Become Family” program, deploying CCP members called “cadres” to regularly stay with Muslim families, infiltrating their intimate home lives. The program aims to coerce Uighurs to assimilate to the Han majority. Cadres report any divergences from the Party’s “prescribed lifestyle,” including religious practices like praying and wearing traditional Muslim clothing. Visits sometimes last longer than five days, and the families’ movements are scrutinized and monitored the whole time. Cadres even sometimes sleep in the same bed as their Uighur hosts, and often, women and children are the only ones in the home after male relatives are detained at state-run camps.

The systematic separation of families is also evident, with children either being placed in orphanages when their parents are detained in camps or sent elsewhere in China for state-mandated education. The “Xinjiang Classrooms” policy “takes thousands of Uighur children away from their families and immerses them in Han Chinese institutions, far from their native language and cultural environment,” according to testimony by Mihrigul Tursun, a Uighur woman who defected from China. Even educating children at home is considered “extremist” under regulations put in place for Xinjiang in 2017.

Family is considered a sacred institution under human rights law and is protected under several landmark treaties. The Pair Up and Become Family and Xinjiang Classrooms programs breach Articles 12, 16, and 26 of the UDHR, which protects the family from state interference as the “natural and fundamental group unit of society” and grants parents the right to choose how they educate their children. Article 10 of the ICESCR provides similar protections, and Article 2 of the Genocide Convention lists “forcibly transferring children of the group to another group” as a potential means of committing genocide.

Extreme Physical and Mental Abuse

Conditions at the camps are opaque because of the intense continued monitoring of Uighurs’ communication and movement. But there are widespread credible reports of extreme physical and mental abuse that meet the definition of torture under international human rights law, including the CAT, which mandates that even in exceptional circumstances, states must take measures to prevent “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for purposes of obtaining a confession, intimidation or coercion, discrimination, or punishment.

Former Uighur detainees describe crowded cells; brainwashing that drove some to suicide; waterboarding; torture during interrogations; food deprivation as punishment; beatings; being shackled to chairs for long periods of time; sleep deprivation; being forcibly drugged; being shocked in an electric chair; and other forms of extreme physical and mental abuse.

There are also reports of widespread rape and sexual humiliation committed against Uighur detainees. According to Washington Post reporting, “many [Uighur women interviewed] said they were subjected to sexual humiliation, incidents that included being filmed in the shower and having their intimate parts rubbed with chile paste.” A Kazakh national who was forced to work in a camp said every evening, guards would take “the pretty girls with them” and return them to their cells in the morning. The same woman witnessed gang rapes, including an incident other detainees were forced to watch.

In 2018 testimony before the U.S. Congressional-Executive Commission on China, Tursun described her experience of being tortured in an electric chair. She also recalls being given two drugs: one that caused a loss of consciousness and reduced cognition, and another that caused mixed side effects for different women, including loss of menstruation, extreme bleeding, and even death. Tursun witnessed nine deaths in her cell of 68 people during three months of incarceration.

In addition to the CAT, these abuses also appear to violate Article 2 of the Genocide Convention by “causing serious bodily or mental harm” to targeted Uighur victims. The abuses also violate Article 5 of the ICERD and the UDHR, which both guarantee protection from torture and punishment regardless of race, sex, religion, or other status.

Destruction of Cultural Heritage Sites

Satellite research shows that Chinese officials have destroyed mosques, sacred burial grounds, and other religious, cultural, and historical sites, claiming that buildings were poorly constructed and unsafe. Many of these sites have been replaced by bars and restaurants that cater to the tastes of Han tourists.

Similar crimes have been successfully prosecuted in the International Criminal Court (ICC), including the destruction of protected religious and historic sites in Timbuktu (albeit as a war crime). China’s constitution protects “places of scenic and historical interest, valuable cultural monuments and relics, and other important items of China’s historical and cultural heritage” — a provision that only seems to apply to Han Chinese culture.

Forced Labor

Evidence of mass forced labor among the Uighur population has sparked recent policy action, including U.S. Global Magnitsky Act sanctions against the Xinjiang Production and Construction Corps, a Chinese paramilitary group that controls parts of Xinjiang’s economy and operates some of the camps there. An Australian Strategic Policy Institute report conservatively estimated that between 2017 and 2019, more than 80,000 Uighurs were transferred under the Xinjiang Aid program to factories elsewhere in China, tainting major global supply chains with trafficked labor.

At the factories, Uighurs remain under close surveillance. They live in segregated dormitories and continue with their ideological “reeducation” outside of working hours. Workers have reported being exploited for overtime hours, making less than their Han coworkers, being subjected to predatory bosses, and other abusive labor practices. The threat of being sent back to the concentration camps constantly hangs over them.

China is not party to any treaties against forced labor promulgated through the International Labour Organization. However, Article 23 of the UDHR guarantees basic protections against forced labor, and Article 4 of China’s constitution pledges to protect minorities.

Summary Detention Without Due Process

China is also summarily and indefinitely detaining individuals without due process, a flagrant violation of basic human rights. In many cases, relatives are unable to communicate with detainees and may not be aware of where they are for years. According to lawyers interviewed by human rights groups, detainees in Xinjiang are not allowed to plead “not guilty” to terrorism charges. In some cases, verdicts are prepared prior to trial, or sentences are decided beforehand by Party officials.

Articles 9-11 of the UDHR, which China has ratified, guarantee basic due process rights. And China’s constitution states that “no citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security organ.” While China may argue that its 2016 Counterterrorism Law permits mass arrests of its citizens for simply practicing their religion, this argument would be null if it can be proven that the law itself violates international treaties China has ratified, along with its own constitution.

Rights to Freedom of Movement

Uighurs’ rights to freedom of movement, especially attempts to leave China, are officially sanctioned under China’s counterterrorism policies. This blatantly violates Article 5 of the ICERD, which lists freedom of movement — and the right to leave and return to the country — as enforceable civil rights. Article 13 of the UDHR provides the same guarantees.

Options for a Global Response

As Connor O’Steen outlined in an earlier Just Security article, an effective international response to China’s brutal campaign against Uighurs will require a combination of unilateral and multilateral measures. And to truly yield change, state-led actions must be underwritten by a comprehensive effort involving civil society, academia, and journalists, among others.

Sanctions

Unilateral legal, economic, and policy tools can be blunt. While economic sanctions carry weight, they can prove somewhat fruitless in addressing the root cause of any issue on their own. Sanctions often have loopholes — as the EU has demonstrated with financial workarounds for U.S. restrictions on Iran — and will result in irreversible damage to Xinjiang’s economy if applied over a long period of time. Sanctioning nations should be cautious that their efforts don’t do more harm than good to the very population they intend to help.

The United States will also face difficulty as it tries to keep pace with China’s evasive supply chain practices. Many companies, in response to U.S. policy and guidance, will consider supply chain touchpoints in Xinjiang entirely off-limits. But there’s a risk that the pervasiveness of Uighur forced labor in other parts of China will be inescapable as the CCP perpetually reshuffles detainees to other industries, factories, and provinces, tainting supply chains faster than government entity lists can be updated.

Liberal democracies should cast a wider net to target elite CCP officials outside of Xinjiang — especially those directly responsible for the Strike Hard campaign — with visa, financial, and asset-related “smart sanctions.” When sanctions target those at the highest echelons of power, they can accelerate political movement, act as incentive for behavioral change, and be leveraged in later negotiations. U.S. Global Magnitsky sanctions on two Turkish government officials in 2018 led to the release of Pastor Andrew Brunson from prison, making a strong case that sanctions can be effective as part of a broader diplomatic campaign. EU countries and other liberal democracies should not wait to implement their own Global Magnitsky sanctions against complicit CCP officials, and they, along with the United States, must show they are serious about holding companies and officials accountable for violations using a range of sanctions with robust, public enforcement.

Diplomatic and Societal Efforts

To fortify these sanctions regimes, governments, multilateral organizations, and NGOs must meticulously track and document violations of international law being committed in Xinjiang. A free and independent media also plays an incredibly important role in uncovering and analyzing information, as well as keeping the issue at the forefront of the public consciousness. These institutions, along with academic and civil society organizations advocating for accountability in Xinjiang, should be fully supported.

Finally, the International Olympic Committee (IOC) should revoke China’s privileges to host the 2022 Winter Olympics. It would be an irreversible embarrassment for the global community to allow a country perpetuating and denying an ongoing genocide to simultaneously reap the economic and reputational benefits of the most coveted sporting event in the world. The IOC, an organization plagued by corruption, is not likely to do this unprompted — but it may be forced to act if liberal democracies threaten an Olympic boycott.

Considering the full spectrum of violations of international law could present new ways to harness a more coordinated diplomatic response by swaying other states — such as the 37 that signed a letter last year in support of China’s policies in Xinjiang — toward condemnation. But messaging from government leaders engaging in this effort must be consistent and refrain from undercutting such a coordinated diplomatic response, as Trump allegedly did in conversations with Chinese President Xi Jinping on more than one occasion.

International Legal Action

Although China is not party to the Rome Statute and holds veto power in the U.N. Security Council, there may be a path to legal action through the ICC. But the application of international law is complicated by China’s unwavering protectionism of its sovereignty, along with its geopolitical, diplomatic, and economic ties with countries that may not be able to break from its grasp, being entangled in China’s “Belt and Road” predatory lending strategy.

Further, even if the formidable obstacles to ICC action were overcome, international criminal law is difficult to enforce. Because the ICC does not have its own enforcement body, it relies on global cooperation for support in arresting and transferring individuals, obtaining evidence, and enforcing orders. Some countries may be unwilling to arrest and extradite Chinese officials for fear of repercussions, prioritizing economic security and Chinese foreign direct investment over human rights concerns.

The pandemic and resulting global economic downturn will undoubtedly reshape how Belt and Road countries and major powers engage with China, whose “mask diplomacy” seems to be failing it. Liberal democracies are showing less tolerance and have recently taken swift action to denounce China’s national security law in Hong Kong, cyberespionage and cyberattacks, and moves by tech companies. The world must now decide how far it will allow China to go in its human rights atrocities without facing global repercussions. 

About the Author(s)

Giavanna O'Connell

Giavanna O’Connell studies terrorism at the University of Maryland’s National Consortium for the Study of Terrorism and Responses to Terrorism (START). She works in global anti-corruption. Follow her on Twitter (@gigioconnell).