Category: Xinjiang

The Economist’s Recent Piece about Genocide in Xinjiang is Wrong

By , February 15, 2021
Protest outside of China

It was disappointing to read The Economist‘s most recent piece about the atrocities in China’s Xinjiang province – “‘Genocide’ is the wrong word for the horrors of Xinjiang” given the hard stance it has taken in the past against the Chinese government’s violence, oppression and mass internment of Uighurs and other Turkic Muslims. But in its most recent article, by ignoring the sexual violence against Uighur and Kazakh women, The Economist demonstrates its lack of understanding of the crime of genocide under international law and perpetuates a misogynistic view of the crime.  

Although sexual violence has been a key element of most genocides – from Armenia in 1915 to the Rohingya today[1] – the term rape does not appear in either the Genocide Convention or the Rome Statute of the International Criminal Court.  But the systematic rape of women has repeatedly been found to constitute the physical element of genocide.  In 1998, the U.N. Tribunal for Rwanda found former Hutu mayor Jean-Paul Akayesu guilty of genocide for the systemic rape of Tutsi women in his community.[2] Specifically, the Tribunal held that systematic rape constituted the genocidal act of “causing serious bodily or mental harm to members of the group.”[3] More recently, the U.N.’s Independent International Commission of Inquiry on Syria concluded that the Islamic State of Iraq’s (“ISIS”) systematic rape of Yazidi women and girls constituted the physical element of genocide: “Rape can be a measure to prevent births [another defined genocide act under the Convention] ‘when the person raped subsequently refuses to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.’”[4]

Uighur Protest in front of the Chinese consulate in Istanbul on October 1, 2019 (Photo by Yasin AKGUL / AFP)

But in arguing that genocide is the wrong word to describe what is happening in Xinjiang, The Economist ignores clear legal doctrine.  Allegations of rape in Xinjiang’s concentration camps have been circulating since at least 2019.  Earlier this month, the BBC reported on the systematic use of rape and sexual torture against Uighur women in the concertation camps, with different women, from different camps, describing the same horrific acts perpetrated by Chinese state actors. The eerie similarity in these women’s stories is what gives them credibility, especially as the Chinese government’s sole retort is to state that these sources are “untrustworthy.” The Chinese government has also failed to give the U.N. High Commissioner on Human Rights access to Xinjiang for an independent assessment of what is happening there.  If The Economist failed to mention these women’s stories because it doesn’t think these stories “prove” genocide, “we should long ago have shifted the burden of proof away from the refugees and to the skeptics, who should be required to offer persuasive reasons for disputing eyewitness claims.”[5]

In addition to ignoring the well-developed doctrine that mass rapes can constitute the physical element of genocide, The Economist implies that the only action that could be “intended to prevent births” is “the systematic sterilisation of all women.” As show above, the United Nations – and the world – moved away from such a narrow definition years ago. The Economist does a disservice to its readers – and female victims of genocide – by offering such an inaccurate assessment. 

Uighur woman walking past Chinese government troops.

Ultimately though, it appears that The Economist wanted to make the argument that we shouldn’t get hung up on defining what is happening in Xinjiang as a genocide or as crimes against humanity; it’s all just a parade of horrors that need to end.  China Law & Policy has made this argument too (see here) since for both genocide and crimes against humanity, U.N. member states have the same “responsibility to protect.” But The Economist went too big in definitively stating that what is happening in Xinjiang is not genocide. The Economist does not know that and offers no proof or legal analysis; instead it merely states that genocide “exaggerates” the Chinese government’s crimes in Xinjiang.  But it doesn’t if you focus on the violence perpetrated against Uighur women.  The Economist – and the world at large – would be wise to heed the advice of Samantha Power in her authoritative book on the world’s missteps in stopping genocide in the past: “A bias toward belief would do less harm than a bias toward disbelief.”[6]


[1] Global Justice Center, Beyond Killing: Gender, Genocide & Obligations Under International Law, pp. 18-19 (Dec. 6, 2018), available at https://globaljusticecenter.net/files/Gender-and-Genocide-Whitepaper-FINAL.pdf.

[2] Samantha Power, “A Problem from Hell”: America and the Age of Genocide, pp. 485-86 (Harper Perennial 2002).

[3] Id.

[4] U.N. Human Rights Council, “They came to destroy”: ISIS Crimes Against the Yazidis, ¶ 145 (June 15, 2016), available at https://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf.

[5] Power, supra note 2, at p. 506.

[6] Id.

Genocide Declared, Now What?

By , January 19, 2021

In one of his last acts as Secretary of State, Mike Pompeo stated that the Chinese government’s extrajudicial internment of 1.8 million Uyghurs, the torture and forced labor of Uyghur detainees, and the forced sterilizations and abortions of Uyghur women, amounts to crimes against humanity and genocide.  Hours later, in his confirmation hearings, President-elect Biden’s secretary of state nominee Antony Blinken agreed with Pompeo’s designation of genocide.  Immediately, the U.S. press heralded the bi-partisan nature of this genocide declaration.

But genocide is not just about the acts committed; it also requires government intent to physically or biologically destroy the group.  See Convention on the Prevention and Punishment of the Crime of Genocide (“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”) (emphasis added).  By declaring genocide, the U.S. government could easily get bogged down in this required element, an element that even Pompeo left out of his declaration. Nowhere in his statement does Pompeo assert that the Chinese government had an intent to physically destroy the Uyghur people. 

Mike Pompeo

That is why Pompeo’s declaration that the Chinese government’s actions in Xinjiang province amounts to crimes against humanity is more actionable, and has been for the past couple of years. Like genocide, crimes against humanity include acts that attack the very soul of a people and its culture: murder, extermination, torture, arbitrary detention, forcible transfer of a population, rape, sexual violence, forced sterilizations, apartheid. But unlike genocide, these crimes do not require an intent to biologically destroy.  Instead, acts that constitute crimes against humanity merely need to be part of a widespread or systemic attack directed at a group, with the perpetrator’s knowledge that his or her acts are part of this larger attack.  In looking at Pompeo’s declaration of genocide he states that “we are witnessing the systematic attempt to destroy Uyghurs.” In those words, he seems to mistake the element of crimes against humanity for genocide.

This isn’t to say that the crime of genocide is not occurring in Xinjiang nor that such a declaration is inconsequential. It certainly carries meaning and should. But the U.S. must ensures that it acts on these declarations and not just get caught up in a war of words with China and its allies, something that could more easily happen by solely focusing on genocide.  In fact, the United Nations, through a 2005 Resolution signed by all 193 member states, requires countries to respond similarly to both genocide and crimes against humanity. For both, states have a duty to “protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” and must “use appropriate diplomatic, humanitarian and other peaceful means.” See ¶¶ 138-39.

Antony Blinken at his Senate Confirmation Hearing, Jan. 19, 2021

To fulfill this obligation to protect, the U.S. must step up its efforts.  Pompeo’s statement, while full of important policy pronouncements, provided no new courses of action. Similarly, Blinken’s suggestions on how to respond – ensure that we don’t import cotton picked by forced labor and guarantee that we don’t sell surveillance technologies to China – didn’t break new ground.  Instead, the U.S. should be advocating a liberal asylum/refugee policy for Uyghurs. 

More obvious, the U.S. government needs to start discussing boycotting the 2022 Winter Olympics in Beijing and encourage allies to do the same.  How can the U.S. send its athletes to compete in games hosted by a country engaging in crimes against humanity and genocide?  To do so would render Pompeo and Blinken’s statements today hollow words and would embolden the Chinese government – and all governments – to continue genocidal policies.  The last time we ignored the genocidal intent of a host country – Berlin, 1936 – six million Jews were murdered by the governing party.  The 2022 Winter Olympics are a little more than a year away.  In fairness to our athletes, these discussions must begin now.  Also, making these discussions public now, might save some lives in Xinjiang. 

But the U.S. cannot go this alone, either boycotting the 2022 Olympic boycott or fulfilling its responsibility to protect. Only a multilateral response can defeat crimes against humanity; no individual country has ever been able to end a genocide. The U.S. must re-engage international institutions including re-joining the U.N. Human Rights Council, a body where has been dominated by China since the U.S.’ 2018 withdrawal from the Council.

Genocide is a bold word. Those words need to be followed up with bold action.  Failure to do so only weakens those post-World War II international institutions and treaties the Biden Administration has promised to uphold.  It also means that Uyghurs will continue to suffer while all we did was play word games.

When Journalism Is not Journalism: The Grayzone’s Faulty Analysis of What is Happening in Xinjiang

By , January 5, 2020

When I started seeing the Grayzone, a website that describes itself as “dedicated to original investigative journalism,” touted in various Chinese media reports (see here and here) for a study that allegedly debunked the estimate of one million Uighurs detained in internment camps in Xinjiang, I felt like I had to read it. But to call the Grayzone piece an analysis – or even objective journalism – would be a serious overstatement.  Instead, Ajit Singh and Max Blumenthal, the authors of “China detaining millions of Uyghurs?  Serious problems with claims by US-backed NGO and far-right researcher ‘led by God’ against Beijing,” largely dedicate their piece to the character assassination of the two organizations/people who first estimated the one million figure: the Network of Chinese Human Rights Defenders (CHRD) and Adrian Zenz, a social scientist at the European School of Culture & Theology and now a senior fellow at the Victims of Communism Memorial Foundation.

By focusing almost exclusively on ad hominem attacks, Singh and Blumenthal conveniently ignore that subsequent data sources have confirmed a one million number as credible.  And most absurdly, after portraying the CHRD and Zenz’s admissions that their numbers are merely estimates as a fatal flaw, Singh and Blumenthal completely fail to acknowledge why we can only estimate the number detained.  The keeper of the exact numbers – the Chinese government – refuses to publish any numbers let alone permit international monitors to enter Xinjiang and conduct their own, independent, on-the-ground analysis.

Protest to free one million Uighurs, held in Geneva in 2018

But regardless of the uselessness of the Grayzone article, it is good to periodically question our assumptions and re-review where exactly the the one million number comes from.  About a year ago, Jessica Batke, a senior editor at Asia Society’s ChinaFile and a former intelligence analyst at the U.S. Department of State, did just that, meticulously explaining why the one million estimate is likely not off the mark.  This post largely summarizes Batke’s piece in the context of the Grayzone article.

Singh and Blumethal begin their piece by questioning the CHRD study which was based upon interviews with eight ethnic Uighurs in Xinjiang.  For Singh and Blumethal, drawing a conclusion of one million detained from just talking to eight people is preposterous.   But the two choose to ignore the reasons why CHRD extrapolated one million detainees from its eight interviews.  As Batke points out in her analysis, each of these eight Uighurs were from a different village in southern Xinjiang.  Each person gave their estimate of the number of people who have gone missing in their village.  Based upon that number, CHRD formulated a detention rate for each village which ranged between 8% and 20%.  From those rates, CHRD chose a rather conservative estimate of a 10% Uighur detention rate province-wide, or, given that there are approximately 10 million Uighurs in Xinjiang, a one million detention number.

A prison camp in Xinjiang

Certainly there are things to question on CHRD’s numbers: how did each of these eight people know the number of people missing? Are they interned or did they just move?  But Singh and Blumenthal do not ask these questions.  Instead, for them, the death knell for the reliability of the CHRD estimate is the fact that CHRD receives funding from the National Endowment for Democracy (NED). But they never explain why this link matters or provide any evidence that this funding somehow undermines the reliability of CHRD’s estimate.

Similarly, Singh and Blumenthal’s review of Adrian Zenz’s study is more focused on his religious and political viewpoints, and his current source of funding, rather than on the data itself.  In the little attention the two give to Zenz’s data, they completely mischaracterize it.  Singh and Blumenthal state that Zenz’s one million estimate was based upon numbers reported by Istiqlal TV, a Uigher television station based in Turkey that often features interviews with suspected terrorists, which Singh and Blumethal believe reflect Istiqlal’s inherent unreliability.  But they conveniently leave out the fact that it was a Chinese public security official that leaked this data to Istiqlal TV, a fact later reported in Newsweek Japan.  Batke also noted this fact in her careful analysis of Zenz’s one million estimate, highlighting that the Chinese-leaked data listed around 892,000 individuals in 68 different counties in Xinjiang as detained.  However, as Zenz pointed out, the data was missing key population centers.  But instead of simply assuming that the same detention rate applies to the missing population centers, a method that would produce much more than one million detained, Zenz did a deep dive on the missing population centers, taking into account important difference, and according to Batke, comes up with a conservative – and plausible – estimate of one million detained.

Satellite images show the rapid construction of camps in Xinjiang

Batke also highlights corroborating evidence: the satellite images and Chinese government documents that also point to an equally large number of Uighurs being detained.  In October 2018, the BBC had experts review satellite images of the camps.  That group of experts concluded that 44 of the camps had a high or very high likelihood of being security facilities and a separate team architects determined that in examining one of these facilities, it could hold anywhere from 11,000 people, if each inmate has his or her own room, to 130,000 people, assuming these are dormitories.  Camp survivors have stated that they lived in cells with as many as 40 people.  Batke noted that if we took the higher number of people detained – which seems to be credible given survivors’ accounts – there would only need to be 10 similarly-sized camps to get to the one million mark.  Finally, as Batke points out, the Chinese government’s own documents – both its procurement documents and budget and spending reports –suggest that a very large number of people are being detained.

The one million estimate as the number of Uighurs detained is Xinjiang is not coming out of thin air.  Four different sources – CHRD, Zenz, satellite images, government documents – all come to the same conclusion.  Media outlets like ChinaFile and Quartz have also re-reviewed the data and found the one million estimate credible.  These outlets actively engage the data, unlike But Singh and Blumenthal whose focus is more character assassination.  Ultimately the only purpose that Singh and Blumenthal’s article serves is as a perfect example of the logical fallacy of argumentum ad hominem.

Putting One’s Life on the Line: Criminal Liability for Xinjiang Documents Leak

By , November 26, 2019

A prison camp in Xinjiang

Last October, after denying the existence of internment camps in Xinjiang for over a year, the Chinese government finally admitted to their existence but claimed that they were nothing more than “vocational education and training centers.” Places where “students” – over one million of them and almost all Uighur and other Turkic Muslims – could rid themselves of Islamic extremism while simultaneously upgrading their job skills.  But camp survivors’ stories paint an entirely different, and much darker picture.  In story after story, former detainees talked about the prison-like conditions, of being held for months to years without access to the outside world, of physiological and physical abuse, and punishment solely for practicing their faith.  Women have consistently spoken of rape, forced sterilization and forced abortion.  Unfortunately, with the Chinese government’s refusal to allow outside monitors unfettered access to the camps, these survivors’ stories could not be corroborated.

Until now.  In the past two weeks, both The New York Times and the International Consortium of Investigative Journalists (“ICIJ”) have published two different troves of confidential Chinese government documents (the “Xinjiang Papers” and the “China Cables,” respectively) that confirm the unlawfully detention of Uighurs in what are essentially prisons.  According to the Xinjiang Papers, any direct inquiry by relatives as to whether their detained family member has committed a crime, officials are to answer no but immediately follow it up with the assertion that the their family member still needs  “education” to rid themselves of “unhealthy thoughts,” likening Islam to a disease.

Inside a Xinjiang Camp – looking more like a prison than a job skills class

ICIJ’s China Cables provide even more detail into the everyday operations of the prison camps.  Detainees are kept in “double-locked” rooms at all times and are constantly watched, even in the bathroom. Preventing escapes is paramount and there must not be any “blind spots” in the video surveillance of the detainees.  Guards are trained in “combat exercises” to ensure their immediate response if “something happens.”  Detainees are forbidden from having cell phones and family visits are never in person; only periodic phone calls and occasional video chats are permitted. Detainees are forced to remain in the center for at least a year.  And while the government documents refer to the camps as “vocational skills training centers,” it is apparent from the guidance provided to the camp administrators that the focus is to Sinicize the Uighurs and stamp out their religion.  In fact it is only after a year of ideological indoctrination do some – not all – detainees continue on for a three to six month “skills improvement” training, a training that is more responsive to future employers’ needs than to the individual’s.

In no way did the Chinese government ever want these documents released.  And the people who leaked these documents to the New York Times and to ICIJ put their lives on the line to stop the mass atrocities in Xinjiang.  According to Margaret K. Lewis, a professor of Chinese law at Seton Hall University, at least some of these documents would be considered state secrets.  “What is a state secret is very vague, can be defined retroactively and doesn’t need to be stamped ‘state secret’ to be considered a state secret,” Lewis told me when I asked her about the leak of the Xinjiang documents. Under China’s Criminal Law (“CL”), leaking state secrets is a serious offense, carrying a sentence anywhere from 10 years to life where the circumstances are especially serious (CL, Art. 111), which one would think is present here.  A death sentence is possible if the leak causes particularly grave harm (CL, Art. 113).

“They could also be charged with subverting state power,” Lewis told me.  “It’s not just what the documents were but also why they were giving these to foreigners” Lewis continued.  Like state secrets, subverting state power (CL, Art. 105) can carry up to a life sentence and if the person colluded with foreigners in the subversion, arguably what the whistleblowers did here, then the law requires that the punishment be severe (CL, Art. 106).  But, unlike state secrets, subverting state power is not subject to the death penalty.  In pressing Lewis further on what she thought the whistleblowers would be charged with and what type of sentence they would get, Lewis was clear: “This is less of a legal question and more of a political one.”  To Lewis, it will come down to what is best for President Xi Jinping: is it better to make an example of the whistleblowers, or are the whistle blowers high enough officials that publicly identifying who they are could be an embarrassment to the Chinese government, and thus their prosecution may never be public.  Under Article 183 of China’s Criminal Procedure Law, state secrets trials are closed to the public.

“The one thing that is certain,” Lewis told me “is, if the whistleblowers are caught, they will experience long-term detention and suffering.” And their families. “You’re not just putting yourself at risk, but also your loved ones,” Lewis said. “Whoever this person is, I am grateful for the risks taken to bring the documents to light.”

Protest in Brussels Calling on the EU to Speak Up Against the Internment of Uighurs

These whistleblowers must have known the high costs associated with leaking the documents.  But still they determined that it was worth it; that the world must know precisely what is happening in the Xinjiang prison camps; that Uighurs are unnecessarily suffering at the hands of the Chinese government; and that it must be stopped.  But since the release of the China Cables on Sunday, only the United Kingdom and Germany have demanded that China provide unfettered access to United Nations human rights observers.  But where is everyone else?  Where is the United Nations’ response?  Will Antonio Guterres, the current Secretary General who has stayed mum for the last two years about China’s treatment of Uighurs, finally condemn China’s actions?  And while the United States issued a strong statement, it could do more. The Uyghur Human Rights Policy Act is just sitting in the House; the State Department has yet to call call for the UN to be given unfettered access to Xinjiang; and Treasury makes no mention of  Maginsky Act sanctions against some of the high-level officials named in the Xinjiang papers.  And what about Australia, Japan, Canada, or any of the Arab nations?  Finally, where is the International Olympic Committee?  Do we really want Beijing’s 2022 Olympics to be a replay of Nazi Germany’s 1936 Games?

I can only hope that in the next few days I can add more countries to this post as ones that spoke out. But more than anything, I hope that these countries and organizations unite to take action to stop the crimes against humanity currently occurring in Xinjiang.  Individuals in China have put their lives on the line.  It’s time the rest of the world follow suit and have the courage to act.

 

Why What We Are Seeing in Xinjiang Is Crimes Against Humanity

By , October 27, 2019

Uighur protester outside of China with a mask with the flag of East Turkestan and a Chinese flag covering her mouth

Last week, the Washington Post published my op-ed where I argued that what is being perpetrated against Uighur and other Turkic Muslim women – rapes, forced sterilization, forced abortion – are all crimes against humanity.  Since publishing that piece, many have asked why I decided to describe these acts as crimes against humanity?  Why am I not calling it genocide?  Or at least cultural genocide?

In the past few months, many have stated that the Chinese government’s actions in Xinjiang are akin to cultural genocide.  The government’s widespread razing of mosques; its destruction of Muslim burial grounds; its prohibition against certain religious baby names; its mass internment of 1.5 million Uighurs and other Turkic Muslims for no crime other than being Muslim; all of these reflect a Chinese government intent on destroying the Uighur culture and “Sinicize” them, making it cultural genocide.  But cultural genocide is not a crime under international law and thus, brings with it no legal duty for the world to stop it nor any punishment for the perpetrators.  In fact, the drafters of the Genocide Convention intentionally rejected the concept.  Instead, genocide under the Convention is limited to the biological or physical destruction of the group coupled with an intent to destroy.  When I spoke with Deborah Mayersen, a lecturer at the University of New South Wales at the Australian Defense Force Academy and an expert in the field of genocide studies, she was clear that she didn’t think that the situation in Xinjiang was genocide. “I do think there are warning signs, but at the moment [China] is not heading toward genocide” she told me.  “There would need to be some sort of disruption – an economic disruption perhaps that can be blamed on the Uighurs – for [China] to be on the trajectory toward genocide.”

“But we do have a fairly clear case of crimes against humanity” Mayersen emphasized.  Unlike genocide, crimes against humanity is not governed by a specific treaty.  Instead, it has developed through international customary law, with its use at Nuremberg, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda among other instances. Crimes against humanity include acts that attack the very soul of a people and its culture: murder, extermination, torture, arbitrary detention, forcible transfer of a population, rape, sexual violence, forced sterilizations, apartheid.  It might sounds a lot like genocide, but unlike genocide, these crimes do not require an intent to biologically destroy, an element we don’t yet have in Xinjiang.  Instead, acts that constitute crimes against humanity merely need to be part of a widespread or systemic attack directed at a group, with the perpetrator’s knowledge that his or her acts are part of this larger attack.

Because crimes against humanity is a legally recognized doctrine, it “brings with it the responsibility to protect” Mayersen told me, citing to a 2005 U.N. Resolution, signed by all 193 UN member states.  Under that Resolution, the international community is required to take quick and decisive action to protect the targeted group.

Protest in Brussels Calling on the EU to Speak Up Against the Internment of Uighurs

The unlawful internment of 1.5 million Uighurs and the removal of Uighur children from their families alone constitute crimes against humanity.  And rape and forced sterilization have been considered crimes against humanity for decades.  Sexual violence against women was a basis for crimes against humanity at the International Criminal Tribunal (ICT) for the Former Yugoslavia and of the ICT for Rwanda.  In 2013, the U.N. Human Rights Council, in its inquiry report on North Korea and after conducting a number of victim interviews, found sufficient evidence for a charge of crimes against humanity for the rape, forced abortions and sexual violence perpetrated against women.

Because there is more than sufficient evidence that what is happening in Xinjiang is crimes against humanity, activists, journalists and others must refer to it as such.  Only then is the world required to act.   To call it anything less gives the world a free pass and permits the Chinese government to continue to engage in its destruction of the Uighur people and their culture.

China’s Attacks on Uighur Women are Crimes Against Humanity

By , October 21, 2019

Originally posted in the Washington Post

Mihrigul Tursun (L), testifying at the CECC hearing

Sitting in a hearing room in Congress, in a gray plaid hijab, her dark blond hair poking out, Mihrigul Tursun begins to cry. She is there to share the plight of her fellow Uighurs in Xinjiang. Her translator reads aloud Tursun’s prepared statement about her three separate detentions by the Chinese government in Xinjiang’s internment camps. As the translator recounts Tursun’s first detention — upon her release, she learned that one of her 4-month-old triplets had died — Tursun struggles to hold back tears. Click here to read the entire op-ed

CECC Issues 2018 Annual Report

By , October 21, 2018

The Congressional-Executive Commission on China’s (“CECC”) 2018 Annual Report (“the Report”), released on October 10, 2018, comes at a crucial point in world affairs.  The United States is on the retreat from the global stage, withdrawing from key international agreements and organizations, and China appears intent to replace it.  But as the CECC’s 2018 Annual Report makes clear, with President Xi Jinping’s complete consolidation of power this year and the re-entrenchment of the Chinese Communist Party (“CCP” or “the Party”) within the state, China’s rise will likely alter the current world order and challenge U.S. values and interests.  If anything, China’s recent behavior – the public disappearance of Meng Hongwei, the former Interpol chief and the issuance of more discriminatory regulations directed at Uighurs –  only substantiates CECC’s predictions that China’s rise will not be inline with the values that have dominated the world order since the end of World War II.

Former Interpol Chief, Meng Hongwei, now in NSC confinement.

The CECC was created in 2000 to monitor China’s human rights commitments, review its progress in developing a rule of law, and maintain a database of Chinese political prisoners.  With a staff of China experts, the CECC has become a leading voice on China’s progress in regards to international human rights standards and the development of rule of law in more sensitive areas such as freedom of expression, criminal justice and access to justice.  As with its previous reports, the 2018 Annual Report is extremely well researched and extensively documented, providing an important snapshot to what is really happening in China, making it an essential read.

 

While prior annual reports highlighted China’s progress in trying to meet international human rights standards or deepen its commitment to rule of law, the 2018 Annual Report is devoid of any positive developments.  And rightfully so.  As the Report makes clear, three alarming developments in the past year reflect a country intent on disregarding international human rights norms and turning its back to a rule of law.

A police state in the Uighur province of Xinjiang in China’s far West. (Photo courtesy of The Week (UK)).

Perhaps the Report’s most urgent issue is the Chinese government’s mass detention of what is estimated to be 1 million Uighurs in internment camps. Without any trial or criminal charges, these internment camps reflect the Chinese government’s stated goal to “sinicize” religion, including that of the Uighurs, a Muslim minority population in Xinjiang province.  And the mass detentions show no signs of stopping. As the CECC documents, the Chinese government’s own procurement data shows its plan to build more camps.

A second worrying development is the re-entrenchment of the Party within the State.  During much of Chairman Mao’s time, the Party and the State were essentially one, but since then, the Chinese government has sought to separate the Party from the government bureaucracy.  Until now.  In March 2018, the Party Central Committee issued a restructuring plan to again embed the Party in government work, with the Party taking a leadership role.  Perhaps the most notable example of the infiltration of the Party into everyday life is the creation of the National Supervisory Commission (“NSC”), an anti-corruption commission that has the power to “confine” – in other words, extra-judicially detain – any Party member or state employee suspected of corruption for three months without access to an attorney.  Employees of state-owned enterprises, staff of public hospitals and public educators all fall under the NSC’s purview. Even non-Party members and non-state employees could be subject to “confinement” by the NSC if they too are suspected of involvement in official misconduct.  Outside of the judiciary, the NSC is anything but due process.

China’s ubiquitous security cameras. (Photo Courtesy of the Huffington Post).

Finally, the 2018 Annual Report highlights the Chinese government’s continued use of technology as a tool of repression. The Chinese government is seeking to create a biometric database as well as a “social credit system” which, if realized, could have lasting effects on certain individuals.

The 2018 Annual Report concludes by offering some key recommendations, notably addressing abuses in Xinjiang publicly – and with key allies – before the United Nations, raising the issue of human rights in all bilateral relations, not just during the Department of State’s human rights dialogues with China, and condition law enforcement cooperation, such as cooperation on extradition, on a signed agreement from the Chinese government that it will respect due process in all situations.  But one wonders if these recommendations fall on deaf ears.  The CECC is supposed to be a joint commission between Congress and the Executive.  But as reflected in the masthead for this year’s Report, the Executive positions on the CECC remain empty.  While the Trump Administration is not shy in lambasting China on a variety of issues, and in early September word was leaked that it was considering economic sanctions against China for its internment of Uighurs, the fact that key Executive positions on the CECC remain empty over a year and a half into the Trump Administration, belies any meaningful commitment by the Administration to human rights and rule of law in China.  An unfortunate development given the severe situation documented in the CECC’s 2018 Annual Report and the danger it poses to the United States and the post-World War II world order.

Forced Departure of American Journalist Megha Rajagopalan – Is it Really Not About Xinjiang?

By , September 9, 2018

***Correction – After this post was published, a reader with experience on Chinese visa issues informed China Law & Policy that it isn’t always that a news outlet cannot establish a permanent office because of economic costs or means, but also because the Chinese government will not allow certain news outlets to establish a permanent office, thus preventing those reporters the ability to obtain the J-1 visa.  We have corrected the post to reflect this important difference and thank the person who informed us.  EML, Sept. 10, 2018***

Buzzfeed’s Former Beijing Bureau Chief, Megha Rajagopalan

Every three years, the Chinese government has effectively expelled a foreign journalist from China.  It started with Melissa Chan, an American journalist working for Al Jazeera, in 2012.  In 2015, it was Ursula Gauthier, a French journalist for L’Obs.  And last month it was Megha Rajagopalan, the Beijing Bureau chief of the online news magazine Buzzfeed.

With each expulsion of a foreign journalist comes speculation as to why.  Why did the Chinese authorities fail to renew a visa or cancel a press card.  The Chinese government hardly ever explains its reasons, citing that such failure to renew a visa was “in accordance with law.”  But no law or regulation is ever cited, let alone a specific provision.  As a result, most outside of China view the Chinese government’s decision having more to do with the reporter’s coverage of China than with any violated regulation.  With Gauthier, the Chinese government was more explicit about its decision to cancel her press card, with the Ministry of Foreign Affairs (MOFA) criticizing Gauthier by name because of her scathing editorial on the Chinese government’s treatment of the Uighurs, a Muslim ethnic minority, in the Xinjiang Uighur Autonomous Region of China.

Here, there can be little doubt that it was Rajagopalan’s reporting that resulted in her effective expulsion from China.  Under the law, MOFA clearly could have renewed Rajagopalan’s short-term journalist visa.  For some reason, it chose not to

Rajagopalan’s Reporting on Xinjiang – Why Is the Chinese Government So Sensitive About This?

Like Gauthier, Rajagopalan had done some hard-hitting reporting on the Uighers in Xinjiang, with an October 2017 article exposing the Chinese government’s increased surveillance and its mass detention of Uighurs for no other reason than being Uighur. Reporting from Xinjiang, Rajagopalan’s article was one of the first to uncover the Chinese government’s frightening oppression of Uighurs.  It also won her the Human Rights Press Awards’ Best Features Article (English) for that year.  In July 2018, Rajagopalan followed up her ground-breaking piece with another explosive article that brought to light the Chinese government’s pressure tactics on Uighurs abroad, including threats to send their Xinjiang-based family to internment camps if they do not spy on other Uighurs.

Xinjiang has long been a sensitive area for the Chinese government, fearing that the Muslim Uighurs could launch a successful separatist movement.  As a result, for over a decade, the Chinese government has instituted a national policy to “Go West,” encouraging ethnically Han Chinese to move to Xinjiang to develop this resource-rich area.  With the Go West policy, Xinjiang’s population has changed dramatically, with a current Han population of 40%, compared to 6% in 1949.  And with the increase in the Han population has come a decrease in the Uighur’s political clout and self-governance since Chinese Communist Party membership usually means giving up religion.  Few of the ethnically Muslim Uighurs are atheists and hence, unable to join the Party, and thus unable to effect change in their own region.  For example, when, in 2009, the Chinese government decided to destroy much of the the old city of Kashgar, a city that stood for centuries and was perhaps the most Uighur area of all of Xinjiang, the Uighurs were unable to stop it.  Needless to say, such loss of power over their own destinies and the attempted destruction of their own cultural identity has not produced a population satisfied with Chinese rule.

Some of the routes on China’s One Belt, One Road

And Xinjiang’s importance to the Chinese government has only increased in recent years as Xinjiang is central to the success of China’s “One Belt, One Road” policy.  Launched in 2013, One Belt, One Road is China’s very serious and well-funded attempt to exert economic influence globally. Xinjiang is the key land route to Central Asia and Europe, making it even more crucial that the Chinese government subdues the Uighur population.  To do so, in 2015, the Chinese government passed two national laws that had an disparate, negative effect on the Uighurs of Xinjiang: the broadly-worded National Security Law, that equated religious “extremism” with terrorism, and the Counter-Terrorism Law, which gave security forces significant powers to prohibit “extremism.”   Xinjiang was the first province to issue local regulations to carry out the precepts of the Counter-Terrorism law, including mandating governmental “aid and education” for those individuals who, while not convicted of any crimes, were induced into participating in terrorism or extremism, seemingly laying the groundwork for the mass detentions currently occurring. (See Xinjiang Implementing Regs of the Counter-Terrorism Law,  Art. 38)  And Rajagopalan’s article was one of the first to show that Uighurs were in fact being massively surveilled and detained in re-education internment camps without ever being tried – let alone convicted – of any crime.  Instead it was the simple practice of their religion that the government viewed as “extremism.”

Since Rajagopalan’s October 2017 article, both by the United States Department of State and the United Nations estimate that close to a million Uighurs have been sent to these internment camps without any trial, all for the purpose of stamping out the Uighur identity.  And there appears to be no end in sight with satellite images showing the rapid building of what looks like even more internment camps.

Chinese police officer stands guard outside a mosque in Xinjiang.

As more and more information began to emerge in the international media about the depth of the Chinese government’s whole-scale human rights violations against Uighurs, and as foreign governments and international bodies began to take notice and advocate sanctions against China, Rajagopalan’s visa was almost up and the Chinese government was in the midst of determining whether to renew it.  In May 2018, MOFA, the oversight agency of foreign journalists, informed Buzzfeed Rajagopalan’s journalist visa would not be renewed, forcing Rajagopalan to leave China as soon as it expired.

When questioned at an August 23, 2018 press conference, MOFA spokesperson Lu Wei stated that Rajagopalan’s visa issue was handled “in accordance with law and regulation” and, in his remarks, made a distinction, without explaining the significance, between Rajagopalan’s visa – a short-term journalist visa, known as a J-2 visa – and a resident foreign reporter’s visa, known as a J-1 visa.

Are J-2 Visa’s Non-Renewable Under Chinese Law?

Unlike the United States, where there is only one type of journalist visa, Chinese law distinguishes between two types of journalist visas, the J-1 and the J-2.  The J-1 visa can only be issued to journalists whose news agency has a permanent office in China (See Regulations on the Exit-Entry of Foreign Administration of Foreign Nationals (“Exit-Entry Regulations”), Article 6(5)).  Because of the “permanent office” requirement, J-1 visas are increasingly issued to only more traditional outlets; think the New York Times, the Washington Post, the Guardian, etc.  J-1 visas also confers residency status, and J-1 visa holders must also apply for a Press Card from MOFA within 7 business days of their arrival in China. (See Regulations of the People’s Republic of China on News Coverage by Permanent Offices of Foreign Media Organizations and Foreign Journalists (“Foreign Media Regulations”), Article 10).

J-2 visas are issued to journalists who come to China for short-term reporting and there is no permanent office requirement. (Exit-Entry Regulations, Article 6(5).)  Traditionally, those are journalists coming to do a one-off story; for example, when a New York Newsday reporter travels to cover the U.S. President’s visit to China, or the Des Moines Register sends a reporter to cover the pork market in China.  J-2 visas are limited to six months (Foreign Media Regulations, Article 2) and J-2 journalists do not obtain a Press Card.

MOFA spokesperson Lu Wei

But increasingly, news agencies are seeking to send long-term reporters to China without establishing a permanent office.  This is especially true of online outlets like the Huffington Post and Buzzfeed, who, according to a source with knowledge of China’s visa issues, the Chinese government will not permit to set up a permanent offices.  or any agency that just doesn’t have the deep pockets of a Wall Street Journal or a New York Times.  But because they do not have a permanent office, Thus, their China-based reporters cannot obtain a J-1 visa.  Instead, the Chinese government has been providing these reporters with a J-2 visa with the understanding that the visa will be renewed when the initial term is over.  According to the New York Times, this was the deal that Buzzfeed worked out with the Chinese government prior to Rajagopalan’s arrival –a six month J-2 visa renewable upon its expiration. But when Rajagopalan’s six months were up, MOFA failed to renew her J-2 visa.

MOFA’s response to the question about the failure to renew Rajagopalan’s visa – that she was not a resident foreign reporter – seems to imply that the law does not permit the renewal of J-2 visas.  But this is not true.  Article 29 of China’s Exit-Entry Administration Law clearly contemplates the renewal of any short-term visa.  Article 29 lays out the procedures by which the holder can apply for an extension and the only limitation being that the renewed visa cannot be for a longer length of time than the original visa.

Al Jazeera journalist, Melissa Chan, back when she could report from China

In fact, MOFA has renewed J-2 visas in similar situations.  For two years, Matt Sheehan was the Huffington Post’s China-based reporter, meaning that his J-2, short-term visa must have been renewed every six months.  Similarly, Melissa Chan had three J-2 visas, repeatedly renewed until the Chinese government refused to renew her visa for a fourth time.

MOFA had the authority to renew Rajagopalan’s J-2 visa, it just decided not to.  And Rajagopalan’s reporting on Xinjiang was the catalyst that has led to the current international attention to Xinjiang, including the United Nations’ Committee on the Elimination of Racial Discrimination’s public rebuke of the Chinese government’s practices in Xinjiang.  In July, the Congressional-Executive Commission on China (CECC) held a powerful hearing condemning China’s human rights violations in Xinjiang and calling for the use of the Magnitsky Act against officials involved with Xinjiang.

Going to market in the police state of Xinjiang

Every day there are more and more articles exposing the internment of millions and the efforts to eliminate the Uighur culture.  The international heat is on about the Chinese government’s human rights violations in Xinjiang.  And the Chinese government’s failure to renew Rajagopalan’s visa was not just retribution against her.  Likely it was intended as a teaching lesson to other journalists – report on this and we might fail to renew your visa too.  Fortunately, no one has taken the cue and powerful reporting continues.  What will be the test comes this December, when all resident foreign reporters go through the annual rite of renewing their press cards and J-1 visas.  On some level, Rajagopalan, with her short-term J-2 visa, was low-hanging fruit.  Will the Chinese government conveniently lose paper work of resident foreign journalists, forcing them to leave the country while they wait for their paperwork to be found?  Or will press cards be canceled?  Or even more terrifyingly, will the Chinese government completely close off all access to Xinjiang?

Make no mistake, Rajagopalan was only the start.  Xinjiang – and the Chinese government’s desire to eradicate a strong Uighur identity – is too important for the Chinese government not to ratchet up its game.

The Tiananmen Square Sanctions – Needed Now More than Ever 29 Years Later

The Protests on Tiananmen Square, Spring 1989

Twenty-nine years ago today, on June 4, 1989, the Chinese government ordered the unprovoked and brutal assault by the People’s Liberation Army on tens of thousands of unarmed civilians surrounding Tiananmen Square.  The exact number of people killed the night of June 3, 1989 into the early morning hours of June 4 is only known to the perpetrators of the massacre: the Chinese Communist Party (“CCP”). But whether it was a few hundred or a few thousand does not diminish the fact that peaceful protests were squashed with such a violent – and unnecessary – crackdown.

In the immediate aftermath, other countries had to figure out how to respond to a government that would massacre its own people.  In the United States, that response came from President George H.W. Bush who granted asylum to Chinese dissidents and ordered a plethora of sanctions against China, including suspension of U.S. foreign aid, arm sales, high-level government exchanges, export licenses for certain products and the linking of Most Favored Nation status to human rights. (see Congressional Research Services, China: Economic Sanctions (Aug. 22, 2016), pp. 1-3)  In the months that followed, Congress codified many of those sanctions including the suspension of export licenses for crime control and detection equipment. (see Public Law (“P.L.”) 101-246, § 902(a)(4))  Congress’ reasons for codifying these sanctions: the random arrest and detention of those suspected of participating in the Tiananmen Square protests (P.L. 101-246, § 901(a)(3)-(4)), continued surveillance on activists (P.L. 101-246, § 901(a)(5)), blocking foreign journalists from covering the events (P.L. 101-246, § 901(a)(7)), and continued and unlawful repression of human rights activists and activities (P.L. 101-246, § 901(a)(8)).

But as time progressed and the events of June 4, 1989 became a distant memory, many of the U.S.’ Tiananmen Square sanctions were waived or rendered obsolete. (China: Economic Sanctions, p. 3)  But one sanction that still remains in effect today is the suspension of export licenses to any U.S. company seeking to sell any equipment or instruments related to crime control and detection. (Id., pp. 3, 8; see also Office of the Chief Counsel, Bureau of Industry and Security of the U.S. Dep’t of Commerce, Legal Authority: Export Administration Regulations (Jan. 4, 2017) (“BIS Legal Authority”), Part III.7 (p. 106)).  Although the President can terminate the sanctions, he can only do so if he issues a report to Congress that provides one of two reasons – either that the Chinese government no longer perpetuates human rights violations or it is in the best interest of the United States to terminate the sanctions.  It does not appear that a U.S. president has ever issued such a report in regards to crime control sales, leaving the Tiananmen Square sanctions against of such equipment by U.S. companies to China very much in effect.

Chinese police with facial recognition sunglasses

As China uses technology more and more to suppress any form of spontaneous dissent and to constantly surveil its citizenry, the Tiananmen Square sanctions against the sale of crime control equipment to China seem particularly prescient.  But, unfortunately, the sanctions have rarely been enforced and U.S. companies skirt the sanctions with impunity.  In 2011, Cisco sold over 500,000 cameras to the city of Chongqing specifically to watch its citizens. Every year, U.S. technology and security companies enthusiastically market their goods at the China International Exhibition on Police Equipment, an annual trade show sponsored by the Ministry of Public Security.

And now it turns out that U.S. companies are actively participating in what can only be termed the most profound police state in human history: the mass surveillance, detention and abuse of Uighurs, a Muslim ethnic group in China’s western province of Xinjiang.  Cameras on every street are equipped with facial recognition; Uighurs are constantly stopped by police to check their social media accounts on their phones; over 500,000 Uighurs have been forced into detention without any trial, under the guise of “Political Education Centers;” iris scans and blood tests, in order to collect DNA, are randomly performed on Uighurs; the Han Chinese in Xinjiang are exempt from these abuses.

Unfortunately, U.S. company Thermo Fisher Scientific is one of the entities selling DNA technology to the Chinese Ministry of Public Security and various Public Security bureaus across China, including those in Xinjiang, according to a Human Rights Watch report.  Last month, the Congressional-Executive Commission on China (“CECC”) issued a letter to Wilbur Ross, the Secretary of Commerce, calling on him to investigate Thermo Fisher’s sales to China’s public security organs in light of the export sanctions and to report what other export licenses are being granted in violation of the law.  It does not appear that Secretary Ross has responded to the CECC’s inquiry, and if the history of the enforcement of the Tiananmen Square sanctions is any guide, he will not.

Chinese police in Xinjiang city of Kashgar

Many of the reasons for the passage of the Tiananmen Square sanctions almost 29 years ago – the repression of dissent, surveillance of peaceful protesters, the concealment of information, the violation of human rights – are very much alive and well in today’s China.  It is true that given China’s current status in the world, it will be much harder now to influence China’s domestic behavior than it was in 1989.  But that doesn’t mean that the United States should abandon its own laws, or the policies underlying those laws.  The government should not permit U.S companies to profit from the Chinese government’s creation of a Jim Crow society in Xinjiang.   To do so would be a disrespect to the many innocent lives lost 29 years ago today and to the valiant efforts of the U.S. government in the wake of the massacre to ensure that the U.S. does not play a role in human rights violations in China.

6 Uighurs Sentenced to Death, 1 to Life Imprisonment in Unexpected Trial on Monday

By , October 12, 2009

In a development that caught most foreign media outlets by surprise, the Urumqi Intermediate Court tried and sentenced the first seven of over 200 defendants on Monday for crimes relating to the July 5 riots.  After a trial that lasted less than a day, six of the defendants, all of which were of Uighur descent, were sentenced to death; the remaining defendant was given life imprisonment.  All of the defendants were given the uniquely Chinese punishment of lifelong “deprivation of political rights.”

Back in August, the China Daily, an official government newspaper, stated that trials relating to the July 5 riots in

Monday's Trial in Xinjiang

Monday's Trial in Xinjiang

Xinjiang would begin in the middle of August.  The reason for the two month delay remains unknown.  Additionally, while Chinese papers report that the trial was public, that is debatable.  According to the government controlled media, the 400 people in the audience included officials from the Urumqi, representatives from the National People’s Congress (NPC), Chinese Communist Party (CCP) officials, relatives of the defendants, and “a group of people of various elasticities and walks of life.”  However, it is questionable if anyone else was aware of the trial as it was occurring; there was no official announcement prior to trial.

In addition to working on the meaning of a “public trial,” the Chinese criminal justice system still has a ways to go in becoming accustomed to an adversary criminal justice system.  Historically, China has had an inquisitorial criminal justice system, one based upon the civil law systems of Germany, France and other continental European countries.  In that system, the judge plays an active and central role, reviewing all evidence the prosecutors amass.  The defense attorney’s role is minor compared to the U.S. system, an adversarial one where the defense attorney and the prosecutor duke it out with the judge and jury remaining very passive.

Neither system is better than the other; both have their advantages and disadvantages and are more a choice of culture than anything else.  However, in 1996, China amended its Criminal Procedure Code to adopt more adversarial-like procedures, moving away from its traditionally inquisitorial system.  But as the trial of the seven Uighurs show, many of those amendments, even 13 years after their adoption, have yet to take hold.  The Chinese press reported that the prosecution presented oodles of evidence including the testimony of eye-witnesses, reports of the incidents, and pictures and video of the alleged events.

Defendant being brought into the courtroom in Monday's trial in Xinjiang

Defendant being brought into the courtroom in Monday's trial in Xinjiang

However this evidence was not subjected to any adversarial testing, a key, if not defining element of an adversarial system.  Instead, the Chinese press reported that the defendants merely told their side of the story with their lawyers offering their own opinions.  Questioning of the prosecution’s witnesses, or calling in experts to analyze any of the prosecution’s evidence was completely absent.  Instead, the defendants and their lawyers reverted back to their roles in an inquisitorial system, passive participants with few affirmative rights.

Nothing could be worse than a system that purports to be an adversarial one but does not allow the defense to perform the essential role of such a system – actually challenging the prosecution’s case.   China is slated to amend its Criminal Procedure Code in the next year or two.  Hopefully it will pull back on adapting more elements of an adversarial system, since as of yet, it has a long way to go before it takes hold.  And there is nothing wrong with reverting back to a more inquisitorial system, a system that works well in continental Europe.

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