Important leaks to New York Times on China's policy in Xinjiang

Jerome A. Cohen

 Today’s New York Times reports over 400 pages of internal Chinese documents about the policy and practice regarding Xinjiang’s internment camps. Bravo for Austin, Chris and the NY Times for a superb job.

I previously raised the issue several times whether Xi Jinping —not merely his principal henchman, Chen Quanguo — should, at least in principle, be recognized as the leading Chinese candidate for the application of Magnitsky Act sanctions by the USG. Here is persuasive supporting evidence. We have always known where the buck stops, but this is ample confirmation.

The documents also confirm how irrelevant the formal criminal justice system is in the People’s Republic of China for most cases involving people — one should say “enemies” rather than “people” — suspected of impure political conduct or even thoughts. The documents, to the extent a quick perusal permits, apparently tell little about the extent to which the formal criminal process is actually used in Xinjiang. We know that it has often been used there to handle the most serious cases, but the majority of detained persons seem to be victimized by the elaborate system of “non-criminal” administrative detentions that the PRC has perfected to an art form in various ways since the 1950s and that is mentioned here. Can one say that “re-education through labor” (RETL) was really abolished in 2013? As Maggie Lewis and I anticipated at the time, it has continued to rear its ugly head in many ways and names throughout the country.

Also note the reference to the continuing need for restrictive “transformation” education even after the hapless detainees are formally released, further evidence of what I call the non-release “release” (NRR) that has increasingly marked both criminal and administrative punishments throughout the PRC under Xi Jinping.

China’s Xinjiang Propaganda

By Jerome A. Cohen

China went through its third review in the UN Human Rights Council last November (“Universal Periodic Review”), in which many concerns about Xinjiang were raised. On Friday, the Council considered the report prepared for China (report link here). While China was able to summon many countries that have close ties to praise China’s human rights performance, such as Russia, Cuba and Iran, many countries urged China to stop its abuse in Xinjiang (including the US, Canada, Germany, Switzerland, Belgium and Australia etc). In response, China resorted to its usual rhetoric and stated that, “the Xinjiang vocational skills education and training institutions, which had been established for counter-terrorism purposes in the Xinjiang Autonomous Region, were focused on the study of legal knowledge, vocational and language skills and on deradicalization, and that they were employment oriented.”

Then the China Daily put out a report that China’s human rights record was praised by the Human Rights Council, with no mention whatsoever of the extensive international criticisms actually voiced against China. Ironically, the report features the photo of smiling Uyghur women dressed in colorful outfits (screenshot below)!

Screenshot, China Daily

This reminds me of the 1977-8 first-time visit of Ted Kennedy and eleven family members to China that I helped arrange and escort. Ted wanted very much to visit a Chinese university and make a speech that might electrify the students the way Bobby had done on a Moscow visit. In order to prevent this, our hosts were instructed by the leadership that in no circumstances were we to be allowed to visit a university. In Shanghai we were told that Beijing would be the best place for a university visit. In Beijing we were told the universities were all on holiday but that Changsha would be a good place. In Changsha we were told that it only had eight universities but that Guangzhou, our next stop, had sixteen. At that point we really protested, so the hosts arranged a visit to a beautiful hilltop overlooking Hunan University so we could say that we had “seen” it and there, in a lovely knoll, were five assorted worker, peasant and soldier “students” dressed in colorful native costumes playing a variety of musical instruments. That, of course, enabled us to say we had “met with” students! When this farce led to ridicule and the assurance to our hosts that we would broadcast their charades on leaving China, they “relented” and arranged a visit to a Guangzhou university teacher’s home that they claimed was on campus!  

Xinjiang and “re-education”

By Jerome A. Cohen

Here’s an excellent article by Sarah Cook, “The Learning Curve: How Communist Party Officials are Applying Lessons from Prior “Transformation” Campaigns to Repression in Xinjiang.”

It brings to mind earlier Chinese Communist Party efforts to transform Chinese citizens. Beginning with the start of the People’s Republic of China and especially in the early 1950s there was a genuine criminal justice effort to make “laogai” 劳改 (reform through labor or RTL) succeed in transforming those formally prosecuted by the regime. It is still, of course, the formal criminal justice analogue to “laojiao” 劳教 (re-education through labor or RETL), which started, at least under that name, in 1957 as a key aspect of the “anti-rightist” campaign. By that time, however, the efforts to impose “thought reform” on prisoners had already largely run out of steam as the emphasis of the captors shifted to conventional punishment and more realistic views of what that punishment might accomplish. 

Of course, Chairman Mao’s hopes to transform the young people of urban China and the Party’s bureaucrats into ”socialist new men and women” by shipping them off to the hardships of the countryside during the Cultural Revolution a decade later was an even grander vision destined for failure.

This long modern Chinese history makes me think of efforts in the U.S. to convert gay people into heterosexuals. It also makes me remember my brief wish to protect my first-born child against the evils of eating too many sweets by warning him: “Peter, if you misbehave again, we’ll make you eat chocolate”. But, not surprisingly, Peter liked chocolate and still does, as do I!!

Worldwide scholars' statement on Xinjiang's mass incarceration

By Jerome A. Cohen

Here's a statement [https://concernedscholars.home.blog/; PDF here] signed by a very large number of scholars and China specialists worldwide to protest Xinjiang's “re-education” camps that detain hundreds of thousands of Uyghurs and Kazakhs. The statement also offers suggestions for action by governments and academic institutions around the world.

China, Xinjiang and UN Human Rights Review

By Jerome A. Cohen

Source: AP (Uyghur protesters outside the UN Headquarters in Geneva, Nov. 6, 2018.)

On Nov.6, the People's Republic of China underwent its third UN Universal Periodic Review (UPR), which is a peer review at the Human Rights Council of China's human rights record. Each country, ridiculously, only had 45 seconds to speak! All eyes were watching if China's mass incarceration of Muslims in Xinjiang and related repression outside the detention prisons would be criticized. Many countries did speak out, including the U.S., Canada, Germany and the UK. The only Muslim country that raised this issue is Turkey. It is shameful that Muslim countries and their regional organizations have done so little to date. The PRC cleverly lined up a large number of sycophant states to sing its praises and take time away from states that wanted to be critical. (All UPR-related documents are here at the UN's website.)

The PRC has moved relentlessly to increase its influence over the Human Rights Council while the U.S. has withdrawn from it. Accordingly, many countries, including developing and authoritarian countries that rely on China's economic ties, lavished high praise on China's human rights achievements, instead of treating the session seriously.  But there are a few other UN possibilities for condemning the PRC’s misconduct in Xinjiang and elsewhere, for example, the recent criticism of the PRC by the committee that reviews violations of the racial discrimination treaty. Other treaty review committees can also become relevant forums. The UN Working Group on arbitrary detention is another institution that quietly—too quietly—frequently condemns PRC violations against individuals..

Demands by the High Commissioner for Human Rights to send special rapporteurs to China on one mission or another have occasionally been acceded to by Beijing after very long pressure and have resulted in withering criticisms of the PRC’s dictatorial suppression. I don’t expect Beijing to allow any such scrutiny over Xinjiang soon, but it depends on how much international public opinion becomes informed on what is taking place. There are many opportunities for regional groups outside the UN to embarrass the PRC for its human rights oppression, for example, NATO, the EU and the various Western countries’ economic policy meetings. 

NGOs and academics have become much more active. As one of the organizers of the recent protest by public speakers promising to criticize the PRC for Xinjiang atrocities, I mention this in every public appearance, as do many of the over 250 China watchers who have taken the pledge. I hope there will be a multiplicity of the above efforts.

My Sept. 12 talk at Yale on “Law and Power in China and its Foreign Relations”

Jerome A. Cohen

I gave a talk last month at Yale’s Paul Tsai China Center [link here]. It’s about an hour long, and tries to contrast the differences between PRC theory and practice regarding domestic and international law. It also started with a protest against what the PRC is doing against Muslims in Xinjiang.

Jerome A. Cohen ’55, a professor at NYU School of Law and founding director of its U.S.- Asia Law Institute, discussed China and foreign relations on September 12, 2018. The event was hosted by the Paul Tsai China Center.

Xinjiang & the Global Magnitsky Act

By Jerome A. Cohen

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

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

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

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

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

What can be done regarding Xinjiang’s mass detentions?

By Jerome A. Cohen

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

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

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

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

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

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

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

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

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

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

By Jerome A. Cohen

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

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

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