‘May” is such a wonderful word in the English language. It can support perhaps the deadliest of accusations but can simply be justified by “Hey! I said ‘may’, didn’t I?”
As someone brought up with a lawyer’s training, I think I would probably throw up if a judge were to say to me, “Your client may be guilty of a crime.” But can the Office of the UN High Commissioner for Human Rights (OHCHR) get away with it when it concluded in its latest report on the Xinjiang Uygur autonomous region of China that the conduct of the Chinese authority in Xinjiang “may constitute international crimes, in particular crimes against humanity”(emphasis added)? Some may say it is downright irresponsible; and perhaps it is.
I would urge everyone to read through the UN report yourself: all 46 pages of it. It is not long and it is not difficult to read; and after you have read through this, you can form your own conclusion. For the rest, let me highlight some of the observations and conclusions of the report, and you can judge for yourself what to make of it. The report zeroed in on no less than five accusations: 1) vagueness of the legal terrorism regime; 2) application of the legal regime by imprisonment; 3) conditions in vocational-education and training centers; 4) “other” human rights concerns; and 5) issues of family separation and reprisals.
The first accusation is a critique on the vagueness of the Chinese authorities’ anti-terrorism regime in Xinjiang. The report opines that there are “concerns” that the legal definitions have the “potential” that acts of legitimate protests and religious activities might lead to “coercive legal restrictions”, and such provisions are “vulnerable to being used — deliberately or inadvertently — in a discriminatory or otherwise arbitrary manner”. First, the OHCHR is not saying the regime was being used to repress human rights. It is saying it might be so used “deliberately or inadvertently”. Second, is it not the International Covenant on Civil and Political Rights (ICCPR) that expressly says that such rights are subject to reasonable legal restrictions on grounds of national security and public order anyway? Third and perhaps most importantly, how is Chinese law any different and more unreasonable compared with other national-security or terrorism laws? How is it compared with say, the crime of “giving comfort to the enemy” of the state under the UK and US treason acts? Or the crime of damaging assets “contrary to the interest” of the UK under the National Security Bill currently being passed in the UK Parliament? In what circumstances will an anti-terrorism law become a “crime against humanity”? You won’t find an answer in this report.
It follows from the above that it is equally difficult to understand how the application of such a legal regime can constitute a crime against humanity. The report quotes from the Chinese 2019 white paper on “Vocational Education and Training in Xinjiang” that three categories of people are targeted under this regime: Convicted terrorists who upon completion of sentence are still considered to be a threat to society; people who are incited, coerced or induced into participating in terrorist activities; and people who actually participated in such activities and posed a danger to the public but without actually causing harm. In such cases, they will be required to stay in the facilities for two to 18 months. The Chinese authorities’ position is that these facilities are now closed; and the report accepted there is no information that such facilities are still operating nor how many people have stayed in these facilities, but it surmised that a “very significant … proportion” of the population in Xinjiang was affected between 2017 and 2019. One would have thought that to constitute a crime against humanity, the degree and quantity of infraction against human rights has to be on a massive scale, so where is such evidence? And even if there was such evidence, should not the OHCHR conclude its “finding” in the past tense?
… to make an impact on the Chinese government and do some good, the report has to be fair and honest. Gross exaggerations will get no one anywhere except to fuel the suspicion of political assassination of national character on a grand scale
The third accusation is the condition of these facilities. Well, one can imagine correctional facilities are never pleasant; or one can ask if, say, the condition of the US’ Guantanamo Bay detention facilities are pleasant or in line with human rights standards. But that may be nitpicking. The point of the accusation is, there were allegations of all sorts of torture and inhumane treatment, even including rapes and inappropriate sexual conduct. Perhaps we have seen too many Western movies, but such allegations are always there in relation to correctional facilities. The important point is, again: Where is the evidence? The report relies on “interviews” with self-declared ex-detainees and their family members. I am not saying these are inherently unreliable, but one can hardly count on people with no doubt a grudge against the system as the only empirical evidence to support an allegation as serious as crimes against humanity. The irony is the report even accuses China of not producing empirical evidence to defend the conditions of these facilities. How do you produce something that is not there? This, I am afraid, is what I call the benefit of bias.
The fourth accusation is a general accusation of the basic human rights conditions in Xinjiang, including a recent fall in the birth rate. On that last score, Hong Kong is not faring any better. And perhaps we, in the eyes of the OHCHR, are also a place lacking in any decent human rights. Nevertheless, I cannot help but ask: Did the OHCHR produce a report on the human rights condition of, say, how the US is treating its local American Indians on their reservations? Or their Black citizens in the Midwest and Southern cities? Most important of all, even if all these criticisms are justified, do they then make up crimes against humanity? Are we not all living in this dark world where practically every country is guilty of some form of lack of respect for human rights, and therefore, are we all guilty of crimes against humanity?
The last but not least accusation is family separations and reprisals, including “enforced disappearances”. Again, here, the report relies primarily on “interviews” of “past victims” and their family members. If true, this is an ugly chapter. This accusation brings to mind US treatment of Mexican refugees, or more accurately, illegal immigrants; in particular, the separation of children from their parents in US illegal-immigrant detention centers. There is no justification for such measures; but crimes against humanity?
If one looks at this report calmly, I think some would agree there is room for improvement in relation to human rights in Xinjiang. Judging from the facts we can see recently, China is trying. And perhaps the intention behind this report is good and not malicious at the instigation of Western countries like the US and UK, as some suggest. But to make an impact on the Chinese government and do some good, the report has to be fair and honest. Gross exaggerations will get no one anywhere except to fuel the suspicion of political assassination of national character on a grand scale. From this angle, this is a depressing report in more ways than one.
The author is a former chairman of the Hong Kong Bar Association, a member of the Executive Council, and convener of the Path of Democracy.
The views do not necessarily reflect those of China Daily.