The 46-page report recently released by the United Nations Office of the High Commissioner on Human Rights (OHCHR) on the Xinjiang Uygur autonomous region of China claims that the authorities’ measures to counter terrorism and extremism in the region “may constitute international crimes, in particular crimes against humanity”.
We must take such an allegation with a pinch of salt, not least because the OHCHR has confirmed its very low degree of certainty with the word “may”. The OHCHR also published a lengthy rebuttal by China’s UN mission, which rejected all accusations of “human rights violations” in Xinjiang, along with its report.
While the OHCHR also collected other evidence, it relied heavily on the interview records of 26 self-declared “ex-detainees” at government facilities (mainly vocational and training centers) and their family members. The risk of orchestration of evidence is quite high, given that those are people who have a grudge against the system.
According to those interviewees, physical and psychological torture was used by the authorities in the vocational and training centers. It is a valid concern whether the evidential pendulum should be swung in the direction toward a total abandonment of the hearsay-evidence rule. Although the Nuremberg trials, which were conducted to try Nazi war criminals after World War II, did relax the hearsay rule (Geoffrey Robertson, Crimes Against Humanity (London: Penguin Books, 2006), p 250), we must bear in mind that the evidence provided by those “ex-detainees” at vocational centers may be tainted with prejudice at best and misinformation at worst because of their previous unpleasant relationships with the authorities.
Nor is it fair and reasonable for the OHCHR to put the burden of proof on China to defend the conditions of those facilities. In a criminal trial, the general principal is that the legal burden is placed on the prosecution to prove every fact in issue and disprove any defense raised (Woolmington vs DPP (1935) AC 462). Even if the burden is placed on China, the standard of proof should be the lower civil standard of proof under the common law system. In other words, the judge is required to be satisfied that the particular fact or event or state of mind in issue is more likely than not to have existed or occurred.
In its rebuttal, China is able to prove on a balance of probability that the implementation of vocational training in Xinjiang was in strict compliance with the laws and with rigorous legal oversight. Courses at the vocational and training centers include standard spoken and written Chinese, as well as law and vocational skills. Trainees enjoy personal freedom in terms of movement and correspondence. The training was focused on anti-terrorism, de-radicalization, psychological correction, and behavioral intervention to help trainees change their unhealthy mindsets, re-enter society and rejoin their families.
While the OHCHR strongly criticized the vagueness of China’s anti-terrorism regime in the Xinjiang region, the report did not expressly say that Beijing had the intention of repressing human rights with those vocational and training centers. In stark contrast, the United States’ anti-terrorism laws show a clear intention to repress human rights. A glimpse of the anti-terrorism laws and executive orders in the US helps us gain a better insight into the American authorities’ intention to place extraordinarily tough restrictions on human rights at a time when the country was under the threat of terrorism. To cite an example, the policy of extraordinary rendition was adopted by the US government in the post-Sept 11, 2001, period to authorize the seizure of a suspect and his or her removal to a third country where he or she would suffer ill-treatment or torture with the objective, not of putting him or her on trial, but of extracting information from him or her (Tom Bingham, The Rule of Law (London: Penguin Books, 2011), pp 138-139).
As a result of the above authorization, suspects have been detained as “unlawful combatants” at Guantanamo Bay in Cuba. They have been subjected to torture and regular interrogation. To make matters worse, they have been deprived of lawyers and Geneva Convention protection. In spite of then-US president Barack Obama’s plan to close the internment camp, this “legal black hole” continues to operate to this day. Michael Ratner (1943-2016), the former president of the Center for Constitutional Rights of the US, described Guantanamo as a human rights abomination and “an offshore Devil’s Island which has no place in a country that claims it abides by the rule of law” (William Shawcross, Justice and the Enemy (NY: Public Affairs, 2011), p 105).
Obviously, the inhumane acts against the detainees in Guantanamo Bay reach the threshold of crimes against humanity, and they are part of a widespread or systematic practice. In Rasul vs Bush, 542 US 466 (2004), the US Supreme Court held that foreign nationals held in Guantanamo could petition federal courts for writs of habeas corpus to review the legality of their respective detentions. In the interests of justice, relevant human rights organizations under the UN should carry out an investigation into these human rights disasters at Guantanamo Bay.
To protect its reputation, China must raise its defense against the seemingly groundless allegations made by the OHCHR. According to China’s UN mission, the OHCHR report was based on disinformation and lies fabricated by anti-China forces. The release of the report has inevitably undermined the credibility of the OHCHR. China cannot tolerate such defamation. Nor is China in the mood to be lectured to by the OHCHR.
The OHCHR may no longer be able to anchor its moral authority over human rights issues after arbitrarily putting the UN seal on many of the unsubstantiated accusations against China’s anti-terrorism regime in Xinjiang made by anti-China NGOs, Western nations and the Uygur separatists in exile. The ongoing geopolitical rivalry between China and the US reminds us that something other than human rights issues is at stake here. In order to restore credibility to the OHCHR and other relevant human rights organizations under the UN, China and other emerging nations should not be denied their rights to bring necessary reforms to these organizations.
Junius Ho Kwan-yiu is a Legislative Council member and a solicitor.
Kacee Ting Wong is a barrister, a part-time researcher of Shenzhen University Hong Kong and the Macao Basic Law Research Center, and co-founder of the Together We Can and Hong Kong Coalition.
The views do not necessarily reflect those of China Daily.