Where International Justice is Failing the Uyghurs, Economic Tactics Can Advance Real Change Features
© Xinjiang Bureau of Justice WeChat Account (obtained by HRW)
Where International Justice is Failing the Uyghurs, Economic Tactics Can Advance Real Change

Between one and three million Uyghurs and other members of Muslim minority groups, including Kazakhs and Kyrgyz, have reportedly been detained in some 1,200 hastily built re-education camps in the Xinjiang Uyghur Autonomous Region (XUAR) of Western China since 2017.  Reports of arbitrary detention, forced labor, sterilization, sexual abuse and extrajudicial killings are rife.

The United States has recognized China’s crushing of the Uyghur population as genocide.  To those who have been risking their livelihoods to report from the frontlines, this is a validation that’s been a long time coming.  But despite the many safeguards the international community has adopted since World War II in a bid to end genocide and crimes against humanity, China’s status as a global superpower has in many ways limited the international community’s options with respect to the traditional mechanisms of international justice.

JURIST spoke with several experts to learn more about the confluence of legal, cultural and historical factors that have contributed to the plight of the people of Xinjiang in recent years, and to determine what – in practical terms – can be done to combat these atrocities.

Tracing the origins of the plight of Xinjiang

Reports of arbitrary detention, forced sterilization and other atrocities committed against Uyghur, Kazakh, Kyrgyz and other Muslim minority groups have trickled out of the Xinjiang region since 2017.  But the trouble started years earlier, according to Professor James Millward, a historian at Georgetown University.

In 2014, amid broader government efforts to push for cultural assimilation, Xi Jinping concluded that when it came to Xinjiang and Tibet – regions that boast significant populations of non-Han Chinese minorities – the Chinese Communist Party needed to shift its attention beyond the material, and focus on spiritual, ideological and psychological factors.

“That really marked the beginning of a much stronger push with respect to ideology and education and indoctrination, and a somewhat veiled but nonetheless concrete recognition that economic aid, development, and heightened standards of living were not going to end what [Xi] saw as the problem of ‘Uyghurness’ – that you had to actually intervene psychologically and spiritually in order to change people’s thinking,” Millward said during a recent interview.

Over the course of the following year, as interethnic tensions surged, several horrific crimes were attributed to violent separatists in the region.  In March 2014, a group of men and women reported to have been separatists from Xinjiang staged a knife attack at a busy train station in Kunming, killing upwards of 30, and wounding 143.  The following month, a second attack killed three and injured 79 at a train station in Urumqi, the capital of XUAR.  Then in May 2014, a third set of attackers killed 31 and injured upwards of 90 on the busy streets of Urumqi.  As the death tolls mounted, the CCP vowed to crush separatist violence.  It bears noting that while no one has disputed the credibility of these tragedies, some Uyghur rights advocates have expressed concern that Beijing’s control over the nation’s media militates against transparency in investigating crimes such as these.

In 2016, in the wake of these mass-casualty incidents, Chen Quanguo was named Communist Party Secretary for XUAR.  He was appointed to the post after having built a name for himself in Tibet, where he had overseen the establishment of high-level surveillance systems aimed at policing that region’s ethnic minorities.

Upon his arrival in Xinjiang, daily life changed dramatically for the region’s inhabitants.

“As soon as [Chen] arrived in 2016, things changed abruptly.  After his arrival, there was a clear break with the policy that was in place prior to his arrival, at which point China was trying to coax Uyghurs – when they were less obvious about their intents,” said Alim Seytoff, head of Radio Free Asia’s (RFA) Uyghur Service.

On the ground this had immediate impacts in the form of stifling traditional salutations that might reveal religious beliefs. “People would no longer greet each other with ‘As-Salaam-Alaikum,’ they wouldn’t dare say they had been to the mosque, or that they were fasting for Ramadan.  You could sense something big was happening, but no one was sure exactly what it was,” said Seytoff.

By early 2017, the mass detention of Uyghurs and other Muslim minorities in the region was clear to those on the ground.  As Seytoff and his team diligently reported on the unfolding atrocities, they were initially confronted with disbelief; Chen pursued his new role with means so draconian many observers didn’t believe the increasingly bleak stories coming out of the region could be true – including the establishment of re-education camps, forced labor and brutal family-planning measures that included forms of birth suppression; an AP report recently revealed that minority women in the Xinjiang region were regularly subjected to pregnancy checks, forced intrauterine devices, sterilization and abortion.

RFA’s Uyghur Service – the world’s only Uyghur news service – is now broadly respected by regional scholars and political experts as the best source of information from the field in Xinjiang. But at first, the group faced disbelief among the international community that the atrocities it reported could really be perpetrated by a global superpower today.

“From the beginning, we reported on these unprecedented policy changes, and the detentions of males and females, writers, historians, artists, musicians, teachers, professors, and even athletes.  Initially when we did all this reporting, many people – including some US officials – were suspicious, because they didn’t believe it was possible that in the 21st century, China could do such a thing.  It wasn’t until the US and other governments were able to confirm our reports with their own intelligence that they began to speak out against these atrocities,” Seytoff said.

Domestic legal quagmires perpetuate abuses

By 2018, the plight of Xinjiang’s Muslim minority groups were attracting increasing academic interest and international headlines, and around the world, officials were grasping for ways to act on the reports.

According to Millward, a turning point in the region was the introduction of vaguely worded terrorism legislation that would allow the broadest range of activities to be seen as criminal acts.

From a domestic legal perspective, this is exacerbated by the fact that Xinjiang’s re-education camps and forced labor practices fall beyond the scope of any relevant legislation.  The combination of broad authority to detain and extrajudicial justice has resulted in a steady stream of haunting reports from the region, including a recent report by the BBC detailing accounts of systematic rape.

“A lot of this repression is being done completely extralegally.  That means that there are much more likely to be a lot of abuses in addition to the central abuse of locking people up without any due process.  When you are locking people up on a large scale, that means you suddenly have to hire a bunch of guards, and build a bunch of camps, and when you’re doing this all in a rush, any safeguards you may have wanted to put in are unlikely to be effective.  We’re much more likely to see instances of rape and other abuses in a hastily constructed ad hoc re-education center than you would see in a prison,” said George Washington University Law Professor Donald Clarke, an expert in Chinese domestic law.

It bears noting that the BBC was banned in China shortly after releasing its report, which elicited fresh condemnation from the UK and US governments.

Spurring international action

Perhaps one reason so many foreign observers initially struggled to accept the reality of what was happening to Xinjiang’s Uyghurs and other Muslim minorities is because in the aftermaths of World War II, the Balkan Wars and the Rwandan Genocide, the international community embarked on numerous ambitious efforts to prevent mass atrocities.  Between the existence of the United Nations itself, and the establishment of various courts of international justice, it can be easy to assume that the safeguards are in place to prevent forced labor, arbitrary detention, and sterilization campaigns.

However, China’s status as a major global power has diminished the effectiveness of these safeguards.  Its role as a permanent member of the United Nations Security Council (UNSC) gives Beijing veto power.  As JURIST has previously highlighted, even one veto by a UNSC permanent member is sufficient to derail a UN resolution, which can result in the use of veto power to bolster political and economic interests at the cost of human rights.

Recent examples abound of China wielding its political power with respect to the Uyghur issue on the global stage.  In October 2020, some 39 countries – including the United States and many European countries – banded together to submit a call to the UN for China to “respect human rights, particularly the rights of persons belonging to religious and ethnic minorities, especially in Xinjiang and Tibet.”  In response, 45 countries – led by Cuba, and including China, Russia and Iran, among others – countered, defending Beijing’s imposition of “a series of measures in response to threats of terrorism and extremism in accordance with the law to safeguard human rights of all ethnic groups in Xinjiang.”  A full breakdown of the countries on both sides of the dispute can be found in The Diplomat.

“It’s important to recognize that the toolbox here is uniquely depleted because China is a permanent member of the UN Security Council, so when it comes to taking international action, you can throw the official UN structure out the window, because China can block anything it wants to with regards to this,” said D. Wes Rist, Atrocity Prevention Co-Chair of the Prevention and Protection Working Group.

But where the traditional tools of international justice fail, economic and political sanctions and other policy-driven initiatives can be an effective means of spurring action.  “Quite frankly, the promise in the 1990s of the general deterrence of international tribunals has not borne out in fact… the idea that a head of state might be held accountable for ordering people to kill large chunks of their own population has not prevented heads of state from doing so,” said Rist.

This reality was reflected in the United States’ recent designation of the Uyghur crisis as genocide, Rist said.  “There are no legal ramifications from this determination.  This is a purely political determination in the sense that nothing under US domestic law requires specific action by the US Government in the case of a determination by the Secretary of State,” he explained, adding that in practical reality, the move carries diplomatic and bilateral relations implications.

The United States has taken legislative steps in recent years to prevent mass atrocities, including with the passage of the Elie Wiesel Genocide and Atrocity Prevention Act 2018 (Elie Wiesel Act), which according to ASIL, served as an initial legislative step by Washington to codify its atrocity prevention efforts, while establishing new requirements aimed at facilitating the early detection and prevention of genocide and other atrocities.  However, the aim of the Elie Wiesel act was to bring the United States into compliance with the first article of the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), which itself envisages the UN Security Council as the enforcement vehicle for genocide prevention.  Once again, given China’s veto power, this creates obstacles.

Sanctions are an invaluable tool when it comes to pressuring Beijing.  In fact, the United States has imposed numerous sanctions against China, including a recent ban on imports of tomatoes and cotton from the region over forced labor concerns.  Similarly, the Uyghur Human Rights Policy Act of 2020 (Uyghur Rights Act) mandated sanctions against individuals and entities found to be responsible for rights abuses in the Xinjiang region.

While these efforts have been broadly lauded, for the sanctions to be truly effective, the United States can’t act alone.  “You need a broader swath of the world to employ the same kind of restrictive access… If you start limiting the number of places where CCP officials can go, maybe you actually start to exercise some on-point leverage there,” Rist said, noting that the difficulty here is effectively targeting sanctions despite the CCP’s massive bureaucracy, which enables officials to divorce themselves from controversial policies without implementing any meaningful change.

He added that sectoral sanctions and import bans will also be more meaningful if carried out by multiple international actors.  “Unfortunately, we have found repeatedly throughout modern history that governments often respond better to economic pressures than they do to moral or human rights pressures,” he said.

Meanwhile, although the designation may not have the power to launch immediate legal action, Uyghur rights advocates believe it packed a punch, asserting that China has taken for granted its position of power in the UN Security Council, as well as its favorable international trade status, and was thus caught off guard by the genocide declaration.

Accordingly, a key tool we have to work with is trying to limit the economic benefit that China gains from its exploitation of the Uyghurs.

If the international community can band together to make it wholly unprofitable for Beijing to continue its repressive policies, perhaps we can circumvent the legal paralysis that arises from China’s position of power.

After all, when representatives from around the globe gathered in San Francisco in 1945 to breathe life into the United Nations by creating the UN Charter, then-US President Harry Truman sensed the danger that could arise from one country gaining too much power within the structure.  Referring to the then UN, then in its infancy, as a “solid structure upon which we can build a better world,” he warned: “If we fail to use it, we shall betray all those who have died so that we might meet here in freedom and safety to create it. If we seek to use it selfishly — for the advantage of any one nation or any small group of nations — we shall be equally guilty of that betrayal.”

As the international community struggles to assert order where the safeguards of international justice have failed to rise to the occasion, it is pivotal to remember that atrocities and unthinkable abuses continue to be commonplace in the Xinjiang province.  The region’s Muslim minorities are under threat, and the actions – or inactions – of the global community will go down in history.