UN report on Xinjiang goes too far in its conclusions

In the absence of convincing facts and arguments, it is difficult to understand how the mere enactment of a legal regime on terrorism can constitute a crime against humanity
The report also relies too heavily on the testimonies of self-declared victims and their family members

Ronny Tong

Published: 6:45am, 7 Sep, 2022

Why you can trust SCMP

As a trained lawyer, I would probably feel nauseous if a judge said my client may be guilty of a crime. How can the Office of the UN High Commissioner for Human Rights (OHCHR) conclude in its recent report that Chinese government actions in Xinjiang “may [emphasis added] constitute international crimes, in particular crimes against humanity”? Some say this is downright irresponsible; perhaps it is.

In any event, I urge you to read the OHCHR report, all 46 pages of it. It is not long and not difficult to read. You can form your own conclusions.

Here, I shall highlight a few of the report’s observations and conclusions. Make of it what you will. The report zeroed in on five areas: vagueness of the legal regime against terrorism; application of the legal regime by imprisonment; the conditions in vocational education and training centres; “other” human rights concerns; and issues of family separation and reprisals.

The first is a critique of the vagueness of China’s anti-terrorism regime in Xinjiang. The report had “concerns” that the legal definitions raise the “potential” of legitimate protests and religious activities attracting “coercive legal restrictions”, and that such provisions are “vulnerable to being used – deliberately or inadvertently – in a discriminatory or otherwise arbitrary manner”.

First, the report did not say the regime was being used to repress human rights. It said it might be. Second, does not the International Covenant on Civil and Political Rights expressly say such rights are subject to reasonable legal restrictions to protect national security and public order? Third, and perhaps most importantly, how is the Chinese law any different or more unreasonable compared with other national security or terrorism laws?

02:47

UN human rights body says China may have committed crimes against humanity in Xinjiang

Without producing convincing facts and arguments, it is difficult to understand how the mere enactment of a legal regime on terrorism can constitute a crime against humanity.

The UN report also quotes from China’s 2019 white paper on “ Vocational education and training in Xinjiang” that three categories of people are targeted: ex-convict terrorists still considered a threat to society; people incited, coerced or induced into taking part in terrorist activities; and those who took part in such activities and posed a danger to the public but did not cause harm.

These targeted groups were required to stay in the facilities, and according to the UN report, generally ended up doing so for two to 18 months. The Chinese position is that these facilities are now closed and while the report cites a paucity of information in being able to confirm this or the number of detainees, it surmised that a “substantial proportion” of the Uygur and other predominantly Muslim ethnic minorities in Xinjiang were affected between 2017 and 2019. If so, why not conclude its “finding” in the past tense?

The third accusation on the condition of these facilities involves allegations of torture and inhumane treatment, even sexual misconduct including rape. But where is the evidence?

The report cites “interviews” with ex-detainees and their family members. Yet one can hardly rely on the testimonies of people who probably have 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 accuses China of not producing evidence to defend the conditions of these facilities. This is what I call bias.

The fourth accusation is about the general state of Xinjiang’s basic human rights. Even if all this criticism is justified, does it constitute a crime against humanity? Are we not all living in this dark world where practically every country is guilty of some lack of respect for human rights? Are we all therefore guilty of crimes against humanity?

01:55

Xinjiang’s vanishing mosques reflect growing pressure on China’s Uygur Muslims

The last accusation is of family separations and reprisals, including “enforced disappearances”. Again, the report relies on interviews of self-declared victims and their family members. If true, this is an ugly chapter – but a crime against humanity?

I think some would agree that, where Xinjiang’s human rights are concerned, there is room for improvement. Judging from recent developments, China is certainly trying. And perhaps the intention behind this report is good. But it also has to be fair and honest. Exaggeration 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.

Ronny K.W. Tong, QC, SC, JP, is a former chairman of the Hong Kong Bar Association, a member of the Executive Council and convenor of the Path of Democracy