Xinjiang: the “New Frontier” of State-Sanctioned Torture
Vol. 41 Associate Editor
The People’s Republic of China is exploiting the ambiguity of its international agreements to violate its citizens’ human rights. China ratified the United Nations Convention Against Torture (“the Convention”) on October 4, 1988 and is thus subject to its prohibitions. Its official policies toward the Xinjiang autonomous region and its inhabitants—most notably the Muslim-minority Uighurs—have recently garnered widespread condemnation, and arguably violated the Convention. Human rights groups say China detains Uighurs without due process of law and holds them in specially built “re-education camps”—primarily in Southern Xinjiang—as part of a broader plan to “eliminate Islamic extremism” in the region. Journalists outside China have decried the actions of Chinese authorities in the camps as blatant human rights abuses, and some have even described them as torture. But because of the Convention’s inherent ambiguity, it is unable to provide a clear answer as to whether such actions constitute torture, thus rendering it an ineffective instrument of deterrence for China or any other State willing to follow its lead. The Current Situation in Xinjiang The Chinese government has detained over one million Uighurs in re-education camps, according to reports received by the United Nations Human Rights Council. Chinese officials have blocked Western journalists from accessing the camps or have granted access to model facilities under close supervision. In late July of this year, China announced that it had released most Uighur detainees. However, the New York Times reported in August that the already-sprawling network of re-education camps has expanded. Fifteen foreign ambassadors wrote a letter to Chinese officials expressing their concern about human rights abuses in the camps. China responded, saying that the ambassadors “should not interfere in the internal affairs of other countries.” In doing so, China has implicitly adopted the position that any such abuses are subject to interpretation only through the lens of its domestic law, not that of the international community. And, on its face, the Convention arguably supports such a position. The Convention as Applied to Xinjiang’s Re-Education Camps Article 1 of the Convention defines torture as:
[a]ny act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of committing, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions.
Acts toward detainees in the re-education camps meet the “consent or acquiescence of a public official” requirement because the camps are constructed, overseen, and administered by State officials. The Convention does not provide examples of acts that qualify as torture. But the interpretations that judicial bodies and other institutions have adopted make it possible to ascertain the requirements of each element. Severe Physical or Mental Pain or Suffering According to a non-exhaustive list issued by the U.N. Special Rapporteur on Torture (“Rapporteur”), severe physical pain or suffering includes beatings, burns, electric shocks, suspension, suffocation, exposure to excessive light or noise, sexual aggression, administration of drugs, and prolonged denial of sleep, food, hygiene, or medical assistance. Concerning severe mental pain or suffering, most sources focus on that which involves the imminent threat of death, threats of harm or death to others, especially family members, and isolation or sensory deprivation. Furthermore, a single act—whether it inflicts physical or mental suffering—can constitute torture when the suffering inflicted is “very severe.” A Human Rights Watch report detailed systematic abuses in the re-education camps, including beatings, being hung from ceilings and walls, prolonged shackling, forced sleep deprivation, and hours or even days in the “tiger-chair”—a metal chair with straps used to immobilize detainees until their legs and buttocks swell up. One former detainee testified that she was interrogated for four days in a row without sleep, electrocuted as a form of punishment, and forced to take medication that caused loss of menstruation. Illicit Purposes For an act that causes severe pain or suffering to constitute torture, one of the illicit purposes listed in article 1 must be present. As indicated by the phrase “such purposes as,” the list is not exhaustive. Regardless, two of the illicit purposes enumerated in the Convention have arguably been met: obtaining information or a confession and discrimination based on ethnicity or religion. China detains Uighurs without formal charges and subjects them to severe pain and suffering to obtain confessions regarding extremist tendencies or activities. And China’s stated justification for the re-education camps—to eliminate the threat of Islamic radicalization—is inherently discriminatory. Those detained at the camps have one or more of the same traits in common: They do not share the same ideology, religion, language, or ethnicity of the majority Han Chinese. Authorities that supervised journalists’ visits to the camps have described the detainees as “almost criminals”—a threat to China, not because they had committed a crime, but because they “had the potential to do so.” Furthermore, former detainees say that they were forced to denounce Islam, swear loyalty to the Communist Party of China, and to eat pork and drink liquor against their religious beliefs. Lawful Sanctions The “lawful sanctions” exception is subject to multiple interpretations and effectively renders the Convention powerless to determine whether an act constitutes torture. Because the Convention does not specify the set of laws to which the exception refers, a State can arguably insulate itself from liability by permitting, as a legal form of punishment under its domestic laws, acts that would otherwise constitute torture. The ambiguity of the lawful sanctions exception—in concert with China’s soft-power on the global stage—effectively shields China from any consequences under the Convention. Chinese law prohibits torture to extract confessions, but only when committed by judicial officers of detention centers. China claims that those in the camps are there voluntarily for training and education and the camps are, therefore, not detention centers. Clarifying the Exception: “Consistent with the Spirit and Purpose of this Convention” China, and other States before it, have benefited from the ambiguity inherent in the Convention’s definition of torture at the expense of relatively powerless minority groups. A core purpose of the Convention is deterrence, and it has failed in that regard. The lawful sanctions exception should be amended to provide clarity and thus strengthen the Convention’s deterrence capabilities. But what language can most effectively achieve that goal? During the Convention’s drafting, multiple states recognized the need for clarification, but they were unable to reach a consensus. The United States called for additional language rendering the exception inapplicable when a State’s domestic laws are inconsistent with international standards. Others believed that lawful sanctions necessarily referred to international, as opposed to domestic, standards. But the problem with that approach is that, while sources like the Universal Declaration of Human Rights may provide guidance as to whether certain sanctions are consistent with international law, international law is amorphous and ever-changing. Consequently, applying prevailing international law could have the perverse effect of providing would-be violators with additional escape valves. A more practical solution might involve amending the exception to read: “It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions. Lawful sanctions include only those that are consistent with the spirit and purpose of this convention.” Under this definition, any attempt by a State to sanction an action that would otherwise constitute torture under the Convention would no longer qualify as lawful. And a potential violator could now be held liable even when its actions are considered domestically lawful. The clarification should limit possible workarounds and thus contribute to the Convention’s lofty ideal: an absolute prohibition against torture. Conclusion The ambiguity inherent in the lawful sanctions exception provides States like China a way to escape liability under the Convention, rendering it useless as an instrument of deterrence. Without an effort to clarify the exception and punish violators, other States may feel emboldened to utilize torture as a tool of suppression.
 United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment art. 1, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20 [hereinafter Convention Against Torture].  China characterizes the camps as “vocational education and employment training centers” for “criminals involved in minor offenses.” However, they do not permit independent monitoring of these facilities. Human Rights Watch, Eradicating Ideological Viruses: China’s Campaign of Repression Against Xinjiang’s Muslims 3 (2018), https://www.hrw.org/report/2018/09/09/eradicating-ideological-viruses/chinas-campaign-repression-against-xinjiangs.  Tim Wyatt, China Orders Shops to Remove Islamic Symbols and Arabic from Signs as Persecution of Muslims Intensifies, Independent (Aug. 1, 2019, 11:54 AM), https://www.independent.co.uk/news/world/asia/china-halal-arabic-muslim-islamic-shop-signs-beijing-xinjiang-uighur-a9032771.html.  Harry Cockburn, Muslim Woman Describes Torture and Beatings in China Detention Camp, Independent (Nov. 28, 2018, 5:39 PM), https://www.independent.co.uk/news/world/asia/uighur-muslim-china-mihrigul-tursun-torture-reeducation-camps-a8656396.html.  Chris Buckley, China Builds More Secret ‘Re-Education Camps to Detain Uighur Muslims Despite Global Outcry over Human Suffering, Independent (Aug. 10, 2019, 3:06 PM), https://www.independent.co.uk/news/world/asia/xi-jinping-regime-han-chinese-threat-uighur-muslims-persecution-detention-camps-a9051126.html; John Sudworth, Searching for Truth in China’s Uighur ‘Re-Education’ Camps, BBC News: China Blog, https://www.bbc.com/news/blogs-china-blog-48700786 (last visited Oct. 21, 2019).  Buckley, supra note 5.  Samuel Osborne, China Says Ambassadors Concerned Over Muslim Re-Education Camps Should Not Interfere, Independent (Nov. 15, 2018, 3:07 PM), https://www.independent.co.uk/news/world/asia/china-uighur-muslim-re-education-camps-ambassadors-interfere-xinjiang-a8635076.html.  Convention Against Torture, supra note 1 (emphasis added).  See generally Eradicating Ideological Viruses, supra note 2.  David Weissbrodt & Cheryl Heilman, Defining Torture and Cruel, Inhuman, and Degrading Treatment, 29 Law & Ineq. 343, 346, 394 (2011) (“In fact, there is an extensive and increasingly cohesive international consensus on the elements that define the universal prohibition against torture and other forms of ill-treatment.”).  Peter Hendrik Kooijimans (Special Rapporteur on Torture), Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Report, ¶ 119, U.N. Doc. E/CN.4/1986/15 (Feb. 19, 1986).  See id.  Pnina Baruh Sharvit, The Definition of Torture in the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 23 Isr. Y.B. Hum. Rts. 147, 154 (1993).  Eradicating Ideological Viruses, supra note 2, at 30–33.  See generally Human Rights Watch, Tiger Chairs and Cell Bosses (2015), https://www.hrw.org/report/2015/05/13/tiger-chairs-and-cell-bosses/police-torture-criminal-suspects-china.  Cockburn, supra note 4.  Eradicating Ideological Viruses, supra note 2, at 27.  Buckley, supra note 5.  Sudworth, supra note 5.  Wyatt, supra note 3.  Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 31–35 (1999).  E.g., Eradicating Ideological Viruses, supra note 13, at 100.  See Sudworth, supra note 5; Samuel Osborne, China Claims Uighur Muslims Grateful to be Held in Internment Camps as it Makes Their Lives More ‘Colourful’, Independent (Oct. 16, 2018, 5:13 PM), https://www.independent.co.uk/news/world/asia/china-uighur-muslim-internment-re-education-camps-detention-xinjiang-a8586811.html  See generally U.N. Secretary-General, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Report of the Secretary-General, 3–20, U.N. Doc. A/39/499 (Feb. 10, 1984) (listing individual States’ comments on the Draft Convention Against Torture).  Id. at 11, 13, 19. The views expressed in this post represent the views of the post’s author only.