During a 2013 trip to Kazakhstan, Xi Jinping announced the “Belt and Road Initiative” (BRI)—China’s ambitious plan to enhance its “friendship” with the rest of the world through expanded investments in infrastructure and trade. Xinjiang, a resource-rich autonomous region in Northwest China lying at the border of Kazakhstan and seven other central Asian countries, was to be a crucial economic artery for this new world-embracing plan.

Five years later, Xinjiang looks nothing like Xi’s vision of an internationally cooperative, friendly China. Under the guise of “fighting terrorism,” China has created a large-scale program for the mass surveillance, incarceration and re-education of Xinjiang’s Turkic-speaking Muslims, the Uighurs, as well as other minority groups. These actions clearly contravene China’s international commitments as well as its own domestic law—but it’s unclear what actions the international community will take in response.

Mass Internment and “Re-Education” Programs

In Xinjiang, the local authorities (XUAR) are currently running two massive re-education programs, with support from Beijing. The first is a forcible internment program, under which an estimated million Uighurs have been indefinitely detained without due process of law. In August, the United Nations Committee on the Elimination of Racial Discrimination (CERC) condemned these internment camps as a “no rights zone,” and a recent Human Rights Watch report details pervasive abuse, including forcible sleep deprivation, beatings, and people being hung from ceilings and walls. Former detainees describe being forced to renounce their religious beliefs or consume alcohol and meat, thereby violating their religious practices.

The second program involves mandatory day/evening “education sessions.” Uighurs are forced to learn Mandarin, sing songs about China and attend weekly flag-raising ceremonies. Chinese Human Rights Defenders estimates that the number of Xinjiang residents detained in these two programs collectively totals two to three million, out of a total Uighur population of 10 million.

The locus of China’s general re-education activity appears to be in Southern Xinjiang, where the majority of Xinjiang’s Uighur population lives. The Financial Times reported in August that an estimated 80 percent of adults in urban neighborhoods there have been forcibly removed. As one Han Chinese man who has lived in Xinjiang for 20 years stated, “Entire villages in Southern Xinjiang have been emptied of young and middle-aged people—all rounded up into ‘re-education’ classes. Only the elderly and the very docile are left in the villages.” Meanwhile, Chinese authorities have relocated the children of those taken to camps and placed them in orphanages. On Oct. 1, Radio-Free Asia reported that China is also forcibly relocating “re-educated” adults, secretly sending them to prisons as far away as Heilongjiang province in China’s far northeast.

Anti-Islamic Programming

In addition to internment and re-education programs, XUAR has also instituted a number of oppressive restrictions on Islamic and other Uighur cultural practices. As Josh Rogin reported for the Washington Post in August, the government has destroyed religious buildings; banned long beards and the use of many Muslim names for new babies; and erected crematoria to extinguish the Uighur funeral tradition, which involves a special cleansing, religious ceremony, and burial.

Meanwhile, the government has also instituted a new system of mass surveillance to monitor the movement and associations of Uighurs in the territory. As the Wall Street Journal reported in December 2017, the amount of surveillance equipment used for every 100,000 people in Xinjiang roughly equals what is used to monitor over a million people in other parts of China. All Uighurs are required to install a surveillance app on their phones that transfers audio and video files and other personal data to an outside server. Some families have been forced to allow Communist Party officials to live in their homes; in other locations, authorities have even placed QR codes on home residences. Officials reportedly scan the QR when they enter a resident to verify information about how many individuals live in a given place. An interviewee for Human Rights Watch reported that

“Starting from spring 2017, every … home, where one enters, there’s a QR code. Then every two days or every day, the cadres come and scan the QR code, so they know how many people live here, and starting around then, they would ask [our] visitors ‘Why are you here?’... In the evenings the cadres would check as well.”

How did this happen?

The autonomous region of Xinjiang has long been a site of tension between China’s Han rulers and its Muslim Uighur population. One year after the Tibetan uprising in 2008, an estimated 1,000 Uighurs gathered in the regional capital of Urumqi to call for a government investigation into a brawl in a toy factory in Guangdong, which left two Uighurs dead. After the gathering turned into a riot, the Chinese government responded by blocking internet access to the region for ten months.

Five years later, in 2014, a group of Uighur separatists initiated an attack at the Kunming railway station, stabbing 33 civilians. The Xinjiang regional government responded even more forcefully, with a new “Strike Hard Against Violent Extremism” campaign designed to exert greater control over the Uighur population—or, as some argue, to completely erase their identity and thus eliminate any local impulse towards independence. Since then, the number of arrests in the region has more than tripled compared to the previous five-year period. In 2017, they constituted 21% of all arrests in China, even though Xinjiang accounts for just 1.5% of China’s population.

The “Strike Hard Against Violent Extremism” program scaled up dramatically in 2016, when Communist Party Secretary Chen Quanguo assumed leadership of Xinjiang. Chen relocated to Xinjiang from the Tibetan Autonomous Region, where he presided over China's harsh crackdowns on the Tibetan people and Tibetan Buddhism. Under Chen, Xinjiang’s public security budget nearly doubled in 2017 at a rate nearly eight times higher than that of the national public security budget for the whole of China. As a testament to how much Beijing values his work, Xi Jinping recently promoted Chen Quanguo to China’s Politburo—making him one of the twenty-five most powerful men in China.

China has made some effort to provide domestic legal justification for these enhanced security measures, chiefly by allowing the government to frame its efforts against the Uighur population in the language of counterterrorism. The Counterterrorism Law came into effect in January 2016, shortly after the adoption of a series of additional national security laws. It describes “distorted religious teachings” as the ideological basis for terrorism—providing ostensible cover for China’s repression of Islam—but provides no definition for the term. In August, the provincial-level People’s Congress in Xinjiang passed its own counterterrorism policy, which provides a more extensive discussion of “terror activities” including the use of cellphones, the internet, or other internet devices to spread “terrorist ideas.” The policy provides for a five to fifteen-day detention of anyone who destroys Chinese banknotes or identification cards. Regional authorities in Xinjiang also introduced a comprehensive set of regulations formally prohibiting individuals from wearing full-face coverings and long beards; generalizing the concept of Halal to apply beyond meat; and rejecting publics good, such as television. The regulations also detail a program for “de-extremification.” (See Articles 10-15).

China denies that it has forcibly interned Uighurs against their will, characterizing these camps instead as “vocational education centers.” In an open letter to the Financial Times, China’s Ambassador to the U.K. Liu Xiaoming defended these education camps as critical ways to stop terrorism, saying

“education and training measures taken by the local government of Xinjiang has not only effectively prevented the infiltration of religious extremism and helped those lost in extremist ideas to find their way back but also provided them with employment training in order to build a better life.”

International Legal Implications

International human rights law (IHRL) applies to the situation in Xinjiang both through treaties to which China has acceded and through customary international law. The 2014 terrorist attack at the Kunming railway station did not amount to hostilities that might arguably trigger international humanitarian law rather than IHRL, as the attacks were not characterized by sufficient “intensity and organization” under Prosecutor v. Tadic as to place Xinjiang in a non-international armed conflict.

At present, China is a party to four international conventions on human rights: the International Convention on the Elimination of All Forms of Racial Discrimination (ratified by China in 1981); the International Covenant on Economic, Social and Cultural Rights (ICESCR, ratified by China in 2001); the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, ratified by China in 1980); and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT, ratified in 1988). The forced internment and religious suppression of Uighurs arguably violates each of these conventions. For example, Article I of the International Convention on the Elimination of All Forms of Racial Discrimination defines discrimination as the “distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin” with the aim or consequence of “nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”—a prohibition that is impossible to reconcile with the forced internment of the Uighurs on the basis of their religious, and ethnic, identity. Relatedly, Article 1 of the ICESCR explicitly recognizes “[a]ll peoples have the right of self-determination” and thus “by virtue of that right” can “freely determine their political status and freely pursue their economic, social and cultural development,” arguably violated by the mere banning of beards and Muslim names. While signatories to the ICESCR have issued reservations regarding the scope of “peoples,” China did not, suggesting a broader interpretation of the phrase. Article 12 of UNCAT expressly calls on each state to “ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” There does not appear to be any evidence that such a competent authority has been created, despite numerous reports that torture is indeed occurring. While China might cite a national emergency to justify some of its inaction or abuse, UNCAT expressly eliminates that justification in Article 2. Furthermore, by taking children from Uighur women and placing them in orphanages, China may also be violating CEDAW, which recognizes the social value of maternity.

Although China signed the International Covenant on Civil and Political Rights (ICCPR) in 1998, it has not yet ratified the covenant. Nonetheless, China’s 2009-2010 National Human Rights Action Plan (NHRAP) specifically lists the ICCPR as one of the plan’s “fundamental principles,” and the NHRAP includes a list of commitments to advance the rights recognized by the ICCPR, including the prohibition against torture, unlawful detention, and the death penalty, along with the right to information. Furthermore, China’s constitution recognizes extensive rights now in jeopardy in Xinjiang. Article 4 expressly prohibits “any act which undermines the unity of the nationalities”; Article 22 protects “sites of scenic and historical interest, valuable cultural monuments and relics and other significant items of China's historical and cultural heritage”; Article 35 recognizes “freedom of speech, of the press, of assembly, of association, of procession and of demonstration”; while Article 36 says that “[n]o state organ, public organization or individual may compel citizens to believe in, or not believe in, any religion.” Interestingly, Article 36 goes on to say that the state will protect “normal” religious activities, but it does not say what would constitute a normal religious activity.

Notwithstanding the NHRAP and China’s constitution, many of the major human rights provisions included therein could arguably still apply to China as erga omnes norms. That said, China almost certainly holds a much narrower view of the legal meaning of IHRL norms than do other states. As Ken Anderson explored on Lawfare in 2016, China has emphasized that the international law of sovereignty protects it against external interference regarding its actions on its own territory; it has similarly argued against “internationalizing” Myanmar’s alleged human rights violations against the country’s Rohingya minority. Within its territory, meanwhile, China’s own constitution is a paper tiger: comprehensive, but hardly a real judicial constraint. While it might have some normative purchase within the country, the average Chinese person has no idea what’s going on in Xinjiang.

What is the world going to do?

In July 2018, Sens. Marco Rubio and Chris Smith, co-chairs of the U.S. Congressional-Executive Commission on China, held a hearing on events in Xinjiang. Calling it “the largest mass incarceration of a minority population in the world today,” Rubio suggested that the United States should levy sanctions under the Global Magnitsky Act, which authorizes sanctions against individuals engaged in human right abuse or acts of grand corruption. Following up on his May 2018 letter to Commerce Secretary Wilbur Ross, Rubio questioned why outstanding U.S. export restrictions prohibiting the sale of crime control equipment to the People’s Republic of China did not restrict U.S. company Thermo Fisher Scientific, reportedly supplying DNA-sequencing equipment to the Xinjiang police. The Commerce team later asserted that no violations had occurred in exporting DNA sequencers because the sequencers did not qualify as “crime-busting equipment.” However, it’s possible that additional end-user restrictions, which would limit technology exports to the Xinjiang police, might still be imposed.

In August, Rubio and Smith wrote a letter co-signed by 15 other members of Congress of both parties to Secretary of State Mike Pompeo and Treasury Secretary Steven Mnuchin, urging them to sanction Chen Quanguo in addition to any other Xinjiang officials complicit in human rights abuses. Rubio also urged the Trump administration to consider Magnitsky Act sanctions against private entities believed to be assisting Xinjiang officials in mass detentions and surveillance of ethnic minorities—specifically citing Chinese companies like Hikvision and Dahua Technology, which have won government contracts for large scale surveillance projects in Xinjiang. No Magnitsky sanctions have yet been issued.

Internationally, others are beginning to speak more forcefully about what’s happening in Xinjiang. Last week, Pakistan’s new Prime Minister Imran Khan spoke out for the first time in response to growing pressure from Pakistani traders who do business in China, many of whom are married to Uighur women now interned in Xinjiang. Muslim groups in India and Bangladesh held protests last month upon hearing stories of Uighurs being forced to renounce their faith, while Anwar Ibrahim, currently running for premier in Malaysia, has called for formal talks to discuss China’s actions—though his proposal is scarce on the details. Meanwhile, the Financial Times reports that China is placing significant pressure on its neighbors—many of whom receive considerable investment from China and stand to gain from the Belt and Road Initiative—into enforcing its counterterrorism policies against Uighur emigres, who Beijing perceives as a serious threat. Reports have also surfaced that Beijing has been sending its police officers into Tajikistan and Kyrgyzstan to arrest Uighur emigres from China.

For Uighurs who have fled China, international law guarantees the right to seek asylum under Article 14 of the Universal Declaration of Human Rights. The 1951 Convention Relating to the Status of Refugees and its 1967 Optional Protocol further recognize five categories of protections—race, religion, nationality, political opinion, or membership in a particular social group—to qualify as a refugee, which would include Uighurs. Article 3 of UNCAT likewise forbids states from expediting persons where “there there are substantial grounds for believing that he would be in danger of being subjected to torture.” (More analysis is available here).

In 2012, before China’s crackdown in Xinjiang intensified, Sweden deported two Uighurs to Xinjiang who have not been heard from since. Last week, Sweden joined Germany in officially refusing to deport any more Uighurs—having planned to deport a family of four only three weeks prior. Nonetheless, there is some evidence that some countries have unintentionally abrogated their commitment to avoid refoulement, as in one case in which Bavarian authorities reportedly deported a Uighur man due to an administrative error. In other cases, violations seem to have been intentional. For example, in 2017 Egypt detained 80 Uighurs and presumably deported them to Xinjiang, while Thailand sent a hundred Uighurs back to China in 2015.

There is no shortage of conversation about China these days. From Washington to Jakarta, people debate, sometimes in hope and sometimes in fear, what China’s rise will mean for the global economy and the global rules-based system. But this talk often ignores what the rise of China has already meant for the Chinese: most pressingly, the Uighurs. Further, it ignores the powerful precedent China’s authoritarian approach is creating for other states facing ethnic tensions, not to mention China’s capacity to export them new means of technological control.