More on the legal aspects of the Xinjiang detentions

Last October, I posted a piece on the Lawfare blog about legal aspects—under Chinese domestic law—of the Xinjiang detentions. Earlier this month, at a conference on the Xinjiang crisis in Washington, DC, I delivered a short talk on the same subject, with some updated information. Since a few people asked for a copy of my remarks, I thought I would post them here. These remarks repeat the material in the Lawfare blog post but add a few new thoughts and facts.


Legal Aspects of the Xinjiang Detentions

June 6, 2019

As we know, it now seems that there are more than a million people—virtually all of them Uyghur Muslims—being held in detention camps in Xinjiang and apparently in other provinces now as well. What exactly is the basis under Chinese law for these detentions?

You might think that China has a set of unjust laws that provide the basis for these detentions. But the surprising fact is that these detentions are unlawful even under China’s own legal system. There is no publicly available law, regulation, or any measure by any name that governs substance or process. Nobody can give you a formal list of the acts that will get you sent to a detention camp. Nobody can tell you who has the authority to make the decision and according to what procedures. Nobody can tell you how, even in theory, let alone in utterly unimaginable practice, you might lodge a protest or appeal against a detention decision.

In late 2018, a delegation of US lawyers and legal academics went to China as part of an annual Track 2 Rule of Law dialogue, “Track 2” meaning non-governmental. They specifically informed the Chinese participants—Chinese legal experts and officials—well in advance that they would be asking about the legal basis for the detentions. Despite having weeks to prepare a response, the Chinese participants had none. They simply could not come up with a legal basis, even a flimsy one. That is a pretty astonishing situation. All they could say was that the detentions were “necessary”.

What would a legal basis be? Under both Article 37 of China’s Constitution and Articles 8 and 9 of its Law on Legislation, the physical restriction of personal liberty is permitted only pursuant to statutes passed by the National People’s Congress or its Standing Committee. This is a fundamental element of the Chinese legal system.

Overwhelming evidence shows that detentions in the re-education camps are not being carried out pursuant to any such statute. There is no pretense that any of the possibly relevant substantive or procedural laws (the Criminal Law, the Criminal Procedure Law, or the Security Administration Punishment Law) are being applied.

The publicly available statistics show two things: (1) something big is happening; and (2) it’s not happening through regular trials in courts conducted according to regular procedures.

According to annual reports of the Xinjiang People’s Procuratorate, in charge of prosecutions, in 2016 there were about 27,000 criminal arrests and 41,000 criminal indictments. In 2017, those numbers shot up to 228,000 arrests and 216,000 criminal indictments. Presumably the numbers in 2018 are similar.

How do the Xinjiang courts handle these cases? Official sources also tell us that in 2016, there were about 5,900 judges handling 400,000 cases of all kinds per year, not just criminal. Two years later, in 2018, official sources say there were 3,800 judges—fewer than two years earlier, in line with ongoing judicial reforms—handling 500,000 cases of all kinds per year. So in other words, in 2016 we had 5,900 judges handling 41,000 criminal indictments. In 2018, we have fewer judges—3,800—handling over 200,000—five times as many—criminal indictments. These numbers clearly support reports saying that even when the Criminal Law is actually invoked, the proceedings are worse than a sham.[i]

Last fall, there were a number of reports that China had legalized this system of detention camps. Not so. What happened was that the Xinjiang provincial authorities revised some legislation and in doing so explicitly authorized something called “education and training centers.” These do not legalize the detentions under Chinese law.

First of all, this legislation was passed by the Standing Committee of the Xinjiang Uyghur Autonomous Region’s legislature. That body is not the National People’s Congress or its Standing Committee, and has no legal authority to prescribe measures for detention.

Second, even if Xinjiang’s legislature did have such authority, the legislation in question would not create a legal basis for the detentions. The legislation talks about “education and training centers,” but it says nothing about those facilities being places of mandatory detention and prescribes no procedures for identifying who should be sent there. It cannot possibly be maintained that a local regulation, simply by mentioning the term “education and training center,” has thereby legalized anything that might go on in a facility so designated by the local government. If that were the case, why stop at saying that detentions have now been legalized? By the same logic, one could say that torture and executions at these centers have now been legalized. To take a parallel example, I think we all understand that if the federal government here, for example, decides to allocate money to build a prison, that budget allocation tells us nothing about who should be sent to that prison for what reasons and according to what procedures. So to say that this Xinjiang legislation legalized the detentions is a complete misunderstanding of what the legislation was about.

Finally, even if this legislation made these detentions lawful in Xinjiang, it would not make them lawful anywhere else—and it appears that detainees are now being shipped off in large numbers to other provinces.

Thus, the conclusion is that despite its complete control of China’s legislative system, the Party has chosen to carry out this detention campaign utterly outside of China’s legal system, unencumbered by any rules, and in a way that is unlawful under China’s own law. One could hardly have a better example of arbitrariness.

One might say, Well, what difference does it make? The Party will do what the Party wants to do. This is true, but the fact that the detentions are being carried out outside of China’s own legal system makes them especially troubling. Established institutions have a bureaucratic routine that can actually operate to protect prisoners. New institutions operating outside the rules don’t have this routine, and indeed can hardly be well regulated when their very existence is shadowy. In Nazi Germany, defense lawyers would sometimes try to get their clients sent to prison instead of being acquitted, since being convicted and sent to prison kept you in the regular legal system, whereas being acquitted could mean getting sent to a concentration camp wholly outside the regular legal system. It is outside the regular legal system that there is the greatest potential for atrocities, so that’s why these detentions are especially worrisome.

ENDNOTES

[i] Earlier this year I took a look at the Supreme People’s Court’s website for reports of judgments in Xinjiang. All cases are supposed to be uploaded to this website unless there is a particular reason not to—e.g., personal or national secrets. And in practice, a lot of cases that should be uploaded are not. Nevertheless, consider the following: the number of reported first-instance criminal cases of any kind in the years 2014 through 2018 was respectively 252, 250, 752, 990, and 690. The number of reported cases of convictions for terrorism in 2011 and after? One. This is a lesson for those tempted by the easy availability of this database to use its contents to draw any conclusions about how the Chinese legal system operates.

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