Qaila Sarwar

The Uighurs

It is estimated that just under one million people have been placed into what the Chinese Government have termed ‘re-education centres’, in order to ostensibly combat extremist views and religious-based terrorism. The Xinjiang Government and educational institutional websites state that these centres are scholastic facilities designed to  ‘…wash clean the brains of people who have become bewitched by the extreme religious ideologies of the three forces.’ According to several ‘leaked’ documents by the Chinese Authorities, it is estimated that around 15,000 people were sent to these camps within just one week in 2017, showing the sheer scale of the attack on Uighur Muslims by the Chinese Government. These documents were also said to include a memo which have strict instructions from the highest security official at the time, explaining that the camps are to be run as ‘high security prisons with strict discipline, punishments and no escapes’. Having said this, it is unclear how much weight we can attribute to these ‘leaked documents’ as the Chinese Government are staying extremely silent on the matter and denying any human rights breaches within these camps.

Despite this, several non-governmental organisations have conducted research into these centres throughout the years. Human Rights Watch personnel were able to host interviews with former residents of Xinjiang, detainees of the camps and also their family members. The report published by the group contains concerns over claims of repeated physical violence, mental stress and manipulation. Amongst the statements, former detainees detailed that they were forced to learn Chinese words, sing communist songs, participate in flag raising ceremonies and praise the president and the communist party. Furthermore, the report discusses the strict surveillance and control exerted over the victims as they were stripped of their individuality and identities through being forced to denounce their religions, being banned from speaking their own languages and even having their hair cut off.

A former prisoner of the camp told researchers how he was stripped naked and forced to walk whilst chained as well as being hung from his hands for hours. He also spoke about how he was physically strapped to a chair and interrogated for four nights where he was deprived of food and sleep.[1] Additionally, all interviewees stated that they were under immense psychological stress and many attempted to commit suicide in order to escape the violence. Furthermore, two other former detainees stated that that they were chained to a bed for hours as well as living in seriously cramped conditions, all because they were Turkic Muslims.

The Prohibition against torture is absolute and non-derogable, meaning that there are no circumstances which would permit the breach of the prohibition by any state.[2] This also a norm of customary international law and is recognised by many countries in their domestic legislation and at international level.[3]  It also qualifies as a Jus Cogen, which is a peremptory norm and is afforded one of the highest-ranking statuses of universal rights. These are the utmost values derived from the fundamental human rights we hold as human beings and thus cannot be deviated from, regardless of whether the state recognises it as such, or consents to it.

Torture

The definition of torture is provided in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1 can be split roughly into three elements and provides that torture is any act which results in severe pain or suffering, whether this is physical or mental and is inflicted intentionally, by a person for a specific purpose. The Convention outlines examples of this purpose, which includes obtaining information or a confession, punishment, intimidation, coercion, or based on any discrimination of any kind. Furthermore, the definition also provides that this pain or suffering is inflicted by or at the instigation or with the consent or acquiescence of a public official or another person of who is acting in this capacity.

Despite the definition being laid out in the Convention, it is often disputed which acts would actually constitute torture due to it being extremely broad. The interpretation of ‘torture’ has been debated for many years and some have chosen to take a narrower approach when looking at its scope. This was highlighted by the United States in 2001, when they launched their ‘War on Terror’. Here, the then Bush administration allowed for the ‘enhanced interrogation’ of suspected terrorists, as authorised on the basis of a report, known as the ‘torture memo’,  despite the clear prohibition regarding torture.

Similar issues have been disputed in courts and academics in their various reports, in an effort to understand which acts would be considered as torturous and which instead would amount to the lesser, Cruel or Inhuman or Degrading Treatment or Punishment (CIDT). Although the parameters of CIDT are undefined under the Convention which has created a great amount of uncertainty, there have been some helpful publications which aid in the understanding of the differences between torture and CIDT.

The Three Elements: Nature of the Abuse, Purpose of the Acts and Involvement of Public Officials

The Nature of the abuse

The first element contained in the definition is the nature of the mental or physical pain. The article, again very broadly, states that this is any which may cause pain or suffering. The interpretive scope of this element is incredibly expansive resulting in courts hearing many cases surrounding similar disputes, of whether the conduct by the perpetrator is severe enough to fall under the definition. They have highlighted a number of important issues regarding the subjectiveness of the meaning of torture and how it differs from inhuman or degrading treatment. The courts were faced with this in the case of Ireland v United Kingdom, where it was established that the interrogation techniques used on detainees including wall-standing, hooding and deprivation of food and sleep, were held to amount to inhuman and degrading treatment under Article 3 of the European Convention on Human Rights.[4] However, these were not found to be severe enough to constitute torture under the Conventions definition.

Despite this, the court did acknowledge that the subjectiveness of the meaning of torture and CIDT is constantly evolving. This is the case even more so in a civilisation where our social standards have risen, and where this type of behaviour would no longer be acceptable in modern times. Therefore, the margin of appreciation given to states in 1978 was much wider than it would be today, and it is expected that if this case were to be heard in the European Court of Human Rights in 2020, the outcome would be different. This position was clarified in the case of Selmouni v France, [5] where the court examined whether the acts disputed fell under Article 1 and 16 of the Convention.[6] The Court stated that this is relevant to the current surroundings and that the Articles should be interpreted as ‘a living instrument…in the light of present-day conditions.’

Although the case law in this area helps us to interpret the definition in Article 1, it is still unclear in many circumstances, which acts would be severe enough to constitute torture, especially where the acts or omissions exert psychological pain or suffering on the victim. Arguably, physical instances of pain and suffering are simpler to prove, often due to bodily harm being present on the victim as opposed to psychological harm, where physical marks are not tangible. This was discussed by the Special Rapporteur in his reports where a working definition has been provided. It is stated that psychological torture includes all types of pain or suffering which is intended to cause mental pain but without the bodily existence of the conduct. [7] The report further acknowledges that methods of treatment may cause severe psychological fear, indicating methods of torture includes anxiety, depriving victims of control over their own lives, humiliation, isolation, exclusion and betrayal. [8] Furthermore, the report also suggests that methods may also include targeting basic needs for example security, self-determination, dignity, and identity. [9]

The Purpose Element

The Second element of the definition in Article 1, makes clear that the acts in question must be intentionally inflicted for a specific purpose. The list of specific purposes, although again are broad, contains situations where the acts are being inflicted in order to extract information or a confession, punishment, intimidation, coercion or for discriminatory purposes. Similar to the abovementioned issues surrounding nature, the definition does not elaborate further. However, this does provide for a wider scope of interpretation which may be helpful in certain circumstances.

The Inclusion of Public Officials

Thirdly, the last element to be fulfilled relates to the perpetrator of the acts. It is stated that the pain or suffering is inflicted by, at the instigation of or with the consent or acquiescence of a public official or someone acting in an official capacity. Although this may sound self-explanatory; problems begin to arise in situations where there are ambiguities as to whether someone is acting ‘in an official capacity’ as the Convention does not provide any further information on this.

Do acts against the Uighurs constitute torture?

As discussed in the preceding paragraphs, the definition is broad and gives rise to much uncertainty regarding its interpretation. However, this may work in our favour when looking at whether the claims of violence in these camps, constitute torture under the definition. If we apply the aforementioned analysis of the first element contained in the definition, to the allegations of physical abuse by the victims in China, it is clear that the use of beatings and violence would inflict pain and suffering on the victims. Taking into consideration the findings in the case of Ireland v United Kingdom, although the court found that the behaviours did not constitute torture in those circumstances, it could be argued that the position has changed, and the standard has also heightened. Due to the evolution of the standard of severity, in this day and age, and in light of the ‘present day circumstances’ as stated by the court in Selmouni, the acts would most likely constitute torture today under the definition provided in Article 1.

With regard to the psychological stress and fear experienced by the detainees in these camps, it could also be argued that this, under this definition provided by the Special Rapporteur, would be severe enough to constitute psychological torture. Also, the treatment of Uighur Muslims in China is undoubtedly cruel and inhuman and would most definitely satisfy the criteria for CIDT, however the addition of constant surveillance and strict military-like routines are examples of tactics designed to rid detainees of their identities and individuality. Furthermore, the manipulative techniques and exclusions of fundamental needs such as security and dignity, as well as the deprivation of food and sleep are severe enough to cause an extreme amount of mental stress, pain and suffering. Rather shockingly, the Special Rapporteur in his paper actually references the re-education camps in China as a way for psychological torture to be used against those detained, therefore further evidencing that the acts committed against these people, constitutes torture.

Regarding the second element relating to the purpose of the acts, if we apply this to the current circumstances, we can see that the treatment of Uighur Muslims is unquestionably premeditated and intentionally inflicted, as evidenced by the Chinese Government websites which confess to ‘washing the brains’ of the detainees. Furthermore, the purpose of the acts would appear to fit into several categories listed in the definition such as punishment, discrimination for any reason and intimidation. This is clearly evidenced by the fact that these human beings are being targeted and punished for practicing their faith. They are being re-conditioned into what the Government would view as the ideal citizen, mainly a non-threatening communist with no religious beliefs. The evidence and testimonies of former detainees have shown that intimidation, punishment and discrimination is at the heart of these camps, therefore there is no uncertainty as to whether this element of the definition is satisfied.

In contrast to the first two elements of the definition, the third may be slightly more problematic to attain due to the fact that although these camps are run by the government of China, it is difficult to prove that Government officials are participating directly in the acts of mental and physical torture of the detainees especially where they are denying all accusations. It is expected that the Government will not freely accept their complicity in these human rights abuses anytime soon, therefore, this is a dispute which may be best heard in the human rights courts on an individual case-by-case basis.

Regardless, it is possible to draw inferences from the evidence provided and the definition. This should be approached through the argument: that the Government of China and the officials of who make up the entirety of the Government or those who have commanded the admittance of Uighur Muslims into these camps or have consented or acquiesced to their pain or suffering, should be held accountable. It is also important to remember that a Governments obligation to prevent and also not engage in human rights abuses is both positive and negative, therefore, due to the running of the camps being state-sanctioned, state-funded and state-governed, this can be taken as evidence of their complicity.

Chinese domestic law

It has been shown that the acts complained of by the victims do constitute torture under the definition. However, it may be surprising that this is not exactly the case when looking at Chinese Domestic Law. This is shown by the Committee Against Torture in their fifth periodic review on the status of China in relation to the Convention. During the observations several areas of concern were raised as to the definition of torture within Chinese Domestic Law. The Committee reported that they were troubled by the lack of coherence between the definition of torture under Chinese Domestic Law and the Convention and viewed that the Chinese definition fell short due to the fact that it did not contain all of the elements included in the Convention, especially relating to psychological abuse and those acting in an official capacity. Torture is discussed in Article 247 of the Chinese Criminal Law where several offences are listed, however the Committee commented on the inconsistencies of the definition in accordance with Article 1 and expressed that China should take immediate action in order to rectify the gaps. Other non-governmental organisations such as Amnesty International have also expressed many of the same concerns and also referred to the Chinese re-education camps and arbitrary detention of Uighur Muslims as ‘brainwashing centres’. Furthermore, the discrepancies between the definitions have been widely discussed by academics as well as the Special Rapporteur, who listed China as one of the States which do not recognise psychological torture.

Despite the obvious gaping holes in Chinese Law due to the exclusion of important elements contained in the Article 1 definition, there is absolutely no excuse for the arbitrary detention of millions of Uighurs in these brainwashing camps. As discussed previously, the prohibition of torture has Jus Cogen status and therefore States are bound by this absolute right, regardless of their domestic law. Therefore, this gives the Chinese Government no viable reason or justification for their significant breach of International human rights law. 

Conclusion

The research above, shows in detail the substantial breach of Article 1 of the Convention Against Torture by the Chinese Government. Officials in China have undertaken to inflict both mental and physical pain and suffering on specific ethnic minority groups, for reasons consisting only of discrimination and intimidation. These camps have been sanctioned by the Government and therefore can be eliminated by the same officials. The elements present in the definition of Article 1: Nature, purpose and perpetrator, have unquestionably been fulfilled as shown through the accusations made by those imprisoned in these facilities. This shows a significant breach by China as the importance of the prohibition of torture has for many years been recognised as an absolute right given to every human being, regardless of who they are, where they live or their religious beliefs. It is imperative that China take steps to rectify this breach in order to ensure they are compliant with International human rights legislation.

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[1] This method of punishment is well-known by inmates as ‘The Tiger Chair’ and was discussed by two others who also voiced how they were subjected to this torment.

[2] United Nations Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Art 2 (2)

[3] The prohibition of torture is also embedded in many other international and regional conventions, treaties and other sources of law. See Article 5 of UDHR (1948), Article 7 of ICCPR (1976), Article 5 of the American Convention on Human Rights (1969), Article 5 of the African Charter (1986) and Article 3 of the ECHR (1994).

[4] [1978] ECHR 1; App No. 5310/71

[5] [1999] ECHR 66; App No. 25803/94

[6] Article 16 of the Convention Against Torture prohibits cruel, inhuman or degrading treatment or punishment which relates to extradition or expulsion. 

[7] para 19

[8] Part D Sections 1-5

[9] para 43