Bachelet's 'Assessment of Human Rights Concerns in Xinjiang' Risks Discrediting the OHCHR and Politicizing the Human Rights Regime

By Casey Ho-yuk Wan – Sep 14, 2022

Introduction
On 31 August 2022, shortly before the tenure of Michelle Bachelet as UN High Commissioner for Human Rights ended, the Office of the High Commissioner for Human Rights (OHCHR) released its “Assessment of Human Rights Concerns in Xinjiang Uyghur Autonomous Region, the People’s Republic of China.”^[1]

This write-up is a response to the “Assessment,” which raises serious doubts as to the impartiality, objectivity, and non-selectivity of the OHCHR’s work with implications for the credibility not merely of the Assessment, but of the OHCHR as a responsible international organ capable of conducting human rights work in a constructive manner while avoiding double standards and politicization. This write-up will also speculate on potential political consequences of the Assessment. In summary, the Assessment risks the discrediting of the OHCHR and the politicization of the global human rights regime the OHCHR is mandated to promote, while likely serving to widen the chasm between the OHCHR and the Global South and to aggravate ongoing and potential international conflicts.

The Contents of the Assessment
It is important to identify what the Assessment has stated. While much has been made by mainstream media of the Assessment’s seeming indictment of China’s crimes against humanity^[2], the Assessment cannot be definitely said to be a sort of indictment or supposition of fact. Paragraph 148 of the Assessment provides:

The extent of arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslim groups, pursuant to law and policy, in context of restrictions and deprivation more generally of fundamental rights enjoyed individually and collectively, may constitute international crimes, in particular crimes against humanity.

This sentence is deliberately ambiguous. In particular, the use of the word “may” can take on two different meanings. The sentence could be stating that, given what the OHCHR currently knows, the extent of arbitrary detention likely constitutes crimes against humanity. This interpretation would be strengthened had the sentence been placed in present perfect tense – that the extent of arbitrary detention may have constituted crimes against humanity. Instead, the sentence placed in the present tense gives rise to a second interpretation: that, given the right circumstances, the extent of arbitrary detention could give rise to the level of crimes against humanity. In other words, “may” could imply either a preliminary finding or supposition of fact, or the mere possibility of a fact.

Leaving the sentence ambiguous in this manner seems to serve the purpose of staking out a position but without committing the OHCHR to find one way or the other in regards to China. At any rate, the sentence is by no means a definitive statement of fact that China committed crimes against humanity. The Assessment is also notable for making no mention of genocide, making only a passing reference to slavery, and presenting no definitive finding on forced labor in Xinjiang.

The Assessment limits itself to the evaluation of certain human rights concerns: China’s laws and policies regarding counter-terrorism and extremism; imprisonment and deprivation of liberty (particularly in regards to the vocational education and training centers (VETCs)); conditions and treatment in the VETCs; religious, cultural, and linguistic identity and expression; privacy and freedom of movement; reproductive rights; employment and labor; family separations and enforced disappearances; and intimidations, threats, and reprisals.

A full review of the Assessment is beyond the scope of this write-up. Suffice to say that in each of the areas listed above, the OHCHR found great cause to be concerned, and have definitively concluded that “serious human rights violations have been committed” in Xinjiang that are “characterized by a discriminatory component.”

Concerns Regarding the Assessment
UN General Assembly Resolution 48/141 of 1994 established the post of High Commissioner of Human Rights, who would be “the United Nations official with principal responsibility for United Nations human rights activities under the direction and authority of the Secretary-General; within the framework of the overall competence, authority and decisions of the General Assembly, the Economic and Social Council and the Commission on Human Rights.” Among other responsibilities, the High Commissioner of Human Rights would “promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights.”

Resolution 48/141 further emphasized the “need for the promotion and protection of all human rights to be guided by the principles of impartiality, objectivity and non-selectivity, in the spirit of constructive international dialogue and cooperation…” These principles were reaffirmed by UN General Assembly Resolution 60/251 of 2006, which established the Human Rights Council (HRC) to replace the Commission on Human Rights. Resolution 60/251 further aspired to eliminate “double standards and politicization” of human rights issues. Resolution 48/141 also requires the High Commissioner to “respect the sovereignty, territorial integrity and domestic jurisdiction of States”, as well as to recognize that “all human rights – civil, cultural, economic, political and social – are universal, indivisible, interdependent and interrelated” and to “promote and protect the realization of the right to development”.

The Assessment raises serious concerns about the work of the OHCHR, as the Assessment fails to live up to the principles of impartiality, objectivity, and non-selectivity, risking the proliferation of double standards and politicization in contemporary human rights work.

What’s Behind OHCHR’s So-Called Xinjiang Report?

The Assessment is one-sided, and sets a worrying precedent
The Assessment claims a “rigorous review of documentary material currently available to the Office, with its credibility assessed in accordance with standard human rights methodology.” It pays special attention to the laws, policies, data, and statements of the Government of China, including document leaks by journalists alleged (and accepted by the OHCHR) to be of an official nature. Supplementing the review of documentary material, the OHCHR interviewed 40 individuals with claimed direct and first-hand knowledge of the matter at hand.

However, a review of the 306 footnotes of the Assessment reveals a concerning omission. Citations in the Assessment overwhelmingly consist of Chinese governmental material, “the vast amount of research that has been completed by non-governmental organizations, researchers, journalists and academics over the last years”, and the interviewed individuals. Missing from citations entirely are non-government Chinese material, including material from Chinese non-governmental organizations (NGOs), academics, and individuals. Also missing are Chinese-language sources apart from Chinese governmental materials such as laws and regulations, and mass media reporting.

The Assessment extensively cites non-government organizations outside China. The Australian Strategic Policy Institute (ASPI), the Uyghur Human Rights Project, and the Xinjiang Victims Database are among those NGOs cited by the Assessment. Yet the Assessment fails to cite the work of any Chinese NGO, or any of the exchanges between the OHCHR and Chinese NGOs. Similarly, while the Assessment cites the work of academics such as Adrian Zenz and Magnus Fiskesjö and of experts such as the Special Procedures of the UN, the Assessment cites no Chinese academic or expert.

The absence of citations of Chinese NGOs and academics is perplexing. Bachelet herself reported that she met with “civil society organizations, academics, and community and religious leaders and others” within China during her visit to China in May 2022.^[3] Yet, for no reason provided, the Assessment does not consider or cite any of the OHCHR’s exchanges with the aforementioned Chinese actors.

There appears to be nothing barring the Office from citing an exchange with Chinese NGOs, academics, community and religious leaders, or other individuals. Footnote 225 cites an “OHCHR meeting note with media representative” for the proposition that Chinese authorities restricted the freedom of movement of ethnic minorities at roadblocks and checkpoints, including at airports. No explanation is offered as to what constitutes a “meeting note with media representative”, so it is reasonable to interpret the citation using the plain language of the text and conclude that the source is a note made by a OHCHR staff member in the course of an interaction with somebody from the media. If this can pass the OHCHR’s “rigorous review” of a source’s credibility, then there would appear to be no barrier as to the OHCHR’s citation of exchanges had with Chinese NGOs, academics, community and religious leaders, or other individuals. Instead, the OHCHR offers no explanation for this exclusion.

The OHCHR further includes no Chinese-language sources in the Assessment apart from the Government of China’s laws, policies, data, and statements, and news articles from mass media, such as Sina news and Tianshan Net. This has the effect of disconnecting the Assessment (and by extension, the OHCHR) from the full body of Chinese societal discourse. The lack of non-governmental Chinese perspectives cited in the Assessment raises questions of credibility, as it reasonably raises the question as to whether the OHCHR has the capacity or willingness to exhaustively research all sources, not just sources that happen to be more easily accessible to the staff of the OHCHR. Indeed, given that the Assessment claims to be based on monitoring the situation “within existing resources”, the question arises as to why research of non-governmental, non-official Chinese-language sources was not “within existing resources.”

These omissions raise many questions, and two are outlined below in brief.

Paragraph 67 raises the concern that China’s criminal justice system is “marked by overly broad and vague definitions of crimes.” Footnote 153 then remarks that “Chinese criminal law is replete with other wide-ranging and imprecise public security offences,” such as inciting ethnic hatred or discrimination “if the circumstances are serious,” gathering a crowd that disturbs “social order,” or “picking quarrels and causing trouble,” citing the 5th periodic review of China by the UN Committee against Torture (CAT/C/CHN/CO/5).

Paragraph 67 and footnote 153 cite no Chinese-language source or Chinese authority. The Assessment thus appears to assume that there is no credible or reliable legal scholarship or substantive legal or policy discussions in China regarding China’s criminal justice system or criminal law. As such, the Assessment implicitly asserts that the OHCHR is legitimately in the position to conduct the authoritative legal and political analysis of China’s criminal justice system and criminal laws. To say that such conduct is offensive and patronizing, especially after an official OHCHR visit to China in May 2022 included visits with the Chief Justice of the Supreme People’s Court and Chinese academics^[4], would be an understatement. The lack of either capacity or willingness to research or engage Chinese authorities or Chinese-language sources that could provide more context to or background on China’s criminal justice system or criminal laws raises questions as to the adequacy of the Assessment and the work of the OHCHR, and risks violation of the mandate of the OHCHR to promote human rights in a non-selective manner.

Similarly, paragraph 84 raises the concern that China’s anti-extremism policies “explicitly target standard tenets of Islamic religion and practice.” Footnote 195 accompanying paragraph 84 cites only the OHCHR’s interviewees. Footnotes 182 to 212 covering the section of the Assessment concerning “religious, cultural and linguistic identity and expression” cite no NGOs or religious or community leader that the OHCHR may have met in the course of its visit to China in May 2022. Such actors could provide larger contexts or greater understanding with regard to the OHCHR’s concerns. Instead, the OHCHR omits the perspectives of these actors with no explanation, raising questions as to the efficacy of the OHCHR in constructively engaging the Chinese government and Chinese civil society in the promotion of human rights, as the OHCHR has seemingly demonstrated indifference to the results of its visit to China in preparing and finalizing the Assessment. It also raises concerns as to the OHCHR’s commitment to the promotion of human rights in an objective and non-selective manner, given that the OHCHR does not seem capable or willing to harness the facts or positions it has learnt during its trip to China to inform its Assessment.

Despite the already concerning omission of Chinese civil society actors and Chinese-language sources, the Assessment’s lack of citation of normal citizens of Xinjiang may prove to be far more alarming. Bearing in mind that the Assessment claims that it examines the origin, credibility, weight, and reliability of open-source information in line with standard OHCHR methodology, the Assessment cites Shawn W. Zhang’s Medium account for the proposition that the scale of detention in VETCs can be determined through satellite imagery in footnote 139.

Medium accounts are social media blogs that are not subject to any institutional or academic rigor. However, the OHCHR found this particular Medium account as credible, reliable, and with weight in line with standard OHCHR methodology, sufficient to pass the OHCHR’s “rigorous review.”

The question then arises as to why what is essentially the unfiltered voice of a private citizen engaging in analysis of publicly available satellite imagery on social media can be cited by the Assessment, yet the multitudes of unfiltered voices of private citizens of Xinjiang sharing their own viewpoints and experiences on social media cannot.^[5] It is of the highest concern that the Assessment privileges the voice of a foreign citizen over the voices of citizens whose human rights the Assessment is supposedly concerned with. In seeking to fulfill its mandate to be a “voice for the voiceless,” the OHCHR in this instance risks silencing the very people at the core of its human rights concerns.

In a similar vein, footnote 137 cites Nathan Ruser on Twitter. Although this citation is for the limited proposition of “responses by ASPI” to the Government of China’s dispute of the authenticity of imagery used by ASPI, the fact that the OHCHR legitimizes an unfiltered social media account not subject to any institutional or academic rigor as a proper source to dispute positions held by the Chinese government opens the door to further doubts and questions. If Western-based social media accounts are credible and reliable sources according to OHCHR methodology which can rise to the same level as positions advanced by the Chinese government, why then did the Assessment fail to cite similarly-situated Chinese or Western-based social media accounts defending China’s position? Should not the OHCHR also consider similarly-situated accounts and voices to rise to the same level as positions advanced by the UN Special Procedures and the Western-based NGOs, researchers, and journalists cited by the OHCHR in the Assessment? The Assessment fails to clarify a standard and thereby facially risks double standards, which could impeach the credibility of the OHCHR itself.

The OHCHR’s unexplained omission of Chinese authorities and sources from the Assessment sets a worrying precedent. Without explanation, the omission can only imply that non-governmental Chinese and Chinese-language sources do not pass the OHCHR’s “rigorous review”, and thus are not credible or reliable. Unless all non-governmental Chinese and Chinese-language sources truly are unreliable according to the OHCHR’s standards, the more likely explanations are that either the OHCHR lacks the capacity to adequately engage with and monitor non-governmental Chinese and Chinese-language sources, or the OHCHR consciously disregards these sources for unexplained subjective reasons. Either case would raise questions about the OHCHR’s ability to promote human rights in an impartial, objective, and non-selective manner free from double standards, and sets a worrying precedent that selective, one-sided use of sources is permissible. The OHCHR thereby risks silencing entire swaths of global civil society.

The Assessment is not comprehensive, and appears to privilege some rights over others
The Assessment does not adequately cover or appreciate certain factual or historical background of the issues at hand. As a result, the Assessment fails to consider a potentially more complete picture of the human rights situation in Xinjiang by privileging the examination and evaluation of certain rights over others. Privileging certain rights over others would be a violation of the OHCHR’s mandate as provided for in Resolution 48/141, which states that “all human rights are universal, indivisible, interdependent and interrelated and that as such they should be given the same emphasis.”

For instance, there is a mere paragraph explaining the historical background of violence in Xinjiang. Paragraph 12 paints the period from 1990 to 2016 in broad strokes without elaborating on the actual consequences of the multi-decade period of violence. Assassinations of Uygur religious personnel, violent incidents in which the majority of victims were Uygur^[6], and the scale and frequency of violent incidents is neither elucidated nor appreciated.

This background is important for both factual and legal reasons, if an assessment of human rights in Xinjiang, China is to be comprehensive. Article 3 of the Universal Declaration of Human Rights provides that every person has the right to life. General Comment No. 36 (CCPR/C/GC/36), adopted by the Human Rights Committee in 2019, explains that the right to life includes “an obligation for States parties to adopt any appropriate laws or other measures in order to protect life from all reasonably foreseeable threats, including from threats emanating from private persons and entities.” Specifically, “States parties are obliged to take adequate preventive measures in order to protect individuals against reasonably foreseen threats of being murdered or killed by criminals and organized crime or militia groups, including armed or terrorist groups.”

By obscuring the scale, frequency, and nature of violence in Xinjiang during the period from 1990 to 2016 informing Chinese laws and policies under scrutiny, and by obscuring the fact that oftentimes it was Uygurs and other Muslim minorities who were victims of this violence, the OHCHR avoids discussion of the fundamental right to life and the Chinese government’s obligation to take measures to protect life. Indeed, the Assessment makes no substantive discussion of the right to life, and does not assess concerns about China’s anti-terrorism and anti-extremism legal framework and VETC measures in light of China’s responsibility to protect the life of its citizens, among them Uygurs and other Muslim minorities.

If the claim by the Government of China that no terrorist attack has taken place in Xinjiang since 2017 is true, then this could potentially be grounds for a commendation of China’s commitment to the right to life for the citizens of Xinjiang in the certain respect of protecting individuals against reasonably foreseen threats, and should have been evaluated in tandem with other human rights concerns. By avoiding this discussion, the Assessment focuses on the OHCHR’s own concerns to the unjustified exclusion of other considerations, which is unlikely to constitute constructive engagement with China on human rights matter in an impartial, objective, and non-selective manner that respects China’s sovereignty and domestic jurisdiction, consistent with the OHCHR’s mandate.

Similarly, the Assessment makes passing mention of poverty and poverty alleviation, and references to poverty and poverty alleviation are largely limited to stances by the Government of China and raising concerns that poverty alleviation programs by the Government of China “may involve elements of coercion and discrimination on religious and ethnic grounds.” Nowhere in the Assessment is there a substantive discussion about how China’s poverty alleviation may constitute protection of the right to development of Xinjiang citizens.

UN General Assembly Resolution 41/128 confirmed that “the right to development is an inalienable human right and that equality of opportunity for development is a prerogative both of nations and of individuals who make up nations.” The right to development is defined as a person’s right to “enjoy economic, social, cultural and political development”. Resolution 41/128 imposes on States a duty to “formulate appropriate national development policies” aimed at development and based on fair distribution of the benefits of development, and to create “national and international conditions favorable to the realization of the right to development,” among other duties. Additionally, it is a responsibility of the High Commissioner of Human Rights to “promote and protect the realization of the right to development”, as provided for in Resolution 48/141.

The Assessment makes no mention of the right to development. More substantial discussion of China’s poverty alleviation programs as well as discussion of other initiatives and policies such as promotion of entrepreneurship^[7], efforts to protect and develop intangible heritages^[8], and fostering a favorable foreign trade environment^[9], could have provided a fuller picture of the efforts of the Government of China to promote the right to development in Xinjiang.

The Assessment does not engage in these discussions, presenting instead an incomplete and unidimensional picture of China’s poverty alleviation programs in Xinjiang. That the OHCHR would decide to present such is perplexing given the OHCHR’s on-the-ground visit to Xinjiang in May 2022. That the OHCHR is seemingly unable to explain why it chose not to engage in a substantive discussion of the right to development, despite the OHCHR’s mandate to promote and protect the right to development, and draw on its experiences and observations during its visit to Xinjiang, as well as to solicit and cite the opinions of non-governmental Chinese and Chinese-language sources who may be direct witnesses to China’s poverty alleviation programs and its efforts to protect peoples’ rights to development, is concerning. Such a decision raises the question of the OHCHR’s capacity and willingness to fulfill the mandate of constructively engaging with China on human rights matter in an impartial, objective, and non-selective manner respectful of China’s sovereignty and domestic jurisdiction, consistent with the OHCHR’s mandate.

A fuller analysis of the Assessment may reveal further shortcomings in the Assessment to impartially, objectively, and non-selectively review historical context and background, and to address all human rights equally. Perhaps the Assessment necessarily limited its scope to the OHCHR’s concerns as outlined in the Assessment. However, given the political environment of the Assessment (discussed below) and the allegation that China “has committed serious human rights violations”, the failure to fully discuss all rights equally and appreciate all facts relevant thereto is haphazard and reckless at best. At any rate, the OHCHR’s seeming failure to pursue a fuller discussion of the human rights situation in Xinjiang in favor of its own purported concerns raises serious concerns about the OHCHR’s impartiality, objectivity, and non-selectiveness in its promotion of human rights, free from double standards and politicization. The OHCHR also risks failing to recognize that all human rights are universal, indivisible, interdependent and interrelated and should be given the same emphasis, which would constitute a violation of its own mandate and thus impeach the credibility of the OHCHR and the Assessment.

The Assessment does not appear to enjoy a mandate by the General Assembly or the Human Rights Council
Generally, the High Commissioner for Human Rights prepares country reports like the Assessment pursuant to a General Assembly or Human Rights Council resolution, upon the request of a state, or through some other legal instrument.

For reference, country reports made by the OHCHR during Bachelet’s tenure include:

successive reports on human rights conditions in Ukraine, based on the work of the UN Human Rights Monitoring Mission in Ukraine, initially deployed at the invitation of the Government of Ukraine (see A/HRC/27/75, paras. 7-8)
successive reports on the situation of human rights in Colombia, which are included in the OHCHR’s annual report pursuant to the request of the parties to the “Final Agreement for Ending the Conflict and Building a Stable and Lasting Peace, the peace agreement signed between the Government of Colombia and the Revolutionary Armed Forces of Colombia” (see A/HRC/40/3/Add. 3)
Report of the UN OHCHR on the “Situation of human rights in the Philippines” of 2020 (A/HRC/44/22), which was authorized by UN HRC Resolution 41/2.
Report of the UN OHCHR on the “Situation of human rights in the Bolivarian Republic of Venezuela” of 2021 (A/HRC/47/55), which was authorized by UN HRC Resolution 45/20.

The Assessment provides no such authorization similar to the above. The Assessment provides only, in paragraph 3, that its review on which the Assessment is based was made pursuant to the OHCHR’s “global mandate under General Assembly resolution 48/141 and within existing resources”. In other words, the OHCHR’s authorization for the review of “human rights concerns in Xinjiang Uyghur Autonomous Region, the People’s Republic of China” is merely the general authorization for the OHCHR to “promote and protect the effective enjoyment by all of all civil, cultural, economic, political and social rights”.^[10]

Such a general authorization is not unprecedented. The 2018 OHCHR “Report on the Situation of Human Rights in Kashmir” similarly offered no basis for authorization of the report except for the general mandate of Resolution 48/141. Be that as it may, the question arises as to competence, impartiality, objectivity, and non-selectiveness of the OHCHR when it acts outside the “overall competence, authority and decisions” (emphasis added) of the General Assembly and the Human Rights Council, as provided for in Resolution 48/141.

In the Assessment’s case, it is implied that Resolution 48/141 provides adequate authorization for the Assessment due to:

increasing allegations by various civil society groups that members of the Uyghur and other predominantly Muslim ethnic minority communities were missing or had disappeared in the Xinjiang Uyghur Autonomous Region of the People’s Republic of China;
the UN Working Group on Enforced or Involuntary Disappearances reporting a “dramatic” increase in cases from XUAR “with the introduction of ‘re-education’ camps in the Xinjiang Uighur Autonomous Region by the Government of China”;
numerous research and investigative reports publishing a diverse range of non-governmental organizations, think-tanks and media outlets – as well as public accounts by victims – alleging arbitrary detention on a broad scale in so-called “camps”, as well as claims of torture and other ill-treatment, including sexual violence, and forced labour, among others;
the UN Committee on the Elimination of Racial Discrimination (UN CERD) expressing alarm during its review of China’s periodic report in August 2018 over numerous reports of the detention of large numbers of ethnic Uyghurs and other Muslim minorities, under the pretext of countering religious extremism in XUAR.^[11]

If such is the case, the OHCHR implies that it is authorized to conduct “monitoring” if there are enough allegations of a given human rights issue by civil society, or that the OHCHR is authorized to conduct monitoring if an issue becomes high-profile enough. It could perhaps also be that the OHCHR is authorized to conduct monitoring because allegations of human rights violations appear to transcend specific incidences to reach a worrying systematic scale. The standard is not in any case clear.

This unclear standard is more worrying given that the OHCHR has displayed a trend of selectively overlooking, among other allegations, alleged war crimes by the United States and its allies. Such allegations are arguably also both many and high-profile, and alleged United States war crimes in Afghanistan appear to transcend specific incidences into a systematic scale^[12], yet the OHCHR has failed to make so much as a statement on these concerns, much less authorize “monitoring” and “assessments.”

During her tenure, Bachelet demonstrated that she was not at all averse to warning states of the possibility that their actions may amount to war crimes and urging inquiry or immediate corrective action. On 2 November 2020, she warned the parties to the Nagorno-Karabakh conflict (Armenia and Azerbaijan) that attacks in populated areas may amount to war crimes. On 13 November 2020, she urged for an immediate inquiry into the alleged killings of civilians in the town of Mai-Kadra in Ethiopia, warning the parties to the conflict (Ethiopia and the Tigray People’s Liberation Front) that the killings could amount to war crimes. On 15 May 2021, Bachelet warned that the indiscriminate firing of missiles by Palestinian armed groups into Israel could amount to war crimes. On 22 April 2022, Bachelet warned that Russian actions in Ukraine could amount to war crimes.

Yet Bachelet was silent regarding alleged war crimes committed by the United States.^[13] Bachelet’s seeming silence persisted despite a high-profile armed conflict in Afghanistan to which the United States was a party and to which the United States only ended its engagement in 2021 after 20 years, and despite accusations that the United States was stealing oil from Syria, which, if true, could amount to a war crime as “pillage” under the Rome Statute^[14]. Indeed, despite the United States’ high-profile threat to arrest and impose sanctions on judges of the International Criminal Court should they charge any United States soldier who served in Afghanistan with war crimes early in Bachelet’s tenure in September 2018, as far as can be established from a review of the OHCHR website, Bachelet made no statement warning that actions by the United States could amount to war crimes and urging inquiry or immediate corrective action.

This seeming immunity from the scrutiny of the OHCHR appears to extend to certain allies of the United States as well. In March 2020, a shocking video of an Australian Special Air Service soldier killing an unarmed Afghan civilian surfaced, raising concerns of war crimes. As far as can be established from a review of the OHCHR website, Bachelet made no statement warning that Australian actions could amount to war crimes and urging inquiry or immediate corrective action.

Even in matters that are arguably more analogous to the matter at hand (i.e. domestic human rights setbacks in the United States), the OHCHR is comparatively quiet. In the United States context, Bachelet has issued statements criticizing or condemning anti-Semitic incidents (May 2019), conditions of detention of migrants and refugees (July 2019), unilateral sanctions against Venezuela (August 2019), presidential pardons of alleged war criminals (November 2019), the killing of – and suppressing protests in connection with the killing of – George Floyd (May and June 2020), the events on Capitol Hill of 6 January 2021, and the removal of federal protection for the right of abortion (June 2022). These statements were in response to high-profile events, yet these events were, for some reason or another, not sufficient to give rise to OHCHR monitoring or assessments, even though many of these events also attracted criticisms and condemnations from the UN CERD and UN Special Procedures.^[15]

That the OHCHR in the past years seemed able only to issue condemnatory statements against the United States in response to high-profile events seems to belie an OHCHR ignorance or overlooking of deeper, systematic human rights concerns, which also have not given rise to OHCHR monitoring or assessments.

For instance, according to the World Prison Brief the United States has the largest prison population in the world, surpassing even China’s second largest prison population in the world. Despite having approximately 4% of the world’s population, it has approximately 20% of the world’s prisoners. The severity of the incarceration crisis in the United States is such that, for China to match the United States’ incarceration rate of 629 incarcerated persons per 100,000 people, the highest in the world and far above China’s (excluding Hong Kong, Macau, and Taiwan) rate of 119 incarcerated persons per 100,000 people, China would need to incarcerate approximately 7 million more people. Should this phenomenon be shown to be a systemic concern, this could constitute a violation of the right to liberty as provided for in Article 3 of the Universal Declaration of Human Rights. Yet, Bachelet and the OHCHR have not called for monitoring or assessment of this situation.

Bachelet and the OHCHR were also silent concerning human rights developments in the United States that were not publicly prominent. The recent Supreme Court case overturning Roe v. Wade and eliminating the federal protection of abortion rights was high-profile, prompting a statement from the OHCHR. The recent Supreme Court case Oklahoma v. Castro-Huerta, however, in which the Supreme Court overturned 200 years of United States legal precedent and subjected tribal sovereignty to state sovereignty, instead of respecting the nation-to-nation relationships tribes are entitled to vis-à-vis the United States federal government, was not as high-profile and attracted no comments by Bachelet or the OHCHR.

Castro-Huerta sets a worrying precedent for the future of indigenous peoples in the United States, presenting a very high risk of violation of indigenous peoples’ rights to autonomy and self-government, among other rights enshrined in the UN Declaration of the Rights of Indigenous Peoples. In particular, the subsuming of tribal sovereignty to state sovereignty has historically held a high degree of correlation with violence against, and murder of, indigenous people in the United States, including documented cases of murdered and missing indigenous women.^[16] Castro-Huerta threatens serious violations of the rights of indigenous people should its tenets be perpetuated, but this apparently came as no concern to Bachelet or the OHCHR, with concerns of violations of the rights of indigenous people in the United States in general never rising to the level in which the OHCHR calls for monitoring or assessments.

Given the above, it is difficult to determine the standard for authorizing the OHCHR to engage in country reports when it does not have an authorizing Resolution, invitation, or other legal instrument such as a peace treaty. By authorizing itself to undertake this Assessment, the OHCHR cannot but risk a double standard which undermines its credibility. Specifically, the OHCHR risks presenting itself as having resorted to the general provisions of Resolution 48/141 to authorize itself to monitor and issue a condemnatory Assessment of China merely because it was unable to gain the authorization it normally requires from the HRC for such monitoring and assessments, given the strong support for China’s position by the international community of states at the HRC (discussed below).

No Mention of Uyghur ‘Genocide’ After UN Human Rights Commissioner Visits Xinjiang

Without a properly explained standard, the context of an OHCHR unwilling to so much as release a statement on alleged war crimes by the United States and its allies, yet investing significant resources on the matter at hand, raises questions as to the OHCHR’s impartiality, objectivity, and non-selectivity in the promotion of human rights, free from double standards and politicization. As explained below, this is likely to discredit the OHCHR, especially in the eyes of the Global South, and risks not only calling into question the integrity of the OHCHR but also politicizing the very human rights regime it seeks to promote.

Political ramifications of the Assessment
Bachelet’s Assessment, with its condemnatory tone, privileging of certain voices and sources, failure to examine all human rights equally, and lacking a HRC mandate, as explained above, fails the principles of impartiality, objectivity, and non-selectivity and violates the spirit of constructive dialogue. The Assessment is thus likely to present concerns of double standards in and politicization of the OHCHR’s human rights work, placing the OHCHR at odds with a significant contingent of the international community of states, particularly those of the Global South.

Reviewing the dialogue of states on Xinjiang at the HRC is illustrative of the chasm the Assessment threatens to open. Bachelet’s tenure as High Commissioner saw four rounds of competing joint statements regarding Xinjiang at various sessions of the HRC. At each round, the group of countries co-sponsoring statements condemning China regarding Xinjiang were consistently outnumbered by the group of countries co-sponsoring statements supporting China’s position: 50-22 for the 41st session in 2019, 46-27 for the 44th session in 2020, 68-42 for the 47th session in 2021, and 69-47 for the 50th session in 2022.

During the 50th session in 2022, more countries in each region of the world co-sponsored the statement supporting China than the one condemning (Africa 33-2, Americas 9-5, Asia 20-2), except for Europe and Oceania (3-34 and 4-4 respectively). Members of the Organisation of Islamic Cooperation (OIC, “the collective voice of the Muslim world”) overwhelmingly co-sponsored the statement supporting China’s position (37-1).

The joint statement in support of China at the 50th session appealed to respect for sovereignty, independence, territorial integrity, and non-interference in the internal affairs of sovereign states, opposed politicization of human rights and double standards, and appealed to the principles of universality, impartiality, objectivity, and non-selectivity in human rights work. The joint statement condemning China at the 50th session made no reference to these principles enshrined in UN General Assembly resolutions. It is thus reasonable to interpret the statements of other countries making similar appeals to these principles as tacit support of China’s position, or, at the very least, an appeal to the OHCHR to demonstrate more circumspection. Such countries included OIC members such as Azerbaijan, Côte d’Ivoire, and the Maldives, as well as other developing countries such as Ghana and Vietnam. The Arab League also made a similar appeal.

Ink has been spilled about how many supporters of China’s position have close economic ties with China, particularly through the Belt and Road Initiative. However, this is not convincing as a determinative factor, given China is also the largest trading partner of certain countries condemning it regarding Xinjiang (the United States, Germany, and Australia), while many countries have condemned China despite their own involvement in the Belt and Road Initiative (for example, Italy, Poland, and the Baltic countries).

That the vast majority of Muslim-majority and OIC countries have supported China, in particular those in West Asia and North Africa, is all the more striking given the political turmoil in West Asia. Indeed, whereas the Axis of Resistance (Iran and Syria) has complex and frequently difficult relationships with the Saudi axis (Saudi Arabia and Yemen, which is represented in the UN by the Saudi-backed Government of Yemen) as well as with the Abraham Accords countries and others who have official ties with Israel (Egypt, UAE, Bahrain), all aforementioned countries sans Israel support the Chinese position on this issue. Similarly, while Algeria and Morocco have ceased relations since August 2021, both also support China’s position. What is traditionally thought of as bloc geopolitical gamesmanship thus also is unconvincing as a determinative value.

There thus appears to be a deeper consideration, concern, or misgiving guiding normally opposing Muslim-majority Western Asian and Northern African countries to unite on this issue. Indeed, the foreign ministers of the OIC are on record for commending the “efforts of the People’s Republic of China in providing care to its Muslim citizens” after an OIC delegation visited Xinjiang in January 2019^[17], with the OIC maintaining sustained interest in Xinjiang, a delegation most recently visiting the region in August 2022.

Bachelet’s Assessment is plainly at variance with the OIC and the opinions of many Muslim-majority countries. While the OHCHR, more than 80% of whose staff is made up of people from the the United States and other Western countries,^[18] claims concern for discrimination against Muslim minorities in China and finds “serious human rights violations” that could rise to the level of crimes against humanity, this is the very opposite of the experience of the majority of delegates from Muslim-majority and OIC countries who have visited Xinjiang. Many of these delegates have found something of value in the Xinjiang experience^[19], whereas the OHCHR in its “Assessment” sees only negatives.

There is thus an obvious gap in values and perspectives, which the OHCHR does not seem to endeavor to bridge, despite having no specific authorization from the HRC to pursue this Assessment in the first place. Had the Assessment, among other things, focused on the right to life (a potential concern for Muslim-majority and OIC countries struggling against terrorism, extremism, sectarian violence, and other related issues) and the right to development (a concern of Muslim-majority and OIC countries seeking to pursue development while protecting people’s livelihoods in an equitable way), the OHCHR perhaps could have worked towards bridging that gap. Instead, the OHCHR focuses only on the negatives in its Assessment, not only failing to discuss certain other rights, but also privileging certain voices while depriving others of their voices. This is likely to disturb Global South countries, who may see in the Assessment a disregard both for the principles underlying the very foundations of the HRC, OHCHR, and the global human rights regime the UN seeks to promote, and also a flagrant disregard of the values and perspectives of Global South countries in general.

In recent years, it has often been Muslim-majority countries in West Asia and North Africa who have had to witness and shoulder the consequences of Western interventions in their regions, which are often justified and legitimized using human rights grounds. The all too apparent rift between the stances of these countries and the findings of the Assessment regarding the rights of Muslims in another country cannot but work to strain relations between the OHCHR and these countries. This effect will be especially pronounced given the context of the seeming silence of Bachelet and the OHCHR on the very same Western interventions whose consequences these countries have had to shoulder.

In this light, the Assessment may prove far from constructive, not only in regards to China but also vis-à-vis Muslim-majority countries, particularly in West Asia and North Africa, who may feel wary that the OHCHR strays from its mandate to constructively engage on human rights based on the principles of impartiality, objectivity, and non-selectivity without double standards and politicization. This will likely weaken the credibility of the OHCHR in the eyes of the Global South, which is not conducive to Global South cooperation with the OHCHR.

While the Assessment may not have substantiated accusations made by Western countries with regards to China, the Assessment will serve as a potent political tool for Western countries against China^[20], including by legitimizing Western unilateral coercive measures.^[21]

In particular, recommendations in paragraph 152 of the Assessment made to the “business community” are likely to legitimize and justify the United States’ Uyghur Forced Labor Prevention Act passed earlier this year, which provides for a rebuttable presumption that all goods sourced from Xinjiang was made through forced labor and thus impoundable by US authorities. The Act effectively legalizes a hypothetical full import ban on China, since it will be too difficult for companies to prove that their supply chains in China do not include parts or components from Xinjiang, much less prove the negative that the companies’ supply chain does not involve forced labor in Xinjiang. Whether intended or not, the Assessment will legitimize and justify economic warfare against China and the deprivation of the right to work and to development from Chinese people, including Uygurs, as enshrined in Article 23 of the Universal Declaration of Human Rights and Resolution 41/128.

Given that the Assessment could all but legitimize unilateral coercive measures by the United States and its allies against China (and thereby de facto legitimizes foreign interference with China’s efforts to protect the rights of its people), it is likely that the working group between China and the OHCHR established during Bachelet’s visit to Xinjiang in May 2022 will face uncertain prospects. It will be difficult to foster a relationship with an entity that has worked towards legitimizing hostile actions against a state and its people, including legitimizing the deprivation of rights of that state’s people. In this light, the OHCHR has failed to fulfill its mandate to constructively engage states on human rights matters.

Similarly, the Global South is likely to find even fewer reasons to cooperate with the OHCHR moving forward. For one, China cooperated with the OHCHR, even though the OHCHR had no specific General Assembly or HRC authorization, only to have the OHCHR release a condemnatory Assessment. Second, the Assessment, already lacking General Assembly or HRC authorization, was selective in its selection of sources and analysis of human rights situations, raising serious questions of credibility due to the failure of the OHCHR to adhere to its mandate and promote human rights in an impartial, objective, and non-selective manner. As a result, Global South countries are likely to become more circumspect and defensive in their interactions with the OHCHR and within the HRC, which will contribute to an environment not at all conducive to the promotion of human rights in a non-politicized manner.

In an interview with UN News on 30 August 2022, Bachelet identified “huge polarization on the international level” as a present-day phenomenon unconducive to human rights. Be that as it may, Bachelet did not help address this problem through releasing this Assessment. She has instead accelerated the politicization of the international human rights regime, portending even greater distrust among Global South countries towards the OHCHR and the field of international human rights as promoted by the UN. Despite claiming that she spoke up whether “it’s China or the UK or US”, Bachelet’s track record (and that of the OHCHR in general) is one of selective overlooking of Western atrocities, which is not likely to appeal to the Global South countries who have had to witness the effects of such atrocities, many of whom have decided to support China in the matter at hand.

With the Assessment as issued by the OHCHR riddled with potential issues of bias, non-objectivity, and selectiveness, in seeming defiance of the cooperative steps taken with China, as well as seemingly insensitive to the perspectives and positions of other stakeholders, and in the context of the OHCHR’s de facto blank check for Western atrocities, allowing Western countries to present themselves as paragons in human rights despite egregious alleged atrocities including war crimes, the OHCHR risks discrediting itself with Global South states representing the vast majority of humanity today. Worse, the Assessment is sure to be used to accelerate and sharpen great power competition, with the effect that the OHCHR through the Assessment may have already effectively aligned with one power or bloc of countries over the other, in flagrant violation of its mandate.

In this light, the Assessment’s hedging language can serve only as cold comfort, as the Assessment risks the acceleration of polarization and global conflict while discrediting and delegitimizing the OHCHR, and politicizing the human rights regime it attempts to promote.

Notes

^[1] It should be noted that the official spelling of Xinjiang’s full name in English is “Xinjiang Uygur Autonomous Region.” It appears that the OHCHR has chosen not to adopt China’s official spelling of its own administrative unit.

This write-up will endeavor to use the official spellings as adopted by the relevant international or national authorities. As such, the official Chinese spelling of “Uygur” will be used.

^[2] See headlines such as Reuter’s “U.N. says China may have committed crimes against humanity in Xinjiang.”

^[3] Statement by UN High Commissioner for Human Rights Michelle Bachelet after official visit to China, 28 May 2022, https://www.ohchr.org/en/statements/2022/05/statement-un-high-commissioner-human-rights-michelle-bachelet-after-official.

^[4] Statement by UN High Commissioner for Human Rights Michelle Bachelet after official visit to China, 28 May 2022, https://www.ohchr.org/en/statements/2022/05/statement-un-high-commissioner-human-rights-michelle-bachelet-after-official.

^[5] Global Times, “Xinjiang residents upload personal videos to debunk Pompeo’s lies on ‘genocide’”, Global Times, 25 January 2021, https://www.globaltimes.cn/page/202101/1213911.shtml. 2,402 videos have been compiled as of September 2022, and can be reviewed on Youtube, https://www.youtube.com/playlist?list=PLkbOIKUddMBtp0_xEFqn4zey48kkgJq5w.

^[6] For example, the April 2013 Incident in Serikbuya Town, in which 10 out of 15 civilians deaths were Uygurs, including 3 grassroots community workers who were conducting household visits at the time. CCTV news media brief available at https://news.qq.com/a/20130429/000207.htm.

^[7] See, e.g., CGTN, “Xinjiang Development: Locals see rise in entrepreneurship, employment opportunities”, CGTN, 16 December 2021, https://news.cgtn.com/news/2021-12-16/VHJhbnNjcmlwdDYxMjI1/index.html.

^[8] See, e.g., “Xinhua, Tourism helps promote intangible heritage in Xinjiang”, 26 September 2021, http://www.china.org.cn/china/2021-09/26/content_77776401.htm.

^[9] See, e.g., Urumqi Customs, 2021年新疆外贸进出口同比增长5.8%实现“十四五”良好开局.

^[10] Although, as noted in paragraph 8, the Government of China extended an invitation to the OHCHR for a visit to China, this occurred after the OHCHR began monitoring and assessing the matter at hand.

^[11] It is concerning that the Assessment does not give the full context for this UN Committee on the Elimination of Racial Discrimination meeting. While it cites CERD/C/CHN/CO/14-17, para 40(a), it does not cite the OHCHR’s own press release for the meeting, available at https://www.ohchr.org/en/press-releases/2018/08/committee-elimination-racial-discrimination-reviews-report-china?LangID=E&NewsID=23452, which shows that the lone United States attendee at the meeting, Gay McDougall, Committee Co-Rapporteur for China, was the sole committee member to raise the allegations of “internment camps” in Xinjiang.

As a side note, it is also concerning that neither the press release nor CERD/C/CHN/CO/14-17 are cited for positive aspects of China’s human rights progress, including commending China for “creating extraordinary prosperity and lifting hundreds of millions of people out of poverty, including in the eight multi-ethnic provinces and regions.” This would speak to China’s efforts to protect its people’s right to development, which the OHCHR is mandated to promote.

^[12] See, e.g., Shaharzad Akbar, “Ending the Forever War, But Leaving a Legacy of Impunity in Afghanistan”, Just Security, 30 June 2021, https://www.justsecurity.org/77207/ending-the-forever-war-but-leaving-a-legacy-of-impunity-in-afghanistan/; Chris Hedges, “The dangerous myth of American innocence: Only our enemies commit ‘war crimes’”, Salon, 24 March 2022, https://www.salon.com/2022/03/24/the-myth-of-american-innocence-only-our-enemies-commit-war-crimes/.

^[13] Bachelet’s seeming sole statement on United States war crimes is a 19 November 2019 statement delivered by Spokesperson Rupert Colville expressing “concern” over “recent US presidential pardons for three US service members accused of war crimes.” This statement does not address United States war crimes directly, and it certainly does not conclude that the United States committed war crimes in the same manner as the OHCHR’s recent conclusion that China committed “serious human rights violations.”

^[14] See Robin Wright, “Trump’s Baffling Plan to Pillage Syria’s Oil, The New Yorker, 30 October 2019, https://www.newyorker.com/news/our-columnists/trumps-baffling-plan-to-pillage-syrias-oil; The Cradle News Desk, “Over 200 oil tankers escorted out of Syria by US troops within two days”, The Cradle, 13 August 2022, https://thecradle.co/Article/News/14255.

^[15] See, e.g., “UN Committee calls on US to comply with international obligations to tackle racial discrimination”, 15 June 2020, https://www.ohchr.org/en/news/2020/06/un-committee-calls-us-comply-international-obligations-tackle-racial-discrimination; “USA: UN experts denounce Supreme Court decision to strike down Roe v. Wade, urge action to mitigate consequences”, 24 June 2022, https://www.ohchr.org/en/press-releases/2022/06/usa-un-experts-denounce-supreme-court-decision-strike-down-roe-v-wade-urge.

^[16] Mary Kathryn Nagle, “Castro-Huerta decision ‘flips federal Indian law on its head’, Indian Country Today”, https://indiancountrytoday.com/opinion/castro-huerta-decision-flips-federal-indian-law-on-its-head.

^[17] Organisation of Islamic Cooperation, Resolutions on Muslim Communities and Muslim Minorities in the Non-OIC Member States Adopted by the 46th Session of the Council of Foreign Ministers (OIC/CFM-46/2019/MM/RES/Final), para. 20, 1-2 March 2019.

^[18] Zhao Lijian, Ministry of Foreign Affairs of the People’s Republic of China Regular Press Conference, 2 September 2022, http://new.fmprc.gov.cn/fyrbt_673021/202209/t20220902_10760376.shtml.

^[19] See, e.g., Xinhua, “Diplomats from 30 Islamic countries visit Xinjiang”, 7 August 2022, https://global.chinadaily.com.cn/a/202208/07/WS62ef831ea310fd2b29e70bc1.html.

^[20] See, for instance, the United States’ State Department statement on the Assessment on 1 September 2022, declaring that the Assessment “deepens and reaffirms our grave concern regarding the ongoing genocide and crimes against humanity that PRC government authorities are perpetrating”, despite the fact that the Assessment did not substantiate accusations of genocide. https://www.state.gov/un-office-of-the-high-commissioner-for-human-rights-report-on-the-human-rights-situation-in-xinjiang/

^[21] “Unilateral coercive measures often refer to economic measures taken by one State to compel a change in policy of another State. The most widely used forms of economic pressure are trade sanctions in the form of embargoes and/or boycotts, and the interruption of financial and investment flows between sender and target countries.” Thematic study of the Office of the United Nations High Commissioner for Human Rights on the impact of unilateral coercive measures on the enjoyment of human rights, including recommendations on actions aimed at ending such measures (A/HRC/19/33).

Incidentally, the United States and other close partners of the United States including NATO member states, Japan, and the Republic of Korea have consistently opposed HRC resolutions condemning unilateral coercive measures. See Human rights and unilateral coercive measures (A/HRC/RES/27/21); Human rights and unilateral coercive measures (A/HRC/RES/36/10), and; The negative impact of unilateral coercive measures on the enjoyment of human rights (A/HRC/RES/40/3).

Casey Ho-yuk Wan is an attorney and independent researcher.

(New Cold War)