White-papering over detention

The P.R.C. has attempted to clarify its position on Xinjiang’s ‘education and training centers’ in a series of lengthy ‘white paper’ policy statements.[i] Unfortunately, despite their bulk, the white papers do not address the most pressing concerns, including the legal basis for depriving people of their physical liberty. Instead, they baldly deny that the education centers are a form of detention, without refuting the evidence to the contrary.

Grounds for Detention in Chinese Law:

By way of background, In China, only national laws can authorize the deprivation of physical liberty, and, as discussed previously, there is no such authority for detention in the ‘centers’. The Counter-terrorism Law (CTL) does authorize administrative detention of up to 15 days for specified minor offenses, and lengthier criminal detention for those convicted at trial, but neither of these describes the ongoing detention in the centers.

Types of ‘Trainees’ in the Centers

The white papers identify three distinct groups of people in the ‘education centers’:

1. People who were incited, coerced, or induced into participating in terrorist or extremist activities, but did not reach the criminal level.
2. People who were also incited, coerced or induced into participating in terrorist or extremist activities, and pose a threat to society, but have not yet caused actual harm, and have repented so that they do not need criminal punishment.
3. Those who were convicted and sentenced at court for committing crimes, but were found to still endanger society at the completion of their sentence, and have been placed in indefinite ‘educational placement’ until they no longer pose such a threat.

Group 1：

The first category is rooted in article 38 of Xingjiang’s “Implementing Measures for the P.R.C. Counter-Terrorism Law” as revised in 2018, well after the centers were in operation. It expressly addresses non-criminal offenders who are, at worst, guilty of administrative violations, punishable only by detention up to 15 days.

Article 38 authorizes Aid and Education to be provided for offenders by a variety of government agencies, as well as the offenders’ family, workplace, or school. “Aid and Education” is a term of art commonly used in the context of juvenile justice, indicating an attempt to counsel delinquents back on the right path, and does not refer to an independent form of detention. As discussed in a previous article, Aid and Education is considered the lowest level of correction in the CTL, to be used for those not even requiring administrative punishment, and it would be bizarre if it resulted in longer detention than authorized for more serious offenses.

Group 2:

This group is based on article 39 of the Implementation Measures, and is intended for slightly more serious offenders, who are found to pose an actual threat to society. As with the first group, aid and education is authorized, be conducted at the centers.

The description of this group changed between white papers, with the latest adding a requirement not contained in article 39. This change was not reflected in the official English translation. Based on the original group description, it was possible that either the courts or the prosecution would make a determination to waive criminal punishment, but the latest white paper clarified that it must be the prosecution that makes a decision to not pursue the charges.

The requirement of a non-prosecution decision, not present in the Implementation Measures, makes it even clearer that group 2 should not be detained. Following a non-prosecution decision, all compulsory measures invoked against the accused are to be removed.[CPL articles 177, 178]. There are other criminal dispositions such as suspended sentences or controlled release where mandatory conditions like attending classes can be imposed following conviction, but a non-prosecution decision is meant to fully resolve the matter pre-trial. This is why a special procedure for juveniles, called ‘conditional non-prosecution’ was created, conditioning the non-prosecution decision on the juvenile’s completion of Aid and Education programs, so that they can avoid a criminal record.

Group 3:

The third group is for committed terrorists; those who already served a full prison sentence for a terrorist or extremist offense, but are still found by a court to be a threat to society. One would assume that this group accounts for a small number of people in the centers, even if for no other reason than that most such serious offenders should still be serving their sentences.

Although authorized by article 30 of the Counter-terrorism Law, this so called ‘educational placement’ is troubling as It allows for indefinite detention, based only the vague ‘threat to society’ standard. This can exceed both the original court-issued penalty and the statutory penalty for the offense. Even still, the Counter-terrorism Law is careful to require that an intermediate-level court judge make the determination and that there were avenues for appeals and reconsideration- protections missing for those in groups 1 and 2.

Analysis: A one way street

At first glance, the three types of trainees seem arranged according to the increasing severity of their offenses. Unlike the Criminal Law or Counter-terrorism Law’s hierarchy of offenses and corresponding punishments, however, all of the groups are ultimately met with the same treatment. Aid and Education for groups 1 and 2 is viewed as leniency, while educational placement for group 3 is viewed as continued isolation, but they meet the same fate:  everyone ends up in the centers.

Another pattern present in the groups’ arrangement is familiar to Chinese criminal procedure: the sequence of ‘police, prosecutors, courts’. These are the three actors in the Chinese justice sector, often viewed as aligned in purpose, and the phrase invokes a case’s progression through the criminal process from investigation, to indictment, to trial. With this in mind, the three types of trainees seem divided less by the nature of their offense, than by the agency that brought them to the centers at different procedural junctures.

1. Police directly send people coerced into administrative violations to the centers for Aid and Education.
2. After investigation, prosecutors show leniency on repentant minor offenders by dropping the case and sending them to the centers for Aid and Education.
3. After trial and sentencing, courts send convicted offenders who remain dangerous even after the completion of their sentence for Educational Placement in the centers.

Again, the white papers state that ‘The physical liberty of trainees is protected in accordance with law during their studies in education and training centers.’ They say that trainees periodically go home, and can request time off as needed. The argument is that this is not detention, but voluntary participation in a training program.

At least for group 3, this seems plainly untrue. Educational placement provided for in the CTL is clearly custodial. It is the seriousness of the deprivation involved that requires the detailed (if still inadequate) appeal and review procedures. The group is comprised of convicted terrorist said to be kept in custody because they are a threat to society and cannot be safely released; anything less than full custody wouldn’t accomplish this goal. The inclusion of group 3 with other trainee groups in the same discussion, and same facilities, betrays the view that they are all equally dangerous, and equally detained.

Conclusion

The white papers are not legal authority, but are statements of policy that try to put the best light on law and practice. This makes it all the more surprising that they have fallen so short, and failed to address the most pervasive questions:

They say that trainees have free rights of communication, but no mention is made of those abroad who say they have lost contact with relatives.

They say they provide vocational training, but don’t explain why the highly educated among them would require such training.

They say there is freedom of religion, only it must be practiced off school grounds- but the voluntary trainees are apparently not free to step out of the centers to pray, as the white paper says they may decide whether to pray only when they go home.

Creating a legal foundation for the Xinjiang centers would not guarantee that those inside them are treated fairly, but the failure to even have a legitimate basis is very troubling.

[i] Human Rights Safeguards and the Struggle to Counter Terrorism and Eliminate Extremism in Xinjiang

White Paper on History and Development of Xinjiang

Vocational Education and Training Efforts in Xinjiang