Remedies for Religious Persecution in China:
An International Human Rights Perspective
The Chinese government is waging an assault on religion. Millions of Christians, Muslims, and Buddhists are being subjected to arbitrary detention, forced labor, torture, and the destruction of religious buildings, books and artifacts. Can the international community do anything to stop these human rights violations and hold the perpetrators accountable?
China and Persecution of Religious Minorities
Although China is officially an atheist country, the State Administration for Religious Affairs allows five religious organizations to exist within China: Buddhism, Taoism, Islam, Protestantism, and Catholicism. Citizens are free to engage in the state-sanctioned versions of these religions, although many practice religion in underground establishments including Christian house churches. The Chinese government now seeks even more control over the state-sanctioned religious organizations, even as it attempts to root out and end “unofficial” religious traditions. In recent years this repression has intensified.
Oppression of religious groups is widespread throughout China. Since 2014, Uyghur Muslims in the Xinjiang Uyghur Autonomous Region have been subjected to ongoing detention in internment camps, forced labor, forced sterilization, suppression of religious practices, “re-education,” and other serious human rights abuses. The treatment of the Uyghurs is so severe and targeted that several countries, including the United States, have described the situation as genocide, and the UN has stated that the treatment may amount to crimes against humanity.
The Chinese government also specifically targets Buddhism and Taoism. In Tibet, believers live under extensive surveillance and limits are placed on their travel and free communication. Monks and practitioners are routinely detained on terrorism charges; the Dalai Lama continues to live in exile; and altars to religious figures are replaced with shrines to the President. People are not permitted to participate in religious ceremonies in groups larger than three people, and religious temples and other sites have been placed under heavy state-controlled security.
Most recently, Christianity has found itself under attack by the Chinese government. Christianity is a growing religion in China and both Catholics and Protestants have been ordered to renounce their faith and have faced the destruction of crosses and Bibles, the demolition of churches, and the arrest of pastors and church attendees. Churches that are permitted to remain open must install high-tech facial-recognition cameras within their buildings so that the government can keep track of who is attending. The Bible is being “retranslated” to establish a “correct understanding” of the text in line with Chinese culture.
While China has engaged in religious suppression for decades, these activities have become more widespread and severe in recent years.
One significant cause of the increased repression of religion in China is a change in the government’s policy regarding religion. In April 2016, Xi Jinping, the President of China and General Secretary of the Chinese Communist Party (CCP), declared that religions must be Sinicized. Sinicization is the process of shaping ideas, including religious and cultural practices to conform with CCP objectives and values. While religions have been incorporated into Chinese society over time, the government has decided that this process has not been sufficiently tied to the CCP’s interests. The result has been an “authoritarian assault on faith” with all organized religions affected but “Christian and Muslim communities bear the brunt.”
Freedom of Religion is a Human Right but there are Accountability Issues
While religious freedom is a human right, there are few avenues that can be pursued to hold China accountable for religious persecution. This is partly because China has not ratified or accepted the jurisdiction of many international human rights treaties. Furthermore, any attempt to hold Chinese officials accountable would be costly, and finding proof of wrongdoing would be difficult.
China voted in favor of the Universal Declaration of Human Rights, which states that “everyone has the right to freedom of thought, conscience and religion.” All UN Member States are bound to this declaration and must uphold the rights that are contained within it. However, because it is a declaration rather than a convention, the UDHR is non-binding and does not contain adequate provisions for legal remedies when rights are violated.
This same definition of freedom of religion is adopted in article 18 of the International Covenant on Civil and Political Rights. Potential violations of this covenant can be heard at the International Court of Justice and communications can also be made to the Human Rights Committee. China signed the Covenant in 1998, but never formally ratified it, which means that China cannot be bound by its requirements.
Religious persecution is a crime against humanity within the jurisdiction of the International Criminal Court (ICC). Article 7(2)(g) of the ICC’s Statute defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” The crime is not limited to religious persecution; it includes targeting a person or persons based on “political, racial, national, ethnic, cultural, religious, gender… or other grounds.” This definition seems to fit at least some of the behavior China has exhibited against religious groups. However, it is very unlikely that the ICC would investigate China for potential cases as there is a jurisdiction issue.
Article 12 of the ICC Statute provides that the Court’s jurisdiction can only be established over international crimes occurring within the territory of a member state or when the alleged crime was committed by a citizen of a member state. China is not an ICC member state and all the alleged perpetrators appear to be citizens of China, so jurisdiction cannot be established. Aside from jurisdiction, Article 13(b) provides another way for cases to be initiated at the Court. The UN Security Council can refer situations to the Court when an international crime within the Court’s jurisdiction is alleged to have occurred even when the state(s) involved are not state parties to the Court. This is an exceptional way to initiate a case however, and has only been used in the cases of Darfur and Libya. Any attempt to refer the situation in China to the UN Security Council will fail because China is a permanent Security Council member and would use its veto power to block the referral.
Perhaps the most promising avenue to criminal accountability could be the use of universal jurisdiction, but this also presents challenges. Universal jurisdiction is when an international crime is prosecuted in a country other than the country where the alleged crime occurred and regardless of the nationality of the alleged perpetrator and victim. This method of prosecution is currently being used to prosecute war crimes and crimes against humanity which took place in Syria. The structure and legal framework for universal jurisdiction varies between countries, but many require the suspect to be within the prosecuting territory in order to go ahead with trial, which would be an issue with regard to China as it appears that the people who are perpetuating these violations are within China’s borders. However, if different countries exercised universal jurisdiction to charge Chinese officials with international crimes, it would make it difficult for those charged individuals to travel internationally for fear of trial or extradition. Actually conducting trials, however, presents even more practical challenges. It would be difficult and expensive to obtain access to evidence, potential victims and witnesses, and potential perpetrators as all (or nearly all) of that information is within China. However, despite these challenges, universal jurisdiction might prove to be the most effective legal option in that it can potentially provide accountability.
Violations of Other Rights Could Provide an Avenue to Accountability
Aside from freedom of religion, other human rights are being violated as a result of China’s restrictions on religious practice. As a result, other human rights treaties could be a route holding China to some accountability for its actions. Unfortunately, China is not a member of many international human rights treaties, with the notable exceptions of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and the Convention Against Torture (CAT).
ICERD protects racial and ethnic groups from discrimination and ensures that all of these groups have access to fundamental freedoms, including freedom of religion. While religion does not qualify as a racial or ethnic group within the jurisdiction of the convention, members of a particular racial or ethnic group are being denied their freedom of religion or other rights and freedoms on the basis of belonging in that group. Further investigation to determine such links could provide an opportunity for accountability to be determined through ICERD. Potential violations of ICERD are determined at the Committee on the Elimination of Racial Discrimination or the International Court of Justice, but China does not recognize the Committee and has not accepted the compulsory jurisdiction of the International Court.
CAT protects individuals from state-sanctioned torture. Torture is defined by the Convention as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” aside from lawful sanctions or punishment. An anti-religion motivation is irrelevant under CAT, but this definition of torture could fit some of China’s actions towards the country’s Christian, Muslim and Buddhist populations. For example, arbitrary detention, forced labor and re-education all could potentially fall within the Convention’s definition of torture regardless of any motivation to suppress religion. Potential violations of the Convention are heard by the Committee Against Torture and there is hope that this could be a successful path to some accountability. A case involving a Chinese Christian seeking asylum in Switzerland was heard by the Committee in 2021. The applicant is seeking asylum in Switzerland because she believes it would be likely that she would be tortured for her religious beliefs if she were to return to China. This case determined that the asylum seeker could not be deported to China until all of the potential remedies to their asylum claim had been exhausted because to do otherwise would violate article 3 of the Convention which states that “No State Party shall… return… a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.” This decision implies that the Committee has found that there are “substantial grounds” to believe that the applicant would be tortured if returned to China. While not providing direct accountability for the human rights abuses that are occurring against religious groups, this decision indicates that the world community is aware that members of religious groups are likely to be subjected to torture and other inhumane treatment in China.
Soft Law and Diplomatic Measures to Stop Violations of Human Rights in China
Aside from potential treaty violations, the United Nations has a number of soft law mechanisms that might put pressure on China. In the most recent Universal Periodic Review 25 countries recommended that China strengthen its commitment to religious freedom. These countries recommended that the international community recognize religious freedom as an area of particular concern and call for practices such as arbitrary detention of religious practitioners to end. Further, the annual reports of the Special Rapporteur on Freedom of Religion and Belief has also recognized that China has been committing serious human rights violations against various religious groups. Unfortunately, these mechanisms are non-binding; they can only make recommendations and cannot compel China to comply. While it is unlikely that China will make positive changes because of the recognition within soft law mechanisms, they show that the world is watching, is aware of, and disapproves of China’s treatment of religious groups.
Other countries could put pressure on the Chinese government to stop religious oppression and other human rights abuses by diplomatic measures. Diplomatic measures include sanctions, trade boycotts, and public condemnations. They can be unilateral, with a country individually applying political or economic pressure, or countries can work together to apply pressure multilaterally.
Diplomatic measures are already being implemented with the express goal of ending the oppression of Uyghur Muslims. The United States is boycotting cotton harvested using Uyghur forced labor. Further the US, UK, EU and Canada have imposed sanctions against the Chinese government in an effort to stop the human rights abuses happening in Xinjiang.
The current situation, however, extends beyond the Uyghurs. The wide-spread attack on religion throughout China has been gaining international recognition. Both the US Department of State and the US Commission on International Religious Freedom have named China a country of particular concern for repression of religious freedoms. The international willingness to use diplomatic measures to challenge the Chinese treatment of the Uyghurs could indicate a willingness to extend sanctions, boycotts and condemnations to China for their oppression and rights violations regarding other religious groups as well.
Diplomatic measures however, present challenges because of China’s position within the international economy. In recent years, China has employed a “belt and road” lending strategy which means many countries may not be able to challenge China’s policies because they are currently in debt to China. Further, China is a wealthy country and diplomatic measures may need to become extreme before the government feels enough international pressure to end its policy of religious oppression.
The policy of Sinicization has resulted in escalating violations of the human rights of millions of people in China. There does not seem to be an end in sight to this widespread attack against religion. The lack of adequate legal means to stop and provide accountability for human rights violations in China is a problem. While there is little that the world community can do to quickly stop religious oppression within China, in the long-term there may be some hope for ending these human rights violations and providing accountability.
Even if a law-based solution were able to stop the human rights violations and improve the treatment of religious minorities in China, millions of people would still suffer during the ensuing years-long legal process. Meanwhile, diplomatic measures may help stop human rights abuses that are taking place, but they may have limited results and injure the wider population of China as these measures affect the whole country.
The fastest and most effective way of solving the problem would be for the Chinese government to change their Sinicization policy. This, however, is highly unlikely. It may be that a combination of diplomatic means and legal measures will provide eventual justice in this situation. The diplomatic means can put pressure on the government to stop violating human rights while the legal measures can provide accountability for rights that have been violated. ♦
Michelle Coleman is a Lecturer of Law at Swansea University where she researches and teaches on issues of human rights, criminal law, and evidence. Her book, The Presumption of Innocence in International Human Rights and Criminal Law, was published by Routledge in 2021.
Coleman, Michelle. “Remedies for Religious Persecution in China: An International Human Rights Perspective”. Canopy Forum, October 7, 2022. https://canopyforum.org/2022/10/07/remedies-for-religious-persecution-in-china-an-international-human-rights-perspective/