At its core, the detention and “education” regime detailed in this report, which is referred to in by Chinese authorities as “transformation-through-education” is a system of detention functioning both to punish detainees for certain behaviours and to reintroduce them into “normal” society following “rehabilitation”. Much about the system draws upon Chinese penal practices that have been in place for decades, and many of the human rights violations that former detainees describe are endemic to other Chinese detention systems.
Different forms of compulsory re-education of individuals or groups considered to be politically “unreliable” or threats to social stability have existed in China since 1949. In the late 1950s, a new system of custodial re-education known as “re-education through labour” was introduced to deal with “minor counterrevolutionaries” and “rightists”. In the 1980s, the focus shifted to include drug abuse, prostitution, and juvenile delinquency. [[[Fu Hualing, “Re-education through Labour in Historical Perspective”, China Quarterly 184 (2005): pp. 811-30 →]]]
RTL enabled police to confine people without judicial trial for periods of one to three years (with the possibility of a one-year extension) for a broad range of unlawful acts considered too minor for criminal prosecution. Millions were locked up in conditions barely distinguishable from – or sometimes even worse than – those of prisons. Codified regulations and a formal process of hearings gave the institution a veneer of legality, but the lack of judicial trial or, in most cases, legal representation made the deprivation of liberty under RTL inherently arbitrary under international law. Further, RTL was often imposed in a brutal and humiliating fashion, and RTL facilities were places of additional human rights violations, including compulsory labour, torture, and other ill-treatment. [[[“’Changing the Soup but not the Medicine?’: Abolishing Re-Education through Labour in China” 17 December 2013 →]]]
Though RTL functioned as a key part of local authorities’ stability-preservation toolkit for decades, its incompatibility with official professions of “rule according to law” and commitments to human rights made it a target of Chinese legal reformers. Those reformers claimed victory when RTL was abolished as an institution in December 2013, but the practice of depriving individuals of their liberty for extended periods under the guise of “education” has continued in different forms since then.
For example, even before 2013 authorities throughout the country had been using “legal education classes” to detain people arbitrarily for months. Like their counterparts in Xinjiang, these detention sites (which, like RTL, have been used extensively against practitioners of Falun Gong), were claimed to provide “classes” or “training”. In reality, they operated without clear regulations, laws, or other public directives to explain their use or operation or how and on what basis individuals were incarcerated there. [[[Amnesty International, “’Changing the Soup but not the Medicine?’: Abolishing Re-Education through Labour in China” 17 December 2013 →]]]
The immediate domestic basis for the facilities in Xinjiang appears to be Article 14 of the De-extremification Regulations enacted by the Standing Committee of Xinjiang People’s Congress on 29 March 2017. The regulations describe several components of “transformation through education” in superficially positive terms:
Eliminating extremism necessitates doing the work of transformation through education well, combining individualized education with education in vocational training centres; legal education with “help and education”; ideological education, psychological counselling and behaviour modification with the study of the national standard spoken and written language, law and technology; and transformation through education with human care to enhance the effectiveness of transformation through education.
However, this regulation cannot serve as a basis for deprivation of liberty under Chinese law. Article 7 of China’s Legislation Law makes clear that deprivation of liberty may be based only in laws passed by the National People’s Congress or its standing committee. Though the regulation clearly considers transformation-through-education to be a form of “help and education” authorized under Article 29 of the Counterterrorism Law of the PRC, there is no legitimate way to reconcile the complete deprivation of liberty associated with transformation through education facilities in Xinjiang with the community-based education, surveillance, and support that “help and education” ostensibly entails. [[[Sarah Biddulph, “Arbitrary detention” in S. Biddulph & J. Rosenzweig (eds), Handbook on Human Rights in China, Cheltenham, UK: Edward Elgar Publishing, pp. 384-85.]]]