A/HRC/WGAD/2024/2

GE.24-07556 (E) 080524 090524

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-ninth session, 18–27 March 2024

Opinion No. 2/2024 concerning Alavedi Buvacir, Hudavedi Bumeyrem,

Abudukelimu Alimu, Abuduli Aibibu and Bahaguli Aibibu (China)*

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the Commission on Human Rights. In its resolution 1997/50, the Commission extended and

clarified the mandate of the Working Group. Pursuant to General Assembly resolution 60/251

and Human Rights Council decision 1/102, the Council assumed the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 51/8.

2.

In accordance with its methods of work,1 on 26 October 2023, the Working Group

transmitted to the Government of China a communication concerning Alavedi Buvacir,

Hudavedi Bumeyrem, Abudukelimu Alimu, Abuduli Aibibu and Bahaguli Aibibu. The

Government has not replied to the communication. The State is not a party to the International

Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability,

* Miriam Estrada Castillo did not participate in the discussion of the present case.

1 A/HRC/36/38.

United Nations

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General Assembly

Distr.: General

9 May 2024

Original: English

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or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1.

Submissions

(a)

Communication from the source

4.

Alavedi Buvacir is a citizen of China. Ms. Buvacir is a housewife, and her usual place

of residence is Kasghar City, Xinjiang Uighur Autonomous Region. She was 48 years old at

the time of her arrest.

5.

Hudavedi Bumeyrem is a citizen of China. Her usual place of residence is Kasghar

City, Xinjiang Uighur Autonomous Region. She was 29 years old at the time of her arrest.

6.

Abudukelimu Alimu is a citizen of China born in 1989. His usual place of residence

is Urumqi, Xinjiang Uighur Autonomous Region.

7.

Abuduli Aibibu is a citizen of China, born in 1941. Mr. Alimu is a retired policeman.

He served in the police force for 30 years before retiring in 1998. His usual place of residence

is Turfan, Xinjiang Uighur Autonomous Region.

8.

Bahaguli Aibibu is a citizen of China born in 1983. She graduated from the Economy

and Finance Department of Xinjiang University with distinction. After the graduation, she

began working for the Chinese railway telecommunication company. Her usual place of

residence is Turfan, Xinjiang Uighur Autonomous Region.

(i)

Arrest and detention of Ms. Buvacir and Ms. Bumeyrem

9.

The source submits that Ms. Buvacir and Ms. Bumeyrem are a mother and daughter,

who have relatives residing in Türkiye. In 2019, they were arrested by police authorities at

their home in Kasghar City, Xinjiang Uighur Autonomous Region. No warrant was shown

and no reasons for the arrest were given.

10.

Currently, Ms. Buvacir and Ms. Bumeyrem are believed to be both deprived of their

liberty incommunicado in one of the re-education camps located in the Xinjiang Uighur

Autonomous Region. Family members residing abroad are unable to contact Ms. Buvacir or

Ms. Bumeyrem. Most of their family members residing in China are reportedly also deprived

of their liberty.

11.

Furthermore, the authorities have not given information about the exact whereabouts

or reasons for the detention of Ms. Buvacir or Ms. Bumeyrem, despite requests at the

consulate of China in the States where their family members reside abroad. The legal basis

for the detention of Ms. Buvacir and Ms. Bumeyrem, the charges and the relevant legislation

applied are also unknown.

12.

The source submits that the ongoing incommunicado detention without charges of

Ms. Buvacir and Ms. Bumeyrem is one of the examples of the persecution by the authorities

against persons of Uighur ethnicity, in serious violation of their fundamental human rights

under the Universal Declaration of Human Rights.

(ii)

Arrest and detention of Mr. Alimu

13.

The source submits that Mr. Alimu was arrested on 28 August 2017 at midnight at his

home by the Chinese authorities. No warrant was shown and no reasons for the arrest were

given.

14.

Mr. Alimu currently remains deprived of liberty incommunicado. His exact

whereabouts, as well as the legal basis for the detention, the charges and the relevant

legislation applied, are also unknown.

15.

For two years following Mr. Alimu’s arrest, his family was reportedly unable to gather

any information about his whereabouts. It then became known that he could possibly be in a

prison in the city of Korla located in the Xinjiang Uighur Autonomous Region.

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16.

The source reports that eventually the Chinese authorities allowed Mr. Alimu to speak

to a close relative. However, this contact was only allowed to take place in Chinese. Given

that the relative is unable to speak Chinese, the conversation could not take place.

17.

Given that Mr. Alimu’s remains incommunicado, and his exact whereabouts are

unknown, grave concerns therefore exist with respect to his life and health.

18.

The source submits that Mr. Alimu’s ongoing incommunicado detention without

charges is an example of the persecution by the authorities against persons of Uighur ethnicity

and constitutes a severe violation of his fundamental human rights under the Universal

Declaration of Human Rights.

(iii)

Arrest and detention of Mr. Aibibu and Ms. Aibibu

19.

The source submits that Mr. Aibibu and Ms. Aibibu are a father and daughter, who

have relatives residing in Türkiye. According to the source, in October 2017, Mr. Aibibu was

arrested by the authorities at his home in Xinjiang Uighur Autonomous Region. No warrant

was shown and no reasons for the arrest were given.

20.

The source notes that the arrest took place after Mr. Aibibu had returned from Türkiye,

where he had travelled to meet his newborn grandchild. After his arrest, Mr. Aibibu was

transferred to one of the re-education camps located in the Xinjiang Uighur Autonomous

Region. He was briefly released from detention in January 2019 but re-arrested in April 2020.

21.

He is believed to be currently deprived of his liberty in one of the re-education camps.

The authorities have not given the reason for his continued detention. The legal basis for his

detention, including relevant legislation applied, is also unknown. From the moment of his

arrest until the time of the submission, Mr. Aibibu’s exact whereabouts remained unknown,

and he could not be contacted.

22.

Given that Mr. Aibibu is currently 83 years old and remains incommunicado, grave

concerns exist with respect to his life and health.

23.

The source notes that, in 2018, it became known that the entire family of Mr. Aibibu

who were residing in China, including his daughter, Ms. Aibibu, had been placed in

re-education camps.

24.

The source informs the Working Group that Ms. Aibibu was arrested by police

authorities on two occasions, on 11 June 2017 and 6 November 2019, at her home. No warrant

was shown and no reasons for the arrests were given.

25.

Ms. Aibibu was initially sentenced to five years’ imprisonment for sending money by

bank transfer to her father, Mr. Aibibu. Her sentence was then increased to 12 years’

imprisonment. The exact charges and the legal basis for the sentencing, including relevant

legislation applied, are unknown.

26.

Ms. Aibibu remains deprived of her liberty at an unknown location. Her siblings are

also in detention in a re-education camp.

27.

The source submits that Mr. Aibibu’s and Ms. Aibibu’s ongoing incommunicado

detention is another example of the persecution by the authorities against persons of Uighur

ethnicity and constitutes severe violation of their fundamental human rights under the

Universal Declaration of Human Rights.

(iv)

Legal analysis

28.

The source submits that detention of Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu,

Mr. Aibibu and Ms. Aibibu, being in contravention of articles 2, 3, 6, 7, 8, 9, 10 and 11 (1),

of the Universal Declaration of Human Rights, is arbitrary and fall under categories I, III and

V of the arbitrary detention categories referred to by the Working Group when considering

cases submitted to it.

29.

In relation to category I, the source submits that, since 2017, the authorities have

detained a large number of men and women in internment camps or prisons located

throughout Xinjiang Uighur Autonomous Region. The assertion that mass detention and

incommunicado detention is justified in order prevent extremism is inconsistent with the

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Government’s obligations under international law. In this context, the source recalls the joint

communication by United Nations special procedures mandate holders, in which they stated

that the Xinjiang Uygur Autonomous Regulation on De-extremification was incompatible

with the obligations of China under international human rights law.2

30.

The source also recalls that it has been emphasized by the Working Group that the

principle of legality requires that laws be formulated with sufficient precision so that the

individual can gain access to and understand the law and regulate his or her conduct

accordingly.3 Nevertheless, an arrest or detention may be authorized by domestic law and be

nonetheless arbitrary. The notion of “arbitrariness” is not to be equated with “against the

law”, but must be interpreted more broadly to include elements of inappropriateness, injustice

and lack of predictability and due process of law, as well as elements of reasonableness,

necessity and proportionality.4 With respect to the “re-education centres”, United Nations

special procedure mandate holders have stated that, due to their coercive character, those

centres amounted to detention centres,5 notes the source.

31.

Moreover, the source recalls that the term “extremism”, when operative as a criminal

legal category, is irreconcilable with the principle of legal certainty and is therefore per se

incompatible with the exercise of certain fundamental human rights. 6 Domestic law

authorizing and setting out the grounds and procedures for arrest and detention must conform

to international legal standards. Any deprivation of liberty outside the context of criminal

charges cannot amount to an evasion of the limits on the criminal justice system by providing

the equivalent of criminal punishment without applicable protections. The source submits

that the internment of persons of Uighur ethnicity, including the above-mentioned

individuals, is arbitrary, given that it is based on overbroad and notoriously vague

counter-terrorism legislation.

32.

Following its visits to China in 1997 and 2004, the Working Group on Arbitrary

Detention emphasized in its reports thereon that charges involving vague and imprecise

offences jeopardized the ability of individuals to exercise their fundamental rights and were

likely to result in arbitrary deprivation of liberty.7 Furthermore, prolonged detentions without

charge or trial and secret, prolonged incommunicado or indefinite detentions without review

and keeping a person in any form of detention without periodic re-evaluation of the

justification for continuing the detention were forms of arbitrary detention.8

33.

The source states that Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and

Ms. Aibibu are still forcibly disappeared and have been since the time that they were sent to

the re-education camps. The source recalls that, in the International Convention for the

Protection of All Persons from Enforced Disappearance, the act is defined as follows: “the

arrest, detention, abduction or any other form of deprivation of liberty by agents of the State

or by persons or groups of persons acting with the authorization, support or acquiescence of

the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment

of the fate or whereabouts of the disappeared person, which place such a person outside the

protection of law” (art. 2). The source argues that, although China is not a State party to the

Convention, it is bound by the prohibition of committing enforced disappearance under

customary international law. It is submitted that the persons taken to re-education camps are

effectively disappeared, including the above-mentioned individuals. The source asserts that

the situation of the camps constitutes a massive case of enforced disappearance and arbitrary

detention.9

34.

The source submits that the internment of persons belonging to Uighur ethnicity,

including Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu constitutes

2 See communication CHN 21/2018. All communications mentioned in the present report are available

from https://spcommreports.ohchr.org/Tmsearch/TMDocuments.

3 See opinion No. 66/2021, para. 54.

4 Human Rights Committee, general comment No. 35 (2014), para. 12.

5 See communication CHN 21/2018, p. 6.

6 A/HRC/49/45, paras. 33 and 34.

7 See opinion No. 15/2019, para. 33.

8 Human Rights Committee, general comment No. 35 (2014), paras. 11 and 12.

9 See A/HRC/WGEID/115/1, annex I.

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a prima facie violation of articles 3 and 9 of the Universal Declaration of Human Rights as

well as principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment.

35.

Furthermore, the source states that no formal charges have been presented against

Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu or Ms. Aibibu, who are furthermore

not provided with access to legal remedies, are denied contact with those outside the

re-education camps and are held for unspecified periods of time tantamount to enforced

disappearance and arbitrary detention. Accordingly, the prolonged incommunicado detention

of the above-mentioned individuals constitutes a deprivation of liberty under category I.

36.

The source submits that enforced disappearance is a prima facie form of arbitrary

detention and therefore the period during which the five above-mentioned individuals were

forcibly detained constitutes a violation of their right to be considered a person before the

law, in contravention of article 6 of the Universal Declaration of Human Rights.

37.

The source also submits that, in placing Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu,

Mr. Aibibu and Ms. Aibibu outside the protection of the law, the enforced disappearance has

deprived them of their legal safeguards as detainees, including the right to habeas corpus and

the right to be promptly brought before a judicial authority, in violation of the petitioners’

rights enumerated under articles 8, 9 and 10 of the Universal Declaration of Human Rights

and of principles 11, 32 and 37 of the Body of Principles.

38.

In the light of the foregoing, the source concludes that the arrest and detention of

Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu is arbitrary and falls

under category I, as it lacks legal basis, in breach of article 9 of the Universal Declaration of

Human Rights.

39.

In regard to category III, the source states that due process is one the tenets of the right

to a fair trial.

40.

The source recalls that Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and

Ms. Aibibu were arrested without a warrant and were not informed of either the reasons of

their arrest or of any charges against them. They were forcibly sent to re-education camps.

They are being held incommunicado in these camps and have been since the time of their

arrest. They did not enjoy their right to notify and communicate with their families or their

right to consult with a lawyer. These elements constitute prima facie violations of principles

of 15 to 19 of the Body of Principles. Furthermore, in the Declaration on the Protection of

All Persons from Enforced Disappearance, the right to be held and to be brought before a

judicial authority promptly after detention in order to challenge the legality of the detention

is recognizes. Article 10 of the same Declaration establishes the obligation of the detaining

authorities to make available accurate information on the detention of persons and their place

of detention to their family, counsel or other persons with a legitimate interest. The

Declaration also establishes the obligation to maintain every place of detention an official

up-to-date register of detained persons (art. 12).

41.

The source argues that, in the present case, the rights of Ms. Buvacir, Ms. Bumeyrem,

Mr. Alimu, Mr. Aibibu and Ms. Aibibu not to be deprived arbitrarily of their liberty and to

fair proceedings before an independent and impartial court have been violated. Thus, the

Government has violated, inter alia, articles 9 and 10 of the Universal Declaration of Human

Rights and article 14 of the Covenant.

42.

The source submits that, although arrest and prolonged incommunicado detention fall

within category I of the Working Group, such practices also constitute violations of the right

to a fair trial. Secret and incommunicado detention constitutes a very serious violation of the

norm protecting the right to liberty of a person under international law. The inherent

arbitrariness of these forms of deprivation of liberty lies in the fact that the individual is left

outside the cloak of any legal protection.10

43.

The source recalls that incommunicado detention refers to a type of deprivation of

liberty in which a detainee’s communication with other human beings is either highly

10 A/HRC/22/44, para. 60.

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restricted or non-existent, and accordingly, the detainee held outside the reach of the law,

without the possibility of resorting to legal procedures, including habeas corpus. Thus,

denying a detainee contact with his family and legal counsel renders a detention

incommunicado.

44.

Another concern with regard to incommunicado detention is the fact that it may

facilitate or in and of itself constitute torture.11 The Body of Principles expressly states that

communication of the detained or imprisoned person with the outside world, and in particular

his or her family or counsel, is not to be denied for more than a matter of days.12 Ms. Buvacir,

Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu have been denied contact with their

families and legal counsel.

45.

The source notes that it is acknowledged among United Nations human rights bodies

that prolonged incommunicado detention is capable of facilitating and constituting torture.

The Special Rapporteur on torture and other cruel, inhuman, or degrading treatment or

punishment has deemed that prolonged incommunicado detention in a secret place may

amount to torture as described in article 1 of the Convention against Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment. 13 The source maintains that there is

credible information regarding extensive and sustained torture and ill-treatment occurring in

the re-education camps. It is therefore submitted that the pattern of physical and

psychological violence that have been committed in these camps and the prolonged

incommunicado detention of Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and

Ms. Aibibu allow for the inference that they have been subjected to torture and ill-treatment,

thereby rendering their detention as falling under category III of the Working Group.

46.

In relation to category V, the source submits that the cases of Ms. Buvacir,

Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu are representative of a widespread

pattern of detentions in Xinjiang Uighur Autonomous Region. The source asserts that

evidence and reliable sources suggest that the authorities target ethnic and religious

minorities in the region by conducting an ethnically targeted campaign of mass detention and

ill-treatment.

47.

The source recalls that Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and

Ms. Aibibu are ordinary people residing in the Xinjiang Uighur Autonomous Region who

happened to be of Uighur ethnicity. According to the source, they have been targeted and

detained because of their Uighur, Muslim and Turkic identities.

48.

The source therefore submits that the five above-mentioned individuals were deprived

of their liberty on discriminatory grounds due to, inter alia, their ethnic origin, language and

religion. The source also submits that the deprivation of liberty of the aforementioned

individuals is a prima facie case of deprivation of liberty on discriminatory grounds and forms

part of a pattern of persecution against persons with similarly distinguishing characteristics

(in the present case, the Uighur population in Xinjiang). The source recalls that more than

1 million Uighurs are still in detention for reasons of their ethnicity.14

49.

The source therefore concludes that the detention of Ms. Buvacir, Ms. Bumeyrem,

Mr. Alimu, Mr. Aibibu and Ms. Aibibu on discriminatory grounds amounts to a violation of

their rights to equal protection of the law and to freedom from discrimination under article 7

of the Universal Declaration of Human Rights. It constitutes a violation of international law

on prohibited grounds of discrimination. Their deprivation of liberty is therefore arbitrary

and falls under category V.

(b)

Response from the Government

50.

On 26 October 2023, the Working Group transmitted the allegations from the source

to the Government of China under its regular communications procedure. The Working

Group requested the Government to provide, by 26 December 2023, detailed information

11 Ibid.

12 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,

principle 15.

13 A/56/156, para. 14; see also opinion No. 55/2019, para. 39.

14 A/HRC/36/37, para. 48.

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about the current situation of Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and

Ms. Aibibu and to clarify the legal provisions justifying their continued detention, as well as

its compatibility with the obligations of China under international human rights law. The

Working Group also called upon the Government of China to ensure their physical and

mental integrity.

51.

The Working Group regrets that the Government did not submit a reply or seek an

extension in accordance with paragraph 16 of the Working Group’s methods of work.

2.

Discussion

52.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work.

53.

In determining whether the detention of above-mentioned individuals is arbitrary, the

Working Group has regard to the principles established in its jurisprudence to deal with

evidentiary issues. If the source has established a prima facie case for breach of international

law constituting arbitrary detention, the burden of proof should be understood to rest upon

the Government if it wishes to refute the allegations.15 In the present case, the Government

has chosen not to challenge the prima facie credible allegations made by the source.

54.

As a preliminary matter, the Working Group notes that the allegations in the present

case concern five individuals all belonging to the Uighur minority group. In relation to the

source’s unrebutted allegations that the five individuals are being held at “re-education

camps”, although it is believed that Mr. Alimu was initially detained in a prison, with their

current whereabouts being unknown, the Working Group recalls that the deprivation of

liberty is not only a question of legal definition, but also of fact. If the person concerned is

not at liberty to leave, then all the appropriate safeguards that are in place to guard against

arbitrary detention must be respected and the right to challenge the lawfulness of detention

before a court afforded to the individual.16 Moreover, the Working Group recalls its visit to

China in 1997 and its follow-up mission in 2004, and notes that, during both missions, it

visited re-education camps, recognizing them as places of deprivation of liberty. 17 The

Working Group therefore concludes that the re-education camps are without a doubt a place

of detention, as it is clear that persons are there against their will and are unable to leave.

55.

In making this finding, the Working Group also recalls the recent follow-up report to

the joint study on global practices in relation to secret detention in the context of countering

terrorism by the Special Rapporteur on the promotion and protection of human rights and

fundamental freedoms while countering terrorism.18 In her report, the Special Rapporteur

specifically noted the internment of Uighurs in “re-education camps” and reiterated and

highlighted ongoing concerns about the conditions in such facilities, including the practice

of “re-education”, which impinged on the most fundamental of rights, including the right not

to be arbitrarily deprived of liberty, the right to respect for family life, including the

prohibition of forced separation, and the rights to freedom of expression, association and

religion or belief, as well as other cultural, economic and social rights.19

(a)

Category I

56.

The source submits that Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and

Ms. Aibibu were arrested without a warrant and were not informed of either the reasons for

their arrest or of any charges against them. Ms. Buvacir and her daughter, Ms. Bumeyrem,

were arrested in 2019. Mr. Alimu was arrested in 2017. His family was reportedly unable to

gather any information about his whereabouts for two years, at which point it became known

that Mr. Alimu could possibly be in a prison in Xinjiang Uighur Autonomous Region.

Mr. Aibibu was arrested after he returned from Türkiye and sent to a re-education camp,

15 A/HRC/19/57, para. 68.

16 A/HRC/36/37, para. 56.

17 See E/CN.4/1998/44/Add.2; and E/CN.4/2005/6/Add.4, para. 54, in particular.

18 A/HRC/49/45, para. 33

19 Ibid.

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released in January 2019 and rearrested in April 2020. Ms. Aibibu was arrested in 2017 and

again in 2019.

57.

As the Working Group has previously stated, for deprivation of liberty to have a legal

basis, it is not sufficient that there is a law which may authorize the arrest. The authorities

must invoke that legal basis and apply it to the circumstances of the case.20 This is typically21

done through an arrest warrant or arrest order (or equivalent document).22 Persons who are

detained have the right to be promptly informed of the charges against them. This is inherent

in article 9 of the Universal Declaration of Human Rights as well as principles 2 and 10 of

the Body of Principles. Absent a Government response and in the light of the source’s

submissions, the Working Group concludes that the rights of Ms. Buvacir, Ms. Bumeyrem,

Mr. Alimu, Mr. Aibibu and Ms. Aibibu under article 9 of the Universal Declaration of Human

Rights, as well as principles 2 and 10 of the Body of Principles, were violated.

58.

The source further submits that the individuals were forcibly sent to re-education

camps, where they are being held incommunicado following their arrest. They are unable to

notify and communicate with their families or exercise their right to consult with a lawyer.

As the Working Group has stated, holding persons incommunicado violates their right to

challenge the lawfulness of detention before a court under article 9 of the Universal

Declaration of Human Rights.23 The Working Group recalls that the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment or punishment has deemed that

prolonged incommunicado detention in a secret place may amount to torture under article 1

of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, noting that torture is most frequently practised during incommunicado

detention.24

59.

Judicial oversight of detention is a fundamental safeguard of personal liberty25 and is

essential in ensuring that detention has a legal basis. Given that Ms. Buvacir, Ms. Bumeyrem,

Mr. Alimu, Mr. Aibibu and Ms. Aibibu are unable to challenge their detention before a court,

their right to an effective remedy under article 8 of the Universal Declaration of Human

Rights was violated. They were also placed outside the protection of the law, in violation of

their right to be recognized as a person before the law under article 6 of the Universal

Declaration of Human Rights. In that regard, the Working Group emphasizes its findings

following its mission to China in 2004, in which it clearly stated that the fact that the legal

system of China classified re-education through labour as an administrative deprivation of

liberty, as opposed to judicial deprivation of liberty governed by criminal law, did not affect

the obligation of China to ensure judicial control over that form of deprivation of liberty.26

60.

The Working Group recalls that giving prompt and regular access to family members,

as well as to independent medical personnel and lawyers, is an essential and necessary

protection against arbitrary detention in violation of article 9 of the Universal Declaration of

Human Rights as well as a safeguard for the prevention of torture.27 Moreover, prohibiting

contact with the outside world is in contravention of rule 58 of the United Nations Standard

Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) 28 and

principles 15, 16 (1) and 19 of the Body of Principles.

61.

In addition, their inability to contact lawyers during this time, an allegation that is

unrebutted by the Government, has undermined their right to challenge the lawfulness of

their detention and enjoy fair trial rights, enumerated under articles 9, 10 and 11 of the

20 In cases of in flagrante delicto, the opportunity to obtain a warrant will not be typically available.

21 See opinions No. 88/2017, para. 27; No. 3/2018, para. 43; and No. 30/2018, para. 39.

22 See, e.g. opinion No. 30/2017, paras. 58 and 59.

23 See opinions No. 45/2017, No. 46/2017, No. 35/2018, No. 9/2019, No. 44/2019, No. 45/2019,

No. 15/2020, No. 16/2020 and No. 36/2020.

24 A/56/156, paras. 14 and 39 (f). See also General Assembly resolution 68/156.

25 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court, principle 3.

26 E/CN.4/2005/6/Add.4, para. 54.

27 Opinion No. 19/2022, para. 52.

28 Opinions No. 35/2018, para. 39; No. 44/2019, paras. 74 and 75; and No. 45/2019, para. 76.

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Universal Declaration of Human Rights and in principles 11 (1), 32 and 37 of the Body of

Principles.

62.

The Working Group considers that the detention of Ms. Buvacir, Ms. Bumeyrem,

Mr. Alimu, Mr. Aibibu and Ms. Aibibu in re-education camps without allowing them contact

with the outside world amounts to enforced disappearance in breach of article 9 of the

Universal Declaration of Human Rights. Enforced disappearance is prohibited by

international law and constitutes a particularly aggravated form of arbitrary detention.29 The

Working Group refers the present case to the Working Group on Enforced or Involuntary

Disappearances.

63.

In this regard, the Working Group recalls the assessment of human rights concerns in

the Xinjiang Uighur Autonomous Region of China issued by the Office of the United Nations

High Commissioner for Human Rights (OHCHR) in 2022, in which OHCHR documented

the persistent failure of the authorities to provide any information concerning the detention

of individuals belonging to the Uighur minority group and the near impossibility for their

family members or others to ascertain the fate of the detainees. “While some interviewees

seemed to know or suspect that family members had been taken to a [Vocational Education

and Training Centre] facility or another form of detention, most remained unsure of the

situation and, despite attempts at clarifying the whereabouts with the authorities, their fate

remained unknown. This lack of knowledge and any contact has been particularly painful for

families living at geographical distance abroad and requires immediate clarification by the

authorities.” 30 The Working Group has also experienced similarly scarce information

concerning the detention of Uighurs in the Xinjiang Uighur Autonomous Region.31

64.

The source submits that the detention of persons of Uighur ethnicity, including the

above-mentioned individuals, is arbitrary, given that it is based on overbroad and notoriously

vague counter-terrorism legislation. While the Working Group is unable to make a finding

due to insufficient information on the legislation, it recalls that the Special Rapporteur on the

promotion and protection of human rights and fundamental freedoms while countering

terrorism has consistently held that the term “extremism” has no purchase in binding

international legal standards and, when operative as a criminal legal category, is

irreconcilable with the principle of legal certainty and is therefore per se incompatible with

the exercise of certain fundamental human rights. 32 Furthermore, according to the same

Special Rapporteur, the assertion that mass detention and incommunicado detention is

justified by “re-education” to prevent extremism is incompatible with the Government’s

international law obligations.33 The Working Group notes that, in its concluding observations

on the combined fourteenth to seventeenth periodic reports of China, the Committee on the

Elimination of Racial Discrimination was concerned by reports that the broad definition of

terrorism, the vague references to extremism and the unclear definition of separatism in

Chinese laws could potentially lead to the criminalization of peaceful civic and religious

expression and facilitate the criminal profiling of ethnic and ethnoreligious minorities,

including Muslim Uighurs, Buddhist Tibetans and Mongolians.34

65.

In the light of the preceding considerations, the Working Group considers that the

deprivation of liberty of Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and

Ms. Aibibu is arbitrary under category I.

(b)

Category III

66.

The Working Group notes that very little appears to be known about the trial

proceedings, if any were held, for the five individuals. The charges against them are unknown

29 See Opinions No. 5/2020, No. 6/2020, No. 11/2020 and No. 13/2020.

30 Office of the United Nations High Commissioner for Human Rights (OHCHR), “Assessment of

human rights concerns in the Xinjiang Uyghur Autonomous Region”, para. 132. Available at

https://www.ohchr.org/sites/default/files/documents/countries/2022-08-31/22-08-31-final-

assesment.pdf.

31 See opinions No. 6/2022, No. 88/2022, No. 6/2023, No. 38/2023 and No. 77/2023.

32 A/HRC/49/45, para. 33

33 Ibid.

34 CERD/C/CHN/CO/14-17, para. 36.

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and the dates of their trials, as well as details of those proceedings, if they ever took place,

are also unknown. The Government had an opportunity to clarify all of this, but it chose not

to do so.

67.

Ms. Aibibu was reportedly sentenced to five years’ imprisonment, which was then

increased to 12 years’ imprisonment for sending money by bank transfer to her father, but

the source submits that the exact charges, the legal basis for the sentencing and the relevant

legislation applied are unknown. Her father, Mr. Aibibu, is believed to be detained in a

re-education camp incommunicado, and the reasons, legal basis, and relevant legislation

applied for his detention and his exact whereabouts are unknown. In the case of Mr. Alimu,

his family was reportedly unable to gather any information about his whereabouts until it

became known that he could be in a prison in the Xinjiang Uighur Autonomous Region. The

reasons, legal basis and relevant legislation applied to his detention, as well as his exact

whereabouts, remain unknown. While Mr. Alimu was eventually granted permission to speak

to a close relative, this did not occur, because contact was only allowed to be conducted in

Chinese, a language that the relative did not speak; the conversation did not occur, and he is

now incommunicado.

68.

The source submits that the detention of persons of Uighur ethnicity is arbitrary,

because it is based on overbroad and notoriously vague counterterrorism legislation. The

Working Group recalls that, following its visits to China in 1997 and 2004, the Working

Group emphasized in its reports thereon that charges involving vague and imprecise offences

jeopardized the ability of individuals to exercise their fundamental rights and were likely to

result in arbitrary deprivation of liberty.35 Furthermore, prolonged detention without charge

or trial, secret, prolonged incommunicado or indefinite detention without review and keeping

a person in any form of detention without periodic re-evaluation of the justification for

continuing the detention are forms of arbitrary detention. The Working Group also observes

that all five individuals appear to be in de facto indefinite detention in a so-called

“re-education camp”. It recalls the observation by the Committee on the Elimination of Racial

Discrimination regarding the detention of large numbers of ethnic Uighurs and other Muslim

minorities, held incommunicado and often for long periods, without being charged or tried,

under the pretext of countering religious extremism.36 The detention of the five individuals

in the present case appears to resemble such a situation and, as stipulated by the Working

Group in its deliberation No. 4, is inherently arbitrary, in violation of article 9 of the Universal

Declaration of Human Rights.

69.

In terms of procedural safeguards relevant to category III-type arbitrariness, there is

considerable overlap with the issues raised in the discussion of category I above. The lack of

grounds for detention in category I and the lack of due process in category III are connected.37

The source alleges violations of due process rights, which are fundamental to the right to a

fair trial. Absent any explanation from the Government, the Working Group observes the

serious opacity pertaining to the charges under which the five individuals are being detained,

with no indication that any of this will be clarified, their incommunicado detention and the

lack of clarity around a trial, if any were held, the absence of a forum in which to challenge

their detention, the lack of access to counsel, their indefinite and prolonged detention and the

failure to release them amount to arbitrariness under category III and are in violation of

articles 9 and 10 of the Universal Declaration of Human Rights and principles 10, 11, 15, 16,

17, 18, 19, 32 (1), 37 and 38 of the Body of Principles.

70.

The source further submits that their right to fair proceedings before an independent

and impartial court has been violated. The Working Group is unable to make a finding on

this allegation due to the insufficiency of the information before it. Considering the secrecy

and scarcity of information surrounding the legal proceedings, if any were held, pertaining

to the five individuals, it notes that the Government is in possession of this information but

has neither provided it to the families of the five individuals nor responded to the allegations

in this regard. The Working Group is disturbed at the secrecy that appears to surround the

fate and whereabouts of the five individuals. Their family members have been unable to

35 See pinion No. 15/2019, para. 33.

36 CERD/C/CHN/CO/14-17, para. 40 (a).

37 See, e.g. opinion 89/2017, para. 44.

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establish the exact details of their arrests and trials or their exact whereabouts. The Human

Rights Council, in its resolution 37/3, stressed that no one should be held in secret detention

and called upon States to investigate all alleged cases of secret detention, including under the

pretext of countering terrorism.38

71.

The source maintains that there is credible information of extensive and sustained

torture and ill-treatment and a pattern of physical and psychological violence having been

committed in re-education camps. In this regard, the source recalls the prolonged

incommunicado detention of Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and

Ms. Aibibu. The source also notes that it is acknowledged among United Nations human

rights bodies that prolonged incommunicado detention is capable of facilitating and

constituting torture. Despite these allegations, the Working Group is unable to make a

finding, due to insufficient information on the acts of torture alleged. Nonetheless, it recalls

the finding of the joint study on global practices in relation to secret detention in the context

of countering terrorism that secret detention was connected to the practice of torture and other

cruel, inhuman and degrading treatment or punishment.39

72.

Noting the serious violations alleged above and the preceding findings, the Working

Group considers that the violations of the five detainees’ fair trial rights are of sufficient

gravity to meet the threshold for category III. In making these findings, the Working Group

is especially mindful of its conclusions related specifically to re-education camps, made after

its follow-up mission to China in 2004,40 and the absence of a reply from the Government in

the present case.

(c)

Category V

73.

The source submits that the cases of Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu,

Mr. Aibibu and Ms. Aibibu are representative of a widespread pattern of detentions in

Xinjiang Uighur Autonomous Region, where the authorities target ethnic and religious

minorities by conducting a targeted campaign of mass detention and ill-treatment. The five

individuals are ordinary people residing, or who were residing, in Xinjiang Uighur

Autonomous Region, of Uighur ethnicity who have been targeted and detained because of

their Uighur, Muslim and Turkic identities. The source therefore submits that they are

deprived of their liberty on discriminatory grounds, due to, inter alia, their ethnic origin,

language and religion. The source also submits that their deprivation of liberty is a prima

facie case of deprivation of liberty on discriminatory grounds and forms part of a pattern of

persecution against persons with similarly distinguishing characteristics (in the present case,

the Uighur population in Xinjiang). The source recalls that more than 1 million Uighurs are

still in detention for reasons of their ethnicity.41

74.

The Working Group recalls the recent follow-up report on the joint study on global

practices in relation to secret detention in the context of countering terrorism by the Special

Rapporteur on the promotion and protection of human rights and fundamental freedoms while

countering terrorism. In her report, the Special Rapporteur detailed the practices of arbitrary

mass and secret detention with other serious violations of international law directed at the

Uighurs and recorded the ongoing flow of credible information pointing to a sustained

practice of mass arbitrary detention.42 The Working Group also observes that the Committee

on the Elimination of Racial Discrimination acted under its early warning and urgent action

procedures to express concern about the discriminatory character of severe and undue

restrictions on a wide range of human rights, targeting predominantly Uighur and other ethnic

Muslim communities in the Xinjiang Uighur Autonomous Region.43

38 See also A/HRC/13/42, sect. II.B.1.

39 A/HRC/13/42, para. 34. See also opinion No. 55/2019, para. 39.

40 E/CN.4/2005/6/Add.4, paras. 54–59.

41 A/HRC/36/37, para. 48.

42 A/HRC/49/45, para. 33.

43 Committee on the Elimination of Racial Discrimination, decision No. 1/108 of 23 November 2022.

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75.

The Working Group notes that the present case follows a series of instances in which

it has found there to be persecution by China against Uighurs.44 Given the source’s unrefuted

arguments that the detainees were all also targeted because of their Uighur ethnicity, and

given the similar circumstances in the current case involving the detention of Uighurs for

transfer to re-education camps, the Working Group considers that the source has

demonstrated that the detention of these individuals were carried out on a discriminatory

basis.

76.

The scarcity of information and lack of any known legal proceedings also indicate that

their Uighur ethnicity was the common and discriminatory basis for their detention. In this

regard, the Working Group notes with alarm that most of the family members of Ms. Buvacir

and Ms. Bumeyrem who are residing in China are reportedly also deprived of their liberty.

In 2018, it reportedly became known that the entire family of Mr. Aibibu who were residing

in China, including his daughter Ms. Aibibu, were detained in “re-education camps”. It

recalls that Ms. Buvacir and Ms. Bumeyrem are mother and daughter and that Mr. Aibibu

and Ms. Aibibu are father and daughter. Ms. Aibibu is deprived of the liberty in a

“re-education camp” and her siblings share the same fate.

77.

The Working Group therefore finds the detention of Ms. Buvacir, Ms. Bumeyrem,

Mr. Alimu, Mr. Aibibu and Ms. Aibibu arbitrary, falling under category V. The Working

Group refers the present case to the Special Rapporteur on minority issues and the Special

Rapporteur on freedom of religion or belief, for further consideration.

(d)

Concluding remarks

78.

The source submits that there are grave concerns pertaining to the health of Mr. Alimu

and of Mr. Aibibu, who is over 80 years old. The Working Group recalls that it is the duty of

all Governments to treat their detainees with humanity and respect for their inherent dignity

as a human being, as stipulated in rule 1 of the Nelson Mandela Rules.

79.

The Working Group is deeply concerned by what appears to be a practice of detaining

family members and a revolving door of arrests, releases and rearrests, as was the case with

Mr. Aibibu and his daughter Ms. Aibibu. It is also alleged that, in 2018, it became known

that the entire family of Mr. Aibibu residing in China were placed in re-education camps.

The Working Group regrets the Government’s failure to engage with it constructively and in

a timely fashion in providing a response to the allegations concerning the detention of these

individuals in the Xinjiang Uighur Autonomous Region.45

80.

In its 30-year history, the Working Group has found China in violation of its

international human rights obligations in numerous cases.46 The Working Group is concerned

that this indicates a systemic problem with arbitrary detention in China, which amounts to a

serious violation of international law. The Working Group recalls that, under certain

44 See, e.g. opinions No. 3/2014, No. 66/2021, No. 6/2022, No. 64/2022, No. 88/2022, No. 6/2023 and

No. 38/2023. See also, OHCHR, “Assessment of human rights concerns in the Xinjiang Uyghur

Autonomous Region”; and A/HRC/36/37, para. 48.

45 Opinions 6/2022; 88/2022; and 38/2023, para. 21.

46 See decisions No. 43/1993, No. 44/1993, No. 53/1993, No. 63/1993, No. 65/1993, No. 66/1993,

No. 46/1995 and No. 19/1996 and opinions No. 30/1998, No. 1/1999, No. 2/1999, No. 16/1999,

No. 17/1999, No. 19/1999, No. 21/1999, No. 8/2000, No. 14/2000, No. 19/2000, No. 28/2000,

No. 30/2000, No. 35/2000, No. 36/2000, No. 7/2001, No. 8/2001, No. 20/2001, No. 1/2002,

No. 5/2002, No. 15/2002, No. 2/2003, No. 7/2003, No. 10/2003, No. 12/2003, No. 13/2003,

No. 21/2003, No. 23/2003, No. 25/2003, No. 26/2003, No. 14/2004, No. 15/2004, No. 24/2004,

No. 17/2005, No. 20/2005, No. 32/2005, No. 33/2005, No. 38/2005, No. 43/2005, No. 11/2006,

No. 27/2006, No. 41/2006, No. 47/2006, No. 32/2007, No. 33/2007, No. 36/2007, No. 21/2008,

No. 29/2008, No. 26/2010, No. 29/2010, No. 15/2011, No. 16/2011, No. 23/2011, No. 29/2011,

No. 7/2012, No. 29/2012, No. 36/2012, No. 51/2012, No. 59/2012, No. 2/2014, No. 3/2014,

No. 4/2014, No. 8/2014, No. 21/2014, No. 49/2014, No. 55/2014, No. 3/2015, No. 39/2015,

No. 11/2016, No. 12/2016, No. 30/2016, No. 43/2016, No. 46/2016, No. 4/2017, No. 5/2017,

No. 59/2017, No. 69/2017, No. 81/2017, No. 22/2018, No. 54/2018, No. 62/2018, No. 15/2019,

No. 36/2019, No. 72/2019, No. 76/2019, No. 11/2020, No. 32/2020, No. 78/2020, No. 82/2020,

No. 25/2021 and No. 30/2021.

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circumstances, widespread or systematic imprisonment or other severe deprivation of liberty

in violation of the rules of international law may constitute crimes against humanity.47

81.

The Working Group would welcome the opportunity to conduct a country visit to

China. Given that a significant period of time has passed since its previous mission to China

in September 2004, the Working Group considers that it is an appropriate time to conduct

another visit. The Working Group looks forward to a positive response to its request of

15 April 2015.

3.

Disposition

82.

In the light of the foregoing, the Working Group renders the following opinion:

The deprivation of liberty of Alavedi Buvacir, Hudavedi Bumeyrem, Abudukelimu

Alimu, Abuduli Aibibu and Bahaguli Aibibu, being in contravention of articles 2, 3,

6, 7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights is arbitrary and

falls within categories I, III and V.

83.

The Working Group requests the Government of China to take the steps necessary to

remedy the situation of Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu

without delay and bring it into conformity with the relevant international norms, including

those set out in the Universal Declaration of Human Rights.

84.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu,

Mr. Aibibu and Ms. Aibibu immediately and accord them an enforceable right to

compensation and other reparations, in accordance with international law.

85.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu and to take appropriate

measures against those responsible for the violation of their rights.

86.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Working Group on Enforced or Involuntary Disappearances, the

Special Rapporteur on minority issues and the Special Rapporteur on freedom of religion or

belief, for appropriate action.

87.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

4.

Follow-up procedure

88.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu

have been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Ms. Buvacir,

Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu;

(c)

Whether an investigation has been conducted into the violation of the rights of

Ms. Buvacir, Ms. Bumeyrem, Mr. Alimu, Mr. Aibibu and Ms. Aibibu and, if so, the outcome

of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of China with its international obligations in line with the

present opinion;

47 See, for example, opinions No. 1/2011, para. 21; No. 37/2011, para. 15; No. 38/2011, para. 16;

No. 39/2011, para. 17; No. 4/2012, para. 26; No. 38/2012, para. 33; No. 47/2012, paras. 19 and 22;

No. 50/2012, para. 27; No. 60/2012, para. 21; and No. 35/2019, para. 65.

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(e)

Whether any other action has been taken to implement the present opinion.

89.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example, through a visit by the Working

Group.

90.

The Working Group requests the source and the Government to provide the

above-mentioned information within six months of the date of transmission of the present

opinion. However, the Working Group reserves the right to take its own action in follow-up

to the opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

91.

The Working Group recalls that the Human Rights Council has encouraged all States

to cooperate with the Working Group and has requested them to take account of its views

and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily

deprived of their liberty, and to inform the Working Group of the steps they have taken.48

[Adopted on 18 March 2024]

48 Human Rights Council resolution 51/8, paras. 6 and 9.