I. Introduction: Counter-Terrorism, Human Rights, and the SCO

Over the past decades, the international community has identified global terrorism as a major threat to peace, security, and stability. Since September 11, 2001, intensified counter-terrorism debates and responses, including national, multilateral, and regional approaches, have been marked by trends posing complex challenges to the protection of international human rights and fundamental freedoms. In the efforts to protect the right to life and security of the person against terrorist acts, a broad range of fundamental rights have come under increasing threat, in the Eurasian region as well as in Western nations such as the United States. The climate of fear created by the fight against terrorism has facilitated the undermining of universal human rights principles, and national security has often been invoked as justification for questionable government action affecting fundamental rights and freedoms recognized under both domestic and international law. A major challenge to counter-terrorism efforts on national, multilateral, and regional levels is how to ensure that these concerns are fully addressed.

Drawing upon Chapter VII of the Charter of the United Nations (“UN Charter”) concerning action with respect to threats to peace, breaches of peace, and acts of aggression, as well as UN Charter Article 55 on the obligations of states to ensure stability, peace, and universal respect for human rights and fundamental freedoms, and Article 56 regarding joint and separate action among states to achieve these goals, the UN General Assembly and Security Council have established an international framework for countering terrorism that explicitly and clearly states that all counter-terrorism measures must comply with international law, in particular, human rights, humanitarian, and refugee law.

The UN has highlighted the need for multilateral cooperation in counter-terrorism and taken positive steps to push cooperation forward, including through development of its Global Counter-Terrorism Strategy.⁷ Steps have also been taken at the regional level to develop counter-terrorism frameworks tailored to the specific circumstances and goals of nations in the region. One such regional framework, spearheaded by the People’s Republic of China (PRC or “China”), is the Shanghai Cooperation Organization, which is comprised of six member states: China, the Russian Federation (“Russia”), Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. Reflecting a significant regional manifestation of China’s domestic agenda and counter-terrorism practices, the SCO and regional security cooperation have served as a key conduit for China’s policies – with significant human rights implications – to spread throughout the region, as well as to the international community.

However, despite the high profile of the problems posed by terrorism, and notwithstanding over a dozen international conventions related to terrorism, as well as the efforts of UN bodies, human rights mechanisms and procedures, and experts, there is still no universal, comprehensive, and precise definition of “terrorism.”⁸ As argued by the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism (“Special Rapporteur on counter-terrorism”),⁹ the absence of a clear definition of terrorism impacts the assessment and promotion of proper compliance with international obligations regarding counter-terrorism and human rights protection, poses difficulties for extradition and mutual law enforcement assistance, prompts misunderstandings and misuses of the term “terrorism,” and risks unintentionally legitimizing conduct by oppressive regimes conducted under the label of countering terrorism.¹⁰

In the Eurasian region, the SCO has stepped into this gray zone by adopting broad and conceptually unclear definitions of “terrorism,” linked to “separatism” and “extremism,” in a framework with significant potential for abuse. This whitepaper examines the definitions promulgated through the 2001 Shanghai Convention on Countering Terrorism, Separatism, and Extremism (“Shanghai Convention”) and the 2009 Convention on Counter-Terrorism of the Shanghai Cooperation Organization (“SCO Counter-Terrorism Convention”). The analysis takes as its starting point the working formulation of terrorism drawn from Resolution 1566 of the UN Security Council and advanced by the Special Rapporteur on counter-terrorism, with a view towards ensuring that “the term ‘terrorism’ is confined in its use to conduct that is of a genuinely terrorist nature.”¹¹ While not offering a definition of terrorism, this formulation focuses on three cumulative characteristics of terrorist acts – intent, purpose, and a threshold “trigger offense” – that together serve to establish terrorism. (See discussion at Section IV.A infra.)

This whitepaper further evaluates the SCO’s normative framework; the ways in which SCO norms are operationalized, including through counter-terrorism practices, policies, and cooperation among member states; and impacts on three areas of substantive rights: privacy, non-refoulement and protection of asylees, and due process protections.

In addition to examining human rights impacts on citizens of SCO member states, Human Rights in China also analyzes the SCO’s impact on the international human rights framework and approaches to promotion and protection of human rights while countering terrorism, with a focus on China’s role in advancing an “anti-terrorism policy with Chinese characteristics.”¹² While China is only one of six members of the SCO – and the important roles of other member states, particularly Russia, should not be underestimated – China has played a leading role in the formulation of the SCO framework, policies, and practices. The SCO budget also depends heavily on the contributions of its two largest members, China and Russia. As of 2005, the PRC State Council had approved an SCO budget plan allocating responsibility for 24 percent of the organization’s annual budget to China.¹³ Russia was also allocated 24 percent; while Kazakhstan was allocated 21 percent; Uzbekistan, 15 percent; Kyrgyzstan, 10 percent; and Tajikistan, 6 percent.¹⁴ With its enormous economic, military, and political influence, China has a clear impact on shaping the approach to terrorism by the SCO and its individual member states – an approach that has often failed to adequately ensure that counter-terrorism measures comply with obligations under international law, including international human rights, humanitarian, and refugee law.

Despite the SCO’s formal recognition of its international obligations as a regional organization, and despite the international obligations of individual SCO member states, the SCO counter-terrorism framework has instead largely adopted China’s domestic approach to counter-terrorism and expanded it throughout Central Asia. This approach links the concept of terrorism to the overbroad, politicized notions of separatism and extremism in a collective campaign to crack down on these “Three Evils,” and is used as a vehicle for social and political control over ethnic groups and other vulnerable targets. Such an approach is problematic in light of the Chinese government’s history of restricting the legitimate exercise of religious, ethnic, cultural, and other rights perceived by the Communist Party of China as separatist or extremist threats, particularly in the Tibet Autonomous Region and in the Xinjiang Uyghur Autonomous Region (XUAR).¹⁵ The Chinese government and other SCO member states have thus used “counter-terrorism” measures as a tool to secure domestic “social stability,” often at the expense of human rights.

While the Three Evils approach has marked China’s domestic policy for some time, the SCO has adopted and harmonized this approach throughout Central Asia, in the Asian region, and more recently through efforts to deepen and expand bilateral cooperation with the UN. This Three Evils approach has also allowed China and the SCO to subsume their efforts into the global war on terror, in which most governments already have a stake, undermining effective scrutiny of national and regional security practices.

The scope of the SCO’s impact in the region and beyond the territories of the member states is expansive and continues to develop. The individual governments of the SCO together oversee a cumulative population of over 1.5 billion people across over 30 million square kilometers of territory. The scale is even more staggering when accounting for the officially recognized SCO observer status of Mongolia, India, Iran, and Pakistan, and greater still considering the dialogue partner status of Sri Lanka and Belarus.¹⁶ Each of these countries – occupying geopolitical “hot spots” – are potential permanent SCO members, with both Iran and Pakistan having overtly lobbied for full membership.¹⁷ Moreover, the so-called SCO-Afghanistan Contact Group, designed to strengthen the SCO members’ vested interests in the stability of Afghanistan, further expands the SCO’s scope of influence into regions of critical and immediate significance.¹⁸

All told, in light of its various dimensions of multilateral interface, the SCO can directly impact the fundamental rights and freedoms of almost a third of the world’s population across three-fifths of the Eurasian continent, which includes some of the most economically, politically, and militarily volatile regions in the world. And while the SCO has itself cited as a guiding principle the promotion of human rights and fundamental freedoms in accordance with international obligations,¹⁹ the structure, policies, and practices of the SCO – and the human rights records of its member states – raise serious concerns about compliance with international human rights obligations and the effective implementation of human rights protections.

As documented in relevant UN treaty body reviews and through the UN Human Rights Council’s Universal Periodic Review process, the human rights situations in the SCO member states are plagued by systemic problems, such as corruption, lack of independent courts, serious social inequalities, and discrimination against ethnic and national minorities and women, as well as ongoing abuses, such as secret detentions, torture, attacks on human rights defenders and independent civil society organizations, and restrictions on the media, including the Internet. Instead of addressing these problems in an effective and coherent manner, the international community has readily welcomed the SCO as a regional body into various bilateral and multilateral fora, and turned its attention away from the serious human rights problems of each individual SCO member state. At the same time, as a regional body of member states that have faced common human rights scrutiny, the SCO has provided a mechanism for these states to reject international pressure and counter-balance human rights criticisms from the international community. What is at stake now is the credibility and effectiveness of the international counter-terrorism framework and efforts to promote and protect human rights and fundamental freedoms – the foundation of an effective and sustainable approach to fighting terrorism.

The development of a “bilateral relationship” between the SCO and the UN underscores the timeliness and urgency of these issues and their impact on the UN. Citing the SCO’s commitments to the UN Charter and the goals and principles of the UN, the UN has granted the SCO observer status and continues to pursue expanded cooperation, including technical assistance and capacity building. In developing the specific modalities for SCO-UN cooperation, the international community must not contribute to the strengthening of a regional approach that is undermining international human rights, nor should it allow the cloak of a regional organization to conveniently mask serious ongoing human rights problems within each SCO member state.

By presenting this whitepaper, Human Rights in China aims to contribute to advancing greater accountability and transparency of regional frameworks such as the SCO, and to promote compliance by the SCO and its member states with their international human rights obligations. The structure for the remainder of this whitepaper is as follows:

• Part II provides an overview of the SCO’s structure and decision-making bodies, and describes the role of economic cooperation among SCO states and the growing international expansion of SCO influence.
• Part III outlines the international counter-terrorism framework, including key documents and implementation bodies, as a context for Part IV.
• Part IV analyzes the structural challenges within the SCO and specific SCO policies and practices to assess the SCO’s compliance with international human rights law.
• Part V assesses recent developments concerning the SCO’s deepening formal engagement with the UN and outlines key concerns that must be addressed in order to support both SCO accountability on human rights and the sustainable, effective implementation of the UN Global Counter-Terrorism Strategy.
• As a resource for further research and policy engagement, an extensive appendices section presents: a compilation of core SCO normative documents; analysis of SCO member state human rights obligations and implementation records; relevant domestic legislation and official statements of the People’s Republic of China; analysis of reported or suspected extraditions and forcible returns of individuals between SCO member states; analysis of military and law enforcement cooperation within the SCO framework; and a select bibliography.

The framework for this whitepaper’s analysis draws upon international human rights standards and frameworks, including guidance provided by resolutions, reports, and other documents issued by the UN General Assembly and Security Council, the Office of the High Commissioner for Human Rights, treaty bodies, and the special procedures of the Human Rights Council, particularly the invaluable conceptual, strategic, and practical contributions of the UN Special Rapporteur on counter-terrorism.

Human Rights in China obtained the information contained in this report regarding the substance and activities of the SCO through publicly available English, Chinese, and Russian sources, and through its participation in a June 2009 fact-finding mission of the International Federation for Human Rights (FIDH) to Kazakhstan and Kyrgyzstan.²⁰ However, the lack of transparency regarding the SCO’s operations presents ongoing challenges to an effective assessment of its human rights impact.

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