IV. SCO Compliance with the International Framework for Promotion and Protection of Human Rights

1. Defining terrorism
2. Structural and rhetorical challenges
   1. Lack of transparency and oversight mechanisms
   2. Regional and international frameworks
   3. National conditions and relativism
3. Human rights records of SCO member states
4. China’s influence and impact within the SCO
   1. The Three Evils doctrine: Counter-terrorism with Chinese characteristics
   2. The Three Evils doctrine in practice: Targeting of and impact on Uyghurs
5. Harmonization of legislation in SCO member states
6. SCO policies, operations, and practices: The fourth pillar meets the Three Evils
   1. Impact of exchange of individual information on the right to privacy and due process
      1. Blacklists
      2. RATS Database
   2. Impact of extradition and denial of asylum on security of the person, due process rights, and non-refoulement
   3. Chilling messages sent by military cooperation

The SCO, as a regional organization bound by Chapter VIII of the UN Charter, and as an organization made up of member states that are themselves party to international human rights agreements, must comply with obligations under the international counter-terrorism framework outlined above, including under international human rights, humanitarian, and refugee law, as the fundamental basis of an effective and sustainable counter-terrorism approach. SCO normative documents, such as the 2002 SCO Charter and the 2007 Treaty on Long-Term Good Neighborliness, explicitly recognize the supremacy of international obligations and cooperation, and include specific references to international human rights, humanitarian, and refugee law.

International human rights principles, however, are undermined by the more prominent and questionable security principles enumerated in SCO normative documents. Without transparent and effective human rights safeguards and oversight mechanisms, the SCO’s policies and actual practices negatively impact rights protected under international law. Further, the formal principles of the SCO and its member states have also underscored the primacy of respect for sovereignty and territorial integrity, security cooperation, and asserted differences in culture, traditions, and political and social systems as justifications for resisting international scrutiny and accountability.

In analyzing the SCO’s compliance with the international framework for counter-terrorism, the following sections examine:

• The problematic normative framework of the SCO, based on the organization’s imprecise and overbroad definitions of terrorism and the Three Evils doctrine;
• Challenges presented by the SCO’s structure and rhetoric, including lack of transparency; the prioritization of regional frameworks over international frameworks; and the re-invocation of “relativism,” sovereignty, and territorial integrity as barriers to international scrutiny;
• SCO member states’ human rights records;
• China’s influence and impact within the SCO, most prominently its role in shaping the SCO’s Three Evils approach;
• The SCO’s impact on harmonization of counter-terrorism legislation in member states; and
• Specific SCO policies, operations, and practices that negatively impact fundamental rights and freedoms – specifically, the RATS database and blacklist system, extradition and denial of asylum in violation of non-refoulement principles, and military cooperation efforts.

A. Defining terrorism

In the absence of a clear international definition of terrorism, there is a risk that states may fill the void with politicized, custom-tailored definitions of the term, meant to fit the needs of the regime in power and undermining a necessary global consistency in addressing terrorism. The SCO has gone a step further, by laying the groundwork for an expansive regional approach to the matter – one that relies on a regional consensus regarding domestic threats to the regime. This consensus is evident in the 2001 Shanghai Convention and the 2009 SCO Counter-Terrorism Convention, which govern counter-terrorism cooperation between SCO member states.

In analyzing the definitions adopted within the SCO framework, this whitepaper takes as its starting point the working formulation of terrorism drawn from Security Council Resolution 1566 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.”¹⁶⁴ While not offering a definition of terrorism, this formulation focuses on three cumulative characteristics – a specific intention, purpose, and “trigger offense” level – that together may serve as a basis to establish terrorism:

1. Acts, including against civilians, committed with the intention of causing death or serious bodily injury, or the taking of hostages; and
2. Irrespective of whether motivated by considerations of a political, philosophical, ideological, racial, ethnic, religious or other similar nature, also committed for the purpose of provoking a state of terror in the general public or in a group of persons or particular persons, intimidating a population, or compelling a Government or an international organization to do or to abstain from doing any act; and
3. Such acts constitute offences within the scope of and as defined in the international conventions and protocols relating to terrorism.¹⁶⁵

Under international law and as a matter of effective counter-terrorism, a state may not apply the label of terrorism to random acts at its discretion; at a minimum, the criteria enumerated by the Security Council must exist for an act to genuinely constitute terrorism. The principle of legality – part of customary international law based on Article 15 of the ICCPR¹⁶⁶ – requires that imposition of criminal liability and punishment, including for acts of terrorism, be limited to clear and precise provisions in the law.¹⁶⁷ Moreover, the principle of legality is non-derogable, applying even in times of emergency.¹⁶⁸ Accordingly, the definitions and counter-terrorism structure advanced by the SCO must include precise articulations of the following baseline criteria in order to comply with international standards:

• intent to inflict death or serious bodily injury upon members of the population, or to take hostages;
• the outcome sought is to provoke a state of terror within or intimidate a population, or to compel action or inaction by a government or international organization; and
• the act itself is within the universe of criminality associated by the international community with terrorism, as evidenced by its inclusion in one of the existing international conventions and protocols related to terrorism.¹⁶⁹

The heart of SCO cooperation and its conceptual approach to terrorism, however, is the Three Evils doctrine, a concept with roots in Chinese government policies. (See Section IV.D infra.) The Three Evils are the focus of the SCO’s key normative agreement – the Shanghai Convention – which “recogniz[es] that these phenomena seriously threaten territorial integrity and security of the Parties as well as their political, economic and social stability.”¹⁷⁰ This Three Evils approach presents serious concerns when assessed against the elements and characteristics of terrorism identified by international experts and UN bodies and required by the principle of legality. Ultimately, the primary purpose of the SCO normative framework appears to be to protect regimes from threats to their power, rather than individuals from threats to their safety.

Article 1(1) of the Shanghai Convention defines the Three Evils as follows:

1. “Terrorism” means:
   • any act recognized as an offence in one of the treaties listed in the Annex to this Convention (hereinafter referred to as “the Annex”) and as defined in this Treaty;
   • any other act intended to cause death or serious bodily injury to a civilian, or any other person not taking an active part in the hostilities in a situation of armed conflict or to cause major damage to any material facility, as well as to organize, plan, aid and abet such act, when the purpose of such act, by its nature or context, is to intimidate a population, violate public security or to compel public authorities or an international organization to do or to abstain from doing any act, and prosecuted in accordance with the national laws of the Parties;
2. “Separatism” means any act intended to violate territorial integrity of a State including by annexation of any part of its territory or to disintegrate a State, committed in a violent manner, as well as planning and preparing, and abetting such act, and subject to criminal prosecuting in accordance with the national laws of the Parties;
3. “Extremism” is an act aimed at seizing or keeping power through the use of violence or changing violently the constitutional regime of a State, as well as a violent encroachment upon public security, including organization, for the above purposes, of illegal armed formations and participation in them, criminally prosecuted in conformity with the national laws of the Parties.¹⁷¹

Article 1(1) presents two key problems: first, the definition of terrorism itself; and second, the intertwining of the concepts of terrorism, separatism, and extremism in a single purported “counter-terrorism” framework.

The Shanghai Convention’s definition of terrorism, while referencing a number of elements consistent with the international standard, is overbroad in that it permits inclusion of crimes against the state rather than the population. The intent can be to “cause major damage to any material facility,” as opposed to causing death or serious bodily injury to members of a population; and the outcome sought can be to “violate public security,” which is a much broader and more ambiguous concept than provoking a state of terror in or intimidating the public, or compelling action or inaction by a government or international organization. While such acts could amount to crimes, they may not rise to the level of genuine terrorism. This ambiguity could permit a state to cast as terrorism those social movements it characterizes as a threat to “public security,” without any evidence of actual or threatened harm to individual members of a population.

Additionally, by linking the concepts of separatism and extremism to terrorism, an individual alleged to have committed any one of these acts is within the scope of the SCO counter-terrorism apparatus, as member states are obliged to take the same measures with respect to all three offenses – each offense having equal weight under the Shanghai Convention. The Shanghai Convention requires the parties to “cooperate in the area of prevention, identification and suppression of acts referred to in Article 1(1) . . . . [T]he parties shall consider acts referred to in Article 1(1) of this Convention as extraditable offenses.”¹⁷² It is unclear whether states must specify which of the three acts is at issue when they obtain cooperation through the SCO or pursue particular individuals as security threats.

Such conflation of offenses and blurring of legislation in the name of counter-terrorism contradicts international law and undermines international efforts to combat terrorism. While the Security Council has recognized that extremism may motivate acts of terrorism,¹⁷³ neither “separatism” nor “extremism” as defined by the SCO includes the elements necessary to qualify as terrorist activity under international law. Yet, these offenses trigger the same apparatus and cooperative activities that SCO member states use to combat terrorism, creating significant potential for abuse. The Special Rapporteur on counter-terrorism stated that, pursuant to the principle of legality, “it is essential that offences created under counter-terrorist legislation, along with any associated powers of investigation or prosecution, be limited to countering terrorism. Crimes not having the quality of terrorism, regardless of how serious, should not be the subject of counter-terrorist legislation. Nor should conduct that does not bear the quality of terrorism be the subject of counter-terrorism measures, even if undertaken by a person also suspected of terrorist crimes.”¹⁷⁴

Moreover, the Three Evils doctrine presents the problem of a politicized and vague concept of the targets of the SCO’s counter-terrorism and cooperation measures. As such, the SCO framework risks expanding the label of terrorism to acts that do not constitute terrorism under the international framework, and risks legitimizing as counter-terrorism the targeting of a wide array of conduct that governments may perceive as a threat to their political authority. In the case of China, such conduct includes the alleged “separatist” or “extremist” activity of ethnic groups, particularly Uyghurs and Tibetans, advocating for self-determination and religious freedom.

In addition to this normative framework laid out in the Shanghai Convention, a recent development that may affect SCO member state counter-terrorism legislation, the implementation of which will require additional monitoring, is the new SCO Counter-Terrorism Convention. At the meeting of the SCO Heads of State Council that took place in Yekaterinburg, Russia, in June 2009, member states “signed the SCO Counter-Terrorism Convention[,] which cements the legal base for counter-terrorism interaction in the SCO framework[,] and its potential cooperation in this field was taken to a new level.”¹⁷⁵ China appears eager to employ the convention, with President Hu Jintao himself “suggest[ing] we take advantage of the signing of the SCO Convention of Counter-terrorism to promote cooperation on joint pursuit and repatriation of suspects among member states.”¹⁷⁶ Kazakhstan and Russia have since both publicized their ratification of the convention.¹⁷⁷

The actual text of this document, however, was only made available publicly (in Russian) when it came up for ratification by the Russian State Duma in the fall of 2010 – as of the time of this writing the SCO had yet to include the convention on its own website. (An unofficial English translation of the text of the SCO Counter-Terrorism Convention is included in Appendix A.)

The SCO Counter-Terrorism Convention operationalizes more concretely the obligations of the member states, setting forth substantive measures pursuant to which member states are to conduct their counter-terrorism cooperation. The convention “shall apply in cases where detection, prevention, and investigation of offenses covered herein implicate the jurisdiction of more than one Party”¹⁷⁸ – i.e., when cooperation between states is necessary to resolve the matter. It is intended to “promote effective cooperation between contracting states in a common struggle against terrorism.”¹⁷⁹

While the SCO continues to regularly invoke China’s Three Evils rubric, the SCO Counter-Terrorism Convention employs a new, separate definition of terrorism that appears based on Russian law, as it incorporates “ideology” as an actionable offense. Article 2 of the SCO Counter-Terrorism Convention includes the following relevant definitions:

Terrorism - an ideology of violence, and the practice of exerting influence on the decision-making of governments or international organizations by threatening or committing violent and (or) other criminal acts, connected with intimidating the population and aimed at causing injury to private individuals, society or the state;

Terrorist act - any act connected with intimidating the population, endangering human life and well-being, and intended to cause significant property damage, ecological disaster or other grave consequences in order to achieve political, religious, ideological or other ends by exerting influence on the decision-making of governments or international organizations, or the threat of committing such acts[.]¹⁸⁰

By comparison, Russia’s domestic law defines terrorism as “the ideology of violence and the practice of influencing the adoption of a decision by state power bodies, local self-government bodies or international organizations connected with frightening the population and (or) other forms of unlawful violent actions.”¹⁸¹

Much like the Shanghai Convention’s Three Evils definitions, the definitions of the SCO Counter-Terrorism Convention suffer from a degree of ambiguity that is contrary to the principle of legality, and have significant potential for abuse. An assessment of these definitions against the international standard presents the following shortcomings:

• The definitions do not require intent to cause death or serious bodily injury to members of the population, or the taking of hostages. Rather, the definition of terrorism covers acts committed with the intent to “caus[e] injury to private individuals, society or the state.” This latter phrasing explicitly permits the authorities to include as terrorism acts causing injury to the state rather than the public. Moreover, the intent behind a “terrorist act” can be to “cause significant property damage, ecological disaster or other grave consequences” – property damage may qualify in lieu of death or serious bodily injury. The definition of “terrorist act” also uses the more pliable phrase “endangering human life and well-being,” the ambiguity of which could cover any number of acts not involving infliction of death or serious bodily injury.
• Actual perpetration of violence is unnecessary pursuant to the definition of terrorism: “violent and (or)other criminal acts” suffice.
• The phrase “connected with” modifies “intimidating a population” in both definitions, and it is unclear how tenuous such a connection can be while still qualifying as terrorism or a terrorist act.
• No trigger offense within the scope of the international conventions countering terrorism is required.

The definitions of the SCO Counter-Terrorism Convention also exhibit a clear preoccupation with impact on the state: they designate the outcome sought through terrorism or a terrorist act as exerting influence on the decision-making of the government or international organizations, whereas that is only one of three purposes of terrorism enumerated by the Security Council (the other two being to provoke a state of terror or to intimidate a population). The lack of requirement of an impact on or the use of violence against the public is conspicuous. 

Perhaps the most questionable aspect of the SCO Counter-Terrorism Convention’s definitions, however, is the inclusion of “ideology of violence” as a criterion for terrorism. The Special Rapporteur on counter-terrorism identified the similar Russian definition of terrorism as problematic because of its overreliance on ideology, noting that “terrorism should not be defined through its political or ideological aims, unless the two other conditions [use of deadly or serious violence against the population, and intent to cause fear among the public or compel government action] are also met. . . . While [the Russian] provision sets out the intent and aim as mentioned above, this definition, even read in conjunction with the defined terms of ‘terrorist activity’ and ‘terrorist act’, does not meet the requirement of clear and precise provisions so as to respect the principle of legal certainty of the law.”¹⁸² As the Russian definition failed to enumerate the criteria of use of deadly or serious violence against the population, and instead relied on the vague notion of “ideology of violence,” the Special Rapporteur viewed it as incompatible with the principle of legality. The SCO Counter-Terrorism Convention relies upon the same deficiency.

In response to a question about the draft of the SCO Counter-Terrorism Convention during an interview in April 2009, then-RATS Director Myrzakan Subanov revealed the following piece of “legislative history” on the reference to ideology:

The need for a new international legal framework on counter-terrorism stems from the growing influence of the ideology of terrorism in its contemporary form. Today there is a real and pressing need to establish a legal framework that will permit us to fight terrorism effectively in the new reality.

It is essential to understand terrorism as a socio-political phenomenon, which will permit us to strike at one of its root causes: an ideology that posits violence and terror as a justified and necessary means to political, social and other ends.¹⁸³

This focus on combating ideology, and understanding terrorism “as a socio-political phenomenon,” is cause for concern. By its very nature, the definition’s ideology component is imprecise, as ideology can refer to beliefs and values that are highly subjective. Moreover, an individual’s ideology typically implicates his or her rights to freedom of expression and freedom of religion. SCO member state efforts to target ideology could easily spill over into preemptive measures against specific faiths or individuals and groups seeking to promote legitimate political goals.

It is further unclear which concept of “terrorism” – that of the Shanghai Convention or the SCO Counter-Terrorism Convention – will be utilized in practice as the basis for SCO action. The Shanghai Convention and the SCO Counter-Terrorism Convention seem intended to exist side-by-side, with the SCO Counter-Terrorism Convention providing an additional basis on which to criminalize “terrorist” activity.¹⁸⁴ This conclusion is reinforced by the entry of China and the Russian Federation into a bilateral Agreement between the Russian Federation and the People’s Republic of China on Cooperation in Combating Terrorism, Separatism and Extremism in September 2010, which explicitly covers acts of terrorism, separatism, and extremism as enumerated in the Shanghai Convention.¹⁸⁵ However, it appears that the role of ideology in terrorism as articulated in the SCO Counter-Terrorism Convention is poised to become a dominant theme in the SCO framework. Indeed, during the UN’s 65th General Assembly Session, the SCO’s representative raised the matter during discussions of the General Assembly’s Sixth Committee, which addresses questions of international law, on the draft international convention on and definition of terrorism, “emphasiz[ing] that widespread prevention of terrorism, including countering the ideology that ‘nourishes it’, [is] crucial when developing anti-terrorism partnerships.”¹⁸⁶

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B. Structural and rhetorical challenges

i. Lack of transparency and oversight mechanisms

In order to ensure that SCO member states honor their international human rights law obligations, and their own human rights principles as referenced in SCO normative documents, these states must deploy credible accountability and monitoring mechanisms. Moreover, as a regional organization subject to Chapter VIII, Article 54 of the UN Charter, the SCO is obliged to keep the UN Security Council informed of its efforts to fight terrorism.¹⁸⁷ Yet, the SCO suffers from a lack of transparency, and without independent oversight mechanisms, it is difficult to fully assess international compliance or ensure that SCO states are fully accountable for their impact on human rights.

The SCO itself recognizes the importance of transparency – perhaps due to concern that it not be misunderstood as a “bloc” entity hostile to Western interests. As early as 2001, the SCO stated that it “adheres to the principle of non-alignment, does not target any other country or region, and is open to the outside. It is ready to develop various forms of dialogue, exchanges and cooperation with other countries, international and regional organizations.”¹⁸⁸ And in 2009, SCO Secretary-General Nurgaliev stated, “Everything on the agenda of the SCO main bodies and decisions adopted within the Organisation is transparent. We would like the international community to have a correct understanding of the goals and activities of the SCO, aimed to contribute to the creation of a new architecture of global security . . . .”¹⁸⁹ However, the SCO has not yet taken real steps to increase transparency in its dealings with member states’ own citizens, or the international community, for example by making concrete information about its policies and activities publicly available.

In practice, key information necessary to correctly “understand the goals and activities of the SCO” is not publicly available. Certain information is designated confidential or secret according to member state agreement. According to Article 11(4) of the Shanghai Convention, “Information about methods of conducting operational search activities, specifications of special forces and means and supporting materials used by central competent authorities of the Parties in order to provide assistance within the framework of this Convention, shall not be subject to disclosure.” Additionally, Article 13 of the Shanghai Convention obligates member states to ensure confidentiality of all information exchanged within the SCO framework.

The SCO has not released official statistics regarding extraditions or data exchange actually carried out pursuant to the SCO framework, nor a complete list of individuals and organizations it has designated as terrorist, separatist, or extremist. As for the contents of the RATS database, “the information that is contained in the data bank is divided into classified and non-classified. Access to classified information shall be provided only to parties that are members of the Agreement on Protection of Classified Information of [RATS (June 17, 2004)]. The structure of the database, the procedure for handling non-classified information, and access to that information shall be determined by [the RATS Council]. Issues regarding the technical protection of information contained within the data base shall be regulated by a separate agreement.”¹⁹⁰

The Special Rapporteur on counter-terrorism has raised lack of accountability of intelligence operations as a major impediment to protection of human rights in counter-terrorism, which holds true in particular for SCO intelligence cooperation through RATS. As the Special Rapporteur has stated, “lack of oversight and political and legal accountability has facilitated illegal activities by intelligence agencies,” particularly in the context of intelligence cooperation within multilateral frameworks such as the SCO, which incorporate “secrecy and security of information policies [that] . . . provide an insurmountable wall against independent investigations into human rights violations.”¹⁹¹

RATS poses a complex problem because, while it interacts with and draws on information collected by security agencies that are within and presumably accountable to individual member states (such as China’s Public Security Bureau, Russia’s Federal Security Service, etc.), RATS itself operates at a supra-national level, which raises concerns regarding intelligence oversight and usage. Indeed, the 2002 RATS Agreement between the member states provides that the RATS Director, his deputies, and the RATS Executive Committee “shall not seek or receive instructions from the authorities or officials of the Parties, as well as organizations or individuals external to the SCO.”¹⁹²

Moreover, the 2002 RATS Agreement grants RATS and its officials immunity – though immunity may be waived by the SCO Heads of State Council – and specifically provides that RATS “archives and documents, including official correspondence, regardless of location, shall be immune from search, requisition and expropriation or any other form of interference that prevents its normal activities.”¹⁹³ And with respect to the RATS database, the 2004 Agreement on the Database of RATS indicates that oversight of the database and its usage is the responsibility of the RATS Executive Committee – lodging all oversight within the intelligence agency itself rather than an independent body.¹⁹⁴

While a degree of confidentiality is essential to certain forms of information implicating national security, the SCO’s practices appear to go well beyond acceptable limitations on transparency. As the UN High Commissioner for Human Rights has noted, “all measures taken by law enforcement agencies must be lawful under national and international law, and compatible with States’ human rights obligations. This means that all activities undertaken by intelligence agencies, including intelligence-gathering, covert surveillance activities, searches and data collection must be regulated by law, monitored by independent agencies, and subject to judicial review. . . . States are required to ensure that confined powers, review of accountability and oversight mechanisms are established against the misuse of exceptional powers granted to intelligence, military agencies or special police to counter terrorism.”¹⁹⁵ Such regulation and review does not appear to exist within the SCO framework generally, or within RATS specifically.

To address these structural problems and better protect human rights, SCO member states will need to take steps to incorporate into the SCO framework the best practices for intelligence cooperation recommended by the Special Rapporteur on counter-terrorism.¹⁹⁶ In particular, these steps should include incorporation of the following practices:

• Intelligence sharing among the intelligence agencies of SCO member states, including within RATS, should have clear basis in national law, which should indicate the parameters for intelligence exchange, including criteria on the purposes for which intelligence may be shared, the entities with which it may be shared, and the procedural safeguards that apply to intelligence-sharing. In addition, the details of intelligence sharing within RATS should be further articulated by written agreements between the member states specifying rules governing the use of shared information and a statement of human rights compliance. (Practice 31)¹⁹⁷
• National law should outline the process for government authorization of intelligence sharing, with requirements for executive approval of any sharing with foreign entities. (Practice 32)¹⁹⁸
• Intelligence sharing among the intelligence agencies of SCO member states, including within RATS, should be necessary, and preceded by an assessment of the counterpart’s record on human rights and data protection, and the legal safeguards and controls to which it is subject, as “intelligence received from a foreign entity may have been obtained in violation of international human rights law.” (Practice 33)¹⁹⁹
• Assessment of the impact on individuals of the sharing of data should also be undertaken, and such sharing should be explicitly prohibited when it could lead to violation of an individual’s rights. (Practice 33)²⁰⁰
• All outgoing data should be screened for accuracy and relevance to avoid dissemination of flawed information, and exchanged pursuant to written agreement. (Practice 33)²⁰¹

Moreover, measures to ensure transparency and access to relevant and accurate information by independent monitoring bodies are crucial – for both the SCO itself and for each of its member states – to effective oversight and accountability for human rights obligations mandated under international and relevant domestic law. Such measures are also in line with the clear public commitments of the SCO’s leadership to openness and accessibility in achieving genuine international cooperation and exchange in matters of global security.

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ii. Regional and international frameworks

In addition to the structural challenges of transparency and lack of oversight mechanisms within the SCO framework, the SCO as a regional organization implicates a number of difficult theoretical and practical issues regarding the relationship between regional and international frameworks. The international community recognizes the special role of regional organizations, with their local experience and expertise, in the promotion of international peace and security. However, UN bodies including the General Assembly, the Security Council, and the Human Rights Council and its various mechanisms, have clearly stated that obligations under international law, especially human rights, refugee, and humanitarian law, must be respected to ensure effective and sustainable counter-terrorism efforts. Beyond public statements and principles, the policies and actual practices of any regional organization such as the SCO must be assessed with critical attention not only to conformity with international norms and obligations, but also to the impacts of the regional framework on international human rights standards and norms.

A number of normative SCO documents recognize the supremacy of member states’ international obligations over those contained in the regional framework, and include references to human rights and fundamental freedoms. (See Appendix A.) For example, the Shanghai Convention notes that, “In the course of implementation of this Convention with regard to issues concerning extradition and legal assistance in criminal cases, the Parties shall cooperate in conformity with international treaties to which they are parties and national laws of the Parties.”²⁰² It further states that the Shanghai Convention will not “affect the rights and obligations of the Parties under other international treaties to which they are Parties.”²⁰³ This is in line with international principles concerning priority of treaty obligations, as articulated under the Vienna Convention, whichprovides, “When a treaty specifies that it is subject to, or that it is not to be considered as incompatible with, an earlier or later treaty, the provisions of that other treaty prevail.”²⁰⁴

While the SCO has carefully asserted its conformity with international law and cooperation in the international arena, it also emphasizes the principles of respect for sovereignty, non-interference in internal affairs, and territorial integrity. The poor human rights records of the SCO member states and the policies and practices of the SCO underscore the need for careful scrutiny to ensure that the invocation of such principles are not strategically and selectively invoked to evade international accountability of member states or of the SCO as a regional organization.

With respect to cooperation and combating the Three Evils, the 2005 Concept of Cooperation of the SCO Member States provided that one principle guiding member state cooperation is “acknowledgment of the priority of joint decisions on combating terrorism, separatism, and extremism.”²⁰⁵ Such acknowledgement of priority of SCO decisions in counter-terrorism efforts raises concerns about the SCO’s impact on the international obligations of the member states related to counter-terrorism. The SCO has also specifically asserted the primacy of the more politically-conducive regional framework, stating, “What specific means and mechanism should be adopted to safeguard security of the region is the right and responsibility of countries in the region.”²⁰⁶ Furthermore, SCO heads of state have emphasized that “stability and security in Central Asia can be provided first and foremost by the forces of the region’s states on the basis of international organizations already established in the region.”²⁰⁷

In effect, the SCO has engendered a policy of selective displacement: SCO member states rely on the regional framework to provide international legitimacy for their cooperation, at the same time that it provides an “alternative,” preferred set of obligations – which may better suit certain existing practices of the states, but may not fully incorporate international human rights protections. Indeed, a June 2009 interview by FIDH with then-Deputy General Prosecutor of Kyrgyzstan, S. Nasiza, confirmed that in practice, officials have consciously decided to prioritize their SCO obligations over international ones. Nasiza indicated that the Kyrgyz government’s decision to return Uzbeks fleeing the 2005 Andijan crackdown – despite the likelihood that they would be tortured or executed upon their return – took place after he had weighed the extradition requirements of the SCO treaties against the prohibitions of the Convention against Torture.²⁰⁸ In the face of these conflicting obligations, the Kyrgyz government had concluded that the SCO framework took precedence.²⁰⁹

The SCO has also advocated respect for sovereignty and territorial integrity – non-interference in internal affairs – above all else. As set forth in the Declaration on the Establishment of the Shanghai Cooperation Organization:

The SCO member states shall abide by strictly the purposes and principles of the Charter of the United Nations, mutually respect independence, sovereignty and territorial integrity, not interfere in each other’s internal affairs, not use or threaten to use force against each other, adhere to equality and mutual benefit, resolve all problems through mutual consultations and not seek unilateral military superiority in contiguous regions.²¹⁰

This position is elaborated upon in the Declaration on the Fifth Anniversary of the Shanghai Cooperation Organization, which states:

[The] SCO will make constructive contribution to the establishment of a new global security architecture of mutual trust, mutual benefit, equality and mutual respect. Such an architecture is based on the widely recognized principles of international law. It discards “double standards” and seeks to settle disputes through negotiation on the basis of mutual understanding. It respects the right of all countries to safeguard national unity and their national interests, pursue particular models of development and formulate domestic and foreign policies independently and participate in international affairs on an equal basis. . . .

Differences in cultural traditions, political and social systems, values and model of development formed in the course of history should not be taken as pretexts to interfere in other countries’ internal affairs. . . .

[SCO member states] support each other in their principled positions on and efforts in safeguarding sovereignty, security and territorial integrity. They will not join any alliance or international organization that undermines the sovereignty, security and territorial integrity of SCO member states. They do not allow their territories to be used to undermine the sovereignty, security or territorial integrity of other member states, and they prohibit activities by organizations or gangs in their territories that are detrimental to the interests of other member states.²¹¹

This assertion of state sovereignty and cultural, political, and social differences – especially in light of the lack of appropriate SCO human rights safeguards and oversight mechanisms – presents serious challenges to effective promotion of human rights. The impact of asserting the principles of sovereignty, non-interference, and territorial integrity can be clearly seen in disputes where the SCO has firmly supported the member states’ domestic priorities, policies, and actions – for example, concerning allegations of extremism, separatism or splittism, and terrorism in the context of events in Andijan in May 2005, the Tibet Autonomous Region in March 2008, and XUAR in July 2009; the Georgia-Ossetia conflict and the situation in Chechnya throughout the 2000s; and ongoing tensions between China and Taiwan.²¹² (See discussion at Section IV.C infra.) Some illustrative SCO statements include:

• “Extremism is [a] current and actual danger, threatening friendly relations among nations. I referred to this in the context of the recent [March 2008] events in the Tibet Autonomous Region of the People’s Republic of China and acts of extreme hooliganism during the Olympic torch relay in some of the cities along the route. . . . We, in the SCO resolutely support the efforts of the Chinese government to maintain public order and rule of law.” – Speech by SCO Secretary-General Bolat Nurgaliev at the International Conference on Security for Beijing Olympic Games, April 25, 2008²¹³
• “Reaffirming that Taiwan represents an inseparable part of China, the SCO member states consistently support the position of the Government of the PRC on the Taiwan issue, resolutely oppose any form of ‘independence of Taiwan,’ and deem its attempts to join the United Nations Organisation and other international organisations to be counterproductive and dangerous.” – Statement by SCO in connection with referendum of the Taiwanese authorities on joining the United Nations, March 17, 2008²¹⁴

• “The latest reports of disturbances in the Tibet Autonomous Region of the People’s Republic of China cannot remain unnoticed by the Shanghai Cooperation Organisation. The government of the PRC is known to have taken the necessary measures to prevent unlawful actions and normalise the situation in this autonomous region…The SCO member states consider Tibet to be an inalienable part of China, and proceed from the fact that settlement of the situation in the TAR is an internal affair of China.” – Statement by SCO Secretary-General Bolat Nurgaliev in connection with March 2008 events in the Tibet Autonomous Region, March 21, 2008²¹⁵
• “The SCO member states consider the XUAR to be an inalienable part of the People’s Republic of China and believe whatever happens there is a solely internal affair of the PRC. We hope that the measures of the Chinese authorities to maintain public order in Xinjiang being taken within the framework of the law will bring calm and restore normal life there as soon as possible. The SCO member states stand ready to further deepen practical cooperation in the field of fighting against terrorism, separatism, extremism and transnational organised crime for the sake of the regional security and stability.” – Statement by SCO Secretary-General Bolat Nurgaliev in connection with July 2009 events in Urumqi, XUAR, July 10, 2009²¹⁶

The SCO’s unequivocal support for China’s stance on the 2010 Nobel Peace Prize is another high profile example of the SCO’s assertion of non-interference in internal affairs and its commitment to solidarity with member states’ positions. On October 8, 2010, the Norwegian Nobel Committee announced that the 2010 Nobel Prize for Peace would be given to Liu Xiaobo – an activist and writer serving an 11-year prison sentence in China – “for his long and non-violent struggle for fundamental human rights in China.” The Chinese government angrily and publicly responded, calling Liu a criminal. It then made threats to discourage foreign governments from attending the ceremony in Oslo, accused the U.S. government, including the U.S. Central Intelligence Agency, of instigating the decision to award Liu the prize, and even launched an alternate “peace prize” – the “Confucius Peace Prize.” China’s outraged rhetoric also asserted that the Nobel Prize decision was an insult to China and the Chinese people.

Taking up China’s argument, the SCO demonstrated that it would serve as a voice in defense of SCO member state failures to respect human rights, again invoking the principle of non-interference in internal affairs. SCO Secretary-General Imanaliev, echoing official Chinese rhetoric, “voiced his opposition to the politicization of the Nobel Peace Prize . . . saying the award should not be used as a tool to interfere in [an]other country’s internal affairs.”²¹⁷ In the Secretary-General’s words, “‘It is very regrettable that the [Nobel] Prize was awarded to a criminal who is now in prison.’”²¹⁸ Joining China in its refusal to send any official representatives to the Nobel Peace Prize ceremony, two other SCO member states – Russia and Kazakhstan – were absent from the event. The remaining SCO members – Kyrgyzstan, Tajikistan, and Uzbekistan – do not maintain official diplomatic offices in Norway and were therefore not in a position to accept or decline an invitation. Such support for China among the SCO member states raises strong concerns about the SCO’s commitment to and respect for international principles of freedom of expression, thought, and conscience, as enshrined in the Universal Declaration of Human Rights – and in the international obligations of the SCO member states.

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iii. National conditions and relativism

Finally, while invoking international human rights obligations on paper and occasionally in their rhetoric, SCO member states also claim that implementation of human rights obligations and assessment of progress are subject to the different histories, national conditions, resources and capacities, and cultures of the member states. The SCO is therefore invoking these differences both as an argument for member states’ heavy-handed practices of social and political control and against “interference in internal affairs.” This strategic invocation of relative national differences is very much in line with the statist arguments raised, by Asian states in particular, during the cultural relativism debates at the end of the twentieth century, which are now resurfacing in various international fora.²¹⁹

In addition to specific international obligations to respect fundamental rights and freedoms, the SCO and its member states must also respect cultural diversity as a core value and as a “living process.” For example, a group of United Nations experts issued a statement that warns against the inappropriate invocation of cultural diversity and explores the value of promoting and respecting cultural diversity:

No one may invoke cultural diversity as an excuse to infringe on human rightsguaranteed by international law or limit their scope, nor should cultural diversity be taken to support segregation and harmful traditional practices which, in the name of culture, seek to sanctify differences that run counter to the universality, indivisibility and interdependence of human rights.

Cultural rights include the right to question the existing parameters of ‘culture’, to opt in or out of particular cultural entities, and to continuously create new culture. Individuals have multiple plural identities and inhabit societies which are also pluralistic. Promoting cultural diversity is thus the preservation of a living process, a renewable treasure for the benefit of present and future generations that guarantees everyone’s human rights as an adaptive process nurturing the capacity for expression, creation and innovation.²²⁰

When viewed against the realities of regimes that target and suppress ethnic, religious, and other vulnerable groups, and impose social and political control through censorship, information control, and repressive laws, the assertion of different national conditions and an implicit relativism in the context of fundamental human rights obligations is suspect, partial, and problematic. 

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C. Human rights records of SCO member states

All six SCO member states have signed or ratified core international human rights treaties, including treaties addressing torture, racial discrimination, civil and political rights, and economic, social and cultural rights. There are only two exceptions to SCO member state ratification of or accession to key international human rights instruments: China has signed – not yet ratified – the ICCPR, but as a signatory is still “obliged to refrain from acts which would defeat the object and purpose of [the] treaty”²²¹; and Uzbekistan is not a party to the UN Refugee Convention. (A chart of SCO member state obligations under international human rights treaties and progress in their implementation is included at Appendix B .) To account for these member state obligations, activities and cooperation undertaken through the regional mechanism of the SCO must protect the individual rights enumerated in the treaties.

In accordance with key international human rights treaties, independent expert bodies monitor and assess compliance of states, and issue findings, observations, and recommendations on state implementation of treaty obligations to protect human rights. For example, all six SCO states have undergone reviews by the Committee against Torture; the Committee on the Elimination of Racial Discrimination; and the Committee on Economic, Social and Cultural Rights; while all member states except China have undergone review by the Human Rights Committee. These bodies have identified a wide range of serious human rights concerns and abuses that exist across the six SCO member states: lack of domestic legal definitions for torture, racial discrimination, and terrorism; corruption; widespread reports of torture and its use to extract confessions; secret detention centers; lack of independent judiciaries; attacks on lawyers, human rights defenders, and independent civil society groups; restrictions on media and the Internet; and systemic inequalities in access to healthcare, education, work, and housing, with disparate impacts on women and ethnic groups. Appendix B .)

While the Special Rapporteur on counter-terrorism has made only one unofficial visit to an SCO member state (Kazakhstan in May 2006), he has sent to SCO member states numerous communications on individual cases and thematic issues of concern, including lack of due process, practice of secret detentions, inadequate definitions of terrorism, and lack of access to data on death penalty and executions.²²² With respect to individual cases, the Special Rapporteur inquired about the targeting of individuals, including members of ethnic and other vulnerable groups (such as Uyghurs, Tibetans, and Chechens, as well as women), opposition politicians, and alleged organizers of the May 2005 Andijan events in Uzbekistan.²²³ The responses of individual SCO member states have included statements disputing the Special Rapporteur’s findings and concerns, accusing the Special Rapporteur of “prejudgment,” or simply long delays or no response at all.²²⁴

In addition to these reviews and inquiries by independent expert bodies and mechanisms, the Human Rights Council (which replaced the UN Commission on Human Rights in 2006) is mandated to review under the Universal Periodic Review (UPR) procedure “fulfillment by each of the United Nations’ 192 Member States of their human rights obligations and commitments.” With the exception of Tajikistan (scheduled for review in October 2011), all remaining SCO member states have each undergone UPR – the Russian Federation and Uzbekistan in 2008, China and Kazakhstan in 2009, and Kyrgyzstan in 2010.

As part of the UPR process, the UN member state under review engages in an exchange with the Human Rights Council and responds to human rights concerns and recommendations raised by other UN member states. The UN member state under review then responds as to which concerns and recommendations it accepts, rejects, views as already implemented, or are in the process of being addressed. Such reviews have raised significant human rights concerns. China, for example, rejected recommendations made by UN member states to implement specific measures and reforms including those that would advance freedom of information and expression, ensure independence of the judiciary and lawyers, safeguard detainees’ access to counsel, protect lawyers from attacks and harassment, and protect the freedoms of religion and movement of ethnic groups such as Tibetans and Uyghurs. China also took the opportunity to repudiate the work of the UN Committee against Torture by rejecting their 2008 recommendation regarding the inadmissibility in court of statements made under torture.²²⁵

In sum, while the international legal human rights framework is extensive, there are serious challenges presented for promoting full respect by SCO member states for international human rights and cooperation with human rights bodies, mechanisms, and special procedures, including the many Special Rapporteurs established to monitor and promote implementation of these rights. As the SCO pursues expanded cooperation with the UN, any cooperation modality must reference the SCO’s and its member states’ cooperation with UN human rights bodies and procedures, including member states’ responsiveness to treaty body recommendations and communications or requests for information from the Special Rapporteur on counter-terrorism and other independent expert mechanisms.

The remainder of this whitepaper focuses on specific human rights challenges presented by the SCO’s formal structure, policies, and practices. However, in any assessment of the compliance of the SCO with its international obligations as a regional organization, the individual human rights policies and practices of the SCO’s member states must also be addressed to avoid the concealment of these human rights problems under the mask of a regional body. The specific human rights issues documented by independent expert UN bodies need to also be addressed in international cooperation, including in expanded SCO-UN cooperation. Otherwise, the international community will risk allowing these cooperation efforts to actually undermine, rather than build, the capacity of states concerned.

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D. China’s influence and impact within the SCO

i. The Three Evils doctrine: Counter-terrorism with Chinese characteristics

China has played a leading role in shaping the SCO’s approach to countering terrorism, especially in the SCO’s adoption of the Three Evils doctrine – which links terrorism, separatism, and extremism as co-equal targets. From its inception, the SCO adopted the Chinese government’s approach, with the June 15, 2001 Shanghai Convention and its targeting of acts ascribed to the Three Evils. Indeed, according to former Kyrgyz Foreign Minister Kadyrbek Sarbaev, “The fight against the ‘East Turkestan’ forces has been ‘the top priority of the SCO since it was established, and we are confident that we will emerge the winner.’”²²⁶ In the context of China’s extensive use of the Three Evils rhetoric to cast ethnic groups who express discontent with official policies or seek greater autonomy as proponents of terrorism, separatism, and extremism, this expansion of the influence of the Three Evils doctrine to the SCO raises serious human rights concerns. In its vagueness and politicized application to target ethnic groups, the doctrine violates the principle of legality and has compromised freedoms of expression, religion, and association.

China has applied the Three Evils approach in particular to the ethnic Uyghur population concentrated in XUAR. Uyghurs and international human rights monitoring groups have voiced strong concerns regarding policies and practices of the Chinese government, including Han settlement in XUAR, and the resulting impact on Uyghurs’ distinct culture, language, and practice of Islam.²²⁷ China has characterized Uyghur demands for greater autonomy and resulting tensions in the region as a threat to social stability and national security.

While the concept of the Three Evils has existed in official parlance for some time, the Chinese government has intensified its reliance on this concept since July 5, 2009, when ethnic tensions between Uyghurs and Han Chinese erupted as widespread riots broke out in Urumqi, capital of XUAR. Official estimates indicate that the July 5 riots and subsequent backlash resulted in 197 lives lost, 1,700 injuries, and extensive property damage.²²⁸ The government vociferously argued that the riots “were masterminded by terrorist, separatist and extremist forces both inside and outside China”²²⁹ – relying on the Three Evils doctrine to defend against international criticism and justify additional repressive measures.²³⁰ One entity accused by Chinese authorities of “instigating” the July 5 riots was the World Uyghur Congress, the U.S.-based NGO and critic of Chinese government policies in XUAR, headed by Uyghur activist and spokeswoman Rebiya Kadeer, whom the Chinese government has labeled a “separatist.” Official media have even gone so far as to assert that the World Uyghur Congress is connected to the East Turkestan Islamic Movement²³¹ – an entity designated as a terrorist organization associated with Al-Qaida by the UN Security Council.²³²

The linking of unrest in XUAR to terrorism has facilitated the government’s failure to acknowledge the underlying grievances of Uyghurs that contributed to the July 5 riots. This observation has been made by independent monitors, including the UN Committee on the Elimination of Racial Discrimination, which in August 2009 urged the Chinese government to “carefully consider the root causes of [the July 2009] events, including inter-ethnic violence, and the reasons why the situation escalated.”²³³ As one Uyghur reportedly stated, illustrating the source of much anger against the government, “‘Give us jobs, stop holding our passports hostage, and let us worship the way we want to . . . That would solve these problems. That is all it would take.’”²³⁴ Instead, the government has responded by severely restricting the civil and political rights of Uyghurs (see Section IV.D.ii infra), while prioritizing unsustainable economic development that risks exacerbating inequalities in the region.

The Three Evils doctrine thus presents the problem of a politicized and vague concept of the targets of the SCO’s counter-terrorism and cooperation measures. The principle of legality mandates that criminal liability may only be imposed pursuant to clear and precise provisions of law – provisions that may not be interpreted to unduly broaden the scope of proscribed conduct. Yet China – both domestically and regionally through the SCO – has relied on the catch-all concept of the Three Evils to avoid having to limit the scope of its crackdowns, which can target not only criminal acts, but also acts as varied as participation in a peaceful protest or communication via the Internet. By tying political dissent to “scare words” such as terrorism, extremism, and separatism, the government has attempted to promote its crackdowns as legitimate security measures and perpetuate policies that serve the interests of the Communist Party of China (CPC) at the expense of citizens. In violation of the principle of legality, China’s domestic law is broad enough to permit terrorism, separatism, and extremism to apply to anything perceived by the Chinese government as a “threat” to its control, whether violent or not.

Official Chinese government references to the Three Evils terminology appeared as early as March 15, 2001, prior to the establishment of the SCO in June of that year, in the Tenth Five Years Planning Outline of the People’s Republic of China’s Development on National Economy and Society.²³⁵ Chapter 23 of the document, on “Rule by Law, Building a Socialist Country Governed According to Law,” sets out the following priorities: “seriously study the new situations and new issues threatening social stability, correctly handle the inner conflicts among people during the new period, ensure social stability,” and “crack down on ethnic splitting activities, religious extremist forces, violent terrorist activities, cults and illegal activities conducted in the name of religion.”²³⁶

Reference appears again, this time after the creation of the SCO, in the State Council’s September 5, 2001 Opinions on Further Strengthening the Comprehensive Management of Social Order (“State Council Opinion on Social Order”), which states:

Our country still faces intertwined and complicated environments both within and overseas; factors affecting social stability continue to exist. Mainly: hostile forces intensify the infiltrating and destroying activities against our country; ethnic splitting forces within and outside the country, religious extremist forces and violent terrorist forces collude together, using so-called issues of ethnicity, religion and human rights, etc., to create problems, attempting to destroy the social stability of our country.²³⁷

In these documents, the Three Evils doctrine – connected explicitly with ethnic groups, religion, and human rights in the State Council Opinion on Social Order – is clearly tied to CPC fears surrounding social stability. In China, social stability depends to a great extent on how popular discontent with official policies is managed or channeled – particularly when those policies implicate marginalized ethnic and religious groups. Indeed, in the explicit language of the State Council Opinion on Social Order, the qualifiers surrounding the politically-charged terms “terrorism,” separatism (“splitting”), and “extremism” are revealing, suggesting the true focus of the government’s concern: “ethnic splitting forces” and “religious extremist forces,” equated rhetorically with “violent terrorist forces” under the Three Evils doctrine.

At the same time, clear and precise definitions of each of the Three Evils – as required by the principle of legality in order to impose criminal liability – do not exist domestically. China’s domestic legislation on counter-terrorism is actually quite limited,²³⁸ providing ample room for official (and unofficial) policy to take its place. While China has made statements about its efforts to draft an anti-terrorism law,²³⁹ such efforts have yet to come to fruition. The key provision under Chinese domestic law applicable to terrorism is Article 120 of the Criminal Law, which was amended on December 29, 2001, to state:

Whoever forms, leads or actively participates in a terrorist organization shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; other participants shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance.

Whoever, in addition to the crime mentioned in the preceding paragraph, commits other crimes of homicide, bombing or kidnapping shall be punished in accordance with the provisions on combined punishment for multiple crimes.²⁴⁰

The focus of the Criminal Law is participation in an organization – reflecting the CPC’s preoccupation with organized opposition – without including a definition of what constitutes a “terrorist” or “terrorism.” Article 4 of the State Security Law could also apply to acts of terrorism as linked under the Three Evils to extremism and splittism, as it broadly states, “Any organization or individual that has committed any act of endangering state security of the People’s Republic of China shall be prosecuted according to law.”²⁴¹ An “act of endangering state security” includes “conspiring to overthrow the government, splitting the country or overthrowing the socialist system.”²⁴² Finally, China’s Supreme People’s Procuratorate and Ministry of Public Security recently promulgated a regulation outlining the prosecution standards for the crime of financing terrorism, but the regulation does not provide a definition of terrorism itself.²⁴³

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ii. The Three Evils doctrine in practice: Targeting of and impact on Uyghurs

In practice, counter-terrorism in China is left largely to the Ministry of Public Security (MPS) and other public security organs. The MPS has made three major statements concerning terrorism since 2001, each one focusing on East Turkestan-related entities and individuals of Uyghur ethnicity. The first was issued on December 15, 2003, when the MPS released a list of four alleged terrorist organizations – the East Turkistan Islamic Movement (ETIM), East Turkistan Liberation Organization, World Uyghur Youth Congress, and East Turkistan Information Center – as well as eleven alleged individual terrorists,²⁴⁴ all of whom were also tied to East Turkestan. At that time, the MPS also released guidance on identification of terrorist organizations and terrorists, in the form of a circular list that, while lacking clear definitions for the terms “terrorist” or “terrorism,” included the following as “Specific Criteria for Identification of Terrorist Organizations”:

1. A group (regardless of whether the headquarters is within the country or overseas) which, through violent terrorist means, engages in acts that endanger national security, destruct social stability, and endanger lives and properties of the people;
2. has a certain degree of structure, leading division of work, or work division system;
3. satisfying the above criteria, and with any of the following circumstances:
   1. organized, planned, incited, implemented or participated in implementing terrorist acts, or is in the process of organizing, planning, inciting, implementing or participating in implementation of terrorist acts;
   2. subsidizes, or supports terrorist acts;
   3. establishes a base for terrorist activity; or recruits, trains, or cultivates terrorists systematically;
   4. in collusion with other international terrorist organizations, accepts subsidy, training, cultivation of other international terrorist organizations, or participates in the activities thereof.²⁴⁵

While the phrase “through violent terrorist means” is vague and circular as guidance for defining terrorism, the criteria do indicate that an act is considered indicative of terrorism if its effect is the endangerment of national security, destruction of social stability, or endangerment of the lives and property of the people. Unlike the characteristics of terrorism laid out by the UN Security Council, however, or even the definition of terrorism contained within the Shanghai Convention, the MPS criteria do not include the element of intent. Moreover, endangerment of national security and destruction of social stability are overbroad, subjective elements that the government can assert when facing political threats that would not objectively qualify as terrorism. These criteria therefore do not sufficiently comply with the principle of legality. ( An English translation of the criteria released by the MPS is included in Appendix C .)

In October 2008, the MPS released another list of eight individuals wanted for terrorism²⁴⁶; again, all of these individuals were allegedly tied to East Turkestan forces, specifically, ETIM (the only East Turkestan entity noted as a terrorist organization on the UN Security Council’s Consolidated List – see Section IV.F.i.1 infra). Notably, the MPS indicated that this second list was based on, inter alia, China’s implementation of UN Security Council resolutions 1267, 1373, 1456, and 1624.²⁴⁷ ( An English translation of this MPS statement is included in Appendix C .) The MPS thus explicitly tied its efforts targeting East Turkestan forces to international counter-terrorism efforts, which could serve to enhance the legitimacy of such crackdowns.

Finally, on June 24, 2010, the MPS announced that it had broken up a major terrorist plot of ETIM.²⁴⁸ This incident raised a number of questions concerning China’s compliance with its human rights obligations in counter-terrorism. The vaguely-worded announcement indicated that Chinese public security agencies had “recently” captured “more than ten” leaders, agents, and members of a “terrorist organization,” including two individuals asserted to be plot leaders – Abdurixit Ablet (an alleged member of ETIM) and Imin Semai’er (simply noted as “a key actor in the East Turkestan terrorist forces”). The identities of the other captured individuals were not revealed. The MPS statement did indicate, however, that the information leading to this arrest was obtained through the investigation of “twenty individuals of Chinese citizenship” who were deported to China on December 20, 2009, after an illegal border crossing – facts that exactly match reports of Cambodia’s deportation in December 2009 of 20 Uyghurs who had sought refuge in the country after the July 2009 unrest.²⁴⁹ Additionally, the MPS statement indicated that Abdurixit Ablet, Imin Semai’er, “and others” confessed to participating in a wide array of terrorist activities during interrogation.

Serious issues therefore exist concerning China’s treatment of these Uyghurs, including the principle of non-refoulement and potential use of torture during the interrogations, which require additional investigation. Yet, again, the MPS asserted compliance with international law, stating, “Chinese public security agencies will firmly uphold and fulfill the resolutions of the United Nations General Assembly and the Security Council, striking a serious blow to every type of terrorist activity according to the law, and conscientiously uphold social stability.”²⁵⁰ ( An English translation of this MPS statement is included in Appendix C .)

In addition to these national-level efforts, regulations specific to XUAR have become a key part of China’s domestic counter-terrorism legal framework, and it is here that the Three Evils doctrine is most fully incorporated. As part of enhanced security efforts, the XUAR People’s Congress Standing Committee made revisions to the XUAR Regulation on the Comprehensive Management of Social Order on December 29, 2009 (“2009 XUAR Regulation Amendment”), which took effect on February 1, 2010.²⁵¹ ( An English translation of the text of the revised regulation is included in Appendix C. ) The 2009 XUAR Regulation Amendment was designed specifically to crack down against the three forces of terrorism, separatism, and extremism in XUAR after the July 5 riots, and includes multiple references to “ethnic separatist forces, violent terrorist forces, and religious extremist forces.” These regional changes appear to be unique to XUAR, with the “new emphasis on state security [] largely unseen in other localities as well as in the XUAR’s own previous social order provisions.”²⁵²

Such singular focus by the Chinese government on the “East Turkestan threat” in its counter-terrorism efforts, and its crackdown in response to the July 5 riots, suggests that the concept of terrorism has been applied in a biased fashion, with the Uyghur community the subject of intense scrutiny and suspicion. China, like other states, does face real threats of terrorism, as demonstrated to some degree by attacks launched against public targets in the run-up to the 2008 Olympics in Beijing.²⁵³ It has also been reported that some individuals of Uyghur ethnicity, and groups such as the Turkestan Islamic Party, were involved in terrorist activities linked to Al-Qaida.²⁵⁴ Yet the limited involvement of Uyghurs in terrorist acts cannot serve as justification of widespread repression throughout XUAR or the labeling of peaceful Uyghur activists under the rubric of the Three Evils.

As China’s Ministry of Foreign Affairs itself noted in 2002, “China holds that all actions against terrorism should have solid proof and a clear target and adhere to the purposes and principles of the UN Charter. China opposes arbitrarily widening the scope of strikes in the name of fighting terrorism and it also opposes identifying terrorism with any specific country, ethnic group or religion.”²⁵⁵ The Three Evils doctrine undermines this principled approach and, in doing so, compromises human rights guaranteed under international law, and international counter-terrorism efforts as a whole.

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E. Harmonization of legislation in SCO member states

Despite the inherent dangers of the SCO’s Three Evils approach – exemplified in China – the SCO has promoted the spread of legislation designed to combat terrorism, extremism, and separatism within individual member states. Incorporation of the Three Evils doctrine into the domestic law of member states both extends the control of China and Russia, the SCO’s dominant regimes, and provides a counterweight to international influence and pressure on human rights. The SCO’s clear support for, and perpetuation and extension of, the Three Evils doctrine – which has had drastic effect on the rights of the Uyghur populace in XUAR – suggests a lack of political will to respect, protect, and promote essential human rights.

Harmonization of security-related domestic legislation on the basis of the Three Evils has been identified by the SCO repeatedly as a key area for work and a priority for resolution – which the SCO is coming closer and closer to attaining.²⁵⁶ The Shanghai Convention requires member states to “take such measures as can prove necessary, including, as appropriate, in the field of their domestic legislation, in order to ensure that in no circumstances acts referred to in Article 1 (1) of this Convention [terrorism, separatism, and extremism] should be subject to acquittal based upon exclusively political, philosophical, ideological, racial, ethnic, religious or any other similar considerations and that they should entail punishment proportionate to their gravity.”²⁵⁷ Regional consensus on rejecting justifications for acts characterized as one of the Three Evils was thus of paramount importance from the SCO’s inception.

As early as 2004, in a meeting between the RATS Director and Russian officials, the need to “adjust[] national legislations of SCO country members in accordance with the policy of fighting terrorism, extremism, and separatism [was] noted.”²⁵⁸ As later set forth under the 2005 Concept of Cooperation of SCO Member States, fundamental objectives of SCO cooperation include “developing and harmonizing the legislation of SCO member states in the realm of combating terrorism, separatism, and extremism,” and “assisting in the strengthening of international anti-terrorist cooperation and in the creation of a world atmosphere that completely rejects terrorism, separatism, and extremism.”²⁵⁹ The 2005 Concept of Cooperation of SCO Member States also enumerated that a guiding principle for member states is the “reciprocal recognition of a terrorist, separatist, or extremist act regardless of whether the legislation of SCO member states includes a corresponding act in the same category of crimes or whether the act is described using the very same terms.”²⁶⁰ These provisions indicate that a primary obligation of SCO membership is to target any individual designated terrorist, extremist, or separatist by another member state, irrespective of differences in the states’ characterizations of such threats. Indeed, the ultimate goal appears to be elimination of differences in member state characterizations of and responses to such threats.

The SCO Counter-Terrorism Convention of 2009 further advanced efforts to harmonize domestic approaches to counter-terrorism by identifying a number of legislative and other measures that all parties should implement on a national level.²⁶¹ Many of these measures raise human rights concerns, including:

• Encouraging public participation in identifying terrorist threats by means of payment to informers, “assisting non-governmental organizations, groups, and private individuals in countering terrorism and promoting non-acceptance of terrorism in society,” and “educating the public regarding the dangers and negative effects of terrorism, as well as the legal consequences of offenses covered” under the SCO Counter-Terrorism Convention.²⁶² Each of these approaches may promote state interference in civil society and creation of incentives to characterize legitimate activities as terrorism – a strong possibility in light of the convention’s ambiguous definition of the term.
• Requiring criminalization of “public calls to terrorism or public justification of terrorism,” namely, “the dissemination of any appeal to the public for the purpose of inciting the commission of” certain offenses enumerated under the SCO Counter-Terrorism Convention, or “public declarations calling for the support and emulation of terrorism.”²⁶³ This approach to criminalization for incitement to terrorism includes only two of three elements required by international law, and puts legitimate expression at risk.

While the UN Security Council has recognized the role that incitement could play in the commission of terrorist acts and called for its prohibition,²⁶⁴ the UN has reiterated that incitement to terrorism should be understood as having all of the following elements:

• a direct call to engage in terrorism (an act of communication);
• with the intention that this will promote terrorism (subjective intent);
• in a context in which the call is directly causally responsible for increasing the actual likelihood of a terrorist act occurring (objective danger that the conduct will incite terrorism).²⁶⁵

The SCO Counter-Terrorism Convention’s approach, however, does not include the element of objective danger of increasing the actual likelihood of commission of a terrorist act. Moreover, criminalization of “public justification of terrorism” and “public declarations calling for the support and emulation of terrorism” goes beyond permissible prohibitions on incitement to terrorism. Incitement must not be equated with the mere glorification or promotion of terrorism, or the expression of support for past acts, as such activity does not possess the three elements of incitement outlined above.²⁶⁶ As stated by the UN Secretary-General, “[I]t is important that vague terms of uncertain scope such as ‘glorifying’ or ‘promoting’ terrorism not be used when restricting expression.”²⁶⁷

In requiring harmonization of the legislation of SCO member states on these matters, the SCO framework risks perpetuating counter-terrorism practices that do not fully integrate human rights principles and safeguards.

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F. SCO policies, operations, and practices: The fourth pillar meets the Three Evils

Given the fundamental problems presented by the formal SCO framework and the lack of transparency and accountability in its actual practices, it is no surprise that counter-terrorism cooperation within that framework has compromised member states’ compliance with international law. The SCO has significant potential to impact individual rights that are protected by international law, including security of the person, freedom of expression, freedom of religion, freedom of association, privacy, and fair treatment under the law. While publicly-available information on the operations of the SCO is limited (see Section IV.B.i supra), SCO trends documented thus far raise concerns regarding the widespread acceptance of the targeting of legitimate organizations and individuals who have voiced dissent against member state policies. SCO member states have relied on the Three Evils doctrine as the basis for severe restrictions on and violations of the human rights of SCO member states’ citizens.

The SCO framework has greatly expanded the reach of SCO member state governments to effectuate domestic policies and priorities in the region. The impact of this reach on individuals is significant, as the SCO structure obligates all member state governments throughout the Eurasian region to track, target, and punish persons or organizations identified as threats, no matter where they are located within that region. The 2009 SCO Counter-Terrorism Convention codified the bases for a member state’s jurisdiction over “terrorist” offenses – and control over the individuals or entities alleged to have committed them – as follows:

1. Each Party shall take the necessary measures to establish its jurisdiction over the offenses covered by this Convention in the following cases:
   1. when the offense has been committed in the territory of that Party;
   2. when the offense has been committed on board a vessel flying the flag of that Party or an aircraft registered under the laws of that Party;
   3. when the offence has been committed by a national of that Party.
2. Each Party may also establish its jurisdiction over offenses covered by this Convention in the following cases:
   1. when the offense wasaimed at or resulted in the commission of a terrorist act inside the territory or against a national of that Party;
   2. when the offense was aimed at or has been committed against a Party’s facility abroad, including its diplomatic missions or consular premises;
   3. when the offense was aimed at or resulted in the commission of a terrorist act for the purpose of compelling that Party to do or abstain from doing any act;
   4. when the offense has been committed by a stateless person with habitual residence in the territory of that Party;
   5. when the offense has been committed on board a vessel operated by that Party.²⁶⁸

According to the SCO Counter-Terrorism Convention, the jurisdiction of a state is not confined to that state’s own citizens. Nor is jurisdiction confined to offenses committed on that state’s territory or against its overseas facilities. Instead, the SCO Counter-Terrorism Convention permits member states to claim jurisdiction whenever the alleged offense is “aimed at” commission of a terrorist act on the state’s territory or against one of its citizens, regardless of the location of the citizen or the perpetrator, and regardless of whether the terrorist act ultimately transpired. Most disturbingly, a state may also claim jurisdiction by asserting that an offense was “aimed at” commission of a terrorist act that had as its purpose an impact on that state’s decision-making (an act with the “the purpose of compelling [an SCO member state] to do or abstain from doing any act”). For example, pursuant to this formulation, China could assert that it had jurisdiction over Kazakh citizens of Uyghur ethnicity, located in Kazakhstan and alleged to be plotting a terrorist act in Kazakhstan – so long as China asserts that such act, which may or may not have even transpired, is intended to send a message to China.

Such an amorphous basis for jurisdiction raises considerable doubts about the safeguarding of individuals’ due process rights in the SCO framework. Combined with the SCO Counter-Terrorism Convention’sloose, politicized definition of terrorism, the provisions above give states jurisdictional authority over virtually any perceived threat in which they have an interest. Should member states disagree as to who may properly exercise jurisdiction, they shall “consult with a view to determine the most appropriate jurisdiction.”²⁶⁹ This raises serious concerns that outcomes of such consultations would weigh heavily in favor of China or Russia – the SCO member states with the greatest economic and political clout.

Taking into account the extended reach of SCO member states in this framework, three specific areas of cooperation are of particular concern for their negative impact on human rights: exchange of information on individuals; extradition or returns of, and denial of asylum to, member state citizens; and joint military and law enforcement exercises.

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i. Impact of exchange of individual information on the right to privacy and due process

Law enforcement bodies of SCO member states are obligated to share a great deal of information and data that have been identified as related to terrorism, separatism, and extremism. The Shanghai Convention indicates that the “central competent authorities of the Parties shall exchange information of mutual interest” on planned or committed terrorist, separatist, or extremist acts, as well as information about “organizations, groups and individuals preparing and/or committing acts referred to in Article 1(1) of this Convention or otherwise participating in those acts, including their purposes, objectives, ties and other information.”²⁷⁰ Such cooperation has deepened over time: in June 2009, SCO Secretary-General Nurgaliev stated that the SCO member states “have a legal obligation to share information about terrorists and terrorist organizations so that competent services will be able to trace them on the territory of any member state. This proved to be an effective mechanism resulting in the achievement of specific goals. Cooperation in this field will be intensifying. All six members of the SCO are determined to prevent terrorists and extremists of different kinds from destabilizing the situation in the region.”²⁷¹ The SCO Counter-Terrorism Convention reiterated that “competent agencies of the Parties, upon request or on their own initiative, shall exchange information (documents, materials, or other information) regarding issues covered by this Convention for the purpose of preventing or combating terrorism.”²⁷² The SCO’s RATS is the operational center that makes this happen.

The SCO’s establishment and operation of RATS raises serious human rights concerns with its multilateral approach to targeting organizations, groups, and individuals deemed threats by any one of the six SCO member state governments. Of the tasks with which RATS is charged, its activities to assist in the search for persons alleged to have committed acts of terrorism, separatism or extremism, as well as to exchange individual identifying and NGO information through the RATS database – the parameters of which are governed by separate agreement – raise serious questions as to conformity with international law.

In an April 2009 interview, the Director of the Executive Committee of RATS provided the following insight into RATS and its role in member states’ national security measures:

Our organization is not directly involved in counter-terror operations. We were, however, actively engaged in facilitating security measures implemented at the 2008 Olympic Games [in Beijing]. Documents prepared by our organization formed the legal framework for inter-agency cooperation in this field. As far as I know nothing like this has ever been done: there is no international precedent for it. To be frank, it was not an easy task, but we were able to accomplish our goals. The joint efforts of SCO member states in facilitating security at the 2008 Olympic Games fully reflects the “Shanghai spirit” and offers the international community a working model of cooperation between states on a global scale.

When it comes to the Sochi Olympics [site of the 2014 Winter Olympics in Russia], I believe that we will be able to build on our past experiences to develop effective strategies in facilitating security. Needless to say, our organization could never replace Russia’s law enforcement agencies, but we are certainly capable of assisting their efforts with relevant and strategic information.²⁷³

In light of the ever more powerful technology tools that SCO member states have at their disposal, “assisting [] efforts with relevant and strategic information” is perhaps the most potent form of cooperation these states can supply in the modern era. Technology deployed by these governments can track and expose the activities, identities, and other significant details of individuals and organizations, as well as predict and analyze patterns of behavior – to eliminate “problems” before they even materialize.

The aforementioned coordination by RATS of national security measures in connection with “mega-events” (large-scale public events) is a good example of such capacity, which will continue to develop into the future, and not only with respect to the Sochi Olympic Games. At a RATS meeting in October 2009, “complex measures of assistance to the People’s Republic of China and the Republic of Kazakhstan in the maintenance of security at World Expo 2010 in Shanghai (PRC), 2010 Guangzhou Asian Games and Asian Winter Games in Kazakhstan in 2011 have been approved.”²⁷⁴ It is worth noting, however, that security for the Beijing Olympic Games in 2008, in which RATS was “actively engaged,” included crackdowns on human rights defenders, massive surveillance operations, and restrictions on peaceful dissent.²⁷⁵ As this approach was deemed a success, it is likely to be exported and repeated among the SCO member states.

Under the Shanghai Convention and the SCO Counter-Terrorism Convention, information exchange can be initiated at the request of one member state to another, or a member state can offer information on its own initiative.²⁷⁶ The required elements of a request are surprisingly minimal, the most complicated under the Shanghai Convention being “purposes of and grounds for the request,”²⁷⁷ and under the SCO Counter-Terrorism Convention, a summary of facts upon which the operation, investigation, or proceeding is based, and statement that the requested measure is in accordance with relevant legislation.²⁷⁸ There is no indication that a request for individual data must be accompanied by any evidence of criminality or specification of the act or charge for which an individual is wanted. The Shanghai Convention does, however, provide that a request for information may be refused on the ground that “it contradicts the legislation or international obligations of the requested Party.”²⁷⁹ Likewise, the SCO Counter-Terrorism Convention permits refusal if compliance “threatens the sovereignty or national security of the requested Party or contravenes its laws.”²⁸⁰ Whether or not such a request has ever been denied on these grounds is unknown.

Over the years the SCO and RATS have developed two key forms of information exchange with serious implications for individual rights: SCO “blacklists” and the RATS counter-terrorism database.

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1. Blacklists

Within the international community, there is a growing awareness of the human rights risks of blacklists developed for counter-terrorism purposes. The due process questions are significant – for instance: What evidence is used to place individuals and entities on the list? Who makes the listing decision? Are such decisions subject to oversight? Can they be challenged through a legitimate delisting procedure? Can an individual or entity wrongfully placed on the list receive reparation?

All of these questions have surfaced in connection with the work of the UN Security Council’s 1267 Committee (also known as the Al-Qaida/Taliban Sanctions Committee), established pursuant to Security Council Resolution 1267 to impose a sanctions regime against individuals and entities associated with Al-Qaida, the Taliban, and Usama Bin Laden, wherever located.²⁸¹ These sanctions measures include assets freezing, travel bans, and arms embargoes; the measures have no expiry date.²⁸² All states are required under Chapter VII of the UN Charter to impose sanctions against individuals and entities that have been designated as “associated with”²⁸³ Al Qaida, the Taliban or Usama Bin Laden and placed on the Security Council’s consolidated list, known as the 1267 Consolidated List. Clearly, the consequences of inclusion on the 1267 Consolidated List are immense – yet due process protections associated with listing and delisting are lacking. The 1267 Committee considers listing and delisting requests and reaches its decisions by consensus of its members – the 15 member states of the Security Council. There are no appeal procedures, no standard of proof, no public hearings, and no right to answer, and no reasons need to be given for listing and delisting decisions. In fact, a criminal charge or conviction is not necessary for inclusion on the 1267 Consolidated List “as the sanctions are intended to be preventive in nature.”²⁸⁴

In response to arguments that the Security Council Resolution 1267 sanctions regime does not adequately incorporate due process and transparency,²⁸⁵ the Security Council passed Resolution 1904, establishing an independent ombudsperson with human rights credentials to assist in the consideration of delisting requests and implement more transparent procedures.²⁸⁶ The resolution also laid out a deadline for completion of the 1267 Committee’s first review for accuracy of the 1267 Consolidated List, and requirements for further review and updating of the list.²⁸⁷ Even so, Resolution 1904 reiterated that the sanctions regime was “preventative in nature and [] not reliant upon criminal standards set out under national law”²⁸⁸; and, despite completion of review of the Consolidated List in July 2010,²⁸⁹ the list still evidences problems. Notably, the one individual connected with XUAR who is currently included on the list – Abdul Haq, entry QI.H.268.09, alleged “overall leader and commander of the Eastern Turkistan Islamic Movement” – was reportedly killed in the North Waziristan region of Pakistan in February 2010.²⁹⁰

While acknowledging progress by the Security Council, the Special Rapporteur on counter-terrorism has continued to voice serious concern over the framework engendered by Security Council Resolutions 1267 and 1373, arguing that the Security Council has exceeded the powers conferred by it by the UN Charter, and that its practices have posed risks to the protection of international human rights standards.²⁹¹ He recommends that the Security Council replace these key counter-terrorism resolutions with a new, single resolution, not adopted under Chapter VII of the UN Charter, that incorporates a proper human rights clause and extinguishes the problematic aspects of the old framework, while still maintaining States’ reporting duties, which should fully address human rights questions. Additionally, he asserts that, as the 1267 regime amounts to ultra vires action, all UN-listed individuals and entities should have access to domestic judicial review before sanctions are applied – i.e., the 1267 Consolidated List should no longer be considered “proof” of the terrorist nature of an entity or individual, such as the Eastern Turkistan Islamic Movement.

The SCO’s regional version of a counter-terrorism blacklist presents the same problems that the UN system itself is building momentum to address – but, unlike the UN, the SCO does not yet appear to have tackled the due process issues inherent in blacklisting. Indeed, the ability to obtain multilateral, uncritical acceptance of the state’s specific designation of enemies within the SCO framework is a valuable tool for SCO members. This multilateral acceptance has served as a platform for member states to rebut the criticism of Western nations about domestic human rights records and targeted groups, providing a legitimized counterpoint for defending state actions. It also has the effect of expediting mutual legal assistance in the elimination of state enemies when such enemies are outside of the state’s borders and direct control. Moreover, this regional blacklist, administered through RATS, has its foundations in the concept of the Three Evils.

Under Article 14 of the ICCPR, however, SCO member states are required to respect and protect individuals’ rights to equality before the courts and tribunals, presumption of innocence until proven guilty, a fair trial, minimum due process guarantees, and review by a higher tribunal.²⁹² The UN High Commissioner for Human Rights elaborated that inclusion on a blacklist denies an individual the right to a fair hearing, and often lacks the following essential aspects: uniformity in evidentiary standards and procedures; proper notice to individuals concerning the listing and reasons behind it; an expiration date; methods to challenge the listing; and the right to a remedy.²⁹³ The Special Rapporteur on counter-terrorism also noted that blacklisting may infringe on the right to property, freedom of association, and political rights.²⁹⁴ He highlighted that blacklisting must comply with the principles of legality and legal certainty, proportionality, and necessity.²⁹⁵ He further stressed that any inclusion on a blacklist must be subject to procedural guarantees, including the right to be informed of grounds for inclusion and delisting procedures, the right to judicial review, the right to a remedy, and humanitarian exemptions.²⁹⁶

Publicly-available documents of the SCO and RATS do not indicate incorporation of any such safeguards in the SCO’s blacklisting process. What is known is that the blacklist has evolved since 2005, when RATS identified the creation of a list as a main direction of SCO cooperation. The 2005 Concept of Cooperation of the SCO Member States specified as a guiding principle the “inescapability of punishment” for organizations and individuals wanted for terrorism, separatism, and extremism,²⁹⁷ and noted one of the desired results of blacklisting as confiscation of assets.²⁹⁸ These planned measures directly implicate the right to property, freedom of association, and political rights as articulated by the Special Rapporteur on counter-terrorism. The “fundamental avenues of cooperation” laid out in the 2005 Concept of Cooperation of the SCO Member States include:

1. The formation of a single policy by SCO member states in the realm of combating terrorism, separatism, and extremism and the effectuation of inter-state coordination of this activity.
2. The development of unified approaches to stopping the activity of terrorist, separatist, and extremist organizations prohibited in SCO member states, including the creation of a unified list of such organizations with subsequent confiscation of their property and financial resources.
3. The development and implementation of the anti-terrorist capacity of SCO member states.
4. The inevitability of punishment for terrorism, separatism, and extremism.
5. Creating and maintaining a single search registry of individuals wanted internationally for committing crimes of a terrorist nature or who are suspected of committing crimes of a terrorist nature.²⁹⁹

The exact contents of the SCO blacklist are unknown, and it appears to remain a work in progress for RATS. According to publicly available information, in early 2006, the RATS Council agreed on a first common list of 15 designated terrorist organizations, which included Al-Qaida, the Congress of Peoples of Chechnya and Dagestan, Hizb ut-Tahrir, and the Islamic Party of Turkestan.³⁰⁰ A list of 400 alleged individual terrorists was reportedly also agreed upon, but not publicly released.³⁰¹

In May 2007, at a meeting of Secretaries of Security Councils of SCO member states, “the meeting heard a report on preparing a single list of terrorist, separatist and extremist organizations whose activity on the territory of the SCO member states are prohibited, as well as a single list of individuals wanted by the special services and law enforcement agencies of the SCO member states for committing or being suspected of committing the crimes of terrorist, separatist and extremist nature.”³⁰² Reports indicate that this meeting produced a list of 39 terrorist, separatist, and extremist organizations – including Al-Qaida, the Taliban, the Islamic Movement of Uzbekistan, Hizb ut-Tahrir, and the East Turkestan Islamic Movement – and a most-wanted list of 944 individuals.³⁰³ RATS indicated that it was continuing its work on such a list in 2009.³⁰⁴

In April 2010, RATS Director Dzhenisbek Dzhumanbekov noted that RATS maintains within its database a list of 42 organizations “the activities of which pose a potential threat to certain SCO member states, and have accordingly been outlawed in those countries,” as well as a list of over 1100 persons “sought internationally in connection with acts of terrorist, separatist, or extremist nature.”³⁰⁵ Thus, regional consensus appears to be growing concerning which organizations and individuals represent terrorist, separatist, and extremist threats.

Echoing the SCO’s approach to the definition of terrorism, however, member states appear to have neglected the principle of legality in maintaining the blacklist. No mention is made of a need to specify which of the Three Evils an individual is blacklisted for, nor the nature of his or her connection to an alleged criminal act. Official RATS documentation from 2006 noted some of the overriding considerations behind the blacklist:

• [T]here can be no double standards when it comes to terrorism;
• we must evolve a consistent definition of “terrorism” and establish a legal framework to ensure that a subject identified as a terrorist in one country will be regarded as such in other countries, thus becoming ineligible for political asylum;
• there is a need for an international accord on counter-terrorism, adopted by all SCO member states, setting out the criteria that must be met before an entity may be designated as a terrorist organization, and the sanctions that may be applicable to it or its individual members.

These conclusions should serve as a precondition for any Register of Terrorist Organizations adopted by all SCO member states. . . .

Expert delegates of the RATS Executive Committee and SCO member states are working together to bring our countries closer in a common struggle against international terrorism, and making first steps toward creating such a register. This will permit us to hasten the process of establishing a legal framework for a Single Register of Terrorist Organizations that may include such entities as Al-Qaida, the Taliban Movement of Afghanistan, the Islamic Movement of Uzbekistan, Hizb ut-Tahrir al-Islami, and the East Turkestan Islamic Movement.³⁰⁶

Through the use of such blacklists, an SCO member state may bypass the step of independently determining according to law whether an individual has committed an act of terrorism; rather, another country’s identification of the individual as a terrorist will suffice. Any blacklist based on such identification, particularly in light of the Three Evils doctrine, the human rights records of SCO member states, and the RATS reference to preventing political asylum, may serve as a tool for states to guarantee the “inevitable” punishment of individuals and entities targeted for domestic crackdown. While RATS noted the need for “criteria that must be met before an entity may be designated as a terrorist organization” – which criteria the SCO Counter-Terrorism Convention has now supplied – the SCO framework does not indicate whether a member state’s evaluation of, and blacklisting based upon, such criteria should include human rights safeguards, such as independent oversight mechanisms or appeal procedures. It is therefore probable that the member states’ politicized application of the Three Evils labels – including that of China to Uyghur groups – carries over to the regional blacklist as well.

While no official and complete list of SCO-recognized terrorists, separatists, or extremists is presently available, SCO member states do appear to rely heavily on blacklisting in their cooperation, including with respect to border control, surveillance, and extradition (see Section IV.F.ii infra). These areas of cooperation are laid out in the 2005 Concept of Cooperation of the SCO Member States, which, in addition to requiring coordinated denial of asylum,³⁰⁷ indicates that member states should develop “legal, organizational and other measures aimed at strengthening border and customs control with the goal of preventing terrorists, separatists and extremists from penetrating SCO territory, and halting the illegal transfer across the borders of SCO member states of resources used to commit terrorism, separatism and extremism.”³⁰⁸ Both Kazakhstan and Uzbekistan have confirmed in reports to the UN Security Council that they utilize SCO lists as a basis for monitoring, denying entry to, and sharing intelligence on specific individuals.³⁰⁹ As the Special Rapporteur on counter-terrorism has stated, such practices may violate individuals’ freedom of movement as protected under ICCPR Article 12,³¹⁰ as well as the principle of non-refoulement.³¹¹

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2. RATS Database

Compounding the problem of regional blacklisting is the creation of a comprehensive, well-financed, and well-sourced database within RATS, with the potential to augment SCO member states’ powers of surveillance and control, but lacking mechanisms for accountability.³¹² Publicly available sources are vague on what specific information is circulated through RATS, what stage of development and implementation the database and its data-mining capabilities are at, and how member states use or contribute to the database. The SCO member states’ own domestic practices concerning surveillance and data collection, however, suggest cause for serious concern. The member states have track records of failing to respect international human rights in the monitoring of their own citizens, such that the pooling of these member states’ resources into a single database creates the potential for large-scale, widespread abuse.

The practice of collecting, sharing, and data-mining information on individuals suspected of terrorism, separatism or extremism implicates a number of human rights obligations. These include the principle of non-discrimination embodied in UDHR Articles 1 and 2, ICERD, and ICCPR Article 26; the right to privacy embodied in UDHR Article 12 and ICCPR Article 17; and due process rights.³¹³ States may compromise such rights when they employ an overbroad approach to the collection and use of individual data, lacking structured human rights protections.³¹⁴

The Special Rapporteur on counter-terrorism raised the following due process concerns regarding the impact of multilateral intelligence databases:

When profiles and watch lists are developed using information from a variety of sources with varying reliability, individuals may have no knowledge of the source of the information, may not question the veracity of this information, and have no right to contest any conclusions drawn by foreign authorities. A mosaic of data assembled from multiple databases may cause data-mining algorithms to identify innocent people as threats. . . . One of the most serious effects of surveillance measures is that they may lead to miscarriages of justice and violate due process guarantees. The challenge of gaining access to judicial review is that some legal regimes may prevent access to the courts unless individuals can show that interference has taken place, which is precluded by the secretive nature of the surveillance programmes.³¹⁵

Additionally, collection and usage of data must not be based on, or result in the perpetuation of, impermissible profiling³¹⁶ that incorporates assumptions concerning ethnic origin or religion, which “may lead to practices that are incompatible with the principle of non-discrimination.”³¹⁷ Moreover, failure to incorporate protections for these rights may actually have the effect of weakening state efforts to counter terrorism.³¹⁸

A brief survey of the current domestic information practices of the SCO member states reveals that, in maintaining the RATS database, SCO member states may draw on an extensive network of data, including digital and biometric data. China’s efforts are particularly advanced, based in large part on the Golden Shield project – “a nationwide digital surveillance network, linking national, regional and local security agencies with a panoptic web of surveillance.”³¹⁹ Such surveillance encompasses vast amounts of information transmitted through the Internet, mobile phones, and video cameras; co-opts the participation of Internet service providers and other information and communications technology businesses; and employs data-mining systems to make sense of the resulting wealth of information.³²⁰ In XUAR alone, the Chinese government has deployed an extensive network of security cameras: in the run-up to the one-year anniversary of the July 2009 unrest, approximately 40,000 cameras with protective shells were installed throughout XUAR – with approximately 17,000 installed in Urumqi – including in buses, bus stations, schools, markets, and along roads.³²¹ Moreover, reliable sources indicate that the figure of 40,000 significantly undercounts the true scale of deployment.

Russia has also taken aggressive steps towards comprehensive surveillance, passing the Law on Systems for Operational Investigation Activity (SORM) in 1995 to authorize Federal Security Service (FSB) monitoring of telecommunication transmissions, and enacting SORM-II in 1999, which expanded permissible FSB surveillance to monitoring of Internet traffic.³²² The law requires Internet service providers to “install monitoring devices on their servers and route all transmissions in real time through the FSB’s local offices,” as well as turn over to the FSB individual user data.³²³ Following Russia’s lead, Kazakhstan, Tajikistan, and Uzbekistan have developed similar practices.³²⁴ With such comprehensive information regularly obtained for political purposes at their disposal, the prospect of the SCO member states combining their efforts and data unchecked raises serious concerns regarding rights to privacy and due process, especially in light of the significant consequences flowing from the use of this data.

As for the RATS database itself, according to a 2004 Agreement on the Database of the Regional Anti-Terrorist Structure of the Shanghai Cooperation Organization (“Agreement on the RATS Database”), the database “function[s] on the basis of an automated information system with the use of computer technology.” The agreement outlines the following data for inclusion, including information on:

international terrorist, separatist, and extremist organizations, their structures, forms, and methods of action, their leaders, members, and other individuals affiliated with these organizations, as well as on the funding sources and channels of these organizations, including illegal trafficking in narcotic substances, psychotropic substances, and their precursors;

the status, dynamics, and trends in the spread of terrorism, separatism, and extremism;

organizations and individuals providing support to terrorist, separatist, and extremist organizations;

countermeasures to terrorism, separatism, and extremism;

the legislation of each of the Parties, including that regulating the activity of the competent agencies that collaborate with the Regional Anti-Terrorist Structure;

terrorist acts committed, and their forms and methods of commission; [and]

the use of explosive devices (components of explosive devices), weapons, ammunition, and poisonous and other substances in the commission of terrorist acts.³²⁵

Additionally, “[w]ith a view of promoting effective intelligence exchange between counterpart enforcement agencies,” RATS has explored “the prospect of creating a dedicated database (DDB), tracking weapons, ammunition, and explosive substances (WAEs) in illegal circulation, within the larger framework of the existing RATS Executive Committee Database. The criteria for tracking WAEs used in terrorist acts are presently being formulated.”³²⁶

Information flow into the database can take place at the direction of member state security organs, or on the initiative of the RATS Executive Committee, which “may send requests to one or several competent agencies, both upon the initiative of any of them and upon its own initiative.”³²⁷ Concerning the scope of database sourcing, the 2004 Agreement on the RATS Database notes that the database “shall be formed on the basis of information related to the competence of [RATS] and that is received from the competent agencies of the Parties, from the agencies of the [SCO], and from other sources, among which shall be the mass media (including print publications), telecommunications systems, and the Internet.”³²⁸

It has taken a few years for the SCO to realize the RATS database and expanded powers, but it appears the database is currently functional. References to progress have been made over time since the establishment of RATS. In August 2004, Uzbekistan’s president, I. Karimov, explained that “the Regional Anti-Terrorist Structure had not reached an appropriate level to work out the recommendations, giving a chance to prevent acts of terrorism, and it was premature to demand it. For achieving expected results from the RATS one needed to create a database, where the appropriate materials from the competent services should flow in with the aim of further analyses and giving proposals with predicting features to work out the models of joint measures of the SCO member countries.”³²⁹

The following years saw RATS making progress towards that goal. On May 12, 2005, the RATS Executive Committee updated members on the status of the database and the list of terrorist, separatist, and extremist organizations.³³⁰ As of 2006, it was reported that over 250 “terrorist acts” on the territories of SCO members were avoided as a result of RATS’s efforts.³³¹ Most recently, RATS has been reported to have the capacity to analyze and compare information in the database – in multiple languages – to target specific individuals.

According to an interview with RATS Executive Committee Director Dzhenisbek Dzhumanbekov in April 2010:

Work on one of the most useful and essential of RATS projects – the Secure Database (SDB) and the Single Tracking Register (STR) – is already yielding positive results in international counter-terrorism efforts and promoting greater efficiency in cooperation within the Organization. […]

Thanks to the STR, we have seen improved levels of cooperation between counterpart tactical agencies in the course of a series of operations, aimed at establishing up-to-date locations of individuals listed in the register. […]

With a view to promoting cooperation between member states in their common struggle against principal threats, in 2010 the SCO RATS Executive Committee prepared a comparative table of registers in Russian, Chinese, and English, allowing for more targeted enforcement actions against listed organizations. […]

Generally speaking, a timely collection and assessment of intelligence on the current state of and the emerging trends in the spread of international terrorism, as well as other manifestations of religious extremism, gives law enforcement agencies an upper hand in identifying and neutralizing individuals intent on perpetrating grievous crimes, sooner rather than later.³³²

The statement suggests that the RATS database is used in a predictive and preventive manner, to “identify” and “neutralize” individuals who possess the “intent” to engage in criminal activity, “sooner rather than later.”³³³ This usage creates due process concerns, as “preventive measures that deprive a person of his or her liberty must not be based solely on intelligence. In these cases, intelligence has to be turned into concrete evidence and proof after a period of time so that the affected person can challenge the evidence against him or her. If intelligence cannot be transformed into evidence over time, or the State fails to obtain new evidence, the preventive measures need to cease.”³³⁴ It is unknown whether RATS takes such measures to establish concrete evidence on individuals of concern to the SCO member states – no such function is specified in publicly-available normative documents.

Such a database is a powerful tool for the coordination and exchange of individual data between member states regarding their citizens, and accordingly requires legal parameters and oversight to ensure that the inclusion of information in the database does not violate an individual’s right to privacy as enshrined in ICCPR Article 17. Any restrictions on the right to privacy must be necessary, proportionate, and legitimate, and “every instance of interference needs to be subject to critical assessment.”³³⁵ There is no apparent limit, however, to what type of information RATS can gather, and it is not clear what laws have been applied to collection and protection of the information on individuals in the RATS database, whether the information was collected in a manner that did not employ discriminatory racial or ethnic profiling, or how that information is now being used by SCO members.

The Special Rapporteur on counter-terrorism has voiced concern specifically with respect to these practices of the SCO, stating that within the SCO framework, “sharing of data and information is not subject to any meaningful form of oversight and there are no human rights safeguards attached to data and information sharing.”³³⁶ Moreover, any mining of such data – of which RATS appears fully capable – “should not be allowed to include variables that result in compromising the right to non-discrimination.”³³⁷ Yet if the RATS database draws on information collected and transmitted by member states such as China, the surveillance practices of which are incredibly broad and well-known to incorporate profiling, it is inevitable that the RATS database will also compromise human rights unless steps are taken to filter that data.

The trend of coordinated data exchange has advanced rapidly, within the SCO and other contexts, yet states’ consideration of the human rights impact of such measures have not kept pace. Notably, another database has emerged in tandem with that of RATS, the “International Counterterrorism Database” (ICTDB), which appears to be a broader but related system – in that it is also led by Russia’s FSB – for information exchange among numerous states’ security and intelligence agencies. The database is a product of the Meeting of Heads of Special Services, Security Agencies and Law-Enforcement Organization, a “Russian FSB initiative of creating a mechanism of multilateral co-operation among security / intelligence and law enforcement agencies,” which is designed to provide “high level officials, responsible for the decision-making in the sphere of their countries’ national security, with an opportunity to conduct round-table discussions. . . . Besides that, law-enforcement and security heads usually enjoying confidence and authority on the highest level of government, are in the ability to influence directly the process of shaping national security policies in their respective countries . . . [which] facilitate[s] the consolidation of anti-terrorist efforts of the entire global community.”³³⁸

As the FSB has held these meetings annually for the past eight years, it can be presumed that such consolidation has matched Russia’s own preferences for global counter-terrorism policy. RATS delegations as well have participated in these meetings.³³⁹ According to official documentation, the ICTDB consists of two segments: unclassified data, which has been accessible since fall 2007, and classified data, which was to become available in late 2009.³⁴⁰ As of March 2009, the ICTDB was accessed by “authorized security / intelligence subscribers in 16 countries.”³⁴¹ And while reports concerning the work of the Russian-led group have been made regularly to the UN Security Council Counter-Terrorism Committee – including significant details on the proposed contents and purpose of the ICTDB³⁴² – accountability for use of the ICTDB has not been publicly discussed.

The SCO, as well as the international community, must assess and implement protections for individual information incorporated within databases that are used for multilateral intelligence cooperation, in order to prevent serious damage to individuals and intelligence efforts themselves. Moreover, vetting of information added to multilateral databases – prior to making the information available to intelligence services of all member states – is essential to ensure not only that the facts are accurate, but also that the information was obtained legally and without the use of torture. The Special Rapporteur on counter-terrorism has provided clear and useful standards towards implementation of such safeguards in his recommended best practices for intelligence agencies.³⁴³

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ii. Impact of extradition and denial of asylum on security of the person, due process rights, and non-refoulement

Perhaps the most serious consequence to individuals under the SCO framework is its potential to undermine their fundamental rights to liberty and physical security, without sufficient legal cause, through extraditions, forcible returns, or denials of asylum. The SCO member state practice of denying asylum to and extraditing or returning individuals designated by member states as “terrorist, separatist or extremist” calls into question compliance with the fundamental, binding principle of non-refoulement under international law, as well as explicit protections under the UN Refugee Convention and the Convention against Torture.

Under the Shanghai Convention, member states are obligated to implement measures to prevent, identify, and suppress acts of terrorism, extremism, and separatism in their territories,³⁴⁴ and to consider any such acts extraditable offences.³⁴⁵ RATS appears to be the SCO body that addresses “the question of extradition of all detainees to face justice in their respective countries.”³⁴⁶ Later agreements of the member states elaborated further on SCO extradition- and asylum-related obligations, requiring member states to cooperate on border control,³⁴⁷ and to “build up their interaction in searching, apprehending, extraditing and transferring persons suspected of, charged with or sentenced for committing crimes related to terrorist, separatist, extremist activities or other crimes.”³⁴⁸ Such cooperation is particularly effective given the geographical proximity and shared borders of the states – it is highly probable that any individuals exiting their home country will cross the border into another member state. In 2005, the SCO member states even went so far as to agree to deny asylum to all individuals accused or even suspected by other member states of terrorism, separatism, or extremism.³⁴⁹

This last initiative was made public in the Declaration of the Heads of Member States of the Shanghai Cooperation Organization (“Astana Declaration”) at their annual meeting in Astana, Kazakhstan, on July 5, 2005. According to the Astana Declaration:

The SCO member states will prevent any attempts on their territories to prepare and commit acts of terror, including those aimed against the interests of other countries, not provide asylum for individuals, accused or suspected of conducting terrorist, separatist and extremist activity, and extradite such individuals at respective requests on the part of another SCO member state in strict accordance with the current legislation of the member states.³⁵⁰

This pronouncement on asylum appears to be based on the 2005 Concept of Cooperation of the SCO Member States, adopted on the same day, which states as one of its guiding principles the “non-provision of asylum to individuals associated with terrorist, separatist and extremist activity” – including persons “accused or suspected of committing such acts.”³⁵¹

The 2009 SCO Counter-Terrorism Convention further elaborated member state obligations concerning extradition³⁵² and prevention of granting of asylum status.³⁵³ Pursuant to this agreement, the scope of cooperation includes not only extradition, but also detention of individuals,³⁵⁴ “questioning persons suspected or accused of crimes, witnesses, victims, or other persons,”³⁵⁵ and “locating persons suspected of committing any one of the offenses covered by th[e] Convention.”³⁵⁶ The agreement also contemplates authorization for cross-border law enforcement entry in pursuit of suspects within other member states’ territories.³⁵⁷ Should an SCO member state reject a request to extradite an individual “solely on the grounds that that person is its national” – and here the default position suggested by the language of the SCO Counter-Terrorism Convention is that an extradition of the requested state’s own citizen should take place – that state “is obliged to submit the case to its competent authorities for the purpose of prosecution, through proceedings in accordance with the laws of that Party.”³⁵⁸

Such broad cooperation on the basis of the Three Evils framework, combined with application of the SCO Counter-Terrorism Convention’s overbroad definition of terrorism, has serious potential to contravene the fundamental, non-derogable principle of non-refoulement, as well as undermine the protections contained within the UN Refugee Convention and the Convention against Torture. As the Special Rapporteur on counter-terrorism has stated:

Vague or broad definitions of terrorism are extremely problematic. For example, persons seeking international protection are in fact prosecuted for “terrorist-related” offences in their countries of origin when it may actually be that such persons and such prosecutions fall within the definitions of a “refugee” and the concept of “persecution” in the meaning of article 1 A (2) of the 1951 Refugee Convention. Therefore, careful examination of the legislation and practice of countries of origin of asylum-seekers is necessary to accurately assess the possible application of exclusion clauses in the consideration of applications for refugee status or other status of international protection.³⁵⁹

Within the SCO, however, no guidance exists publicly as to what evidence, if any, states must provide in designating the particular individuals accused or suspected of terrorist, separatist, or extremist activity, or what assessments should take place concerning conditions in the state of origin. It therefore would again seem that one state’s characterization of a “terrorist” (or a “separatist” or “extremist”) is accepted by all, to the point of refusing protection to individuals who may be persecuted for political reasons. Indeed, as noted previously, one of the main enumerated functions of the SCO blacklists is to preclude the possibility of obtaining political asylum in a neighboring country.

With respect to any individuals seeking asylum within their respective territories, every SCO member state is obligated to uphold the binding, fundamental principle of non-refoulement under international law.³⁶⁰ At a minimum, as a matter of binding international law, the principle of non-refoulement “imposes an absolute ban on any form of forcible return [of asylum-seekers] to a danger of torture,” as well as “an inherent obligation not to send any person to a country where there is a real risk that he or she may be exposed” to “arbitrary deprivation of life.”³⁶¹ These binding principles of international law are also enshrined and articulated in international agreements, which create additional, independent bases upon which states are bound under international law to respect and uphold the principle of non-refoulement. These include the UN Refugee Convention and the Convention against Torture.

For example, the UN Refugee Convention provides underArticle 33(1), “No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” SCO member states are therefore prohibited from returning individuals to their country of origin on the basis of SCO agreements when it is clear that the individual will be subjected to imprisonment, torture, or execution on account of their political opinions or ethnic or religious identity. It is well-documented that certain categories of people, such as Uyghurs, Chechens, and Uzbeks, face exactly this risk in SCO member states.³⁶² Indeed, the Special Rapporteur on counter-terrorism noted the impermissible practice of legislating exclusion of “broad categories of asylum-seekers from being granted refugee or other protected status.”³⁶³ Yet such is the practical effect of banning asylum on the basis of the Three Evils doctrine, which overwhelmingly targets ethnic groups.

Perpetrators of genuine acts of terrorism, however, are excluded from the UN Refugee Convention’s protections concerning non-refoulement – an exception that may prompt over-reliance by states on counter-terrorism and national security as the basis asserted for denials of asylum and extraditions. Exceptions to the prohibition on non-refoulement are established in Article 1(F) and Article 33(2) of the UN Refugee Convention. Article 1(F) provides, “The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations.” Individuals who have committed the acts laid out in Article 1(F) are thus wholly outside the scope of the protections of the UN Refugee Convention.

The Security Council has explicitly declared that “acts, methods, and practices of terrorism are contrary to the purposes and principles of the United Nations and that knowingly financing, planning and inciting terrorist acts are also contrary to the purposes and principles of the United Nations.”³⁶⁴ As such, no protection is afforded by the UN Refugee Convention to individuals who have committed acts of or incited terrorism. Moreover, Article 33(2) states, “The benefit of the present provision [on non-refoulement] may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.”

However, by its terms, this limitation under the UN Refugee Convention is strictly limited to individuals regarding whom there exists some clearly demonstrable basis to conclude that they pose a real, legitimate danger to national security. Moreover, nothing in the UN Refugee Convention may be deemed to impair any other guaranteed rights and benefits originating from outside the UN Refugee Convention.³⁶⁵ This includes general principles of non-refoulement and the explicit prohibition under the Convention against Torture of extraditions and forcible returns in circumstances of risk of torture.

In order to act on a basis of danger to national security as grounds to deny asylum to or return an individual, therefore, an SCO member state must have real cause for asserting the individual’s commission of terrorist or other serious non-political criminal acts. States must account for due process considerations, including evidentiary standards. The UN General Assembly has noted that states should “fully respect non-refoulement obligations under international refugee and human rights law, while at the same time, [] review, with full respect for these obligations and other legal safeguards, the validity of a refugee status decision in an individual case if credible and relevant evidence comes to light that indicates that the person in question has committed any criminal acts, including terrorist acts, falling under the exclusion clauses under international refugee law.”³⁶⁶

The Counter-Terrorism Committee Executive Directorate has noted that appropriate legal safeguards include the right to respond to evidence or information, right to legal assistance, right to an interpreter, right to appeal and to protection against removal until all legal remedies have been exhausted.³⁶⁷ SCO procedures, however, do not indicate the requirement of any of these safeguards. Nor do they specify what evidence, if any, a state must supply in cooperating to extradite or refuse asylum to individuals. The SCO also does not require member states to assert which of the “Three Evils” an individual is charged with prior to cooperating on his or her return; yet, depending on the circumstances, acts of extremism or separatism could be considered political crimes, and – unlike terrorism – have not been explicitly designated as contrary to the purposes and principles of the UN, such that the aforementioned limitations to the protections of the UN Refugee Convention may not apply. This lack of procedural safeguards and legal precision is impermissible under principles of international refugee and human rights law, including the principle of legality.

Moreover, even when the basis for extradition or denial of asylum is genuine suspicion of involvement in a terrorist act, SCO member states still may not return individuals to any state where they would face a risk of torture, pursuant to the Convention against Torture. The Convention against Torture provides, “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”³⁶⁸ In a 2008 resolution on the “Protection of human rights and fundamental freedoms while countering terrorism,” the General Assembly noted with concern “the return of suspects [of acts of terrorism] to countries without individual assessment of the risk of there being substantial grounds for believing that they would be in danger of subjection to torture” and went on to emphasize the importance of “properly interpreting and implementing” obligations under the Convention against Torture.³⁶⁹

The following year, in an apparent attempt to make this message crystal clear, the General Assembly specifically called upon states to “refrain from returning persons, including in cases related to terrorism, to their countries of origin or to a third State whenever such transfer would be contrary to their obligations under international law . . . including in cases where there are substantial grounds for believing that they would be in danger of subjection to torture, or where their life or freedom would be threatened in violation of international refugee law on account of their race, religion, nationality, membership of a particular social group or political opinion, bearing in mind obligations that States may have to prosecute individuals not returned.”³⁷⁰

Extraditions between SCO member states have failed to comply with the provisions of the Convention against Torture. The UN Committee against Torture has expressed serious concerns about widespread reports of torture of detainees in each and every SCO member state, giving member states significant reason for conducting a full evaluation of the treatment likely to await an individual who is returned to his or her home state.³⁷¹ Indeed, the circumstances surrounding the Cambodian government’s deportation of 20 asylum-seeking Uyghurs to China in 2009 confirms cause for alarm.³⁷² Additionally, it is well-established that diplomatic assurances from the receiving state are insufficient to protect against torture, and cannot substitute for an independent evaluation of the real risk posed to an individual by his or her return.³⁷³

The numbers of extraditions and denials of asylum made pursuant to SCO agreement are difficult to assess, given the lack of transparency surrounding SCO operations. As documented in a June 2009 mission by FIDH to Kazakhstan and Kyrgyzstan, however, member states have in fact executed these obligations, and have done so in highly questionable situations.³⁷⁴ One such instance was Kyrgyzstan’s return of Uzbeks who had fled the country after the Andijan crackdown in 2005 – with the virtually certain prospect of torture or execution upon their return. The Deputy General Prosecutor of Kyrgyzstan, S. Nasiza, “in responding to an FIDH inquiry about the documented refoulement of Uzbeks from the country, stated that the decision to return the individuals to Uzbekistan was a difficult one, because he had to consider whether to apply the extradition requirements of the Shanghai Cooperation Organization treaties or the prohibitions of the UN Convention against Torture. In the end, regional commitments on security trumped international obligations concerning human rights.”³⁷⁵

Aside from the constant risk of forcible return to countries where individuals may face the gravest human rights abuses, refugees and asylum seekers also endure harsh conditions in the countries to which they have fled, often implicating serious human rights violations by those countries as well. For example, as documented by FIDH and other observers, Uzbek and Uyghur individuals that have fled to Kazakhstan and Kyrgyzstan seeking refuge or asylum often face extreme conditions, including regular police harassment and brutality, and the legitimate risk of extrajudicial methods of forcible return, including kidnapping and disappearance at the hands of Kazakhstan and Kyrgyzstan authorities.³⁷⁶ These refugees and asylum seekers and their families also endure threats to economic, social, and cultural rights in their host countries. These include burdens arising from a lack of official status, such as lack of legitimate employment opportunities; restricted access to social benefits such as medical care, education and training, housing, and family support; and lack of access to judicial or administrative redress for injuries and violations. Moreover, all these threats are compounded by severe social stigmas, often invoking racial and ethnic intolerance and hatred against refugees and asylum seekers.³⁷⁷

Statistics and information that are available regarding extraditions and denials of asylum between SCO member states also suggest that the practice is widespread. (A chart of reported or suspected extraditions or returns between member states is contained in Appendix D.) In the past few years, it has been publicly reported that at least 78 people have been extradited or returned, or are at risk of being extradited or returned, to China from other SCO member states.³⁷⁸ This number likely under-represents the true scope of cooperation, but the SCO itself has not released statistics or facts regarding such cooperation.

Such cooperation confirms the trend that member states may be using regional frameworks to circumvent or undermine international frameworks of which they are a part. Indeed, an obligation to deny asylum without further inquiry, based on member state labeling, on its very face contradicts the UN Refugee Convention, the Convention against Torture, and the fundamental, non-derogable principle of non-refoulement. Mechanisms to increase the accountability and transparency of this form of cooperation, including clear legal guidelines regarding the process for review of asylum-seeker applications and extradition requests, are essential to ensure SCO member state compliance with international law.

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iii. Chilling messages sent by military cooperation

Joint military and law enforcement exercises have taken place within the framework of the SCO since 2002, when China and Kyrgyzstan staged a joint military exercise within their border areas.³⁷⁹ Notably, this intra-SCO cooperation marked the first time China’s People’s Liberation Army (PLA) held a joint military maneuver with a foreign army,³⁸⁰ and China has participated in nearly every SCO joint exercise staged since,³⁸¹ signaling the importance of the exercises to Chinese authorities. SCO members have staged two primary types of operations: military joint exercises and coordinated exercises of law enforcement and special services.³⁸² At least thirteen such joint exercises have occurred among SCO member states, including the full-fledged SCO “Peace Missions” involving thousands of troops. The largest such operation, Peace Mission 2005, included approximately 10,000 troops, with at least 8,000 of those from China. Military exercises have also involved a wide array of equipment, including armored vehicles, aircraft, naval ships and submarines, and surface-to-air missiles. ( A table detailing each of the SCO’s joint exercises is included in Appendix E. )

The SCO member states’ rhetoric concerning their military and law enforcement cooperation, as delivered to international audiences, has emphasized preparation for and deterrence of threats billed as “terrorism.” The actual staging of such exercises, however, suggests that another critical purpose of engagement may be the targeting of “problem” populations. As with other forms of SCO cooperation, application of the Three Evils doctrine to military and law enforcement cooperation clouds the fundamental, necessary question – crucial in a context implicating the potential use of force – of what constitutes genuine and permissible counter-terrorism activity. In SCO member states, the concept of terrorism is so closely linked to “separatist” and “extremist” threats that military and law enforcement counter-terrorism exercises have quickly brought control of internal populaces within their rubric – essentially militarizing and multilateralizing state efforts to enforce “social stability” in domestic environments. SCO joint exercises have not only improved member states’ capacity to coordinate their armed forces and law enforcement personnel against perceived threats to stability; at the same time, the sheer display of troops, equipment, and power in troubled regions has sent a chilling message to the populace that threats deemed terrorist, separatist, or extremist in nature will be met with heavy-handed force.

SCO military and law enforcement cooperation is conducted under the auspices of RATS, pursuant to the 2002 RATS Agreement³⁸³ and the 2008 Agreement on the Procedure for Organizing and Conducting Joint Anti-Terrorist Exercises by Member States of the Shanghai Cooperation Organization (“Joint Exercises Agreement”).³⁸⁴ ( Translations of these agreements are provided in Appendix A. ) The Joint Exercises Agreement codified the procedures and logistical protocols for handling issues relevant to joint military exercises, such as organizational systems, troop transit, provisions, and legal jurisdiction and liability waivers.³⁸⁵

Notably, the language of the Joint Exercises Agreement is confined to countering terrorism – without mention of separatism or extremism – and articulates the goal of the joint exercises as “the preparation of special anti-terrorist units for joint activities of the Parties upon the commission or arising of a threat of commission of a terrorist act on their territories.”³⁸⁶ The fact that the 2008 Joint Exercises Agreement focused exclusively on terrorism instead of incorporating the broader concept of the Three Evils suggests that member states may have had some reluctance to characterize their military cooperation and use of force as anything other than pure counter-“terrorism” in their normative documents.

In practice, however, SCO member states have developed their military and law enforcement cooperation well beyond “terrorism” per se, and have emphasized the role that joint exercises play in dealing with “separatist” and “extremist” threats. ( See “Stated Objectives,” Military and Law Enforcement Cooperation Chart, Appendix E. ) The goals of these exercises, as publicly reported and as articulated by the SCO member states, demonstrate their potential to devolve into government enforcement actions aimed at control of their own populations. For example, joint exercises conducted in 2007 – staged in XUAR – were officially described as demonstrating “how to deal with non-traditional threats such as terrorists, secessionist forces and extreme religious groups.”³⁸⁷ Concerning Peace Mission 2005, it was reported that deterrence of not only terrorists, but also “national separatists” and “religious extremists” was the main concern of SCO member states:

To be more specific, the war game showcasing the two countries’ military might is aimed to help them get ready for a joint fight against international terrorists, national separatists and religious extremists, said Sergey N. Goncharov, charge d’affaires of the Russian Embassy in China, in an exclusive interview with Xinhua in Beijing on Thursday.

According to the Russian diplomat, the forces of terrorism, extremism and separatism have conducted activities in both China and Russia, and have been growing in the member countries of the Shanghai Cooperation Organization . . . .

“Let them have a look at our joint military exercises and think it over whether it is worth continuing their activities,” said Goncharov, adding, “We hope the joint military exercises could help cool down the ‘fervor’ of these terrorists, separatists and extremists.”³⁸⁸

Major General Meng Guoping, deputy commander of the Chinese military participating in the Peace Mission 2010 exercises, echoed these words, stating, “‘Through many years of joint exercises, we have clearly understood that these (SCO) exercises could not only showcase power and deter the ‘three evil forces (of terrorism, separatism and extremism)’, but also serve as an important way to train our armed forces.’”³⁸⁹ Joint exercises thus support domestic social control by preparing multilateral forces for dispatch to troubled regions, and demonstrating to the public for deterrent effect the SCO member states’ joint military and law enforcement capacity.

The SCO has also apparently rejected any consideration of the human rights ramifications of the joint exercises. During the Peace Mission 2010 joint military exercise, China’s official media outlet Xinhua noted:

[T]he participating troops revealed their determination and strength to combat the “Three Evil Forces” – terrorism, separatism and extremism – and maintain peace, security and stability in the region. . . . Despite the overall stable situation in Central Asia, the “Three Evil Forces” still make frequent appearances, with international illegal drug groups, external forces and terrorism organizations colluding to produce disturbances and destroy stability in the region, such as the Uzbekistan riots, which claimed 169 deaths in 2005, and the Urumqi riot in July 2009 in China’s Xinjiang region.

All of these show the “Three Evil Forces” remain a common threat to the member states, who need to make concerted efforts to fight them.³⁹⁰

It is noteworthy that the two examples cited by Xinhuaas “appearances” of the “three evil forces” – the May 2005 Andijan crisis in Uzbekistan³⁹¹ and the July 2009 Urumqi riots in XUAR, China³⁹² – were incidents of domestic unrest initially prompted by citizen grievances and lacking substantiated ties to terrorism, but on which the member states cracked down severely, resulting in significant human rights violations, including deaths, disappearances, and a multitude of due process violations for those arrested and detained.

Perhaps the most disturbing indication of the likelihood of misuse of military cooperation within the SCO framework was Peace Mission 2007, which SCO member states reportedly modeled on the events that took place in Uzbekistan’s Andijan region in 2005.³⁹³ The scenario for the exercises incorporated a group of simulated “terrorists” capturing a town, in reaction to which SCO forces, including air support and artillery, eliminated the “terrorists” and retook the town. Russian forces were subsequently tasked with arresting the surviving “terrorists.”³⁹⁴ The concept of the exercise was reported as follows: “[U]nder the support of an international terrorist organization based in the north border of country N, a terrorist organization of country A launched an anti-government movement. At the headquarters of the joint drill, commanders from the six SCO members decide to annihilate the terrorists.”³⁹⁵ The fact that Peace Mission 2007 drew on the Andijan crisis to develop plans for military cooperation suggests that SCO member states equate the concept of “terrorists” capturing a town with the gathering of large crowds demonstrating against the government, with little concern for the human rights implications of such cooperation.

Finally, the context surrounding the various joint exercises is instructive as to China’s own priorities within the SCO. Three joint military exercises have been staged at least in part in XUAR, including along borders with Kazakhstan and Kyrgyzstan, and in XUAR’s capital, Urumqi. Additionally, one law enforcement and special service exercise has taken place in XUAR. ( See Military and Law Enforcement Cooperation Chart, Appendix E. ) These SCO military and law enforcement maneuvers within XUAR have provided a complement to China’s existing domestic measures to enforce social stability and government control over the region.

Since 1954, the Chinese government has maintained a special semi-military force in XUAR, the Xinjiang Production and Construction Corps (XPCC, or “bingtuan”). The bingtuan is a governmental organization with administrative jurisdiction over areas within XUAR in the place of normal government, and functions as an economic and semi-military organization composed of over 2 million personnel.³⁹⁶ The bingtuan’s presence in XUAR has been increased in recent years to “combat separatism and attempts at ‘sabotage and infiltration,’”³⁹⁷ but it is considered a source of tension within XUAR due to its control over resources and land.³⁹⁸ Additionally, the government maintains People’s Armed Police (PAP) units in XUAR, an elite paramilitary force organized for the purpose of maintaining social stability and order, increasingly in response to “growing instances of demonstrations and uprisings.”³⁹⁹

The domestic effect of such a significant military presence in XUAR is to demonstrate that political control of the region is a “priority” for the central government.⁴⁰⁰ It is also worth noting that the timing of PLA exercises in relation to those of the SCO has, on occasion, suggested that China is using SCO exercises as a means to bolster its domestic agenda with respect to XUAR in particular. One example is China’s staging of a domestic counter-terrorism exercise in XUAR on August 23, 2003, just eleven days after the conclusion of the SCO joint exercise Coalition 2003.⁴⁰¹ Given this track record, China’s regular involvement in SCO exercises and staging in XUAR, irrespective of how tenuous the connection to terrorism, suggest that China views the exercises as another component of its social stability efforts.

The climate of fear maintained through SCO joint exercises in targeted regions thus has broad potential to intimidate and compromise domestic populations, particularly ethnic groups such as Uyghurs, by deterring them from exercising their legitimate rights, including freedoms of association, expression, and religion – activities that officials regularly characterize as “separatism” or “extremism.” Moreover, the SCO is well-positioned to magnify the role and impact of its joint exercises in the future, including in the context of cooperation with the UN Security Council, as “agreements [between RATS and the Security Council’s CTED] have been reached on conducting coordination over the issues of sharing information, staging counter-terrorism exercises, conferences and seminars on the fight against terrorism, separatism and extremism.”⁴⁰²

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