Lawyers, and perhaps especially barristers like to speak of the high nature of their calling. We defend human rights. We give a voice to the voiceless. We fearlessly ignore all personal considerations and strive only to uphold the rule of law. We are independent and cannot be bought or bullied. “Do right, fear no-one,” as the Criminal Bar Association used to say quite often. Fine words indeed.
At the Commercial Bar – that rarified corner of my profession where chambers, and even some individuals earn millions from international litigation and arbitration – the principle seems to have been watered down to “do nothing to upset China.”
Readers will probably recall that on March 26th The People’s Republic of China announced sanctions against nine individuals and institutions.
The China Research Group, Conservative Party Human Rights Commission, Uyghur Tribunal and Essex Court Chambers.
Essex Court has been targetted because four of its members wrote a long opinion which concluded:
“acts carried out by the Chinese government against the Uyghur people in XUAR [Xinjiang] amount to crimes against humanity and the crime of genocide.”
The four barristers even named Xi Jinping himself, and two other senior Party officials, against whom they said there was a “credible case against each of these three individuals for crimes against humanity.”
This is no place to do justice to their magisterial opinion, which I would encourage everyone to read in full. It documents evidence that the Chinese government has deliberately targetted the Uyghur population by unlawfully detaining between 800,000 to 2 million individuals in a network of prison camps all over Xinjiang. The reasons for the detention include:
“… having overseas connections, religious practices, and being perceived as opposing State policies. The religious practices for which Uyghurs have been detained include fasting, “excessive” prayer, attendance of religious events and ceremonies, studying religion, owning or disseminating religious materials, wearing a veil or having a beard, praying at a mosque other than on a Friday, having a household with a religious atmosphere, and refusing an inter-ethnic marriage with a non-Uyghur.”
What happens to the children of those so detained?
We are introduced to the chilling phrase “family dismemberment.” The Opinion explains one way in which this is achieved:
“In November 2016, Chen Quanguo (Party Secretary of XUAR) issued an order that all “orphans” in XUAR should be placed in State institutions by 2020. The term “orphan” is defined broadly in the order, to include “children who have lost their parents or whose parents cannot be found”, which has been interpreted by some regional authorities to include children with a parent or two parents who have been incarcerated. Since early 2018, governmental documents have mandated special treatment for Uyghur children of “couples where both partners are detained in re-education … [or] in vocational training center[s]”. Such children are classified as constituting a “special needs category” who are entitled to be placed in “centralised care”; in reality this is often done non-consensually. As a result of such directives, it is believed that hundreds or thousands of children left in the care of extended families following the detention of their parents have been forcibly removed to State institutions.”
In the detention (“re-education”) camps many of the detainees, especially but not only women, are subjected to systematic sexual abuse, rape and torture. One of the “most prominent” methods of torture is the “tiger chair,” described by former prisoner Mihrigul Tursun:
“…I was placed in a highchair that clicked to lock my arms and legs in place and tightened when they press a button. The authorities put a helmet like thing on my head. Each time I was electrocuted, my whole body would shake violently and I could feel the pain in my veins”.
The opinion reports on the widespread evidence of “forced labour,” or slavery, of Uyghurs both during and after their technical “release” from detention:
“.. there is sufficient evidence to amount to a clearly arguable case of enslavement of members of the Uyghur population. If held to be sufficiently proved, the use of forced labour from current inmates of detention facilities would clearly amount to enslavement. Labour from former inmates would also appear to meet that description, in light of the evidence that their ostensible release from the facilities is illusory and in fact they have no liberty to leave at will.”
There are further sections on the forced sterilisation of Uyghur women, the state organised “disappearance” of Uyghurs and the destruction of the Uyghur mosques, graveyards, sites of historical significance and architectural landmarks.
It is a catalogue of state brutality on a breathtaking scale, and it is in the highest traditions of the English Bar that the four Essex Court barristers were undeterred from drawing the conclusions to which the evidence drove them.
It is hardly surprising that the Chinese government reacted with fury to the publication of the opinion. Nobody, even a totalitarian dictator with almost total control of his domestic news media, likes to be accused of genocide or crimes against humanity.
But whilst the four barristers themselves have shown the courage we expect all advocates to demonstrate, the attitude of the Bar Council, whose job it is to represent and speak for the profession, and of Essex Court Chambers itself has been much less impressive.
First, the Bar Council. On 26th March Derek Sweeting QC, the Chair of the Bar, a man who last January enthusiastically opened the Bar Council’s UK China Arbitration Summit, issued a brief, rather lukewarm statement:
“The Bar Council strongly condemns any threat against members of the Bar simply for doing their job. Sanctioning a chambers or any legal organisation because a member has given a legal opinion in accordance with their professional obligations is an attack on the rule of law.”
Essex Court Chambers itself had originally been more than happy to publicise, and even to take some of the credit for the opinion.
On February 8th 2021, in the news section of the Chambers website it published a short report:
Alison Macdonald QC, Jackie McArthur, Naomi Hart and Lorraine Aboagye, instructed by the Global Legal Action Network, the World Uyghur Congress and the Uyghur Human Rights Project, have authored a legal opinion concluding that in their opinion there is a credible case that acts carried out by the Chinese government against the Uyghur population in the Xinjiang Uyghur Autonomous Region (“XUAR”) of China amount to crimes against humanity and the crime of genocide.
The legal opinion has been published and been the subject of media commentary: See here. [The link leads to a longer BBC report on the same topic].
However, following the announcement of the Chinese sanctions Essex Court, like a Communist censor, airbrushed the report from its website and replaced it with a statement stressing – correctly of course – that the Opinion was the work of the four individual barristers, rather than chambers as a whole.
It distanced the Chambers from the Opinion:
“The Legal Opinion received significant publicity in international media following its publication last month. None of the four relevant members of chambers published the Legal Opinion.”
That is true, though seriously weaselly because “significant publicity” was given to the Opinion not just by “international media” but by Essex Court Chambers itself. They announced its conclusions on their Chambers website.
Anyone hoping for an unambiguous “go forth and multiply” response to the Chinese Communist Party’s threats would have been disappointed.
“No other member of Essex Court Chambers was involved in or responsible for the advice and analysis contained in the Legal Opinion or its publication.”
In other words, “Please, please Mr Genocidal Dictator, it’s their fault not ours, don’t blame us. We’re still happy to work for you.”
Chambers has demeaned itself by grovelling in the face of such intimidation.
And they are not alone.
As far as I am aware not a single “commercial” set of Chambers, or any of the “magic circle” City firms of solicitors practising in international commercial law, has uttered a single word of criticism of the Chinese government, or of support for the barristers concerned. Their silence has been deafening, and no doubt hugely gratifying to Beijing. Presumably they will continue to be rewarded, for the time being, with an uninterrupted flow of lucrative Chinese work.
Yesterday, the Bar Council sent an email to barristers. Amidst wiffle and waffle about ongoing consultations and “considering the ethical issues that arise” it did manage to condemn the sanctions as “a sinister attempt on the part of a state to silence criticism by non-state actors.”
What it should have said, publicly as well as privately, is that the proper response to “sinister attempts on the part of a state to silence criticism” is to make that criticism much louder.
The proper response to bullying is not to try to ingratiate yourself with the bully, it is to stand up to him.
The proper response of Essex Court Chambers was to say to Xi Jinping “put us on your blacklist, we are proud of the work our members do.”
The proper response of the whole of the commercial Bar was to say, as loudly and as publicly as possible, “we support Essex Court, and we support the right of their barristers to advise as they see fit. If you are going to bully them we don’t want your work.”
None of that has happened. Perhaps it will, but I fear the allure of Chinese gold will be too much to resist.
So much for the independence of the Bar.
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