Two ethnic Kazakhs escaped detention and torture in China and entered Kazakhstan, but they risk being sent back there, says their lawyer Lyazzat Akhatova
by Massimo Introvigne
Bitter Winter has reported extensively about ethnic Kazakh Muslims in China. Thousands of them are detained in the dreaded transformation through education camps. Some manage to escape and flee to Kazakhstan, where the public opinion is largely in their favor, but the government is subject to strong pressures from China not to grant them the status of refugees. A case in point was Sayragul Sauytbay, a young ethnic Kazakh mother whose deportation back to China was stopped thanks to the efforts of lawyer Ayman Umarova. Sauytbay, however, did not feel safe in Kazakhstan and eventually moved to Sweden.
On October 1, 2019, the drama of Sayragul Sauytbay repeated itself. Two ethnic Kazakhs, Kaster Musakhan and Murager Alimuly, managed to escape Xinjiang and cross the border of Kazakhstan near the village of Shilikti. They then travelled to Almaty and sought asylum in Kazakhstan. Just like Sauytbay before them, they were charged with the crime of illegally crossing the border, which under Kazakh law may be punished with the deportation back to their country of origin. China started putting pressure on Kazakhstan to get them back, and their situations remain precarious. Again, like Sauytbay, they are embarrassing the CCP by posting videos where they claim that the transformation through education camps are not “schools” but horrific jails, and describe their experiences of being repeatedly tortured.
In the videos, 25-years-old Alymuly said that it is very easy to be sent to the camps for Kazakh Muslims in Xinjiang. “They can put you in jail for just wearing a tubeteika [a traditional Kazakh cap].” Alimuly added that, “The last time they arrested me was in September. They cuffed my hands and legs, seated me on an iron chair and tortured me for 24 hours.” 30-years-old Musakhan, stated he had spent a total four years and eight months in the camps, adding, “I cannot find the words to describe what I have seen there.”
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The two young men are represented by Kazakh lawyer Lyazzat Akhatova. Bitter Winter has asked her what the situation of the two refugees is.
Ms. Akhatova, what is the legal situation of Musakhan and Alimuly?
I believe the key legal provision we should look at is the Geneva convention of 1951, i.e. the Convention relating to the Status of Refugees. Article 33 deals with the “Prohibition of Expulsion or Return (Refoulement)” (to the countries from which they arrived), and states that, “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.” It adds that, “The benefit of the present provision 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.”
My clients are two citizens of the People’s Republic of China, Kaster Musakhan and Murager Alimuly, who fled from China where they claim they were subject to persecution. A criminal case has been instituted against them under Article 392, Part 1, of the Criminal Code of the Republic of Kazakhstan, for illegally crossing the state border. Under Kazakh law, punishments for this crime may be a fine of 1000 MCI or deprivation or restriction of liberty for up to one year, with expulsion to the country of origin.
What are the chances of stopping their deportation back to China?
This week, rumors have been circulating around these guys (as well as moral pressure on me) that they are being returned back to China. The reason for this was an interview with a journalist of the Sukhbat, given by the deputy chief of the National Security Committee of the Republic of Kazakhstan for Border Service, Mr. Dilmanov. By referring to the requirements of the Agreement concluded between China and the Republic of Kazakhstan about criminal liability, he stated that the two Chinese citizens Kaster Musakhan and Murager Alimuly will be deported to their country of origin, i.e. China.
Such an agreement exists, it is dated December 14, 2006, and has been duly ratified by Kazakhstan. However, article 32 of this agreement states that, “The frontier representatives of states and the authorized bodies of the Parties as soon as possible investigate the offender, establish his or her identity, circumstances and reasons for violating the border, and within seven days from the moment of detention transfer him or her to the border representatives of the state or authorized bodies of the other Party.”
It is clearly stated that border violators will be handed over to the other country within seven days. But my clients crossed the border in October. More than two months have passed since then. In addition, a criminal case has been instituted against them for illegally crossing the state border of the Republic of Kazakhstan. They illegally crossed the border of Kazakhstan, which means that the punishment for this crime should be served in Kazakhstan. After serving their sentences, they may be deported to their original country. Until the punishment is fully paid off, no one can touch them, much less force them to return to China. So it was with Sayragul Sauytbay. Before the end of her sentence, (she was given six months of restraint of liberty), she sought asylum in other countries, after Kazakhstan refused to grant her refugee status. Now she lives in Sweden.
Does this mean that Musakhan and Alimuly may be first detained in Kazakhstan and then deported back to China?
There is a second legal argument to consider. Article 1, Part 3 of the Criminal Code of the Republic of Kazakhstan, states that international treaties ratified by the Republic of Kazakhstan take precedence over the Criminal Code. Kazakhstan did ratify the Geneva Convention on Refugees.
In this case, the Kazakh court must apply the rule of the Geneva Convention, since it takes precedence over Kazakhstan law. The problem is, however, political. Not only Mr. Dilmanov but the President of the Republic himself, Mr. Kassym-Jomart Tokayev, have publicly declared that there are no concentration camps in Xinjiang. The whole problem is that Kazakhstan does not recognize the Chinese genocide against the Turkic Muslims, which is recognized by the whole democratic world!
Therefore, I am afraid that the court in Kazakhstan will not consider the provisions of Article 33 of the Convention on the Status of Refugees. They may refer to declarations by Kazakhstan’s highest political authorities.
What are you, as a lawyer, doing to try to overcome this situation?
The investigative actions in the case against Kaster Musakhan and Murager Alimuly ended only on December 6, 2019. On the same night, I flew to Nur-Sultan from Ust-Kamenogorsk. I’ve fully familiarized myself with the case materials, and prepared revocation-objections and petitions for summoning three witnesses who were in the Chinese transformation through education camps themselves. I have also alerted representatives of the media, including foreign ones, to attend court hearings, and prepared letters to the UN and embassies of different countries, asking them to grant political asylum to ethnic Kazakhs from China.
The task of the lawyer during the investigation is to participate in interrogations along with clients, to be with them during investigative actions, to appeal against illegal actions of the investigator or interrogating officer. In this case, there were no violations by the inquiry officer that could be appealed. It remains now to defend the interests of the two young men in court. We have enough evidence to substantiate our objections to the accusation of the two guys. The matter has not yet reached the trial; on December 9, it will be transferred to the prosecutor’s office. It is still too early to predict what may happen.
