Allegations of genocide in the XUAR must be urgently investigated
This article is a response to the blog ‘Debating genocide, but in whose language?’, by Michael Liu.
In his blogpost Michael Liu questions whether genocide is the right label for the crimes being committed in the Xinjiang Uyghur Autonomous Region (XUAR), referring to the Chinese use and implications of the word, as well as the question of whether genocide is more grave than crimes against humanity.
In my view, this discussion is beside the point and draws on an overly restrictive understanding of genocide. The term ‘genocide’ can benefit from being decolonised, and most importantly ‘genocide’ does not necessarily entail (immediate) killing: there are valid allegations of international crimes being committed in XUAR which must be urgently investigated, rather than shifting to a political or semantic debate.
The Legal Debate
The starting point for a legal discussion on how to characterise the crimes in the XUAR and whether genocide is the appropriate label is the definition of ‘genocide’. According to both the Rome Statute and the Genocide Convention, genocide is:
‘any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group.’
From the definition alone, it is clear that genocide does not necessarily entail killing; any of acts (b)-(e) may fall within the ambit of genocide with equal validity.
Although there is some evidence of killings in the XUAR, there is overwhelming evidence of acts causing serious bodily or mental harm, the deliberate infliction of conditions of life calculated to bring about the Uyghur’s physical destruction in whole or in part, and the imposition of measures intended to prevent births, as well as the forcible transfer of children. Furthermore, although intent is the most challenging element to prove, statements from political leaders can be used as evidence, as the Rwanda Tribunal already held in its first important Akayesu case.
Many statements that can be directly attributed to the government of the People’s Republic of China (PRC) provide compelling evidence of genocidal intent, including verified leaked documents which reveal Xi Jinping’s 2014 demand to show ‘absolutely no mercy’ in response to Uyghur separatism, a 2017 Yarkand County rally where Chinese Communist Party members were urged to ‘wipe them out completely ... Destroy them root and branch’ and a 2017 Chinese official’s online post to ‘Break their lineage, break their roots, break their connections, and break their origins’.
Professor Schabas has indicated that ‘genocide can be proven even without evidence that people were killed’. But then there should be proof of intent, for instance in the form of policy statements. These policy statements are clearly there, and in addition there are victims' testimonies, satellite images, as well as government statistics to support the genocide allegations.
Etymology and Chinese Translation
Although Lemkin’s concept of ‘genocide’ has Greek and Latin roots, and has the basic meaning of ‘killing a race or tribe’, a closer reading of Axis Rule in Occupied Europe: Laws of Occupation reveals that this term is not a simple addition of these two ideas, but rather a fundamentally new concept signifying ‘a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves’. Thus, the etymological background is an inspiration for Lemkin’s term, but not the complete meaning of ‘genocide’.
Even though the Chinese term 种族灭绝 (zhongzu miejue) does not reflect the Greek and Latin roots of ‘genocide’, the term can easily encompass Lemkin’s meaning, which goes beyond a summing up of the Chinese characters, just as ‘genocide’ is not the same as γένος (genos) + caedo, as the Economist incorrectly asserted.
Furthermore, as a native Chinese speaker and professional translator, I note that the official Chinese translation of the Genocide Convention is comprehensive and accurate. Chinese speakers should be able to understand the whole meaning of 种族灭绝 (zhongzu miejue) which clearly goes beyond the individual characters and is not dependent on the Greek and Latin roots. Focusing on this basic level ignores the broader meaning and concept of ‘genocide’ which can be well understood and applied by Chinese lawyers by referring to the Genocide Convention itself.
Genocide and Colonialism
Additionally, Lemkin explains genocide’s close relationship with colonisation: the second phase of genocide is ‘the imposition of the national pattern of the oppressor … made upon the oppressed population which is allowed to remain or upon the territory alone’. Thus, in Debating Genocide, Liu rightly argues that ‘genocide’ needs to be decolonised and therefore this aspect of Lemkin’s thinking could be better included in its interpretation and usage.
This supports the allegations of genocide in the XUAR, a place which can be productively described as a settler colony with ‘an ongoing system of power that perpetuates the genocide and repression of indigenous peoples and cultures’. A clearer ability to draw the links between colonialism and genocide would be constructive, and indications of this can be seen, inter alia, through efforts on Mandarin-language education and the Sinicisation of Islam and re-education camps. Thus, the decolonisation of ‘genocide’ is a welcome step which emphasises the links between colonisation and genocide in the XUAR and increases the validity of and urgency for an investigation.
International Political Context
The political world and its intersections with international criminal law are indeed complicated, but this is not an excuse for us to assume that it is beyond our understanding or that everything is biased. This is a call for independent investigations (such as a fact-finding mission) and for international courts to open a case surrounding the concerns.
This also makes it extremely important to support academic freedom and independent investigations by NGOs, many of which have raised concerns about human rights violations in the XUAR, including allegations of crimes against humanity and genocide.
One should then question why the PRC is so uninvolved with public international law, rather than assuming that it is a victim of global history and must retain this status quo. We can analyse why the PRC is still not a party to the ICC, and how it may be encouraged to join and productively engage, instead of simply criticising the international legal order for causing the PRC to be ‘ambivalent’. Furthermore, as a P-5 Member of the UNSC, the PRC does have enormous political power, including the ability to prevent a referral to the ICC and veto the establishment of a commission or investigative body.
Nevertheless, it is understandable that the PRC feels left out of public international law because it has yet to achieve accountability for its own experiences, including inter alia the mass atrocities in 1645 in Yangzhou (扬州) and Jiading (嘉定), and in Nanjing (南京) from 1937-1938.
Our frustrations about impunity in the past should motivate us to seek accountability in the present and future, rather than using these as an excuse to perpetuate injustice. Moreover, the PRC has not used domestic courts to seek justice for these alleged genocides. Under the principle of complementarity, the courts at the national level should deal with cases of serious violations ‘first and foremost’. Only if PRC courts are unwilling or unable to carry out fair proceedings can the ICC consider exercising its jurisdiction.
Furthermore, I also recall the PRC’s desire to shift the domestic and international narratives surrounding the XUAR, by posting an overwhelming amount of propaganda ‘documentaries’, movies, articles, tik tok videos, inter alia, for domestic and international consumption. We cannot pretend that the PRC is a neutral party in this conversation, simply a victim of the political agendas of other States.
Liu rightly highlights that people in the PRC know very little about what is happening in Xinjiang. However, instead of accepting this, we should question why there is rampant censorship and how people’s freedoms of expression and access to information are inhibited. Does the fact that people know so little reflect that the State is hiding something in the XUAR? Chinese speakers like ourselves have a responsibility to write and share what we can access in other languages and outside the Great Firewall.
Allegations of genocide and crimes against humanity are extremely serious, regardless of which State they originate from or are addressed towards. The gravity of the allegations necessitates urgent and objective investigations. Political finger-pointing and technical debates, such as whether the situation should be labelled as ‘genocide’ or ‘crimes against humanity’ consume enormous time and energy, while victims continue to suffer in silence.
Thus, the PRC should: (1) end invitation-only guided tours for journalists in the XUAR and allow independent reporting from all perspectives; (2) accept and facilitate the OHCHR’s request for a fact-finding mission in the XUAR, which was first requested in 2019. It should be unrestricted, and a remote investigation with public findings may also be constructive, given the circumstances; (3) welcome a UNSC-mandated commission and/or investigative body; and (4) conduct domestic trials on allegations of genocide and crimes against humanity, sign and ratify the Rome Statute, and endorse an ICC investigation into the allegations in the XUAR (as per complementarity).