Genocide against the Uyghurs: Legal Grounds for the United States’ Bipartisan Genocide Determination


As we reported earlier, recently confirmed Secretary of State Tony Blinken during his confirmation hearings (starting at 1:58) confirmed that the Chinese Communist Party (CCP) campaign of persecution against the Uyghur people in Xinjiang, China, constitutes genocide under international law. Following a question from Senator Lindsay Graham as to whether or not Blinken agreed with former Secretary of State Mike Pompeo’s designation of the Chinese Communist Party as having engaged in genocide in Xinjiang, Blinken stated clearly “That would be my judgment as well.” Lindsay Graham then expressed his concurrence. This stance is consistent with earlier statements from President Biden during the campaign. At a Pacific Northwest fundraiser on August 14, 2020, then-candidate Biden made the following pledge: “Regarding the [Uyghurs], I’m going to work with our allies, at the U.N. and elsewhere to stand against the detention and repression and call it for what it is, it is: genocide.” On August 25, 2020, a spokesperson for the Biden campaign, Andrew Bates, further stated:


The unspeakable oppression that [Uyghurs] and other ethnic minorities have suffered at the hands of China’s authoritarian government is genocide and Joe Biden stands against it in the strongest terms. If the Trump administration does indeed choose to call this out for what it is, as Joe Biden already did, the pressing question is what will Donald Trump do to take action.


Bates also called for then-President Trump to apologize for condoning “this horrifying treatment.”


This is an accurate characterization of the situation in Xinjiang given the dynamics of violence as we know them and the definition of genocide under international and U.S. law (see 18 U.S.C. § 1091). The evidence compiled in the aggregate suggests that a genocide is underway in Xinjiang Province through multiple genocidal acts committed by discrete sets of actors (including various national organs, regional officials, and CCP) with the intent to destroy the Uyghur people, in whole or in part. (For a longer discussion of these issues, see a report produced by Stanford Law School’s International Human Rights and Conflict Resolution Clinic: The Persecution of the Uyghurs and Potential International Crimes in China.)


Despite this apparent agreement across the political spectrum in the United States on this issue, there is still some uncertainty as to whether the acts committed in Xinjiang constitute genocide. Not surprisingly, China has rejected this characterization, claiming instead to be engaged in counter-extremism and population control operations (and liberating Uyghur women from being “baby-making machines”). Ambassador Linda Thomas-Greenfield noted today in her confirmation hearing (see 01:26:04) that the Biden administration is currently reviewing the description of CCP policies as genocide, to ensure the proper procedures were followed, though she voiced her horror at the policies. As the Biden administration reviews the determination, it will undoubtedly face continued resistance and obfuscation. Given this resistance, this article will articulate the legal definition of genocide and outline how the documented treatment of Uyghurs fits this definition.


The Definition of Genocide


Both China and the United States have ratified the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”), which defines the crime of genocide, establishes obligations of prevention and punishment, and recognizes the possibility of establishing state responsibility for a campaign of genocide. The crime of genocide is defined by the Genocide Convention with respect to three constitutive elements: (1) the victims form part of a protected group (i.e., a national, ethnic, racial, or religious group), (2) the perpetrator(s) committed one or more enumerated acts against members of the group, and (3) the perpetrator(s) acted with the intent to destroy the protected group, in whole or in part. The enumerated acts (actus reus in legal terms) are:


(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.


The Genocide Convention prohibits the direct commission of any of these acts as well as engaging in a conspiracy to commit genocide, publicly inciting others to commit genocide, attempting to commit genocide, and complicity in genocide.


All three elements are satisfied with respect to the multi-dimensional persecution underway in Xinjiang against the Uyghur people. To be sure, if a court of law were considering the responsibility an individual defendant, these elements would have to be proven beyond a reasonable doubt. However, these political assessments of China’s genocidal policy proceed under lower standard.


Protected Group


The Uyghur Muslim minority plainly qualify as one of the Genocide Convention’s four protected groups: they are ethnically, racially, and religiously distinct from the majority Han Chinese population. Indeed, the Chinese government itself recognizes the Uyghur as a distinct ethnic minority within its census data.


Constitutive Acts


Actors representing the federal and provincial governments are responsible for the commission of many genocidal acts against Uyghurs, including within the network of internment camps whose scale, organization, and impact are so chillingly evocative of the Nazi enterprise. Although the prototypical genocide has historically involved the first enumerated act in the Convention—“killing members of the group”—evidence of the mass killing of Uyghurs has not emerged to date. Instead, the Chinese government is keeping most Uyghur detainees alive—and is cruelly incentivized to continue doing so in order to take advantage of the Uyghurs for no- or low-cost labor. Thus, forced labor in the present context operates differently than it did in the context of the Holocaust, where forced laborers were deliberately worked to death. Nevertheless, evidence of the commission of the other four acts of genocide abounds.


For example, the torture, rape, and sexual violence committed against Uyghurs likely constitute genocide “by causing serious bodily or mental harm”—the second type of genocide recognized by the Convention. National legislation and international tribunal case law have expounded on the forms this serious harm can take. The U.S. genocide statute, for instance, includes here “the permanent impairment of the mental faculties of members of the group through drugs, torture, or similar techniques.” The International Criminal Tribunal for Rwanda (“ICTR”) elaborated upon this category of genocide in Prosecutor v. Akayesu, finding that it encompasses both mental and physical torture and “can be caused by the enslavement, starvation, deportation and persecution . . . and by [the victims’] detention in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and torture.” Many of these ways to cause serious physical or mental harm—including enslavement, persecution, and detention in degrading and inhumane camps—describe China’s treatment of the Uyghurs.


Likewise, the deplorable living conditions of incarcerated Uyghurs may constitute genocide by “deliberately inflicting conditions of life calculated to bring about [their] physical destruction”—the third form of genocide. In particular, the CCP’s failure to provide adequate food, shelter, sanitation, and medical care to the legions of detained Uyghurs may trigger the concept of “slow death” as defined by the International Criminal Tribunal for the former Yugoslavia in Prosecutor v. Tolimir as the “lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion.” The International Criminal Court’s Elements of Crimes elaborates that “slow death” genocide can occur through the “deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes.”


Furthermore, coerced sterilization, the forced implantation of IUDs, the administration of drugs that cause sterilization and amenorrhea, and forced abortions may constitute the fourth method of genocide: “imposing measures intended to prevent births.” According to widely-cited research by Adrian Zenz, the result has been a precipitous drop in Uyghur birth rates. This category of genocide may also contemplate measures taken by the Chinese government to minimize births within the Uyghur group, such as the separation of Uyghur couples through detention or the coercion of Uyghur women into inter-ethnic marriages. To this point, the ICTR affirmed in Akayesu that this category of genocide “should be construed as sexual mutilation, the practice of sterilization, forced birth control, separation of the sexes and prohibition of marriages.”


In patrilineal societies in particular, where group membership is determined by the identity of the father, the ICTR further noted that “an example of a measure intended to prevent births within a group [would be] the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group.” Although the Tribunal’s hypothetical is not directly analogous to the case at hand, the CCP’s separation of Uyghur couples through detention; the sterilization of older, married women; and the coercion of young, unmarried Uyghur women into marriages with Han Chinese men may share a similar goal of ensuring a new generation of children who do not belong, or appear not to belong, to the Uyghur group.


Finally, when it comes to the fifth genocidal act recognized by the Convention, the systematic separation of Uyghur children from their families and into state care may be characterized as genocide by “forcibly transferring children.” As the ICTR noted in Akayesu, this category of genocidal acts sanctions not only direct acts of forcible transfer, but also “acts of threats or trauma which would lead to the forcible transfer of children from one group to another”—an interpretation that would encompass the cases of Uyghur parents who submit their children to state-run boarding schools under threat of being labelled suspicious and targeted for detention.


"Biological Genocide"


There is a lack of jurisprudence elaborating upon the requirements and weight of these last two forms of genocidal actus reus, which some have described as “biological genocide.” While there is no case law in which this conduct alone has sustained a genocide conviction, all genocide definitions suggest that the forced sterilization of Uyghur women—standing alone—could support a genocide finding. This includes early work by Raphael Lemkin, who first coined the term “genocide” and lobbied exhaustively for its penalization under international law, and the drafting history of the Genocide Convention. Indeed, after the Genocide Convention finally entered into force, Lemkin gave a speech at the New York branch of the American Jewish Congress that concisely summarized his views:


[G]enocide is no longer a word, a promise, a hope . . . It is already a law which can be enforced. In practical terms, this law means no more extermination, no more mass killings, no more concentration camps, no more sterilizations, no more breaking up of families.


Thus, the Xinjiang situation may also provide an opportunity for courts and tribunals to clarify the constitutive elements of these latter two forms of genocide. Indeed, a similar conversation is underway with respect to ISIS crimes against the Yezidi in Iraq. As noted by the Global Justice Center, and other scholars of genocide writing on these pages, systems of sexual slavery and forced pregnancy may constitute genocide against an ethno-religious group if both parents must be members of the group for the child to belong. (For a deeper discussion of so-called “biological genocide”—genocide through diminishing the ability of a group to reproduce itself—see this paper by Stanford Law’s Human Rights & International Justice Policy Lab).


Genocidal Mens Rea (The Mental State)


The biggest challenge to establishing the commission of genocide is the mens rea (or mental state) requirement that the perpetrator(s) not only intend to commit the underlying act(s), but that the acts are committed with the intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The intent element is the hallmark of genocide and what distinguishes it from other international crimes, such as war crimes or crimes against humanity. The latter crimes are equally as prohibited under international law but there is special force to the concept of genocide given this devastating specific intent


Furthermore, as these political determinations reveal, the attribution of state responsibility for genocide is an inquiry separate and apart from a determination of individual criminal responsibility. Determining state responsibility involves a conclusion that elements of the state have launched a campaign of genocide against a protected group. In some cases, such as in Nazi Germany or with respect to the Hutu Power movement in Rwanda, a perpetrator or regime will articulate an unequivocal genocidal intent in a policy platform or self-incriminating statement. The Islamic State, for example, undertook a deliberative theological inquiry that led to express articulations of an intent to destroy the Yazidi people in the imagined caliphate, because the Yazidi faith could not be reconciled with the Islamic State’s radical brand of Sunni Islam. By contrast, the Sudanese regime of Omar al-Bashir never issued any sort of genocidal manifesto—and yet he was indicted for genocide by the International Criminal Court, demonstrating that explicit avowal of genocidal intent is not required to establish mens rea.


Indeed, despite these high-profile examples, explicit articulations of intent are relatively rare, and thus genocidal intent must often be inferred based on “all of the evidence, taken together” and that inference must be “the only reasonable one available on the evidence,” as noted by the ICTY in Tolimir. As summarized by the Yugoslav tribunal, relevant factors for such an analysis include the general context, systematically perpetrating other culpable acts against the group, the scale of atrocities, and the repetition of destructive and discriminatory acts. Furthermore, “[t]he existence of a plan or policy, a perpetrator’s display of his intent through public speeches or meetings with others may also support an inference” of the required genocidal intent.


In the case of China’s treatment of the Uyghurs in Xinjiang, while few explicit statements of intent have emerged, a number of clear indicators of such intent are present. For example, the general context of the violence, including the scale of the atrocities, number of victims, the repetition of culpable acts, and gravity of the harm caused all point to genocidal intent. Further, leaked documents confirm that the genocidal acts are borne of methodical planning on China’s part, with culpability going all the way to the top of Chinese and Party leadership. As regional expert Adrian Zenz describes it, there exists a “coordinated state campaign to promote … intergenerational separation,” as well as an interwoven system of policies designed to prevent births within the Uyghur community. Additional evidence of genocidal intent includes state propaganda conflating Uyghurs and terrorists; the CCP’s systemic attacks against Uyghur cultural, religious, and historical sites, including sacred burial places; the creation of a surveillance state that enables Uyghurs to be continuously tracked based upon their biometrics; and the targeting of the group’s leadership in order to weaken the group but also remove individuals who could raise the alarm or engage with the international community. And although the Genocide Convention does not prohibit “cultural genocide” per se, efforts at the cultural erasure of a group can serve as evidence of genocidal intent as well.


Taken together, the entire program of persecution undertaken in Xinjiang suggests a desire to undermine the very foundation for the continued existence of the Uyghur group. In sum, it is reasonable to conclude that there is strong evidence that the Chinese authorities are committing genocide against the Uyghur people, triggering obligations on the part of the international community to take steps to prevent and punish this terrible crime. Although the Genocide Convention does not contain specific obligations in this regard, this can include everything from humanitarian assistance to victims, accountability to perpetrators, diplomatic isolation, trade penalties, etc.


Conclusion


In closing, it should be noted that the international community’s response to mass atrocities need not hinge on the question of whether or not the violence constitutes genocide. If economic, political, or military responses to mass violence are being contemplated, then the time has passed for debating legal semantics about whether the violence meets the definition of genocide. Indeed, as I have written elsewhere, “the methodology necessary to determine the commission of genocide is inapt—and the surrounding discourse discordant—when people are being systematically killed and expelled from their homes through violence on a mass scale.” What matters is that the level of violence and the risk to humanity has reached a certain threshold.


Furthermore, genocide is a crime of intent and not of results. As such, it is not necessary to wait for a group to be destroyed in whole or in part before declaring a campaign of violence to be genocidal if the requisite intent can be evinced before the threat of wholescale extermination is realized. As recognized by President Biden on this Holocaust Remembrance Day, this foresight ensures that the preventative potential of the Genocide Convention—the promise of “no more extermination, no more mass killings, no more concentration camps, no more sterilizations, no more breaking up of families”—can be realized.


Image: Members of the Muslim Uighur minority hold placards as they demonstrate in front of the Chinese consulate on December 30, 2020, in Istanbul, to ask for news of their relatives and to express their concern after China announced the ratification of an extradition treaty with Turkey. – The Chinese parliament ratified on December 26, 2020 an extradition treaty signed in 2017 with Ankara, a text that Beijing wants to use in particular to speed up the return of certain Muslim Uyghurs suspected of “terrorism” and who are refugees in Turkey. But the head of Turkish diplomacy said on December 30, 2020 that Ankara was not going to return Muslim Uyghurs to China, despite Beijing’s ratification of an extradition treaty that worries the 50,000 members of this community who have taken refuge in the country. (Photo by BULENT KILIC / AFP) (Photo by BULENT KILIC/AFP via Getty Images)


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