Pro-Uighur protesters demonstrate outside the White House in Washington, on Aug. 14, 2020. PHOTO BY CHIP SOMODEVILLA/GETTY IMAGES
State Department Lawyers Concluded Insufficient Evidence to Prove Genocide in China
Despite the Trump administration’s declaration of a genocide in Xinjiang, upheld by the Biden administration, some legal experts suspect China’s behavior may fall short of actual genocide.
Foreign Policy
February 19, 2021
BY COLUM LYNCH
The U.S. State Department’s Office of the Legal Advisor concluded earlier this year that China’s mass imprisonment and forced labor of ethnic Uighurs in Xinjiang amounts to crimes against humanity—but there was insufficient evidence to prove genocide, placing the United States’ top diplomatic lawyers at odds with both the Trump and Biden administrations, according to three former and current U.S. officials.
The revelation comes nearly a month after then-Secretary of State Mike Pompeo said on Jan. 19, one day before U.S. President Donald Trump’s presidency ended, that China was carrying out a genocide against Chinese Muslims, primarily the ethnic Uighur population, in the western region of Xinjiang. The Biden administration has reaffirmed Pompeo’s stance and backed off a recent claim Biden’s United Nations envoy pick, Linda Thomas-Greenfield, made in her confirmation hearing that the State Department, under the Biden administration, was conducting a review of the designation.
A State Department review during the final weeks of the Trump administration of China’s conduct in Xinjiang pitted the department’s lawyers against advocates of a genocide determination. Those advocates included Kelley Currie, who then served as U.S. ambassador at large for global women’s issues and is a long-standing critic of China’s human rights record, and former Sen. Sam Brownback, who served as the department’s ambassador at large for international religious freedom. It resulted in a “split” memo from the department that was sent to Pompeo, according to two officials.
Beyond the legal debate over the characterization of China’s repression of its Muslim population, the genocide designation carries enormous political weight, applying pressure on the United States and other countries to punish a global powerhouse whose trade, environmental, and security activities are entwined with their own.
But wielding the g-word without a solid legal basis also carries the risk of politicizing and eroding the power of the designation, which has been invoked in the past century to describe the worst episodes of mass killing, from the murder of millions of Jews during the Holocaust to the slaughter of around 800,000 Rwandans during the country’s genocide.
The cautious conclusions of State Department lawyers do not constitute a judgment that genocide did not occur in Xinjiang but reflects the difficulties of proving genocide, which involves the destruction “in whole or in part” of a group of people based on their national, religious, racial, or ethnic identity, in a court of law. It also points to a disconnect between public perception of the crime of genocide and the legal definition in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, which has long been interpreted by State Department lawyers to require intent to bring about the physical and biological destruction of a group.
“Genocide is difficult to prove in court,” said Richard Dicker, an expert on international justice at Human Rights Watch. Even the most horrific of crimes—burning of villages, systematic rape, or the execution of large numbers of civilians—can not be considered genocide unless the perpetrators carry out their crimes “with a very specific intent—the intent, of course, being to destroy in whole or in part a population based on their religious, ethnic, or national background,” he said.
There is little dispute within the U.S. government that China’s treatment of the Uighur population has been horrific and criminal: More than 1 million Uighurs have been detained in reeducation camps, and many have reportedly been subjected to forced labor and sterilization. China has committed numerous crimes listed in the convention as acts of genocide, including the prevention of births and infliction of bodily or mental harm on members of a group and the compulsory separation of children from their communities, according to human rights groups.
But there remains questions over whether that conduct meets the extraordinarily high threshold required to prosecute the crime of genocide.
“International courts have concluded that, for a crime to come within the definition in the [Genocide] Convention, the perpetrator must intend to destroy the relevant group in a biological or physical sense,” wrote Todd Buchwald, who served as the special coordinator for the State Department’s Office of Global Criminal Justice during the Obama administration, and Adam Keith, a former human rights specialist in the National Security Council, in an exhaustive study of U.S. decision-making on genocide. The convention, they noted, excluded the more limited concept of “cultural genocide.”
But many international legal experts view that interpretation as too narrow and say there is ample evidence that China has engaged in genocide.
The Genocide Convention enumerates five categories of genocide, starting with the killing of members of a protected group but also including acts aimed at preventing a victim’s ability to bear children and forcibly separating children from their communities. Critics of the State Department’s legal stance have argued that it has focused too heavily on the first category, mass killing, and not enough on the other categories. In the case of China, these critics note, there is little evidence that it is engaging in mass killings of Uighurs and other minorities, many of whom have been subjected to indoctrination and pressed into forced labor.
But evidence that it is carrying out other forms of genocide abounds, Beth Van Schaack, a visiting professor at Stanford Law School’s Center for Human Rights and International Justice, wrote in a recent post on Just Security.
“For example, the torture, rape and sexual violence committed against Uyghurs likely constitute genocide ‘by causing serious bodily and mental harm’—the second type of genocide recognized by the Convention,” she wrote. “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.”
The process of determining whether the U.S. government can and should declare the commission of mass atrocities a genocide has evolved informally since the United States became a party to the convention in 1988.
Since the Cold War, the State Department has claimed genocide occurred in at least five cases. In 1993, the Clinton administration accused Bosnian Serbs of carrying out genocide against Bosnian Muslims. A year later, it accused ethnic Hutu extremists of carrying out a genocide in Rwanda. In 1995, it charged the Iraqi government of trying to eliminate the country’s Kurdish population.
The process became more formal during the George W. Bush administration, when then-Secretary of State Colin Powell established an extensive review process. He deployed a team of investigators called the Atrocities Documentation Team to the Chad-Sudan border to interview refugees in an effort to determine whether genocide had occurred in Darfur, Sudan, where the Sudanese government and a government-backed militia, known as the janjaweed, unleashed a reign of terror and displacement on several ethnic and tribal groups. Powell declared before Congress in 2004 that “genocide has been committed in Darfur and that the government of Sudan and the janjaweed bear responsibility—and that genocide may still be occurring.”
That formal review served as a model for future efforts to determine whether genocide had occurred. In March 2016, then-Secretary of State John Kerry determined that the Islamic State had committed genocide, crimes against humanity, and ethnic cleansing against the Yazidis, Christians, and Shiite groups. His successor, Rex Tillerson, confirmed that decision.
But the Trump administration never reached a final decision on the question of whether the Rohingya Muslim minority in Myanmar were victims of genocide, and the Biden administration continues to review the situation. Some human rights advocates believe there is a stronger case for designating Myanmar’s attacks on the Rohingya genocide than China’s conduct in Xinjiang.
In the case of China, Pompeo launched a review during his final months in office, a decision that was embraced by China critics in the department as overdue but viewed skeptically by others as a rushed and politicized effort to provide cover for a decision Pompeo had already decided he would make.
“I have determined that the People’s Republic of China is committing genocide and crimes against humanity in Xinjiang, China, targeting Uyghur Muslims and members of other ethnic and religious minority groups,” Pompeo said on Twitter on Jan. 19, a day before Biden took office. He accused the Chinese of carrying out “forced sterilizations and abortions on Uyghur women, coerced them to marry non-Uyghurs, and separated Uyghur children from their families.”
Currie declined to discuss the internal deliberations on the matter during the Trump administration, adding simply that “the secretary’s decision and statement speak for themselves.”
A State Department official declined to comment on the internal deliberations during the Trump administration over the genocide designation but said that Secretary of State Antony Blinken’s decision to confirm Pompeo’s decision was based on his own reading of the convention, not on the department’s findings. The official noted that the secretary of state, whether Pompeo or Blinken, wields the ultimate authority to make the final judgment, regardless of recommendations from the department’s lawyers. There is no need to initiate a new formal review into the matter, the official said.
The Biden team during the campaign reached the conclusion that China had carried out genocide several months before Pompeo’s declaration. In August 2020, Biden’s presidential campaign issued a statement concluding that China’s mass internment of Uighur Muslims and other ethnic minorities in Xinjiang amounts to “genocide.” Blinken reiterated that view during his confirmation hearing. Pressed on whether he agreed with Pompeo’s assertion that genocide occurred in Xinjiang, Blinken answered, “That would be my judgment as well.”
But Thomas-Greenfield, however, appeared to hedge during a subsequent confirmation hearing, saying that while the situation “feels like” genocide, she was awaiting the findings of a State Department review. “I know the State Department is reviewing that as we speak,” she said, before later aligning her position with Blinken’s.
“Secretary Blinken and I have made clear that genocide has been committed against the Uyghurs in Xinjiang,” she wrote in response to a question from Sen. Marco Rubio.
Colum Lynch is a senior staff writer at Foreign Policy. Twitter: @columlynch
Copyright 2021 Foreign Policy
Genocide Watch comment:
The State Department lawyers who reject calling China's atrocities "genocide" are committing the same legal malpractice that they committed when for three months they refused to call the Rwandan genocide "genocide" in 1994. Then they similarly argued that there was not sufficient evidence of the specific intent to destroy, in whole or in part, an ethnic or religious group despite public evidence from the Red Cross that 10,000 Tutsis were being murdered each day. Joan Donoghue, then in the State Department Office of the Legal Advisor, led that denial of genocide in Rwanda.
Donoghue became a judge on the International Court of Justice in 2010. She joined the opinion of the International Court of Justice in Croatia v Serbia which held that if any other intent can be found for state actions besides genocide, such as "ethnic cleansing," then the crime cannot be genocide. Genocide must be the only intent.
Joan Donoghue is now President of the International Court of Justice, which is considering Gambia's case against Myanmar for violation of the Genocide Convention.