IBA - International Bar Association

07/29/2020 | Press release | Distributed by Public on 07/29/2020 07:11

Genocide: China’s reported persecution of Uighurs exposes states’ legal obligations under international conventions

Over the past three years, witness testimonies, investigations, leaked footage, papers and data have painted a picture of systematic state persecution of the Uighur population in China's Xinjiang region. Journalists, independent parties and others began to expose concerns in 2017, with the bank of evidence growing exponentially in summer 2020.

The allegations include forced birth control, abortions and sterilisation of Uighur women; forcible transfer of Uighurs to internment camps; torture; sexual violence and forced labour.

'The persecution of the Uighur Muslims in China is one of the egregious crimes against humanity of modern times,' believes Baroness Helena Kennedy, Director of the IBA's Human Rights Institute.

'States are claiming they can't act until something is definitely found to be a genocide, but that requires a level of evidence and information that surpasses where legal obligations to act kick in

Akila Radhakrishnan
President of the Global Justice Center

China denies all allegations of human rights abuses, claiming its crackdowns in the Xinjiang region are part of its 'war on terrorism'. In a TV interview in late July, China's Ambassador to the United Kingdom dismissed images that Western intelligence agencies believe show shackled and shaved Uighur men being moved onto trains by armed authorities. Ambassador Liu Xiaoming said of forced sterilisations, 'That is not government policy and we treat every ethnic group in China as equal'.

Nonetheless, a briefing paper from the Bar Human Rights Committee of England and Wales (the 'Bar Committee') says the reports 'raise grave concerns that prohibited acts of genocide are being committed in Xinjiang against [Uighurs] and/or other Turkic Muslims'.

The Convention on the Prevention and Punishment of the Crime of Genocide (the 'Genocide Convention' or the 'Convention') is just one of six international treaties that the Bar Committee believes China may have contravened. It prohibits five acts, including killings and prevention of births in a group, when these acts are committed with intent to eradicate all or part of a national, racial, ethnic or religious group.

Under these conventions, the international community is required to act to prevent the persecution of the Uighurs, the Bar Committee says. The Genocide Convention, for example, places a positive obligation on member parties not only to not commit genocide themselves, but to prevent and punish genocide in any other state.

A coalition including Uighur activist groups have presented collated evidence of what they believe amounts to genocide to the International Criminal Court (ICC). But the ICC does not have jurisdiction over China.

Professor Ryszard Piotrowicz, a professor of law at Aberystwyth University, believes there is a chance that the ICC could find jurisdiction over China by following the precedent set in the recent case against Myanmar's leadership following alleged crimes against the Rohingyas.

For now, the United States government has imposed sanctions on state officials in China and US companies doing business with China, and other countries have been urged to act.

The legal obligations on states to intervene are determined in part by their capacity to influence the perpetrators, notes Akila Radhakrishnan, President of the Global Justice Center. She asks, 'are sanctions a full utilisation of the US' capacity to intervene?'

Further, Radhakrishnan says 'states are claiming they can't act until something is definitely found to be a genocide, but that requires a level of evidence and information that surpasses where legal obligations to act kick in'.

Sareta Ashraph, Co-Vice-Chair of the IBA War Crimes Committee and author of the Global Justice Center's 2018 report Beyond Killing: Gender, Genocide, & Obligations Under International Law, tells Global Insight that 'genocide is a crime of intent, but there's rarely a smoking gun'. Instead, she says, intent is often inferred through deeds and utterances, and acts of genocide, such as forced sterilisation, can themselves infer intent.

She adds that any reluctance to act on the part of the international community will be 'turbo-charged' because of China's position of economic power and the difficulty accessing information that could infer intent.

Further, 'under the Genocide Convention, it's entirely possible to effectuate a genocide without killing a single person, but that's not how we think about genocide', explains Radhakrishnan. She adds, 'with the Uighurs, we're looking at a series of different types of oppressive acts that may amount to genocide and are very clearly numerated in the Genocide Convention but don't fit our traditional notion of genocide'.

Ashraph argues that in some ways, this limited picture of genocide stems from a lack of analysis of how genocide can be perpetrated and experienced differently based on gender. She says this undermines the ability of the international community to fully recognise, prevent and prosecute genocide.

In her aforementioned report, Ashraph writes that although the 'Convention imposes no hierarchy within the five prohibited acts […] it is the crimes that are committed disproportionately against men and boys [such as mass killings] that have been most easily admitted into the canon of genocidal violence'.

'Preventing the targeted group from regenerating through reproduction is a fixation of genocidaires', the report states. 'It has never, however, been the basis for criminal prosecution of genocide in international tribunals, underscoring yet another impunity gap for female victims of genocide.' The only gendered analysis came in the 1998 judgment in Prosecutor v Akayesu, which determined that sexual violence could be a constitutive act of genocide.

Although Ashraph tells Global Insight that sexual violence has been gaining more recognition as an act of genocide, mass killing continues to be privileged over other acts like birth prevention, which have been 'segmented out of the genocide framework'. Ashraph says 'no one is asking for more than the Convention itself to be applied throughout the process'.

And the process, Radhakrishnan says, includes 'frameworks for early recognition'. In fact, she highlights that the Convention calls on signatories to prevent genocide, and requires action as soon as serious risk of genocide is known.

Although further harm could be prevented, it is arguably too late to prevent genocide once the first recognisable act has been committed. States can look beyond the Convention to the basis of the international human rights framework, which holds the key to preventing genocide from the outset.

Ashraph points out that 'existing prejudices and tolerance to violence against certain groups are weaponised for genocide'.

Radhakrishnan argues that 'the entire baseline of the human rights framework is that by reducing inequalities, eliminating discrimination, you're creating a more safe, stable society. If you look broadly at this imperative, you eliminate the building blocks of genocide'.

'Genocide is built into structural discrimination within a society that has been enabled by laws, policies, often years of different types of discrimination and violence. That's where the focus needs to be. We tend to act in the moments of mass violence, but if everyone took the core of the human rights framework seriously, you would be eliminating the ability of these things to happen in the first place', she says.

Image: Alexandros Michailidis / Shutterstock.com