Genocide is the right word for the horrors of Xinjiang. This is the message of a recently published legal opinion by a group of experts from Essex Court Chambers in London, U.K., and of the analysis conducted by the U.S. State Department. There are also a few other briefings and reports on the situation of Uyghurs. The Uyghur Tribunal, a new independent inquiry to assess the evidence of the alleged atrocities, is yet to deliver its determination of the situation. However, this is so far the analysis of the situation goes. Currently, there is no U.N. body with the mandate to consider the evidence and make a determination. Furthermore, there is no international tribunal to engage on the topic. The International Criminal Court (ICC) does not have jurisdiction to consider the situation, although an attempt to change this is underway. The Chinese government denies the allegations.
What does it mean? Does it mean that the atrocities cannot be considered or treated as genocide?
Genocide is not a word that should be used lightly. Genocide has a very precise legal definition Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). Where all the elements of the legal definition are met, the crimes should be labeled for what they are.
However, there appears to be some misunderstanding of what is genocide and what are the duties under the Genocide Convention. As a result, some may claim that genocide is the wrong word for the atrocities in Xinjiang. To put the record straight, a group of lawyers and genocide scholars published a letter responding to some of the misconceptions.
As they emphasize, “Genocide as defined by the Genocide Convention and customary international law does not necessarily entail the immediate destruction of the group by mass slaughter. Destruction of the group (in whole or in part) must be the intended result, but this may be achieved in a number of ways. In the case of the Uyghurs, in terms of the legal test, allegations include killing members of the group, causing serious bodily or mental harm to members of the group (including physical abuse, rape and sexual violence), deliberately inflicting on the group conditions of life calculated to destroy the group (by way of concentration camps, forced labor and other atrocities as a whole), imposing measures intended to prevent births within the group (by way of forced sterilizations, forced abortions, and also rape), forcibly transferring Uyghur children to another group. These acts are supported by evidence of the specific intent to destroy this ethno-religious group. This is in addition that to the fact that the specific intent can be inferred from the pattern and systemic nature of the atrocities.”
Genocide determination should follow a comprehensive analysis of evidence
Understandably, each element of genocide has to be scrutinized in consideration of all the available evidence. As the authors of the letter stress: “It is wrong to claim that the U.S. Administration woke up one day and decided to call the atrocities against the Uyghurs genocide. Indeed, the State Department has been working on the topic for months and uphold their own obligations between parties.” As such, their findings should not be disregarded only because it forces us to engage with a very difficult question: what to do now?
The lack of international determination does not mean genocide is not happening
The lack of international determination does not mean genocide is not happening. This should be crystal clear. As the letter states: “In a perfect world, the allegations of genocide against the Uyghurs would be considered by an international court or tribunal or a specially established U.N. investigative mechanism, but this has not been done and it is unlikely to happen, given China’s powerful position at the U.N. and reservations to, or non-membership of, relevant treaties.” This is yet another reason why states should conduct their own analyses and determinations.
States have a duty to make their own determinations to inform their responses
The lack of international determination of genocide “does not preclude States making their own determination. In fact, States, as the duty holder under the Genocide Convention, must make such determinations to inform they responses.” The letter continues: “The duty to prevent genocide is extensive and critical. As the International Court of Justice (ICJ) in the case in Bosnia and Herzegovina v Serbia and Montenegro clarified, the duty to prevent: ‘Arise[s] at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.’ If this is the case, States must conduct their monitoring, analysis and determination of at least the serious risk of genocide very early on – in order to engage their duties. This ultimately means that States need to engage with considerations surrounding the legal elements of genocide and/or risk factors, as for example, per the UN Framework of Analysis for Atrocity Crimes and Jacob Blaustein Institute’s Compilation of Risk Factors and Legal Norms for the Prevention of Genocide.”
Determination must trigger action
There are practical effects of a determination. Where a serious risk of genocide is determined, a state is under a duty to make use, as the circumstances permit, of all available means “likely to have a deterrent effect on those suspected of preparing genocide.” As the letter concludes: “In a world where genocide still occurs, despite the promises of Never Again, inaction is not an option. We need to ensure that we are equipped to prevent genocide as the cost of allowing it is too great: it is the cost of lives and it is also the cost of our humanity.”
These words should not be swept under the carpet. Behind the word of genocide, there is unimaginable suffering of whole communities that are being told that their lives are not worthy of protection and can be destroyed. Not to speak to counter these narratives only emboldens the perpetrators.
The original article was published on Forbes.