U.S. Commission on International Religious Freedom: Genocide Determination Also Needs to Be Prevented

The U.S. Commission on International Religious Freedom (USCIRF) held a hearing Wednesday (May 12) to explain how the U.S. government makes genocide determinations and to provide recommendations for post-determination policy choices and how to respond to atrocities.

The U.S. government has officially used the term genocide several times. The United States has previously designated genocide against Bosnian Muslims by Bosnian Serbs, against Tutsis by Rwandan Hutus, against Kurds by the Iraqi government, against Arabs by the Sudanese government in Darfur, and against Yazidis, Christians and Shia groups by the Islamic State. Just this year, the U.S. labeled the systematic killing and deportation of more than a million Armenians by Ottoman forces in the early 20th century as genocide, and characterized the Chinese Communist Party’s human rights violations against the Uighurs as genocide.

“The Chinese Communist government is committing genocide and crimes against humanity by imprisoning predominantly Muslim Uighurs in concentration camps,” said Anurima Bhargava, president of the U.S. Commission on International Religious Freedom. She also said the Communist government is “taking steps to reduce the Uighur population and is making significant efforts to separate children from their parents.”

Bhargava emphasized that “the U.S. government must recognize the need to act to prevent and stop these atrocities in order to save lives, protect the dignity of communities, families and children, rebuild society, and respect the beliefs, history and future of religious groups.”

The United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide in December 1948. The Convention entered into force in January 1951, and 152 countries, including the United States and China, are now parties to the Convention. The Convention states that “the States Parties recognize genocide, whether committed in time of peace or in time of war, as a crime under international law, and undertake to prevent and punish it.”

An official U.S. determination of genocide may increase international attention to these crimes, strengthen the case for multilateral pressure on perpetrators, and enhance accountability efforts.

How is genocide recognized?

Todd Buchwald, who served as director of the State Department’s Office of Global Criminal Justice under Obama, said at the hearing that there is no policy or formal procedure for how the U.S. government determines whether an atrocity is genocide, but there is a “de facto process.

Generally, Buchwald said, these decisions are made by very senior officials, usually by the secretary of state, based on information from the State Department’s policy departments. These departments include relevant regional offices and the Office of Global Criminal Justice, among others.

It is noted that an important criterion for determining genocide is the legal standard. U.S. State Department attorneys look to the Convention on the Prevention and Punishment of the Crime of Genocide to assess whether the facts and evidence are sufficient to prove that an atrocity constitutes genocide as defined in the Convention.

Under the Convention on the Prevention and Punishment of the Crime of Genocide, genocide is defined as “the intentional destruction, in whole or in part, of a national, ethnical, racial or religious group. The convention defines five types of acts related to genocide: killing members of the group; causing serious bodily or mental harm to members of the group; intentionally 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; and forcibly transferring children of the group to another group.

The prevailing view of the “intentional destruction, in whole or in part, of a national, ethnic or religious group” is that it implies the intentional destruction of the group in a biological or physical sense, as opposed to so-called “cultural genocide,” Batchward said. In practice, proving such intent is quite difficult.

John B. Bellinger III, who served as legal adviser to the State Department under George W. Bush Jr., has previously said, “Proving that there was an intent to destroy a group, in whole or in part, is often the difficult part of a genocide determination.” He added that State Department lawyers have been very careful in using the term genocide because of the difficulty of proving the existence of such intent.

Former U.S. Secretary of State Mike Pompeo declared China’s targeting of Muslim minorities such as the Uighurs in Xinjiang a genocide in January of this year. Current Secretary of State John Blinken agrees with that characterization. The State Department under Blinken explicitly called the genocide in Xinjiang in its annual report on human rights in various countries released in late March.

Millions of Uighurs and other Muslim minorities are believed to be held in internment camps in the Xinjiang Uighur Autonomous Region. In the camps, they are allegedly subjected to human rights violations such as torture, forced sterilization, forced abortions, rape and sexual abuse, and political indoctrination.

China has consistently denied the mistreatment of Uighurs and the existence of detention camps. Chinese State Councilor and Foreign Minister Wang Yi has refuted claims of “genocide” in Xinjiang.

Determination should be accompanied by prevention

Tony Perkins, vice chairman of the U.S. Commission on International Religious Freedom, told the hearing that the genocide designation is only one step and that more must be done to stop and prevent ongoing “mass atrocities against religious groups, no matter what they are called.

We cannot just focus on the label ‘genocide,’ because the longer governments consider the term, the more the perpetrators will be emboldened to continue their genocidal process,” he said. Beyond these considerations, governments must be vigilant in looking for early warning signs and stepping up to prevent mass atrocities wherever they may occur.”

Beth Van Schaack, a visiting professor at Stanford Law School, said at Wednesday’s hearing that if the United States makes a genocide determination, the government can respond in a range of ways, either acting alone or in cooperation with allies.

“We should consider humanitarian efforts, accountability efforts, trade measures and the use of diplomatic forums to advance these issues,” Van Schaack said.

She also mentioned that the U.S. has begun a very tough response on Xinjiang, but the U.S. could do more on trade.

Batchward has co-authored a study with another former administration official on the U.S. government’s genocide determination process. The report argues that action to prevent or stop genocide and other mass atrocities is more important than a finding of guilt. Such action should be based on an assessment of the risk of atrocities occurring, and policymakers should place greater emphasis on responding to such risks before they occur.

According to the report, a strong U.S. and international response should not be limited to mass atrocities that fall within the legal definition of genocide, but should apply to other mass atrocities. The U.S. government should emphasize its moral commitment to preventing mass atrocities, including those that do not fall under the Genocide Convention.

The report also says that the U.S. government and other advocates should take concrete steps to educate the public that other mass atrocity crimes should not be considered less serious or less deserving of an international response than genocide.