Former U.S. Secretary of State Mike Pompeo declared China’s targeting of Muslim minorities such as the Uighurs in Xinjiang to be genocide the day before he left office in January. Such a characterization is shared by current Secretary of State John Blinken. The State Department under Blinken explicitly stated that genocide was taking place in Xinjiang in its annual report on human rights in various countries released in late March. Beijing, for its part, called the allegations “the lie of the century. So how is genocide determined? What are the criteria used to determine it? And what are the consequences of that determination?
Genocide was first used to describe the Nazi Holocaust against the Jews in World War II, and was officially recognized as a crime under international law in 1948 when the United Nations adopted the Convention on the Prevention and Punishment of the Crime of Genocide. Today, genocide is internationally recognized as the most serious crime. The U.S. declaration that China committed genocide in Xinjiang is arguably the most severe condemnation of China’s human rights violations.
How does the U.S. government identify genocide?
Since the end of the Cold War, the U.S. government has officially used the term genocide at least six times. In addition to this characterization of China’s human rights violations against the Uighurs as genocide, other times include: in 1993, condemning the Bosnian Serbs for committing genocide against Bosnian Muslims; in 1994, finding that the massacre of the Tutsi by the Hutus in Rwanda constituted genocide; in 1995, accusing the Iraqi government of attempting to exterminate its own Kurdish population; and in 2004, declaring that the Sudanese government’s Darfur; and in 2016 and 2017, the Islamic State was found to be committing genocide against Yazidis, Christians and Shiite groups.
Former U.S. government officials have said there is no policy or formal process for how the U.S. government determines whether an atrocity is genocide, but it is usually the State Department that initiates an internal review process to assess and the Secretary of State that makes the decision. The process typically takes several months or more, with State Department policy officials, intelligence officials and lawyers involved in evidence gathering and legal assessments to advise the secretary of state.
Todd Buchwald, who served as director of the State Department’s Office of Global Criminal Justice under Obama, told Voice of America, “Typically, if there is widespread coverage of particularly heinous conduct, if there is significant public or congressional interest in the subject, and if there are reasonable indications that the conduct may meet the criteria for genocide, the more likely it is that the subject will be considered. then the more likely it is that the subject will be evaluated.”
In some assessment processes, the State Department assigns investigators to conduct more detailed fact-finding, in addition to gathering information already available. For example, in assessing whether the conflict in Darfur, Sudan, constituted genocide, the State Department sent investigative teams to the Sudan-Chad border region to interview refugees and document their experiences.
What are the criteria for U.S. determinations?
Former U.S. government officials have said that an important criterion for determining genocide is a legal one. State Department lawyers 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. Currently 152 countries, including the United States and China, are parties to the Convention.
According to the Convention, genocide is the intentional destruction, in whole or in part, of a national, ethnical, racial or religious group by killing members of the group; causing serious bodily or mental harm to members of the group; deliberately 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; or forcibly transferring children of the group to another group.
John B. Bellinger III, who served as legal adviser to the State Department under George W. Bush Jr., said the definition is “much narrower than the term genocide as commonly used in the media or by people” and must be “the intentional destruction, in whole or in part, of a national, ethnic or religious group.”
During these internal assessments, Bollinger said, disagreements sometimes arise. Sometimes, he said, “State Department lawyers do not believe there is sufficient evidence (such as evidence of intent) to meet the definition of genocide in the convention. In other cases, policy officials may not believe that it is useful (in policy terms) for the U.S. government to declare a group to have committed genocide.”
In their assessment of the Rohingya refugee crisis in Burma, officials in the State Department’s Bureau of East Asian and Pacific Affairs opposed the use of the genocide label; these officials supported continued engagement with Burma, arguing that a genocide determination would push Burma further into China, Reuters reported. In the case of Xinjiang, some State Department lawyers opposed making a genocide determination, arguing that the standards in the convention were not met.
A report on the U.S. Foreign Policy website in February said the State Department’s legal office concluded that China’s mass incarceration and forced labor of Uighurs in Xinjiang constituted crimes against humanity, but lacked sufficient evidence to prove genocide. The report noted, however, that the cautious opinion of State Department lawyers does not equate to the absence of genocide in Xinjiang, but rather reflects the fact that it is very difficult to prove genocide legally.
Bollinger also noted that “proving that there was indeed an intent to destroy a group, in whole or in part, is usually the difficult part of a genocide determination.” He said State Department lawyers have been very careful in using the word genocide because of the difficulty of proving the existence of such intent.
Batchward has co-authored a study with another former government official on the U.S. government’s genocide determination process. In the report, they said that international tribunals have set high thresholds for genocide convictions in relevant jurisprudence, such as the intentional destruction of a specific group in a biological and physical sense, the act must be committed with specific intent (requisite intent), and the relevant evidence must be beyond a reasonable doubt. They noted that “cultural genocide,” the intentional destruction of culture and identity, does not fall within the scope of the convention.
They said that countries are not required to apply the same standards as international tribunals in deciding whether to use the term genocide, but “if the standards are significantly lower than those used by international tribunals, it could lead other countries to give less credence and weight to the U.S. government’s determination of genocide – to make a determination that the U.S. government has committed genocide. One of the important considerations in making this determination is to galvanize international support for action.”
As with other matters at the State Department, the secretary of state must make a decision if a disagreement arises, the former administration official said. Batchward said, “Ultimately, the secretary of state has the authority to consider all relevant legal, factual and other factors and make a determination.”
In January, the day before he left office, former Secretary of State Pompeo announced that China had committed genocide and crimes against humanity in Xinjiang. In a State Department statement, he said, “I believe the genocide is ongoing and we are seeing an attempt by the Chinese party-state to systematically exterminate the Uighur people.” He added that China’s ruling authorities “have made clear that they are forcibly assimilating and ultimately obliterating a vulnerable religious minority.”
His successor made the same announcement. Speaking at a press conference in late March to release the State Department’s 2020 Country Reports on Human Rights, Blinken said, “We have seen genocide in Xinjiang against the predominantly Muslim Uighurs and other ethnic and religious minorities.”
On the Rohingya issue, the U.S. House of Representatives passed a resolution in late 2018 declaring the Myanmar government’s military action against Rohingya Muslims to be genocide, but neither Pompeo nor the State Department under Blinken has ever made that formal declaration.
What are the consequences of the U.S. determination?
Experts say a genocide determination would not have significant legal consequences because of the long-standing U.S. position that U.N. conventions only require state parties to prevent and punish genocide on their own territory, and that they have no legal obligation to take measures to intervene or punish other countries. But such determinations carry moral and policy weight, prompting the U.S. administration and other countries to act.
It will vary from case to case, but the determination carries a lot of weight,” Batchward said. Whether or not other countries publicly state that ‘genocide’ has occurred, the U.S. State Department’s determination can focus other countries’ attention on the topic and mobilize others to take action in response to those underlying circumstances.”
In the case of Darfur, Sudan, for example, the U.S. genocide determination drew international attention to Darfur and media coverage of the crisis. At the urging of the United States, the UN Security Council passed a resolution establishing a special international commission of inquiry to investigate violations of human rights and international humanitarian law in Darfur. Although the UN investigation report did not find that genocide had occurred in Darfur, it recommended that those suspected of war crimes and crimes against humanity be tried by the International Criminal Court. The International Criminal Court later charged and issued an arrest warrant for then-Sudanese President Al-Bashir with additional charges of genocide.
Following the U.S. declaration of genocide in Xinjiang, the Canadian Parliament and the Dutch Parliament passed motions in February to find China guilty of genocide against the Uighurs in Xinjiang. Subsequently, the United States, Canada, the United Kingdom and the European Union took concerted action to jointly sanction Chinese officials over human rights issues in Xinjiang. There has also been a growing international boycott of the 2022 Winter Olympics in Beijing.
How is genocide recognized internationally?
Beijing has consistently denied that China has violated human rights in Xinjiang, calling the genocide claim “the lie of the century. Chinese Foreign Ministry spokeswoman Hua Chunying said the Uighur population in Xinjiang has more than doubled in the past 40 years, “Have you ever seen such a ‘genocide’?”
An article in late March in China’s official media, the People’s Daily, said that genocide is determined by strict criteria and procedures under international law, and that “no country, organization or individual is qualified and entitled to arbitrarily determine that another country has committed ‘genocide.'”
As a crime under international law, the most authoritative determination of genocide is through international judicial bodies. Most of the major genocide cases in the past have been found by international courts and special international criminal tribunals established under the authority of the Security Council, such as the massacre of Tutsis by Hutus in Rwanda and the killing of more than 7,000 Bosnian Muslims by Bosnian Serbs.
This process was launched in 2017 in the wake of the Rohingya refugee crisis in Myanmar. The International Independent Fact-Finding Mission on Myanmar, established by the UN Human Rights Council, found that “there was an intent to commit genocide.” The International Court of Justice and the International Criminal Court are seized of the case, and Daw Aung San Suu Kyi has appeared before the International Court of Justice to defend the Burmese government. The case is ongoing, but the International Court of Justice issued a preliminary ruling last January requiring the Myanmar government to prevent any genocide against Rohingya Muslims and to preserve evidence of past crimes.
Analysts say, however, that these mechanisms may hardly work in the case of China. The International Court of Justice deals with disputes between states, and lawsuits need to be brought by the state. In the Rohingya case, the Gambia filed a lawsuit with the International Court of Justice in 2019 on behalf of the International Islamic Organization. Deborah Mayersen, an expert on genocide at the University of New South Wales in Australia, said, “Because of China’s geopolitical power, I think any country would be extremely reluctant to take such action against China.”
Moreover, when China ratified its accession to the Convention on the Prevention and Punishment of the Crime of Genocide, it entered a reservation to the dispute settlement clause and did not accept the jurisdiction of the International Court of Justice.
William Schabas, a leading international expert on genocide and international human rights law, said, “Prosecuting individuals would require the jurisdiction of the International Criminal Court, but neither China nor the United States is a member of that court. Or to prosecute based on the principle of international responsibility, but neither China nor the United States accepts the jurisdiction of the International Court of Justice. So recourse to the court is only feasible with China’s consent.”
Under the convention, state parties have the right to refer to the relevant UN bodies for action to prevent and punish genocide, so issues concerning the Uighurs in Xinjiang could theoretically also have recourse to the UN Security Council, the UN General Assembly and the Human Rights Council. But analysts say it is difficult to predict how far those paths will go with China as a permanent member of the Security Council.
China has veto power in the Security Council,” Batchward said. The issue could also go to the U.N. General Assembly and could be discussed at the Human Rights Council, but how far those discussions go depends on a lot of factors, including political factors, China’s influence in the Council. It is unlikely that there will be much progress in the Council. There are some potential mechanisms, but it’s hard to predict how that will go.”
Helena Kennedy, director of the International Bar Association’s Human Rights Institute, and several human rights-focused lawyers and institutions have written in an article, “Ideally, genocide allegations against the Uighurs would be considered by an international court, tribunal or specially created UN investigative mechanism, but given China’s strong status, as well as its reservations or non-member status to the relevant treaties, this has not been done and is unlikely to happen.”
They said, “But this does not prevent countries from making their own determinations. Indeed, as performing states under the convention, states must make such determinations to show that they have responded.” They noted that under the convention and the jurisprudence of the International Court of Justice, states have an obligation to prevent and punish acts of genocide.
U.S. determination for political reasons?
But Schabas argued that genocide determinations should be made in an objective and neutral judicial setting, “otherwise it’s all just political condemnation.” The problem with such political determinations, he said, is that they can be perceived as politically motivated, rather than as a correct assertion of the crime.
In an overview of the China section of its human rights report released in March, the U.S. State Department said genocide and crimes against humanity have occurred in Xinjiang against Uighurs and other religious minorities. These crimes are ongoing and include the arbitrary imprisonment or other deprivation of personal freedom of more than one million civilians; forced sterilization, forced abortions, and more restrictive application of China’s birth control policies; rape; the mistreatment of large numbers of arbitrarily detained persons; forced labor; and severe restrictions on freedom of religion, freedom of expression, and freedom of movement.
Bollinger, a former U.S. State Department legal adviser, did not believe that the finding that China committed genocide in Xinjiang was a political statement. He said “there are indeed indications of genocidal behavior and intent,” but he also said it would be better for the U.S. government to release more information about why the genocide determination was made in order to better persuade other countries to act.
Some human rights organizations and independent bodies have argued that the genocide charges against China are well-founded. The Institute for Innovative Strategies and Policies, a Washington think tank, released a report in March detailing the facts and evidence of the Chinese authorities’ mass detentions, forced sterilizations, sexual assaults, psychological torture, and mass deaths in re-education camps against Uighurs. The report, evaluated by dozens of experts in international law, genocide studies, and Xinjiang, concludes that China’s persecution of Uighurs violates all provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.
In a recently released report, the non-governmental organization Human Rights Watch said China’s persecution of Uighurs and other Muslims in Xinjiang constitutes a crime against humanity, but the report did not use the word genocide.
Meyerson of the University of New South Wales argues that the available evidence may not be sufficient to draw definitive conclusions, but what is more important at the moment is not the debate over what constitutes genocide, but how to help improve the situation of the Uighurs. If you wait for a definitive conclusion, people may experience genocide in the meantime,” she said. I think the more relevant question is, is this case enough to open an investigation? The answer is clearly yes.”
She noted that the principle of “State responsibility” adopted by the UN General Assembly in 2005, which requires the international community to act when a state fails to protect its population, covers not only genocide but also war crimes, ethnic cleansing and crimes against humanity.
UN Secretary-General Guterres said in late March that “serious negotiations” were underway with China to allow UN human rights officials unfettered and unrestricted access to Xinjiang to conduct an independent assessment of reports of Uighur persecution.
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