Is the Chinese Communist Party Guilty of the Crime of Genocide Against the Uyghurs?

Photo by Fakurian Design on Unsplash

Mallory Perazzo, Associate Member, University of Cincinnati College of Law

I. Introduction

After the end of the Holocaust in 1945, the world pledged “never forget, never again,” but humans and governments have consistently broken that pledge.[1] The promise means to continuously tell the story of the genocide that took the lives of six million people in Nazi Germany so that future atrocities can be recognized and prevented.[2] Since the Holocaust, three genocides have been legally recognized and led to trials under the United Nation’s Convention on the Prevention and Punishment of the Crime of Genocide (including Rwanda in 1994, Bosnia in 1995, and Cambodia in 1975), and countless more instances of genocide have been recognized by countries and human rights organizations.[3] One such event that has not yet been tried, but has been declared genocide by various countries and scholars, is the current genocide against the Uyghur people in Xinjiang, China.[4] Today the Xinjiang region has witnessed the largest forced incarceration of an ethno-religious minority group since World War II.[5] China is committing several crimes against humanity against the Uyghurs, including mass incarceration, suppressing births, religious persecution, and, ultimately, genocide.[6]

The People’s Republic of China (“PRC”), under the control of the Chinese Communist Party (“CCP”), has committed and continues to commit the crime of genocide against the Uyghur people in Xinjiang, China. States should formally declare this genocide, prevent its continuance, and punish the Chinese government for the crimes it has committed.

Section II of this article provides the political and legal background of genocide and the discrimination against the Uyghur people. Section III provides an analysis of the law and elaborates on the importance of nations formally declaring that China is committing genocide. 

II. Background

A. Legal Background

The United Nations codified the law of genocide for the first time in 1948 when it adopted The Convention on the Prevention and Punishment of the Crime of Genocide (“The Convention”), a human rights treaty.[7] The Convention is an agreement that outlines the definition of genocide and establishes an obligation of all States to prevent and punish genocide.[8]

The threshold for declaring that a government is committing genocide is high, and the ability to prove genocide is notoriously difficult.[9] Article II of The Convention defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.[10] 

The International Court of Justice (“ICJ”) has ruled that the requisite intent is that a country intends to destroy at least a substantial part of a group of one of the protected classes, and the “substantial part” threshold is not merely a numerical assessment but also considers the intent to destroy “within a geographically limited area” and the “prominence of the alleged targeted part within the group as a whole.”[11]

Article I of The Convention requires that parties undertake efforts to prevent and punish genocide.[12] In 2007, the ICJ explained that the terms in a treaty should be construed according to their ordinary meaning in order to determine the purpose of a treaty.[13] The court held that The Convention’s terms not only prohibit countries from committing genocide but also require parties to prevent genocide extraterritorially.[14] Furthermore, the court held that the “obligation to prevent, and the corresponding duty to act, arise 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.”[15]

B. Political Background

As a minority group, Uyghurs have faced discrimination that long preceded the alleged genocide against them today.[16] Uyghurs are a primarily Muslim Turkic-speaking minority that live in the Northwest region of China called Xinjiang.[17] Approximately 12 million Uyghurs account for roughly half of the population in that region.[18] Uyghurs have faced widespread discrimination for many years primarily by the prominent Chinese ethnic group, Han Chinese people.[19] The resentment that has resulted from this has led to violence by the Uyghurs, including riots that took place in 2009 which led to the deaths of approximately 200—mostly Han—people.[20] 

In response to violence and nonconformity by the Uyghurs, China launched a campaign in 2014 to “eradicate terrorism”, but the actions taken by the government in the name of that campaign have led to accusations of China committing genocide against the Uyghur people and other religious minorities.[21] The declarations of genocide stem largely from evidence that the PRC is systematically suppressing births of Uyghur children.[22] The Chinese government is forcibly sterilizing large numbers of Uyghur women as well as forcing abortions and birth control on women.[23] In doing so, China is attempting to “optimize” ethnic populations by decreasing the Uyghur births and, at the same time, encouraging more Han people to move to Xinjiang.[24] 

In addition to the sterilization of Uyghur women, the Chinese government is also arbitrarily incarcerating Uyghurs, particularly Uyghur religious, intellectual, and cultural elites.[25] Xinjiang is covered by a pervasive network of surveillance, including cameras that scan everything from license plates to people’s faces and mobile applications that monitor citizens’ daily lives.[26] Those that are labeled suspicious through these surveillance measures are at risk of being detained, which can occur for any number of seemingly mundane reasons, such as growing an abnormal beard, wearing a headscarf, regular prayer, avoiding alcohol, possessing books about Islam, traveling abroad, or contacting people outside of China.[27] Up to one million Uyghurs have been detained in re-education camps where there is evidence that detainees are being brainwashed and tortured, including verbal abuse, food deprivation, solitary confinement, beatings, and use of restraints and stress positions.[28] There have also been reports of deaths in the camps, including suicides.[29] The removal of people that are central to circulating Uyghur culture is accompanied by a policy of family separation in which Uyghur children are being taught to adopt Han culture.[30] 

Chinese officials have made statements that indicate China’s intentions. China denies all allegations that it is committing human rights violations in Xinjiang and instead claims its actions are necessary to combat terrorism.[31] Chinese officials have stated they are sterilizing Uyghur women because they believe the Uyghur population is a threat to China’s national security due to its size, concentration, and rapid growth.[32] The country also claims that it has since released all detainees from its re-education camps, which contradicts claims made by some throughout the Xinjiang region, but also that the camps were meant to combat separatism and Islamist militancy in the region in the first place.[33] China insists that Uyghur militants are waging a violent campaign for an independent state and asserts that Uyghurs are plotting bombings, sabotage, and civic unrest.[34] 

C. International response

In January 2021, the United States declared that the PRC has committed genocide and various crimes against humanity against the Uyghur people and other religious minorities in Xinjiang, China.[35] Several other national parliaments have followed suit, including Canada and the Netherlands.[36] Eight members of the European Parliament have demanded a UN-led investigation on the grounds that China’s current policies of birth-prevention measures may amount to genocide.[37]

There are several guidelines in place for a country to fulfill their obligation to prevent genocide in other countries.  The United Nations Security Council (“UNSC”) is the first line of action, and it has broad authority to call on member States to take action, which may include imposing economic sanctions and even taking military action against genocidaires.[38] However, China is one of the UNSC’s permanent members, each of whom has the power to veto resolutions, frustrating the council’s ability to act against permanent members.[39] Another primary vehicle for change is the International Court of Justice (“ICC”), which only may bring charges against States that have accepted the ICC’s jurisdiction.[40] One more possibility is that a state that has declared genocide in another state brings that claim before the ICJ if both States are party to The Convention.[41] In situations in which none of these options are viable because of jurisdictional or political blocks, countries can get more creative and use economic sanctions, diplomatic pressure, and other means to urge action.[42] 

III. Discussion

As with all crimes, the actus reus can be divided from the mens rea, and both must be proven to find the accused guilty. The actus reus refers to the action that comprises the physical element of the crime, and the mens rea may be described as criminal intention.[43] In The Convention, the actus reus is satisfied when a party engages in at least one of five different behaviors toward a certain group, including killing members, causing serious bodily or mental harm, deliberately inflicting conditions of life calculated to bring about its physical destruction, imposing measures intended to prevent births, or forcibly transferring children to another group.[44] The relevant mens rea of the convention is the intent to destroy the group in whole or in part.[45]

There is strong evidence that at least one, but possibly more, of the requisite actions have been met to constitute genocide in Xinjiang, but scholars debate whether China has the requisite intent to destroy this ethnical and religious group.[46] Undoubtedly, China has imposed measures to prevent births among the Uyghurs and, while some accusations are contested by China, there is at least some evidence that it has caused serious bodily or mental harm against Uyghurs in its re-education camps. Nevertheless, some suggest that the requisite intent for genocide has not been met because genocide requires physical destruction, not just cultural destruction.[47] That assertion is up for debate as some scholars believe that the destruction in the form of physical extermination always fulfills the intent criterion, in which case the analysis would be complete and one could conclude that there is a genocide occurring in China.[48] However, even if a lack of physical destruction were to negate intent, the argument rings hollow in this case as it ignores the physical destruction that China is committing against the Uyghurs through the suppression of births and mass incarceration.

The suppression of births among the Uyghur people is the clearest indication that China is currently committing genocide. This amounts to physical destruction, which can be measured by the difference between the projected natural population of Uyghurs without government interference and the projected numbers given China’s population optimization plan.[49] Based on population projections by Chinese researchers, the estimated difference in Uyghur population from suppressed birth rates in southern Xinjiang alone ranges between 2.6 and 4.5 million by 2040.[50] According to the ICJ, one measurement of whether a country has the intent to destroy a group in part is to look at a numerical assessment. The Chinese government claims their reason for doing so is not to destroy the group, but instead to protect national security.[51] While preventing terrorism and protecting national security are generally important governmental interests, in this case, they are merely pretext for the genocide. Chinese officials have continuously called this a “human problem,” and admitted that their motivation for its population optimization is that the Uyghurs’ size and growth of population is a threat to national security.[52] This motivation alone lends to the conclusion that its intent is at least to diminish the numerical size of the population. Even the lower estimate of a 2.6 million people decrease out of 12 million people is a substantial part of the group, and China’s goal to decrease Uyghurs by number is evidence of their intent to the destroy the group in part. 

The mass incarceration of Uyghurs, and what happens within the camps, should at least indicate a very serious risk of genocide to States, which triggers a State’s duty to act. This duty includes identifying relevant risk factors and taking all possible remedial actions to prevent the atrocity. The United Nations has issued guidelines on risk factors for genocide.[53] Some of the relevant risk factors include records of serious violation of international human rights, signs of a widespread or systematic attacks against any civil population, and intergroup tensions or patterns of discrimination against protected groups.[54] There are reports of torture, food deprivation, solitary confinement, beatings, and even deaths within the camps, which are serious violations of international human rights. There are widespread or systematic attacks the Uyghurs, as well, as has been shown by the evidence of targeting their religious and cultural elites and incarcerating an exceedingly large group of them. Finally, there has been tension between the Uyghurs and the Han for decades, which became especially notable in 2009 during the riots that resulted, at least in part, from the discrimination that Uyghurs faced. Regardless of whether a State is ready to declare genocide, the other States have an obligation to act.

IV. Conclusion

The primary goal of The Convention should be the prevention of genocide, and then the punishment of genocide.  The entire world loses when a culture is lost or diminished, and that can never be recuperated fully through punishment of perpetrators. Nevertheless, when a government is not held accountable for intentionally creating that loss, an increased level of suffering continues, and it allows for history to repeat itself. Therefore, even States that refuse to concede that China is currently committing a genocide against the Uyghurs still have an obligation to act, as the fact that there is a serious risk of genocide should be undeniable.

The PRC is committing genocide against the Uyghurs. Countries and the United Nations should be actively working to prevent the continuance of this genocide and to punish the perpetrators, as they are legally bound to do.

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^[1] Press Release, ‘Never Again’ Means Constant Retelling of Holocaust Story, Secretary-General Stresses at Exhibition Opening, Citing Rising Antisemitism, Other Hatreds, U.N. Press Release SG/SM/19943 (Jan. 21, 2020). 

^[2] Eli Soltes, The Holocaust: Never Again, Never Forget, Daily Sundial (Apr. 27, 2020), https://sundial.csun.edu/157487/opinions/the-holocaust-never-again-never-forget/. 

^[3] Rachel Burns, Genocide: 70 Years On, Three Reasons Why the UN Convention is Still Failing, The Conversation (Dec. 18, 2018), https://theconversation.com/genocide-70-years-on-three-reasons-why-the-un-convention-is-still-failing-108706. 

^[4] Joanne Smith Finley, Why Scholars and Activists Increasingly Fear a Uyghur Genocide in Xinjiang, J. of Genocide Rsch. (Nov. 19, 2020). 

^[5] Id. at 348. 

[6] Devastating Blows: Religious Repression of Uighurs in Xinjiang (Brad Adams et al. eds. 2005).

^[7] United Nations: Office on Genocide Prevention and the Responsibility to Protect, The Genocide Convention, https://www.un.org/en/genocideprevention/genocide-convention.shtml. 

^[8]  Id.  

^[9] Adrian Zenz & Erin Rosenberg, Beijing Plans a Slow Genocide in Xinjiang, Foreign Policy (June 8, 2021), https://foreignpolicy.com/2021/06/08/genocide-population-xinjiang-uyghurs/. 

^[10] Convention on the Prevention and Punishment of the Crime of Genocide art. 2, Dec. 9 1948, S. Exec. Doc. O, 81-1 (1949) 78 U.N.T.S. 277

^[11] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, 2015 I.C.J. 3 (Feb. 3).

^[12] Convention on the Prevention and Punishment of the Crime of Genocide at Art. 1.

^[13] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. 43 (Feb. 26). 

^[14] Id.

^[15]  Id. at 222.  

^[16] Finley, supra note 4, at 349-350.

^[17] Who are the Uyghurs and why is China Being Accused of Genocide?, BBC News (June 2021), https://www.bbc.com/news/world-asia-china-22278037.

^[18] Id.

^[19] Id.

^[20] Austin Ramzy, China’s Oppression of Muslims in Xinjiang, Explained, N.Y. Times (Jan. 20, 2021), https://www.nytimes.com/2021/01/20/world/asia/china-genocide-uighurs-explained.html.

^[21] Who are the Uyghurs and why is China Being Accused of Genocide, supra note 17.

^[22] Zenz & Rosenberg, supra note 9.

^[23] Id. 

^[24] Id.

^[25] Id. 

^[26] Who are the Uyghurs and why is China Being Accused of Genocide, supra note 17. 

^[27] Up to One Million Detained in China’s Mass “Re-education” Drive, Amnesty Int’l (2021), https://www.amnesty.org/en/latest/news/2018/09/china-up-to-one-million-detained/.

^[28] Id.

^[29] Id.

^[30] Zenz & Rosenberg, supra note 9. 

^[31] Id.

^[32] Id. 

^[33] Who are the Uyghurs and why is China Being Accused of Genocide, supra note 17. 

^[34] Id.

^[35] Michael Pompeo, Determination of the Secretary of State on Atrocities in Xinjiang, U.S. Department of State (Jan. 19, 2021), https://2017-2021.state.gov/determination-of-the-secretary-of-state-on-atrocities-in-xinjiang/index.html. 

^[36] Zenz & Rosenberg, supra note 9. 

^[37] Finley, supra note 4, at 366. 

^[38] Ingrid Burke, Explainer: What are the International Community’s Responsibilities when a Country Commits Genocide? Jurist (Feb. 17, 2021), https://www.jurist.org/features/2021/02/17/explainer-what-are-the-international-communitys-responsibilities-when-a-country-commits-genocide-and-other-atrocities/.

^[39] Id.

^[40] Id.

^[41] Id.

^[42] Id.

[43] Mens Rea and Actus Reus, ICLR, https://www.iclr.co.uk/knowledge/glossary/mens-rea-and-actus-reus/. 

[44] Convention on the Prevention and Punishment of the Crime of Genocide at art. 2.

[45] Id.

^[46] Zenz & Rosenberg, supra note 9. 

^[47] Adrian Zenz, ‘End the Dominance of the Uyghur Ethnic Group’: An Analysis of Beijing’s Population Optimization Strategy in Southern Xinjiang, 292,Central Asian Survey (Aug. 24, 2021). 

[48] Id.

^[49] Id.

^[50] Id. at 303. 

^[51] Zenz & Rosenberg, supra note 9. 

[52] Zenz & Rosenberg, supra note 9. 

[53] Framework of Analysis for Atrocity Crimes: A Tool for Prevention, U.N. (2014).

[54] Id.