Trigger Warning: This article mentions acts of genocide including mentions of torture, rape, and similar human rights violations. Viewer discretion is advised.
On 14 August 2020 at a fundraising event, then-presidential candidate Joe Biden made a pledge:
“Regarding the [Uyghurs], I’m going to work with our allies, at the UN, and elsewhere to stand against the detention and repression and call it for what it is, it is genocide”.
Following this, in January 2021 the United States Secretary of State Tony Blinken confirmed that the Chinese Communist Party's (CCP) campaign of persecution against the Uyghur people in the Xinjiang Province in China does constitute genocide under international law. Unsurprisingly, the CCP has rejected these claims as “outrageous lies”, defending their actions as countering religious extremism through a program of re-education (including teaching Mandarin and useful job skills).
Since then, there has been a major backtrack in condemning the Chinese government's actions. On 16 February 2021, Biden drastically downplayed the persecution of Uyghurs by stating that there are “culturally different norms” in all countries.
The discussion concerning the plight of the Uyghurs in China has been mounting, and yet, there is uncertainty regarding whether the term “genocide” is correct to use. Many seem unsure of whether the persecution meets the standards outlined in the definition of genocide. However, the evidence accumulated indicates that genocide is happening in Xinjiang Province with numerous genocidal acts undertaken with the intent to destroy the Uyghur people, in whole or in part. Given opposition to labeling these violations as genocide, this article will articulate the international legal definition of genocide and discuss whether the current, thoroughly-documented, treatment of Uyghurs matches the definition.
Uyghurs are a Turkic ethnic group originating from Central Asia, However, the government-sanctioned Chinese historians usually claim that Uyghurs are indigenous to the Xinjiang region. Most historical accounts regard the Uyghur as descendants from modern-day Mongolia.
Unlike the majority Han Chinese population, who are predominantly Mandarin Chinese speakers, the Uyghur population is largely Muslim and have their own language. Despite popular awareness of the persecution of the Uyghurs, only recently becoming a frontline news story, knowledge of these abuses started as early as 2005 when the Human Rights Watch documented the “systematic repression of religion [...] In Xinjiang as a matter of considered state policy” in order to “entirely refashion Uighur religious identity”.
This repression included arrests, torture, executions of activists, restrictions on travel, and alarming accusations of organ harvesting. A key turning point was the appointment of Chen Quanguo, who had previously overseen Tibet, as the new Xinjiang Communist Party Secretary in 2016. It now seems clear that this change underpinned the implementation of more extreme policies against the Uyghurs, including the mass construction of detention camps.
Chen Quanguo’s notorious reputation, formulated after his role as the Tibet Communist Party Secretary, can be attributed to his affinity for extreme methods when handling ethnic conflict. In fact, many strategies, which were later implemented across Xinjiang, such as hyper-securitisation, the promotion of inter-ethnic marriages, mass detention, and surveillance, were first tested and honed in Tibet.
The present-day persecution of the Uyghurs has reached a historical high with the rising number of "political re-education" camps capturing media attention. However, across Xinjiang, Uyghurs experience persistent oppression.
Outside these camps, the Chinese government has implemented a severe structure of mass surveillance, capricious arrests and detentions, sexual violence, cultural and religious erase, and other extreme forms of devastation. The surveillance system across the Xinjiang province is currently so penetrative that the area has been labeled as an “open-air prison”.
The 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) outlines the definition of the crime of genocide with respect to three integral components:
That the victims are part of a protected group (national, racial, ethnic, or religious group)
That the perpetrator(s) carried out one or more of the listed actions against members of the group and
The perpetrator(s) acted with the intent to destroy the protected group, in whole or in part.
The aforementioned detailed acts are as follows:
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 physical destruction in whole or in part
imposing measures intended to prevent births within the group
forcibly transferring children of the group to another group
The Genocide Convention forbids the instruction of any of these acts and outlaws partaking in a scheme to perpetrate genocide, overtly provoking others to carry out genocide or the enumerated acts, trying to commit genocide, and involvement in genocide. With respect to the persecution being undertaken in Xinjiang, all three elements listed are fulfilled, as will be demonstrated below.
The Uyghur Muslim minority undeniably qualifies as one of the Genocide Convention’s four protected groups, as they are ethnically, racially, and religiously distinctive from the majority of the Chinese population (who are Mandarin-speaking Chinese). This is further supported by the Chinese government’s own identification of the Uyghur as a separate ethnic minority group within its own census data, signifying that the Uyghurs do constitute a protected group under the Genocide Convention.
Many genocidal acts have been committed against the Uyghurs as a group. These actions have been supported and undertaken on behalf of the federal and provincial governments, involving a wide network of internment camps that are eerily evocative of previous genocidal systems. Despite the popular understanding of genocide as being limited to behaviour or conduct-causing death, there are other actions and aspects to the definition.
Historically, the archetypal genocide has comprised of the first enumerated act in the Genocide Convention - “killing members of the group”. And yet, no evidence has emerged documenting the mass killing of Uyghurs. It would, however, be incorrect to assume that genocide cannot occur without mass killing; there are other elements, as enacted above. Instead, the Chinese government is currently keeping most Uyghur detainees alive, due to the use of forced Uyghur labour which has incentivised the CCP to continue exploiting detainees as labourers.
Nonetheless, evidence of the other four acts which constitute genocide being undertaken is unquestionable. The mass torture, rape, and sexual violence being committed against Uyghurs likely constitute genocide “by causing serious bodily or mental harm”. After the Rwandan Genocide, the International Criminal Tribunal for Rwanda (ICTR) was imperative in expanding this area of the genocide definition through the ground-breaking trial Prosecutor v. Akayesu which declared that rape and sexual violence can constitute genocide.
Similarly, in the Eichmann case in Jerusalem, it was concluded that this section includes harm:
“caused by the enslavement, starvation, deportation and persecution [...] and by [the victims] detention in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings, and to suppress them and cause them inhumane suffering and torture”.
Many of these methods and actions to inflict serious physical or mental harm describe the Chinese government's past and current treatment of the Uyghurs.
The shocking conditions of incarcerated Uyghurs may also constitute genocide, by “deliberately inflicting conditions of life calculated to bring about [their] physical destruction”, which is the third form of genocide. The lack of provisions and the Chinese government’s failure to provide adequate food, sanitation, shelter, and medical care to detainees may trigger the concept of “slow death” as defined by the International Criminal Tribunal for the Former Yugoslavia. In Prosecutor v. Tolimir, this concept was listed as being caused by “lack of proper food, water, shelter, clothing, sanitation, or subjecting members of the group to excessive work or physical exertion”.
Furthermore, genocide can be perpetrated by a fourth method - “imposing measures intended to prevent births” which can be manifested through numerous acts. Accounts of forced sterilisation, abortions, and the implantation of IUDs evidence the measures being implemented under the Chinese government to diminish and curtail the births within the Uyghur group.
There have also been reports of widespread sexual and reproductive violence being perpetrated against detainees. It has been reported that women are being systematically raped on a daily basis, with other detainees often being forced to observe these rapes. Chinese scholar Adrian Zenz has attributed these actions to the abrupt drop in Uyghur birth rates. Other actions, such as the coercion of Uyghur women into inter-ethnic marriages and the forced separation of Uyghur couples, affirm the CCP’s aim to prevent births. It is important to understand these methods within the context of patrilineal societies, as group affiliation is decided by the identity of the father.
During the Bosnian Genocide, Bosnian women were raped by Serbian soldiers and forcibly detained, sometimes in rape camps, so they would give birth to Serbian children. The ICTR concluded that:
“an example of a measure intended to prevent births within a group [would be] the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group”.
Although this proposal is not directly related to the persecution of the Uyghurs, the CCP’s actions to separate Uyghur couples, force sterilisation, and coerce young Uyghur women into marriages with Han Chinese men share the objective of creating a generation of children who, according to patrilineage, do not belong to the Uyghur group.
Lastly, the fifth prohibited genocidal act is also unmistakably recognisable amongst the actions of the CCP against the Uyghurs. The separation of Uyghur children from their Uyghur families and into Chinese state care can be categorised as genocide. These premeditated actions correspond with the genocide definition which criminalises “forcibly transferring children”.
Furthermore, many Uyghur parents have been forced to comply by sending their children to state-run schools due to threats from the Chinese government that they themselves might be detained. During the Akayesu case, this genocidal act sanctions not just the direct act of forcibly transferring children, but also “acts of threats or trauma which would lead to the forcible transfer of children from one group to another''.
The Polish legalist Raphael Lemkin coined the term “genocide” in his 1944 book Axis Rule in Occupied Europe. Lemkin exerted a trailblazing influence on the term’s incorporation into international law, lobbying successfully for the Genocide Convention.
Lemkin was renowned for taking a broad view of the definition of genocide, emphasising that genocide can transpire in numerous diverse forms and contending that mass killings were simply one especially monstrous element of the crime. He clarified this belief, writing:
“Genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of the essential foundations of the life of national groups, with the aim of annihilating the groups themselves".
Lemkin’s writings insinuate that he would view the compulsory sterilisations and forced transfers of Uyghur children as meeting the definition of genocide. Consequently, the concept of “biological genocide” could become a defining element of prosecuting genocidal actions, as it forces recognition of the gendered aspects of genocide.
As the ICTR and ICTY were central in integrating rape and sexual violence into the definition of genocide and crimes against humanity, there is potential that the abuses against the Uyghurs could expand understandings of forced sterilisation and transfers of children to prevent births of a certain ethnoreligious group within international law.
As noted by the Global Justice Center, the Xinjiang situation has the potential to present courts and tribunals with the opportunity to expound the components of these final two aspects of genocide, for a deeper discussion of so-called “biological genocide”. If we only recognise genocide in its most murderous form and turn a blind eye to the array of non-murderous acts of genocidal violence undertaken, the ability to prevent and punish the perpetrators of genocide is severely undermined. Genocide is multi-dimensional and goes beyond killing. In this way, analysing genocide through a wider scope is vital to our understanding.
Genocide Mens Rea
One of the greatest challenges in establishing the instruction of genocide is the mens rea requirement, known as the mental element of a person’s intent. It is the requirement that the perpetrator(s) not only intend to commit the prohibited acts noted in the definition, but also that these acts have and are being committed with the intent to destroy, in whole or in part, members of a protected group. It is an essential hallmark of the “crime of crimes” because it distinguishes the crime from that of crimes against humanity or war crimes, which, in order to be proven, do not require evidence of specific intent.
With regards to the treatment of the Uyghurs, despite there being few explicit statements or speeches of genocidal intent, there are numerous and identifiable indications of such intent. This is illustrated by the general background of the violence, the size and scale of the violations, the number of victims, the continued repetition of certain actions, and the magnitude of harm inflicted directly upon Uyghurs. All these aspects evidence a genocidal intent. Furthermore, there are documents that confirm that these acts are premedicated and systematic in nature, with the culpability for these genocidal actions being traceable to the very top of the Chinese government.
The evidence of genocidal intent can also be enhanced by the use of state propaganda directed against the Uyghurs, depicting them as religious extremists and terrorists. There are widespread reports that Uyghur cultural, historical, and religious sites are being attacked, with desecrations including the recent destruction of burial places and other aspects of the Uyghurs' cultural identities.
These systematic efforts to destroy Uyghur culture and social fabric include chilling accounts that prominent Uyghur intellectuals are specifically being targeted for their “politically incorrect ideas”. Despite “cultural genocide” not being included within the genocide definition, proof that policies of cultural eradication are being implemented can also act as evidence of genocidal intent. On whole, the persecution currently occurring in Xinjiang suggests an aspiration to destabilise and destroy the foundation for the future existence of the Uyghur people.
To conclude, the international community seems hung up on whether the persecution of the Uyghur people does or does not constitute genocide. However, the response to these mass atrocities should not center on the definition of these abuses. There is no particular number of killings or deaths that must be met before policies of persecution can be declared a genocide, nor a number that warrants an international response. If a coherent response to these atrocities is going to be made, what truly matters is that the violence being committed has reached a certain point of no return, and with reports of human rights violations including rape, torture, and forced detainment rising, now is that decisive moment.
To quote a direct appeal during a state news report by Maisumujiang Maimuer, the CCP Religious Affairs Official, it is unmistakable that the chief determination of the Chinese government's persecution of the Uyghurs is to “[b]reak their lineage, break their roots, break their connections and break their origins.”