On 22 April 2021, the UK House of Commons will have the opportunity to set the record straight and recognise the China’s atrocities against the Uyghurs and other ethnic and religious minorities as genocide. The backbench debate is only the second time the UK House of Commons is asked to recognise ongoing atrocities as genocide, with the first being in the case of Daesh atrocities against Yazidis, Christians and others, in response to an Early Day Motion tabled by Fiona Bruce MP in April 2016.
Parliamentarians can and must recognise atrocities for what they are – call them by their name – and so put pressure on the UK Government to act accordingly.
Do China’s atrocities against the Uyghurs amount to genocide? In February, we wrote to The Economist to challenge its piece suggesting that “Genocide” is the wrong word for the horrors of Xinjiang, making several erroneous claims. As these continue to be repeated, and some of them used by the Chinese Government, it is crucial to challenge these misconceptions. Indeed, at least two detailed legal analyses by independent experts have made a clear case for the recognition of genocide.
A common refrain is that genocide is not a word that should be used lightly. We agree. However, this does not mean that it should not be used. Indeed, where the elements of the legal definition are met (as per Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide – the Genocide Convention), the crimes should be labelled exactly for what they are.
‘Genocide’ as defined by the Genocide Convention and customary international law does not require 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, substantiated 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 labour and other atrocities as a whole), imposing measures intended to prevent births within the group (by way of various practices including forced sterilisations, forced abortions, and also rape), and forcibly transferring Uyghur children to another group.
All these acts are supported by evidence of the specific intent to destroy this ethno-religious group – a group protected by the Genocide Convention. This is in addition that to the fact that the specific intent can be inferred from the pattern and systemic nature of the atrocities.
Currently publicly available evidence comes from survivors and witnesses, researchers, NGOs, investigative journalists and others. While there have been no independent investigations of the situation of the Uyghurs on-the-ground in Xinjiang, this is because the Chinese Government prevents unfettered access to the region – conduct surely prejudicial to China. A UN investigation could be conducted effectively without access to the region as has been done in the cases of Syria and Myanmar. The UN could establish a mechanism to investigate the atrocities, draw conclusions and collect and preserve evidence for future prosecutions.
At this time China simply denies all allegations and rejects suggestions for an independent investigation. On 31 March 2021, Chinese Foreign Ministry spokesperson Hua Chunying rejected the allegations of genocide, arguing, among others, that ‘no State, organisation, or individual is qualified and entitled to arbitrarily determine that another country has committed genocide. In international relations, no country should use this accusation as a political label for rumour-mongering and malicious manipulation.’ This is highly erroneous.
In a perfect world, the allegations of genocide against the Uyghurs would be considered by an international court or tribunal or a specially established UN investigative mechanism, but this has not been done and it is unlikely to happen, given China’s powerful position at the UN and reservations to, or non-membership of, relevant treaties. This, however, does not preclude States making their own determination and acting accordingly. In fact, States, as the duty holder under the Genocide Convention, must make such determinations to inform their responses.
Specifically, the Genocide Convention imposes duties upon States parties to prevent and punish genocide in addition not to commit or be complicit with genocide. The duty to prevent genocide is extensive and critical. As the International Court of Justice (ICJ) in the case of 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 means that States need to consider the legal elements of genocide and/or risk factors, as set out, for example, in the UN Framework of Analysis for Atrocity Crimes and the Jacob Blaustein Institute’s Compilation of Risk Factors and Legal Norms for the Prevention of Genocide. Where, after the analysis of all relevant evidence, states conclude that the evidence indicates commission of genocide or a serious risk of genocide, their failure to act incurs their own responsibility. The obligation to prevent exists distinct from other obligations and does not simply disappear for failure to draw a conclusion in the face of available evidence.
It accomplishes nothing to reject such an analysis of the evidence and using euphemisms out of fear of upsetting the state perpetrating genocide. There are practical effects of a determination. Indeed, and again as per the ICJ, once the state learns or should have learned about the serious risk of genocide, ‘from that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.’
The atrocities against the Uyghurs must be recognised for what they are and acted upon. Refusal to face the facts and draw conclusions resolves nothing and absolves no one. Indeed, it has too often been the case that the world watches genocides take place in violation of our own legal and moral duties.
In a world where genocide still occurs, despite the promises of Never Again, wilful blindness and 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.
Dr Ewelina U. Ochab, Co-founder of the Coalition for Genocide Response
Baroness Helena Kennedy QC, Director of the International Bar Association’s Human Rights Institute
Professor John Packer, Director of the Human Rights Research and Education Centre, University of Ottawa
Kyle Matthews, Executive Director of the Montreal Institute for Genocide and Human Rights Studies at Concordia University
Professor Zachary D. Kaufman, University of Houston Law Centre
Michael Polak, Barrister, Lawyers for Uyghur Rights, Committee World Uyghur Congress London Office
Mark Hill QC, Vice-President, International Consortium for Law and Religion Studies
Nury Turkel, Attorney and Board of the Uyghur Human Rights Project
