On the last day of Trump’s administration, former Secretary of State - Mike Pompeo publicly stated the Chinese Communist Party (CCP) is committing genocide against Muslim Uyghurs in Xinjiang.[1] This statement and the United States’ approval of the Uyghurs Intervention and Global Humanitarian Unified Response Act of 2019 to sanction senior officials of China over the persecution of Uyghurs has by far been the strongest condemnation globally regarding China’s actions.[2] Other countries such as Canada and The Netherlands also followed suit in passing non-binding motions saying the treatment of the Uyghurs in China amounts to genocide.[3] However, since then, there appears to be a significant backtrack in condemning the Chinese government. In February 2021, President Joe Biden dismissed the alleged genocide against the Uyghurs by claiming that each country merely has “culturally different norms” and will “not speak out against what [Xi] is doing.”Furthermore, on 15 March 2021, the Parliaments of Australia and Turkey both rejected the motion to recognise the treatment of Uyghurs amount to genocide. Reactions such as this pose questions on why the world has turned a blind eye to the Uyghurs and how the current international legal framework fails to protect the minority group.
Background Context
Often considered a “culturally homogeneous nation-state”,[4] China is populated mainly by the Han-Chinese majority with approximately 12 non-Han minority groups. The CCP has attempted to “integrate” the minority groups into the mainstream Chinese society since its rising power in 1949,[5] with the justification of “re-education”. The 12 million Uyghurs minority has been a central subject to this integration under the CCP’s “economic modernisation” plan to transform Xinjiang – the “Eurasian crossroads” linking the country to Pakistan, Mongolia, Russia, Afghanistan, and Central Asian Republics, into the new international market for China.[6] The CCP attempts to achieve this by imposing extreme measures on the minority group to eliminate their cultural and Islamic identity. Such as arrests, the use of detention camps, and torture, which are all justified by the CCP as necessary to counter the minorities’ religious extremism and terrorist status.
A distinction should be made here on whether the oppression of Uyghurs amounts to genocide. It is crucial to explain why the current legal framework fails to protect the minority group. Despite various countries’ support in saying that the treatment of Uyghurs in China amounts to genocide, and many genocidal acts have been committed, China has not committed mass killings against the Uyghurs yet. Academics have suggested that although China is torturing and committing extrajudicial killings with impunity. The lack of evidence that Uyghurs are systematically killed, or lethal violence has been employed to eradicate the Uyghurs suggests that China has chosen to commit “cultural genocide,” a loophole in the current legal framework of genocide.[7]
The legal position under international law - Genocide Convention
The relevance of the International Criminal Court (ICC) will be discussed. ICC is the only permeant international court with jurisdiction to prosecute individuals for crimes against genocide, humanity, and war crimes. It was established by convention within the UN but is currently an independent entity with special cooperative agreements with the UN. The ICC has not taken legal action against China’s persecution of Uyghurs because (1) cultural genocide falls short of the current international legal framework in prohibiting state-imposed genocide (2) China is not a court member of the ICC.
The Convention on the Prevention and Punishment of the Crime of Genocide 1948
(Genocide Convention 1948) enshrined in international law is the current legal framework in prohibiting the crime of genocide.[8] However, in the wake of the bloodshed of WWII, cultural genocide was omitted from the Genocide Convention 1948. Thus it does not fall under the jurisdiction of ICC nor constitute a crime under international law.
The term “genocide” was first constructed by Polish lawyer – Lemkin, in 1943, in his book Axis Rule in Occupied Europe.[9] The UN later adopted the term in December 1946 when Lemkin successfully lobbied for a Genocide Convention. In the first process of negotiations, a comprehensive definition of cultural genocide was drafted by Lemkin as “forcible transfer of children…forced and systematic exile of individuals...prohibition of the use of the national language… systematic destruction of books printed in the national language…; or the systematic destruction of historical or religious monuments”[10] highlighting the fact that cultural genocide does not “annihilate communities, but destroys their culture and thereby their identity”. Disagreements within negotiating parties were caused as cultural genocide lacks the element of physical violence towards the group. Therefore, despite cultural genocide being a critical discussion in negotiating processes, the UN decided to “delete the cultural genocide provision from the Genocide Convention”. The definition of genocide under international law is as follows:
“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.”
The only element left from Lemkin’s definition of cultural genocide was the forcible transfer of children from groups. Shamefully, this creates a gap in the ICC which prevents the criminal court from punishing cultural genocide unrelated to the physical destruction of a targeted group.
The position of the ICC to prosecute China
As China is not a member of the Rome Statute of the ICC, to be investigated under the international court, China’s actions would have to be referred to by the United Nations Security Council. However, China will be able to veto such a referral.
In the unlikely event of an ICC prosecution, issues that arose during the negotiation stages of the Genocide Convention 1948 will still be present. Furthermore, even if China was under the ICC’s scrutiny, it cannot be said with certainty that China’s cultural genocide will ever amount to prosecution under the Genocide Convention 1948.
This gap in the Genocide Convention 1948 severely undermines the gross damage cultural genocide has on victims of genocidal actions and history. In the wake of the atrocities of WWII, where Nazi Germany have systematically murdered around six million Jews, the effect this had on Jewish culture should be highlighted. For example, the language Yiddish that Ashkenazi Jews spoke is declared an “endangered language” by The United Nations Educational, Scientific and Cultural Organisation.
Regarding the oppression of Uyghurs, the current international legal framework seems to pre-occupy itself on whether China has committed genocide by judging whether systematic mass killings have been committed. However, there should not be a criterion in the number of killings that aggressors must have satisfied to warrant international reactions or constitute genocide. Furthermore, the current Genocide Convention contains gaps in recognising genocide unless presented in its most extreme mass killings and allows non-murderous acts of genocidal violence.
The legal position under international law – Human Rights Law
Upon omission of “cultural genocide” in the Genocide Convention 1948, UN delegates suggested that such genocide would be “best dealt with in the sphere of protection of minorities” or under human rights law.[11] However, despite developments in international law, the prohibition of cultural genocide is not established in any human rights instrument that carries accountability and severity from the Genocide Convention 1948.
A relevant human rights instruments include the International Bill of Rights (composed of The Universal Declaration on Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political Rights) – which classifies human rights into five categories: civil, political, economic, social, and cultural.[12] However, within the categories, cultural rights receive the least amount of legal and academic attention. No written clauses allow victims of cultural rights violations to bring suit against their domestic or international aggressors for encroachment on their cultural and social cohesion.
Another relevant human rights instrument is The United Nations Declaration on the Rights of Indigenous Peoples.[13] Articles 7 and 8 of the Declaration protect the rights of the enjoyment and proliferation of culture against “assimilation or destruction of [that] culture.”Although this Act seems fitting to offer protection for the Uyghurs, it suffers from two significant insufficiencies. Firstly, UN declarations such as this are non-legally binding. They merely reflect developments of “international legal norms” and “commitment of states to move in certain directions”. Secondly, the Declaration explicitly applies to indigenous peoples, leaving out minorities. This distinction is minute yet critically important as ‘indigenous people’ may constitute ‘minorities’ within a country. However, ‘minorities’ is not legally defined under international law, thus not recognised as “peoples”. Other international documents which deal with culture either protect solely the rights of specific groups or tangible items.
The United Nations Human Rights Council (UNHRC) is the main UN body responsible for protecting and promoting human rights globally. The topic of China’s actions in Xinjiang has no doubt been brought up in the UNHRC. However, the widely differing opinions within member states and the expanding influence China has on the UN create barriers to the potential prosecution of China. Contrary to expectation, UN member states hold differing opinions on China’s oppression of Uyghurs. In 2020, China’s actions in Xinjiang were brought up in duelling letters supported by different lists of countries. 39 nations signed a letter addressed to the UNHRC criticising China’s actions. It was then followed by an analogous letter in defence of China’s actions signed by 45 countries.[14] This differing opinion within the UN, with both sides promoting their list of countries as a signal of strength in their position, makes it difficult for the UN to prosecute China for its actions. Especially that more countries will readily defend China’s policies.
Despite the slim possibility of China being prosecuted against the listed human rights instruments, China’s unpleasant and expanding influence on the UN may further diminish the likelihood of the UNHRC addressing alleged human rights violations. Over the past few years, Chinese nationals have been systematically positioned in a wide range of UN agencies. In 2018, Zhao Houlin, who started his career in China’s Ministry of Posts and Telecommunications, was appointed as head of the UN’s International Telecommunication Union – a crucial UN body that sets standards for communication networks. Chinese nationals have also been appointed to key positions in other UN bodies such as the Department of Economic and Social Affairs, the International Civil Aviation Organisation, and the Food and Agriculture Agency. However, most significantly, on 13 October 2020, China was elected to the UN Human Rights Council to the dismay of human rights activists. China’s dangerous influence on the UN may affect accountability against China’s alleged human rights violations.
Not only does the current legal framework regarding human rights fall short of punishing China’s oppression of Uyghurs stringently, but the additional influence that UN member states and China have on the UN creates an extra barrier for China to be prosecuted for its actions.
Conclusion
In conclusion, the current international legal framework fails to protect the minority group of Uyghurs against China’s oppression. The legal definition of genocide enshrined in international law – Genocide Convention 1948 fails to extend to the prohibition of “cultural genocide”. This means that China will never be prosecuted for its actions if it continues to grasp the gap in the Convention. To offer protection towards the Uyghurs, immediate reform towards the definition or application of the Genocide Convention 1948 is desperately required for a more flexible definition and an expansion to include “cultural genocide”. Furthermore, as previously discussed, a reform in Genocide Convention 1948 to include cultural genocide would be of little assistance to Uyghurs if China’s influence on international arenas and laws will mean that international criminal prosecution against China is highly unlikely. Furthermore, current human rights instruments also fall short of prosecutingChina’s actions towards Uyghurs, especially with a heavily influenced UN. Therefore, the fate of the survival of Uyghurs and their culture now lays heavily on the creative legislation of trading partners of China and influential countries’ political will – such as the Five Eyes alliance (i.e., Australia, Canada, New Zealand, the United Kingdom, and the United States).
Lastly, as the current legal framework fails to protect Uyghurs, international organisations and countries must immediately take stringent actions. Suppose coherent and robust reactions are not performed to protect Uyghurs from their extinction, as a retroactive application of criminal law is prohibited. In that case, China will never be prosecuted for their genocidal actions under the legal principle of nullum crimen sine lege – that an action can only be prosecuted as a crime if the action was criminalised when it was carried out. For legislators of international human rights law to take refuge in their freedom to omit from action would be an unconscionable move at this time – the only morally defensible action is to condemn China’s genocidal actions, starting with a preliminary condemnation, and continuing with rapid and effective change to the international legal framework, so that the Uyghur people may be protected from the stripping of the fundamental basic rights such privileged legislators smugly enjoy.
Bibliography
Press Statement by Michael R. Pompeo, ‘Determination of the Secretary of State on Atrocities in Xinjiang’ (Washington, 19 January 2021).
UIGHUR Act 2021.
The Parliament of Canada: Opposition Motion (Religious minorities in China), Vote No. 56.
Michael Clarke, ‘Ethnic Separatism in the People’s Republic of China History, Causes and Contemporary Challenges’ (2013) European Journal of East Asian Studies 12, 109-133.
Michael Clarke, ‘China and the Uyghurs: The “Palestinization” of Xinjiang?’ (2015) Middle East Policy 22, 127-146.
Pete Sweeney, ‘Breaking Views–Xinjiang is an Extreme Case of China’s Growth Woes’ Reuters (30 January 2019).
Ciara Finnegan, ‘The Uyghur Minority in China: A Case Study of Cultural genocide, Minority Rights and the Insufficiency of the International Legal Framework in Preventing State-Imposed Extinction’ [2020] MDPI.
Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277, art II.
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation (Columbia University Press, 1944).
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Kristina Hon, ‘Bringing Cultural Genocide in by the Backdoor: Victim Participation at the ICC’ (2013) 43 Senton Hall Law Review 352.
UNGA, International Bill of Human Rights (10 December 1948) A/RES/217(III)A-E.
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