29 Mar A Slow Death: Long-Term Genocide
[Brianna Dyer is an Advanced LL.M. Candidate in Public International Law at Leiden University. She has a B.A. in Human Rights and Global Studies with a concentration on Peace, War, and Conflict in Europe from the University of Connecticut. She is currently Assistant Editor at Leiden Journal of International Law and Legal Researcher for the IHL Clinic within the Kalshoven-Gieskes Forum.]
Hutus killed almost 800,000 Tutsi in 100 days. The Srebrenica massacres happened in a month. Millions of Jews were slaughtered over the span of a few years. History and international criminal law are all too familiar with this type of genocide, but what if a state had a slow approach to group extermination? What if states prevent reproduction and transfer children from the target group as a means of “allowing” the minority to disappear? This blogpost will examine the physical destruction requirement in relation to birth control measures and child transfers, followed by an analysis of the United States Museum Memorial (USHMM) report on Uyghur persecution in Xinjiang, China to evaluate evidence of a possible genocide.
Is it the ‘Physical’ Destruction Requirement? Or the ‘Killing’ Requirement?
Genocide has not yet occurred in history without some form of killing, yet. However, “four of the five acts prohibited in Article 2 of the Genocide Convention deal not with mass killing, but with the nuts and bolts of protecting human groups: genocide can be accomplished without killing even a single individual.” Based on this, what type of ‘destruction’ is required to satisfy the definition of genocide? According to the ILC, “the destruction in question is the material destruction of a group either by physical or by biological means, not the destruction of the national, linguistic, religious, cultural or other identity of a particular group.” In other words, the group has to be physically destroyed, but the physical destruction does not have to result from killing members. Rather, physical destruction can occur from birth prevention despite the time required for a group to actually disappear as a result.
What if, however, members of a protected group were brainwashed into genuinely believing they belonged to another group? All cultural practices of the original group would disappear but the members would belong to another group. This wouldn’t qualify under Article II (d) or (e), nor subparagraph (c) due to the second explicit mention of ‘physical destruction’ since group members would still exist, but their group connection is severed. So technically, brainwashing wouldn’t qualify as physical destruction required. Let’s now examine the Xinjiang situation with sub articles (d) and (e) in mind.
The Uyghur “Genocide”?
To avoid explaining the entire background of Uyghur persecution at the hands of the Chinese government, we will focus on the legal requirements of genocide in relation to the Uyghur people, beginning with its protected groups status, followed by the actus reus, and finished with the mens rea. The first box to check is the protected group requirement. Since the Uyghurs are a religious and ethnic minority in Western China, they fulfill the protected group requirement given their religious and ethnic group categorization.
To determine the actus reus carried out by the Chinese Communist Party (CCP), we will use the USHMM Report of November 2021 since the UN has yet to publish its Uyghur situation report at the time of writing. Beginning with birth prevention methods, there is evidence of systematic torture, rape, forced abortions, and forced sterilization within the detention centers detaining Uyghur women. When women leave these centers, they are examined and found to be sterile. Outside the centers, the CCP highlights its patrilineal nature by “aggressively promot[ing] intermarriage between Han Chinese and Uyghurs in the region, and particularly between Han men and Uyghur women” and offer certain educational privileges to children from mixed families. Patrilineal nature is important in this context, because if a Han man procreates with a Uyghur woman, the child is considered Han. The report mentions that “magazine articles provide tips on how Han Chinese men can attract Uyghur women,” and families may be detained if they fail to carry through with these marriages. There are statistics pointing to a birthrate decrease among the Uyghur community despite the termination of the “one-child” policy. The USHMM reports that “[f]ollowing the end of the ‘one-child’ policy, the number of sterilization procedures carried out on women across China plummeted—with the exception of Xinjiang.” All of these measures are working, as the Uyghur population growth in Xinjiang has fallen by 84%.
The USHMM also includes evidence on the forcible transfer of children, reporting that “authorities in certain areas of Xinjiang have imposed quotas for the number of orphans who must be institutionalized.” These ‘orphans’ are not actually orphans. Their Uyghur parents are detained in ‘re-education centers’ and Chinese authorities take the children and place them in state-run institutions. These children, as young as a few months old, are raised without any Uyghur culture and are inundated with the Han way of life. For the children who do not qualify as orphans, they are
“forcibly transferred to full-time boarding schools, without the consent of their parents and where their parents have limited visiting rights. Parents and other family members serving as children’s guardians indicated that they were threatened with being sent to detention centers if they resisted the removal of their children…” (33)
Unfortunately, the forcible transfer of children is taking place today so it is impossible to know or measure its full effect on the Uyghur population. Time will tell.
The USHMM report clearly points the existence of Article II(d) and (e), and the state policies preventing Uyghur births and removing Uyghur children from their families satisfy the actus reus of genocide. The main issue, however, is the mens rea.
Demonstrating the mens rea of genocide is a difficult process which requires massive amounts of evidence. The Chinese government is known for its prolific propaganda, outward denial of Uyghur persecution, and private methods of dealing with sensitive information, all of which make the determination of dolus specialis practically impossible. The USHMM recognizes this, stating that “[t]he limited nature of verifiable information presents clear challenges to the legal analysis of the presence of genocidal intent.” As a result, the report does not offer a strong argument for the CCP having genocidal intent. This might change with the release of the UN’s report. The Akayesu Trial Chamber judgment outlines other ways to prove mens rea:
“[o]ther factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.” (para. 523)
It may be possible to infer genocidal intent of the Chinese authorities for the following reasons: Uyghur population growth dropped 84% in three years despite Han population growth increasing over 50%, which could satisfy both gravity and pattern elements due to the significant drop in population and its occurrence over three years, and the number of IUD procedures is decreasing throughout China except in Xinjiang, which may satisfy the targeted element given that these procedures are only performed on Uyghur women. These two pieces of evidence are interrelated since an increase in IUDs will cause population growth to decrease. The transfer of Uyghur children, however, is unrelated to either statistic. Only Uyghur children are separated from their families and placed in boarding schools or orphanages and are taught Han culture. Albeit basic due to the minimal information provided from survivors and research, the core elements mentioned in Akayesu are present. We cannot draw any firm conclusion at this point because this is not sufficient to argue the existence of dolus specialis in court. It is, however, enough to order fact-finding missions and mandate investigations to further establish the atrocities, which is exactly what the UN is pursuing.
Why Does This Matter? Some Final Remarks.
As we wait for the UN publication, the USHMM report offers important analysis for how genocidal intent is usually inferred, and how the Uyghur situation is confronting this issue and pointing out the necessity for a different approach. Since all previous genocides rely on subparagraph (a) to exterminate the targeted protected group, the jurisprudence and academic discussions have not focused on other genocidal means, including reproductive measures. Instead, the possibility of a group disappearing through birth prevention measures is labeled as “exaggerated”, “unrealistic”, and “absurd”. The USHMM report explains why this is an issue:
“The privilege of mass killing, and of the intent to physically destroy, in genocide analyses has had clear gendered implications and resulted in crimes committed against women and girls being more likely to be excluded from the continuum of genocidal violence. This is relevant in this case, as Chinese policy appears to be largely directed toward destroying, in substantial part, the Uyghur community’s ability to regenerate, primarily through attacking the reproductive capacity of Uyghur women.” (41)
The atrocities of the Holocaust involved mobile killing squads and gas chambers, the Rwandan genocide was death by machete, and the Srebrenica massacres were through mass executions. Murder is the predominant genocidal method, so genocide is largely perceived and discussed as mass killings without considering the other actus reus. This elevates the first three acts of genocide, in turn placing birth prevention measures and forcible transfer of children lower on the scale while the drafters of the Convention placed each subparagraph in equal standing.
China’s treatment of the Uyghurs is changing this conception of genocide. Even if the UN report does not unearth information confirming genocidal intent of the CCP, this situation forces us to consider the possibility of a long-term genocide. The USHMM’s report is appropriately titled “To Make Us Slowly Disappear”, highlighting the unique and slow timeframe of China’s persecution and potentially genocidal acts towards the Uyghurs.
Genocide will never disappear, but as states develop ‘innovative’ ways to destroy protected groups, we must restructure our concept of genocide while remaining within its legal framework. Considering the possibility of a long-term genocide purely through Article II(d) and (e) remains within the Convention’s definition while adapting to the current circumstances faced by millions of Uyghurs and future groups that may face similar treatment.