Xinjiang, international law, and genocide

April 2021 — Previously titled "What ought we call it?", but I changed that to be more clear about the specific legal-political focus of the argument.

Summary and introduction

  • Genocide has a very specific definition under international law. There is plenty to be said about the justice of that definition—its narrowness is largely the result of powerful states' interventions to shield themselves from scrutiny in the 1940s—but it is nevertheless the definition that is applied when we talk about trying someone for the crime of genocide, or when e.g. the US State Department makes a determination of genocide.
  • Under the UN Genocide Convention, to qualify as "genocide", a state or person must a) commit genocidal acts, defined in Article II sections (a) through (e) of the Genocide Convention, and do so b) with the goal of destroying "in part or in whole" c) a certain religious, racial, ethnic, or national group. This is a very high bar to meet. Crimes against humanity represent a lower legal threshold that is much more convincingly met by China’s actions in Xinjiang.
  • We cannot determine directly from statements of the Chinese state that its goal is to eradicate Uyghurs as such (rarely does an actor outright state "we want to destroy every ______ person"), so we must turn to the pattern of its actions and determine if they betray the intent to do so. There is a indeed disturbing pattern of repressive, inhumane, and brutal actions to examine.
  • Some genocidal acts defined in Article II—mass killings and "inflicting on the group conditions of life calculated to bring about its physical destruction"—are not credibly occurring at a scale that demonstrates a deliberate attempt to destroy Uyghurs in Xinjiang.
  • China is committing to various degrees some other acts defined within Article II, the most salient being the prevention of births in the group, the causing of serious mental or physical harm, and possibly transferring children to another group, but it is not doing so with a demonstrable intent to destroy Uyghurs, which is a key condition.
    • While the pace of the implementation of birth suppression in Xinjiang is unprecedented, the scale is not yet demonstrably so compared to similar policies in Chinese history. Thus, parallels to the one-child policy implemented on the Han are valid, particularly given the similarities in their requirements (i.e. IUDs after one birth, sterilization after two or three), and the question of genocidal intent is left undecided. Nevertheless, the almost certain imposition of forced birth control represents a severe violation of Uyghur women's bodily autonomy and qualifies as a crime against humanity.
    • Reeducation camp conditions are often described as inhumane in testimony, but be that as it may, international case law would likely reject these conditions as systematic "serious mental or physical harm"—the standards for this are things like labor until death, starvation, or exposure to the elements resulting in death. Case law specifically cites Nazi death camps, for example.
    • The transfer of children as argued by the Uyghur Genocide report refers to the implementation of boarding schools, etc., for some students, a large number of whom have lost their parents to the reeducation and subsequent labor transfer system. No genocide has been determined based solely on the transfer of children alone, and while it unquestionably is an attempt at coercive Sinicization, the actions of the Chinese state do not rise to the level of the most widely discussed cases of genocide via transfer of children, that of indigenous peoples by settler colonial states such as Australia, Canada, and the US.
  • The use of the term genocide is actively detrimental to ameliorating the plight of Uyghurs in Xinjiang in the realm of international politics, and it is a mistake for countries like the United States and Canada to prematurely adopt it.
    • The unfortunate reality is that attempts at coercion, including use of the label genocide, have not substantively altered China's behavior. Rather, the countries with the strongest leverage and that have demonstrably alleviated the conditions of some detainees are the primarily Muslim states who have been willing to interface with Beijing without openly criticizing it or linking the crimes against Uyghurs to calls for regime change.
    • Accordingly, while it is certainly unfair that advocacy for Uyghurs on the international stage must take into consideration to feelings of the oppressor state, that is a reality we cannot get around. The United Staes calling the terrible oppression of Uyghurs a genocide while simultaneously refusing to call what's happening in Myanmar, for example, a genocide sends a signal to the Chinese state and public that it is purely a geopolitical game, immediately linking discussion of the topic within China to wider narratives about US interventionism. This stokes nationalism and narrows even further the room for change.
  • Rejecting the term genocide does not entail denying the gravity of the crimes against humanity committed against Uyghurs and other Muslim minorities in Xinjiang. We can accurately describe what is happening to Uyghurs as a form of cultural genocide, a term that locates the atrocities outside the scope of international law but still conveys the devastating losses being imposed on Uyghurs collectively. Even if we think that cultural genocide should be considered genocide, though, in the arena of international law and policy, this point is a nonstarter.
  • My goal is not to police the language of the diaspora or activists, but instead acknowledge that we must be very clear about the nature of a problem if it is to be solved, especially because the language of activists translates into diplomatic actions that could result in worse outcomes. In this sense, it is a strategic one, and the two arguments—that a strictly legal definition of genocide is not yet demonstrably occurring, and that Western governments should avoid using the term in public if they want to influence Chinese behavior—are complementary but independent of one another.

Whether the situation in Xinjiang merits the term "genocide" is not an entirely settled question, but a major inflection point in the acceptance of the term occurred beginning in mid-2020, after the publication of a report analyzing Chinese demographic data by Dr. Adrian Zenz related to birth rates and sterilization in the region. Zenz himself has still refrained from using the bare term genocide outright (update: I originally stated Zenz changed his view in light of that report; he reached out and corrected me. About a week later, it seems, he has indeed changed his mind). Similarly, lawyers for the US Department of State in early 2021 advised against the designation of genocide, but nevertheless Secretary of State Mike Pompeo declared the atrocities in Xinjiang as genocide at the eleventh hour, just before Biden took over. Uyghur activist groups, however, strongly endorse the term genocide and have lobbied for governments abroad to adopt it as well.

Last month—March 2021—a group of scholars of law, Central Asia, and China published The Uyghur Genocide: An Examination of China's Breaches of the 1948 Genocide Convention. This report lays out the most comprehensive case in support of designation of China's treatment of Uyghurs since 2017 as genocide, and so it is the basis of my (counter-) argument. I have also not seen a forceful or extensive public articulation of the competing viewpoint, so what began as at best a long-form blog post morphed into this essay over the course of over a month.

While I do not believe there is sufficient evidence to conclude that genocide as defined in international law is being committed against Uyghurs at the moment, I am aware of the dangers of being overly skeptical. From 1975 to 1979, the Khmer Rouge carried out a breathtakingly brutal atrocities, including genocide, while ruling Cambodia. Nearly one in four people—up to two million—died. As evidence of mass killings occurring trickled out, much of the academic left in the West, disillusioned with United States' reprehensible Vietnam War, cast doubt upon the veracity and accuracy of reports on the atrocities. I do not want to repeat those mistakes.

None of this essay is intended to belittle the gravity of human rights abuses committed against Turkic Muslims, particularly Uyghurs. Yet accurate terminology is critical. This is particularly true in the context of the narrative war waged over Xinjiang; erroneously labeling a crisis genocide sets the bar of rebuttal far, far too low—"since there is no mass murder, the West is lying"—and makes it easy for mass audiences to dismiss the otherwise legitimate evidence of crimes against humanity in the region. Moreover, I believe that the use of the term will do nothing to help Uyghurs and might in fact make their situation worse. With that in mind, this essay is my attempt to explain my reasoning.

N.b. footnotes are are the end of each respective Part.

Background

Core argument of Uyghur Genocide

The Uyghur Genocide report bases its argument on Convention on the Prevention and Punishment of the Crime of Genocide (aka the Genocide Convention), adopted by the United Nations in 1948. This is the cornerstone of international law related to genocide, to which 152 states are currently party, including China. Article II of the Convention reads:

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For the purpose of this Statute, "genocide" means 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.

From Article II, we derive three operative components of genocide. Genocide occurs when:

1. a genocidal act defined in sections (a)-(e) is committed 2. against a national, ethnic, racial or religious group 3. with the intent to destroy the group "in whole or in part".

All three conditions are necessary. A state or individual does not commit genocide when committing acts defined in sections (a)-(e) with the intent to destroy, e.g., mass murder of, for example, political groups. Thus, strictly speaking, the Nazis committed genocide against the Jews and Romani, but not against Communists or partisans of the French Resistance. Likewise, under international law, the Khmer Rouge committed genocide against ethnic minorities such as the Vietnamese and Cham, but not Cambodians themselves, who were murdered for (usually imagined) political and class characteristics as opposed to race, ethnicity, nationality, or religion (there is a strong argument to be made that the legal readings of the Genocide Convention so literally is a bad thing, which I discuss later on).

Condition three is particularly salient in international legal precedent: one may commit mass murder (a) or prevent births (d) among a specific group, but absent demonstrable intent to destroy the group "in whole or in part", there is no genocide, per legal precedent discussed below in detail in Part I. That is why China's One Child Policy is not generally considered genocide: while coercive, and sometimes incredibly brutal, and though more stringently implemented against Han than ethnic minorities, the intent was not to destroy the Han in part or in whole.¹

As I will demonstrate in Part I, condition three in international legal precedent is uniformly read as physio-biological, that is, the destruction of a group in the literal sense of removing some or all of its constituents from existence (I also call physiobiological destruction "literal destruction"). This can be done through through direct killing, indirect killing (e.g. starvation), or more gradually through the systematic prevention of births and the group's ability to propagate itself. In other words, not only must one of the five genocidal acts in (a)-(e) be committed, but they must also be committed with the specific, demonstrable aim of achieving physical disappearance of group members from the face of the earth. This intent is historically difficult to prove, all the more so for Xinjiang, where mass killings are not a common feature of the state's repression (as I will discuss in Part III).

The Uyghur Genocide report attempts to circumvent this issue through a rather circuitous approach. First, it attempts to preemptively justify its sidelining of international case law, because China does not recognize the jurisdiction of International Court of Justice or International Criminal Court. Rather, noting (p. 12) that China is

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a State party to the Vienna Convention on the Law of Treaties (VCLT) ... [this] report therefore strictly applies the Genocide Convention as the primary source of law and the VCLT as the primary means of interpretation. The report also makes reference to the work of the International Law Commission, established pursuant to Article 13(1)(a) of the Charter of the United Nations, and considers ICJ and international criminal law jurisprudence to be secondary means of interpretation.

So what exactly does it mean to use "the Genocide Convention as the primary source of law and the VCLT as the primary means of interpretation"?

The VCLT, as the name implies, is a sort of meta-treaty: a treaty about treaties and their interpretation. Article 31(1) of the VCLT states: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." Based on Article 31, the report focuses on the word any, arguing that the ordinary and good-faith reading of the word is such that "any of enumerated acts alone may amount to genocide, including those that do not require physical destruction, namely Article II (b) through (e)." (p. 13)

To paraphrase so far: the word "any" means only one condition in sections (a) through (e) needs to be proven to meet the definition of genocide. Only section (a) specifically mentions killing. Therefore, as others do not necessarily involve physical destruction/killing, genocide is also not necessarily about killing.

To reinforce this argument, Uyghur Genocide again invokes Article 31(2)(a) of the VCLT, which states that while the binding aspects of a treaty are the body, the preamble and other auxiliary text is fair game for interpretation of its meaning, which is fairly intuitive. So what does the preamble of the Genocide Convention say, and what does that mean for us as we interpret Article II?

The Genocide Convention's preamble includes a reference to UN General Assembly Resolution 96, "The Crime of Genocide," adopted in December 1946. Therefore, we must acknowledge the following part of Resolution 96, which states genocide is

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a denial of the right of existence of entire human groups … [which] results in great losses to humanity in the form of cultural and other contributions represented by these human groups and is contrary to moral law and to the spirit and aims of the United Nations.

That is how the Resolution is quoted within the report, specifically on page 13. Based on this, the report argues that because human groups are delineated in no small part by those non-physiobiological traits, it follows—quoting Raphael Lemkin, the creator of the term "genocide"—that "disintegration of the political and social institutions of culture, language, national feelings, religion, and the economic existence" can be genocidal as well.² If the report can prove that any condition in sections (a) through (e) exist, then we can call what is happening in Xinjiang a genocide.

Underneath the ellipses, however, is a phrase that seems to undermine the argument of the report, highlighted in grey:

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Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, [which] results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations.

This explicit analogy of genocide to homicide certainly seems to challenge the assertion that one can detach genocide from physiobiological destruction based on Resolution 96; after all, how would a homicide that does not entail elimination of the body's vital functions even happen? We even consider those whose brains have lost all signs of activity to still be alive.

This is, in any case, a tangent. The following section of this essay demonstrates that we do not need the genocide : homicide analogy in Resolution 96 to determine the legal case for genocide as a thoroughly physiobiological phenomenon. International legal courts have done this repeatedly, and in a way that specifically repudiates the argument of Uyghur Genocide about the intent of the Genocide Convention.

The is and ought of genocide

Legally, the separation of physiobiological destruction from genocide is a thoroughly heterodox argument that to date has not been accepted in court, though the idea does have much more currency among academics. Martin Shaw argues the focus on physical and biological destruction is indeed a critical flaw in the current approach to genocide, a phenomenon which he maintains is at its core is sociological, not legal. Yet the relative swiftness with which the international community took to the definition and criminalization of genocide—the Convention was passed in the UN less than five years after the term itself was first coined—meant that "the sociological concept was defined in international law before social scientists could offer their own definitions, and this created a situation in which legal authorities continued to address the meaning of genocide autonomously from wider academic debate."³ Shaw subsequently cautions against being overly deferential to strictly legal opinions.

I am very much amenable to the argument that this focus on killing is a flaw of international law governing genocide, but given that Uyghur Genocide is about international law, and that the academic view is much less relevant than the legal view in the context of influencing or sanctioning Chinese policy, that is the focus of this essay.

For the moment, I will set aside the question of whether or not mass killing is a feature of Chinese policy in Xinjiang; first, I am going to demonstrate that genocide requires literal destruction according to established interpretation of international law.

Footnotes
  1. Martin King Whyte, Wang Feng, and Yong Cai, "Challenging Myths About China's One-Child Policy," The China Journal 74, July 2015, p. 155.
  2. Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, 1944, p. 79, quoted in Ibrahim Azeem (ed.), The Uyghur Genocide: An Examination of China's Breaches of the 1948 Genocide Convention, Newlines Institute for Strategy and Policy, March 2021, p. 12.
  3. Martin Shaw, What is Genocide?, 2015, pp. 27–8.

Part I: Genocide as physiobiological destruction

Rejection of "cultural genocide" in the Genocide Convention

When I think of genocide, I most immediately think of deliberate, large-scale murder. People like Hitler, Pol Pot, Milošević, or Andrew Jackson. When I Google "genocide", I am told by the Oxford Languages Dictionary that it means "the deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying that nation or group." The term itself comes from the Greek root for "race" and the Latin suffice for "killing" or "slaughter".¹

Lay and legal definitions often differ, but this "common" reading is worth noting in light of the Uyghur Genocide report's emphasis on "ordinary meaning" per the Vienna Convention. Still, the legal definition of genocide is more expansive than the common shorthand of genocide as mass murder.²⁻⁴ Indeed, "physical and biological" refers to not only the physical death of people but also the biological prevention of their propagation, codified in Article II(d)'s prohibition of birth prevention. But while there are additional features of genocides that are important to consider besides mass killings, can literal destruction be separated from genocide as a concept?

The history of the Genocide Convention itself suggests not. Drafts of the Convention, created through negotiations of over a dozen nations under the UN Secretariat, had explicitly considered including cultural and linguistic groups under the umbrella of the term genocide, but this was ultimately rejected. This was in no small part due to opposition of the United Kingdom, the United States, France, among others, likely concerned the wording could implicate their own acts in various parts of the world.⁵ (The article recognizing and specifically sanctioning cultural genocide was in fact drafted by the Republic of China, Lebanon, Poland, Venezuela, and the Soviet Union—a rather diverse group of nations—but ultimately rejected by the larger body of the Secretariat over concerns of over-broadness.)⁶

International jurisprudence and physiobiological destruction

The intent of the drafters of the Convention is reflected in subsequent judicial interpretation. For example, in its 2001 judgment of the case against Serbian war criminal Radislav Krstić, a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc organ created by the UN Security Council with support by all five Permanent Members) affirmed that the Genocide Convention deliberately excluded cultural genocide as a form of true genocide under international law.⁷ (The tension this has created with Article II(e)—transferring children to another group—will be discussed later.) While a limited number of international bodies had made concessions to allow for a more broad definition, the Trial Court nevertheless concluded in Krstić (2001) that⁸

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customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. Hence, an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.

This was affirmed by the Appeals Chamber, which proclaimed "[t]he Genocide Convention, and customary international law in general, prohibit only the physical or biological destruction of a human group."⁹

Crimes against humanity are not genocide sans intent to destroy

The Uyghur Genocide report glosses over Krstić and similar rulings and attempts to circumvent the issue by insisting other crimes against humanity in and of themselves qualify as genocide. To this end, in a footnote on page 36, the report cites the 2005 ICTY Trial Chamber judgment in Blagojević, which states genocide "is not necessarily the death of the group members". This fails to acknowledge the context of the paragraph, expanded on below, and of the case generally. More importantly, the relevant findings of the Trial Chamber cited in this regard by the report were overturned on appeal.

Here, I examine three egregious crimes against humanity—forced transfer, mass rape, and cultural destruction, all variously alluded to in Uyghur Genocide (p. 50)—and whether or not case law indicates they can stand on their own as genocidal acts in a way relevant to Xinjiang.

Forced transfer/ethnic cleansing The namesake of Blagojević is Vidoje Blagojević, who was an officer of the Army of Republika Srpska, the armed forces of Bosnian Serbs during the Bosnian War. Blagojević was the colonel in charge of the Bratunac Brigade during the Siege of Srebrenica, a military campaign that would culminate in Srpska forces—but not the Blagojević's Brigade directly—massacring over 7,000 unarmed Bosnian Muslim men and boys, an event ruled an act of genocide in subsequent tribunals.

Bratunac Brigade members forcibly separated Bosnian Muslim families taking refuge in the village of Potočari away from Srebrenica area so as to isolate the unarmed men and boys, who were eventually murdered by other Serb forces.¹⁰ In the words of the Appeals Chamber:¹¹

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The Trial Chamber convicted Blagojević for complicity in genocide as an aider and abettor. It concluded that the Bosnian Serb [i.e. Republika Srpska] forces committed genocide in Srebrenica through the killing of more than 7,000 Bosnian Muslim men and by inflicting serious bodily and mental harm on Bosnian Muslim civilians resulting from the inhumane treatment surrounding their forcible transfer from Potočari. The Trial Chamber concluded that these acts formed a single scheme to commit genocide as reflected in the “Krivaja 95” [the codename for the Siege of Srebrenica] operation, the ultimate objective of which was to eliminate the enclave. ... For the Trial Chamber, the forcible transfer of the women and others was a “manifestation of the specific intent to rid the Srebrenica enclave of its Bosnian Muslim population” and the killings and mistreatment at Bratunac town were a similar “manifestation of this intent to destroy the group.”

In short, the Trial Chamber held that Blagojević should have known from context that Srpska forces had genocidal intent, but because he nevertheless assisted in facilitating its operations, he was thus guilty of complicity in genocide. The population transfer (the expulsion of Bosnian Muslim woman from Potočari) was inseparable from the larger "single scheme to commit genocide". This is part of the reason why the Trial Chamber considered transfer of populations as genocidal, because it took place in the immediate context of an unambiguously genocidal Srebrenica Massacre.

The Appeals Chamber rejected even this conclusion. While conceding that such a forced transfer could be evidence of genocidal intent, it maintains that the circumstances were not unambiguous in the case of Blagojević; prosecutors could not prove that he or his men knew the Bosnian Muslim men and boys were not being detained to keep them from fighting, but rather to be murdered.¹² Thus, the count of abetting genocide was overturned. The remaining five counts, including of crimes against humanity, remained.

We should also note that the circumstances of population transfer in Blagojević differed significantly from what we see in Xinjiang. While unquestionably disturbing, the forced transfer of Uyghurs to labor elsewhere in China is differs substantively from the forced expulsion of ethnic groups during the Yugoslav Wars. From the Appeals Chamber in Krstić (2004), as quoted in Blagojevic (2005):¹³

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forcible transfer could be an additional means by which to ensure the physical destruction of the Bosnian Muslim community in Srebrenica. The transfer completed the removal of all Bosnian Muslims from Srebrenica, thereby eliminating even the residual possibility that the Muslim community in the area could reconstitute itself. [Emphasis in original]

This is key: the Krstić decision only extends to scenarios where such expulsions ensures the expelled people cannot reconstitute themselves again in the area. The large-scale transfer of Uyghur forced labor contingents does not meet this criteria: there is no evidence as of yet that it is intended to permanently expel Uyghurs from their homeland of Xinjiang.

Furthermore, the Blagovejić Trial Chamber further cited a concurring opinion of the International Court of Justice in Bosnia Herzegovina v. Yugoslavia (Serbia and Montenegro):¹⁴

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the forced migration of civilians […] is, in truth, part of a deliberate campaign by the Serbs to eliminate Muslim control of, and presence in, substantial parts of Bosnia-Herzegovina. Such being the case, it is difficult to regard the Serbian acts as other than acts of genocide.

The act itself is not genocidal except as understood in the context of the brutal war Serbia was waging on Bosnian Muslims. Ultimately, the Blagojević Trial Chamber's argument—cited by the report—still holds that "physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself – particularly when it involves the separation of its members,"¹⁵ as noted above. The key condition is still physical or biological destruction due to the fact that the group cannot reconstitute itself.

Mass rape and sexual violence The classification of rape as a method of genocide also depends on demonstrable genocidal intent, namely, through Article II(d), prevention of births for a group. In Akayesu (1998), the International Criminal Tribunal for Rwanda Trial Chamber held that in certain cases, rape indeed serves such a purpose. For example, in societies where group membership is determined by the father's identity, rape of a woman prevents a birth of the woman's group, because the child is considered to belong to the father's.¹⁶ Genocide is also committed if rape is used to traumatize victims such that "the person raped refuses subsequently to procreate".¹⁷ In both contexts, the locus of concern is still physiobiological destruction. The finding was not contested on Appeal.¹⁸ The International Court of Justice in its 2007 ruling in Bosnia v. Serbia affirmed the validity of Akayesu (1998), but rejected its applicability in Bosnia because the Bosnian side failed to demonstrate that the offenses "were committed in order to prevent births within a group".¹⁹

Testimony cited by the Uyghur Genocide report establishes that sexual violence by cadres against Uyghurs was a widespread problem. Qelbinur Sidik stated that:

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Sexual harassment and rape had become so commonplace in the capital Urumqi under this scheme [becoming family, where cadres are stationed in Uyghur households] that safeguards were later introduced billeting groups of three Uyghur women to one Han “relative.” But as far as Qelbinur knew, this scheme was never rolled out to the south. “I dread to think of what continued to happen to those poor women,” she said.

The male cadres assigned to document the ideological status of Uyghur households hold immense power over the people therein given the cadres' ability to wield the threat of detention and internment (a process they would heavily influence through their assessments of the households). It is shocking, but unsurprising, then, that this power dynamic would often manifest as sexual abuse. At the same time, that authorities evidently took notice of the problem and implemented some sort of measure to forestall it—while not worthy of commendation by any means, insofar as it is merely a bare minimum effort at human decency (and in marked contrast to the state's attempt to smear survivors)—this strongly suggests that at least in Ürümqi, rape was not intended as a means to control the population (cf. Jean-Paul Akayesu, the mayor convicted of genocide specifically based on his incitement to commit rape against Tutsi women and allowance of such atrocities to occur).

Cultural destruction While the ICTY would note the significance of e.g. destruction of Bosnian Muslim mosques, it would do so not because this widespread, deliberate religious-cultural destruction was genocide in itself, but because it was a marker of the obvious genocidal intent of Serbian forces, further "evidence to demonstrate Serbian intent to destroy Bosnian Muslims as a group."²⁰ These destructions were not selective, like the Chinese destruction of mosques have been.

Thus, heinous acts of rape, cultural destruction, and ethnic cleansing, for better or worse, only reliably qualify as genocidal in context of intended physiobiological destruction. The acts in and of themselves are crimes against humanity, but not genocide. Absent evidence that labor transfers, sexual abuse by guards, and destruction of (many, but not all) cultural heritage sites in Xinjiang is intended to destroy the group—the subject of Part II—the fact of these acts' occurrence is insufficient grounds for a finding of genocide.

Scholarship on killing and genocide

It should be clear from the above sections that the body of case law regarding genocide as it exists today and the Genocide Convention itself are foremost concerned with physical and/or biological destruction of groups specified in Article II. Strictly speaking, this section is not germane to the Uyghur Genocide report, but I think it is worth including nonetheless.

Genocide scholars as a group are less unanimous than international tribunals have been in their interpretation of genocide, and as a body they are more willing to accept the idea of cultural genocide as a full form of genocide. Even so, the idea of genocide without deliberate killing or widespread physical attack is still controversial, and it is still generally acknowledged that the legal definition of genocide centers around physical killing and/or biological destruction first and foremost.²¹ "Under the UNGC, all acts must have been 'calculated' to destroy a group; this has been uniformly interpreted to mean conditions must be one of the primary means of physically and biologically destroying a group. The case law is clear on this corporal component."²²

The term genocide was coined by Raphael Lemkin, a Polish Jew lawyer who was indispensable in the writing and passage of the Genocide Convention. Lemkin's views of genocide was extremely broad, and he originally pushed for the specific inclusion of cultural and linguistic groups in the Convention's wording in addition to national, ethnical, racial or religious ones.²³ ²⁴ Proponents of a more expansive reading of genocide in legal contexts frequently cite Lemkin, but these arguments have largely been rejected by courts thus far, as shown above. Indeed, his expansive view of genocides included examples that are not commonly held to be specifically genocidal today under international law, scholarly contexts, or popular conception.²⁵ Yet it seems that like the courts, Lemkin tended to view cultural aspects of genocide as complementary to physical destruction, not potentially independent of it.

Lemkin's conceptions of genocide also evolved over time, and it is clear that he considered these aspects interrelated. Citing Lemkin's personal letters and memos, Dirk Moses argues that for the historical cases Lemkin based his analyses on, "attacks on culture were inextricably interwoven with a broader assault encompassing the totality of group existence: 'Physical and biological genocide are always preceded by cultural genocide or by an attack on the symbols of the group or by violent interference with religious or cultural activities." In this reading, the primacy of physiobiological destruction is evident.²⁶

Yet Lemkin's view of genocide is also rather confusing at times, partially the result of his pragmatic willingness to amend his advocacy to secure political support necessary for the passage of the Genocide Convention. For example, he regarded almost all Nazi-occupied peoples, even non-minority Scandinavians and Dutch, as victims of genocide insofar as they were all to varying degrees subjected to policies of Germanization.²⁷ Yet he still "mostly insisted that cultural repression was genocidal only when linked to deeper destruction (even if at times he appeared to relax that criterion)".²⁸

Martin Shaw argues against excessive focus on physical destruction and killing that he states have taken precedence in legal and academic discussion of genocide, as the "extents of killing and physical harm ... are not defining characteristics but empirical variables” of genocide. This is not necessarily because non-murderous genocide exists, but because such excessive focus "misses the social aims that lie behind killing — it begs the sociological question, why do genocidists physically destroy their victims?"²⁹

In my readings, Shaw seems ambiguous on whether genocide absent deliberate, if smaller-scale, killings is possible, but it overall seems unlikely given Shaw's arguments that link genocide to war. Still, Shaw is an advocate of a more holistic view of genocide to include things like ethnic cleansing, a term he detests on its own. Shaw persuasively writes:³⁰

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"Because groups are social constructions, they can be neither constituted nor destroyed simply through the bodies of their individual members. Destroying groups must involve a lot more than simply killing, although killing and physical harm are rightly considered important to it. [...] The aim of 'destroying' social groups is not reduced to killing their individual members, but is understood as destroying groups' social power in economic, political and cultural senses.... [Genocide] involves mass killing but ... is much more than mass killing."

This broader view of genocide—that of the destruction of social linkages, economic power, etc. of a certain group—has plenty of merit. Yet Adam Jones provides a set of counterexamples where actions that might appear genocidal per this more expansive definition intuitively fail to meet this the threshold of "genocide" because of the lack of deliberate physiobiological destruction.

The more benign of the two examples is of Quebec, where since the 1970s concerted pro-French policy has driven down the number of Anglo-Canadians as well as their relative social, political, and economic power. Leading Anglo political figures in the 20th century called the policies genocidal, and the sentiment remains among some there today. But genocide is of course not a conducive label at all. It was a reconfiguration of power relations to the disadvantage of a minority group—indeed a significant reduction of their "social power in economic, political and cultural senses"—but obviously not genocidal.³¹

The more thought-provoking of the two examples, which also provides a reason to reject the idea of genocide absent killing, involves the mass expulsion of Ugandan Indians under the rule of Idi Amin. Beginning in August 1972, the entire community of around 75,000 was forcibly removed from the country. A relatively small number of sporadic deaths occurred, but all the victims were also stripped of their possessions and left destitute and homeless. For Shaw and others like him, this should be a case of genocide, but it is not discussed as such in academic literature.³² This may well be because that in expelling them, Idi Amin "saved" them from himself—under his eight years of brutal rule, it is estimated that 300,000 (some sources say half a million) were killed, including people specifically targeted due to their ethnicity. Many Ugandan Indians have returned today.

Footnotes
  1. Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress, 1944, p. 79 (2008 ed.).
  2. Adam Jones, Genocide: A Comprehensive Introduction, 2011, p. 20.
  3. Jones, Genocide, 40.
  4. David B. MacDonald and Graham Hudson, "The Genocide Question and Indian Residential Schools in Canada," Canadian Journal of Political Science 45.2, June 2012, p. 434.
  5. William A. Schabas, Genocide in International Law: The Crime of Crimes, 2009, p. 208.
  6. Schabas, Genocide in International Law, 210–11.
  7. Prosecutor v. Radislav Krstić (2001), IT-98-33-A, Judgment of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, August 2001, ¶¶ 576–77.
  8. Kristić (2001), ¶ 580.
  9. Prosecutor v. Radislav Krstić (2004), IT-98-33-A, Judgment of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, April 2004, ¶ 25.
  10. Prosecutor v. Vidoje Blagojević and Draga Jokić (2007), IT-02-60-A, Judgment of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, May 2007, ¶ 53.
  11. Blagojević (2007), ¶ 119.
  12. Blagojević (2007), ¶ 123.
  13. Krstić (2004), ¶ 31, quoted in Prosecutor v. Vidoje Blagojević and Draga Jokić (2005), IT-02-60-A, Judgment of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, January 2005, ¶ 661.
  14. Blagojević (2005), ¶ 663.
  15. Blagojević (2005), ¶ 666.
  16. Prosecutor v. Jean-Paul Akayesu (1998), ICTR-96-4-T, Judgment of Trial Chamber I of the International Criminal Tribunal for Rwanda, September 1998, ¶ 507.
  17. Akayesu (1998), ¶ 508.
  18. See generally Prosecutor v. Jean-Paul Akayesu (2001), ICTR-96-4-T, Judgment of the Appeals Chamber of the International Criminal Tribunal for Rwanda, November 2001.
  19. Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Convention on the Prevention and Punishment of the Crime of Genocide), No. 921, Judgment of the International Court of Justice, February 2007, ¶¶ 360–61.
  20. Jones, Genocide, 41–2.
  21. See e.g. Shaw generally, Jones 43, or Kurt Mundorff, "A Cultural Interpretation of the Genocide Convention," doctoral dissertation in law at the University of British Columbia, December 2018, the latter specifically arguing against this orthodox interpretation
  22. MacDonald and Graham Hudson, "The Genocide Question," 441.
  23. Moses, A. Dirk, "Empire, Colony, Genocide: Keywords and the Philosophy of History" in Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History (ed. Moses), 2008, p. 15
  24. Jones, Genocide, 20.
  25. Anton Weiss-Wendt, "Hostage of Politics: Raphael Lemkin on 'Soviet Genocide'," Journal of Genocide Research 7.4, December 2005, p. 551.
  26. Moses, Empire, Colony, Genocide, 13.
  27. Shaw, What is Genocide?, 43.
  28. Shaw, What is Genocide?, 137.
  29. Shaw, What is Genocide?, 136-37.
  30. Shaw, What is Genocide?, cited in Jones, Genocide, 40.
  31. Jones, Genocide, 43-4.
  32. Jones, Genocide, 44-5.

Part II: Intent to destroy

There are unquestionably crimes against humanity that have taken place in Xinjiang. International law demands that those crimes be the result of deliberate attempt to bring about the physiobiological eradication of Uyghurs to be deemed genocide. Thus we come to the question of intent.

This requirement of genocidal intent is in many ways quite intuitive. Consider the following thought experiment about the North Sentinelese, an "uncontacted" people who live in isolation on a 60 km² island among the Anadman and Nicobar Islands administered by India:

India concludes that the survival of the North Sentinelese people is at serious risk as the result of rampant climate change and that the best hope for long-term continuance of their culture is to be evacuated to a more stable island. Scientists and anthropologists thus begin the slow and cautious process (the North Sentinelese are historically extremely hostile to outsiders) of establishing relations with them. In spite of heavy precautions to prevent transmission of diseases for which the North Sentinelese have no immunity, a strain of influenza is passed on to them, and upon the next visit by outsiders, one-third of the population has been wiped out.

If we assume there is no evidence of blatant negligence, would we classify India's actions as genocide? Intuitively, no. This scenario is hardly comparable to Xinjiang, but it still demonstrates that intent in and of itself does matter in determining the applicability of "genocide."

Recall that the definition genocide comprises three key factors: genocidal acts defined in Article II(a)-(e); targeting of a specific national, religious, ethnic, or racial group; and finally, the intent to destroy the group in whole or in part ("genocidal intent", or in legal terms, dolus specialis). The Uyghur Genocide report argues that genocidal intent is clearly discernible from China's behavior and rhetoric regarding Xinjiang. In fact, it states that we can discern this intent just from its rhetoric alone.

"Explicit Statements of Intent to Destroy"

Uyghur Genocide (p. 3) correctly notes that establishing genocidal intent does not require explicit statements to that effect; it can be "inferred from a collection of objective facts... including official statements, a general plan, State policy and law, a pattern of conduct, and repeated destructive acts, which have a logical sequence and result — destruction of the group as such, in whole or in substantial part." The report thus examines a host of such evidence in an attempt to show that the Chinese state is very likely attempting to destroy Uyghurs, but it first argues that we can see outright statements of genocidal intent even before examining such evidence.

To demonstrate the inadequacy of the report's arguments about genocidal intent, I will go through the subsection "Explicit Statements of Intent to Destroy" beginning on page 37. While deeply concerning, each of these example statements clearly fails to demonstrate explicit intent to destroy.

First, the report quotes a single released victim of the reeducation camps who states that guards would say (p. 37):

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... that we would never get out and that we would be sentenced ... They said they would keep us there up to 50 years, until the whole nation, Kazakhs, Uyghurs, and other Muslim nationalities, would disappear. They said there was a document sent from above, from the administrative center, and that they were acting based on that document.

It is very tenuous, however, to take a single instance of hearsay and impute it to the will of the Chinese government. The International Court of Justice in Bosnia and Herzegovina v. Serbia and Montenegro (2007), in fact, explicitly declined to impute genocidal intent on Serbia based even on the genocidal actions of high-ranking Serbian war criminals.¹

The more straightforward interpretation is that this victim is describing verbal/psychological abuse from a guard, not literal state policy. After all, contrary to the guard's statement, the victim did get out, as others have. Leaked internal documents available to us do not discuss eliminating Kazakhs, Uyghurs, or Muslims as a group; in fact, while arguably superficial and patronizing, the government celebrates such a diversity of (politically nonthreatening) nationalities.

The report then continues by selectively quoting documents leaked to the New York Times in a manner that I frankly find deceptive. "In 2017, the Party Secretary for Yarkand County, where nearly all 900,000 residents are Uyghur, gave a speech at a rally in a public square as part of President Xi’s campaign in the region, urging party members to 'wipe them out completely … Destroy them root and branch.'" This deliberately makes it sound like "them" refers to Uyghurs, but the Times article makes it specifically clear the subject is terrorists. One can certainly argue that China's conception of terrorism is so broad as to include Uyghurs by default, but regardless, the Times document is not a smoking gun.

This sort of selective quotation is not infrequent throughout the report when discussing intent to destroy. Another example: on page 39, the report states that "The intent behind the campaigns targeting the Uyghurs is further laid bare by an XUAR Government directive to 'break their lineage, break their roots, break their connections, and break their origins.'" The New York Times, however, notes that this line was written by a non-Han religious affairs official, Maisumujiang Maimuer, who was referring to 'two-faced people,' (those nominally opposed to extremism but not sufficiently fervent in their support or implementation of Party policy), a category that can include Han officials.

Uyghur Genocide finally cites a Radio Free Asia article where a security official of a district of Kashgar city (himself a Uyghur) states that another Chinese official analogized the reeducation campaign as spraying pesticides on all crops to kill the weeds. From context, it is clear that the official is referring to Uyghurs as crops, and extremists as weeds, and so it is unclear why this demonstrates an explicit statement of the intent to destroy Uyghurs as a group. This metaphor is disturbing in that it reveals the degree to which this official views the problem to be widespread, and the official's acceptance of coercive measures of detainment and reeducation as natural and reasonable. But it is not obviously genocidal.

The report also discusses the unsettling use of medical terminology to describe extremism, including metaphorical calls for the destruction of ailments such as "malignant tumors". The report errs in that it takes for granted that the medical metaphors are demonstrations of intent to destroy, without adequately examining wider context. "State media describes the mass internment camps as methods to 'penetrate' detainees like an 'intravenous needle', equating Uyghur detainees as malignant tumors to be destroyed," the report states on page 39, but here the authors are reading genocidal intent into the metaphors themselves. The medical imagery is deeply concerning and dehumanizing in that it denies agency of Uyghurs and pathologizes quite normal religious practice—but it does not equate Uyghurs themselves with tumors. But you don't give an IV drip to a tumor, you give patients IVs to destroy tumors. Absent other evidence, it is a stretch to read these as implicit admissions of intent to destroy.

I will concede that this is only my plain reading of such metaphors. Sean Roberts, a specialist with deep experience in the region, has argued that the Chinese state's shift towards the designation of Uyghur separatists almost exclusively as terrorists in the direct aftermath of 9/11 led to their "quarantining". During the run-up to the Olympics, Uyghurs were denied hotel rooms in Beijing and several thousand were expelled from the city. Such measures "did not distinguish between 'good' and 'bad' Uyghurs but targeted the entire ethnic group, sending a clear message to Uyghurs that they were not welcome" in that pivotal event of China's modern history.² Citing the above-mentioned Kashgar official's weeds metaphor, Roberts concludes that "the internment effort is mass and targets the Uyghurs as a people rather than a clear profile of those the state is likely to suspect of terrorism".³ Yet even targeting Uyghurs as a group (at least targeting them as potential risks, as it does all Turkic Muslims, it appears) does not necessarily entail intent to destroy. The "quarantining" is remarkably cruel, but the government's twisted efforts to "treat" these "ill" people rather than exterminate them or exile them as lepers represents evidence against intent to destroy them as a group, in my opinion.

Other evidence against intent to destroy

The burden of proof rests on establishing that there is genocidal intent/intent to destroy, and as I have shown above, the statements cited by the Uyghur Genocide report to argue the government has given explicit indication of such intent do not pass muster. There is moreover evidence to suggest that the government does not have a specific intent to literally destroy Uyghurs in whole or part.

While perhaps simplistic, the most immediate objection that comes to mind is that Uyghurs still exist and are not being murdered (assume for the sake of argument this is true; I discuss this more in Part III), and at least some of their cultural practices—provided they do not cross the highly arbitrary line of "extremism"—seem to continue in some form, as plenty of propaganda reminds us. I will return to the question of cultural practice in a moment, but let's first focus on the continued physical existence.

Stakić (2006) reaffirmed a finding of a Trial Chamber with regards to the "infrastructure", so to speak, of genocide. The Appeals judgment found that, within reason, we may take the absence of killing as evidence that a party lacked genocidal intent when such killings would be absolutely feasible:⁴

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... the Trial Chamber specifically found that the Prosecution had not proven that the Appellant sought to “destroy[] in part the Muslim group.” To be sure, the Trial Chamber also found that “[h]ad the aim been to kill all Muslims, the structures were in place for this to be accomplished.” Yet the Trial Chamber cited this fact because it constitutes evidence that the Appellant did not seek to destroy the Bosnian Muslim group in whole or in part – the fact that more Bosnian Muslims could have been killed, but were not, indicates that the Appellant lacked dolus specialis.

This argument has immediately obvious issues. After all, there are compelling reasons outright murder might not occur even if we assumed a polity had genocidal intent, such as fear of severe international backlash and concurrent economic, political, and diplomatic consequences. At the same time, though, the logic of the above Stakić paragraph is not confined to Article II(a) and killing. If infrastructure exists, e.g., to sterilize every potentially fertile minority woman in a region, then sterilization of only a subset of those women (like those who have given birth already) would at first appear to lack fully genocidal intent.

The logic also applies to acts of cultural destruction; it is not clear why the eradication of Uyghurs, even in part, would run simultaneously with the preservation of at least some aspects of their distinctive culture and idenity. There is evidence that the government has sanctioned the destruction of a substantial number of mosques and holy sites. At the same time, though, even as shrines, minarets, burial sites are razed across the region, the government has decided to leave some standing, or even mostly intact. Whether or not they are operational is a separate question, but we know it least some are intended to be. In 2017 Guma County, the local government put up a bid worth about US$50 million for a two-decade contract to design, construct, maintain, and operate and extensive public surveillance and control system that would include video feeds of sermons in mosques. This implies the assumed continued use of these facilities for some time.

It is possible that China is playing the long game and keeping some mosques around for show, although that seems questionable, given that according to research by the Australian Strategic Policy Institute, it also destroyed so many so quickly. It is also possible that it is just keeping some up for looks and tourism—but then we would not expect there to be actual sermons going on inside, and we'd expect state institutes that train imams to be shuttered.

How do we square the selective preservation of cultural sites and practices with an intent to destroy Uyghurs? To me, there is not necessarily a contradiction. The government takes a paranoid and hostile view of anything even remotely overlapping with religion and Uyghurness, on account of extensive racialized Islamophobia. Some argue the rhetoric of terrorism serves as a cover for China's fear of separatism. This fear of ethnic separatism is not specific to Uyghurs, but the state views them as particularly salient given the potent threat it perceives the combination of religious and ethnic identity to represent.⁵ It thus is willing to mark for extermination some, but not all, aspects of Uyghur culture, particularly those associated with religious belief and Uyghur identity independent of China.

The state's efforts to promote economic development and distribute aid to families of the detained in Xinjiang—like through fanghuiju work, which simultaneously marginalizes Uyghur culture and serve as means of monitoring people for further signs of "extremism"—likewise runs counter to what we would expect of obvious genocidal intent. Adrian Zenz argues that poverty alleviation and surplus labor programs, which are credibly tied to coercive labor, serve primarily ideological purposes (that of "modernizing" rather than uplifting), but even if incidental to the ideological intent, raising the economic status of a group marked for destruction is highly counterintuitive.

On a side note: The internment of Turkic Muslims across all minority ethnic groups also presents a question not addressed by the report, namely, if Kazakhs are facing identical or near-identical treatment, why are we not describing this as a genocide against Kazakhs or Turkic Muslims generally? Of the three dozen or so victim testimonies cited throughout the report, the majority are from Kazakhs (it appears that Kazakhs were more likely to be released, and less afraid speak out, thanks to the diplomatic pressure Kazakhstan can exert). This question is never addressed within the body of the report, despite this heavy reliance on Kazakh testimony.

Security as intent

Terrorism has been an issue in Xinjiang in the eyes of the government and the people of China generally. The fear of terrorism is what may drive the renewed repression of Uyghurs, a view which aligns with the Chinese government's own framing. A paper by Greitens, Lee & Yazidi summarize the state's perception of its threat environment:⁶

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around 2015–16, just as the CCP observed new evidence of Uyghur participation in Islamic militant groups abroad, it also concluded that as much as a third of Xinjiang’s population was vulnerable to extremist influence; that it was imperative to preventively re-educate a much broader swath of that population than previously believed; and that this must be done before extremist infection could manifest in terrorist symptoms.

Greitens, Lee & Yazidi's paper is an excellent examination of the motives for the mass reeducation and incarceration of Uyghurs in Xinjiang beginning in 2017. The paper concludes that the most compelling explanation for China's behavior is indeed the one it professes: fears of terrorism and separatism. Others, like Rachel Harris—a listed author of the Uyghur Genocide report—have previously written that while the focus on terrorism is more rhetorical, it simply serves as cover for what are fundamentally territorial concerns.⁷

Note that acknowledging that this logic is what drives the oppression of Uyghurs is not tantamount to accepting the logic as legitimate. Some (e.g. Robertson 2020) have argued the view expressed by Greitens fails to separate "actual CCP perceptions from instrumental CCP propaganda". I find this argument quite unconvincing given the remarkable unity of leaked documents, Chinese academic research, and public media rhetoric in their expression of a sense of threat underwritten by racialized Islamophobia, as opposed to explicit ethnic resentment. Moreover, there is evidence that Chinese intelligence continue to treat Uyghur terrorist networks as threats.

Uyghur Genocide (p. 35) attempts to forestall this objection by arguing that the "security context is irrelevant to the question of breaches of the Genocide Convention, as its obligations apply in both a 'time of peace' and a 'time of war.'" While the latter half of this is true, the assertion misunderstands the importance of examining security contexts: they represent sources of evidence of non-genocidal intent.

Genocides have been initiated based on the rhetoric of security threats, to be clear, like the Khmer Rouge's annihilation of Vietnamese Cambodians. But in such cases, the connection between the threat and the bodies of the attacked is very explicit. Unless we can show that the state equates terrorists with Uyghurs (which is an argument that can be made, but is not made by the report), even grossly extensive and cruel campaigns like that in Xinjiang fail to represent legally sound evidence of intent to destroy.

The security-as-intent hypothesis can explain why the intensity of repression varies significantly from area to area, which a genocide hypothesis cannot. Whether it's labor transfers, birth control policy, or internment, it is generally accepted that Uyghur-majority prefectures and areas are hardest hit. (As my sterilization post showed, too, this is true even when adjusting for the ratio of minorities in these places; the effect is not just because of lower minority population.) The most straightfoward reason seems to be because the state views a critical mass of Uyghurs as a threat to stability, and seeks to balance them with Han.

On a final note, the report states (p. 35) that "a State remains under the obligations of the Genocide Convention regardless of the stated motives", citing the 2006 Appeals judgment in the ICTY Stakić case. But this is a very selective reading of the judgment. Stakić (2006) found that the defendant's motive—to establish an exclusively Serb municipality—could express itself in genocidal and non-genocidal ways. This is what is meant when "the motive or stated goal behind acts of genocide must be distinguished from the question of intent".⁸ If Dr. Milomir Stakić, a leading official of the small city of Prijedor, had said, "we will raise taxes 50% on non-Serbs and no longer provide any public services in their languages" (most linguists consider Bosnian, Serbian, and Croatian to be dialects of the same language, but you get my point) with the goal of making non-Serbs leave, the motive would be the same, and perhaps even the outcome, but the methods—while unjust and certainly in violation of human rights law—would not be genocidal.

Implications for the report

For the above reasons, I am not convinced that there is conclusive evidence of the intent to destroy Uyghurs, in whole or in part, at least directly. That does not mean we can concluded genocide is not happening. Uyghur Genocide correctly notes that we do not need explicit statements of intent to destroy; rather, intent can be discerned "from a collection of objective facts that are attributable to the State, including official statements, a general plan, State policy and law, a pattern of conduct, and repeated destructive acts" that logically lead to the (literal) destruction of a group in whole or in part (p. 3).

The report attempts to do so for each count of the genocidal acts of Article II of the Genocide Convention. The following section examines each of the five subsections of Article II and addresses them with reference to their presentation in the report.

Footnotes
  1. Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Convention on the Prevention and Punishment of the Crime of Genocide), No. 921, Judgment of the International Court of Justice, February 2007, ¶¶ 365–67.
  2. Sean R. Roberts, "The biopolitics of China’s 'war on terror' and the exclusion of the Uyghurs," Critical Asian Studies 50.2, March 2018, p. 10.
  3. Roberts, "The biopolitics of China’s 'war on terror'", 21.
  4. Prosecutor v. Milomir Stakić (2006), IT-97-24, Judgment of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, March 2006, ¶ 42.
  5. Al-Sudairi, M., “Changing State-Religion Dynamics in Xi Jinping’s China and its Consequences for Sino-Saudi Relations.” Dirasat 19 (Rabi II), 2017, p. 1438, cited in Joanne Smith Finley, "Securitization, insecurity and conflict in contemporary Xinjiang: has PRC counter-terrorism evolved into state terror?", Central Asian Survey 38.1, March 2019, p. 23.
  6. Sheena Chestnut Greitens, Myunghee Lee, and Emir Yazici, "Counterterrorism and Preventive Repression: China’s Changing Strategy in Xinjiang," International Security 44.3, Winter 2019/20, pp. 43-44.
  7. Rachel Harris, "Islamophobia, the Global War on Terror, and China’s policies in Xinjiang," Society and Space, December 2007.
  8. Stakić (2006), ¶ 45.

Part III: Genocidal acts (a)-(c), related to physical harm

The testimony of victims and witnesses

About halfway through writing this essay, I decided to step back and read through every single testimonial cited by the report, around three dozen in all. I was prompted to do so after noticing some discrepancies between victims' testimony as it was given and as it was cited. My detour through the body of testimony served not only as a means of scrutinizing the contents of Uyghur Genocide; more importantly, it reminded me of the gravity of the situation and the suffering people have had to endure.

I noticed in the report that citations tended to blend together: what one victim said and another partially said were conflated, some victims' testimonies were left out where they should have been included, and so on. In total, there are about three dozen victims cited directly (via the Xinjiang Victim's Database) or indirectly (via other news media).

As an obsessive note-taker, I opted to keep track of what testimony from different individuals entailed. The results of that effort are accessible here. I still feel rather uneasy about maintaining a spreadsheet that so coldly quantifies the instances of verbal abuse, torture, hospitalizations, and so many other horrid conditions. Moreover, from a methodology sort of standpoint, this sort of evidence—from survivors—has obvious selection bias, as a disproportionately large number of them are Kazakhs, several of whom were released due to pressure from the government of Kazakhstan, too. Regardless, I ultimately think it was useful for understanding the camps as we know them through testimony, and for contextualizing the claims made by the Uyghur Genocide report, and for reminding myself of the real human suffering at stake.

The bottom line is that there is extensive testimonial evidence of grave human rights abuses within reeducation camps and more broadly in Xinjiang against Turkic Muslims, something should not be surprising. Many of the acts witnessed easily qualify as crimes against humanity. Of the 33 direct witnesses whose testimonies I read, the most common abuses described (either encountered or personally endured) were physical assault by guards or security personnel, torture, unsanitary facilities and rules about hygiene, major weight loss and inadequate nutrition, provision of drugs without informed consent, even for drugs with serious side effects, and lasting damage to physical health after release.

Nevertheless, for something to qualify under international law as genocide, as the report argues the treatment of Uyghurs does, it must be done "with intent to destroy, in whole or in part, a national, ethnical, racial or religious group". If we see that tens of thousands of Uyghurs are dying in these camps and the government is doing nothing about it, we can infer from that that such intent exists. But given the failure of the report to establish clear indication of the government's desire to eliminate Uyghurs in part or as a whole, the burden of proof is higher. To quote Lemkin:¹

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The crime of genocide involves a wide range of actions, including not only the deprivation of life but also the prevention of life (abortions, sterilizations) and also devices considerably endangering life and health (artificial infections, working to death in special camps, deliberate separation of families for depopulation purposes and so forth). All these actions are subordinated to the criminal intent to destroy or to cripple permanently a human group. These acts are directed against groups, as such, and individuals are selected for destruction only because they belong to these groups.

With this (advisory) opinion in mind, I am going to examine each of the subsections of Article II as argued in the Uyghur Genocide report.

(a) Killing members of the group

The report argues (p. 26) that "[l]arge numbers of Uyghur detainees have died or been killed under police or camp custody," citing the Xinjiang Victims Database, which has documented 143 deaths among detainees its 13,500+ records (not all of which represent detainees/victims) stretching back to January 2017 and earlier. This figure alone is far from sufficient to be evidence of mass killing of the order necessary to demonstrate genocidal intent. It is possible that information on deaths might be much more tightly controlled, but this is speculative, and we might even allege the opposite—that death would be something much more likely to be learned of by relatives (even indirectly by their lack of return, especially as some of the camps have begun to close down).

The collective testimony of the witnesses cited in Uyghur Genocide include several mentions of suicide or suspected deaths at the hands of guards—crimes against humanity, to be sure—but does not support the argument that deliberate killing of detainees is a systematic or intentional policy. Rather, it is the tragically predictable result of an inherently coercive system that does not respect the autonomy and dignity of its victims.

Of course, if there were death camps, the people sent to them would not be able to provide testimony about it. But despite the extensive and often very granular satellite analysis of the camps and their surroundings by researchers (analysis that I have examined here), I am unaware of concurrent evidence showing mass graves or signs of large-scale cremation that would indicate mass killings were occurring at reeducation camps. Nor have contracting documents seemed to indicate disposal of corpses are essential functions of reeducation camps. The Uyghur Genocide report, however, does cite two Radio Free America articles to suggest crematoria may be being built to this end. In late 2019, RFA reported the first confirmed case of mass deaths (150) in a camp, and additionally noted the construction of crematoria in Aksu. It is possible such crematoria are used to dispose of bodies, but this does not answer why such facilities are not common around all or even most camps.

As the latter article noted within its body, moreover, the alternative explanation for the construction of crematoria is that the state wishes to push Uyghurs away from traditional forms of burial:

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Zenz said that while the increase in cremation in the XUAR is, on the one hand, due to the need to dispose of bodies, it is also used to persuade Uyghurs and other minorities to abandon traditional Muslim funeral rites.

This is consistent with evidence of extensive destruction of Uyghur cemeteries. Insofar as burial practices are important religious events, the state is extremely wary of them and evidently eager to encourage a "modernized” form of funerals.

Ultimately, the arguments in the report cannot account for the lack of corresponding evidence among statistical, satellite, or testimonial sources that would be logical places to look for evidence of mass killings, so I reject the assertion that the ongoing oppression of Uyghurs in Xinjiang would be sanctioned under Article II(a) at present.

(b) Causing serious bodily or mental harm to members of the group

The report includes several examples of cruel and inhumane treatment of detainees, including physical and psychological torture and sexual abuse, and based on the reading of the body of testimony from the 33 witnesses, the prevalence of torture and beatings is not uncommon at all. A handful, however, do specifically deny such conditions, suggesting that there is also significant variance among facilities.

How do we explain this variance? The most logical conclusion seems to be that in a vast and hastily constructed internment system, there is massive room for abuse to be committed, particularly given how detention already entails the repudiation of the bodily autonomy of the detainees. The guards have positions of power over them and can easily abuse that. Yet "to fall within Article II (b) of the Convention, the harm resulting from that suffering must be such as to contribute to the physical or biological destruction of the group, in whole or in part," which the Uyghur Genocide fails to demonstrate is the case.²

I will again stress that my aim is not to diminish the trauma experienced by victims, rather, what I want to suggest is that the system of internment and reeducation is in many ways haphazardly administered and decentralized. Researchers at ASPI have identified multiple tiers of detention centers, from relatively low-security facilities to heavily guarded prisons. The hundreds of thousands of Uyghurs who have passed through or are in this system are at the mercy of the conditions of the facility they are in, it would seem, and while none of the testimony from XVD suggests they were happy to be there, it is clear there is a wide range of treatment, reaching up to outright barbaric. But the outright barbarism, so to speak, is not apparently systematic and intentional in its application to Uyghurs, a key factor in determining the applicability of genocide versus crimes against humanity or other charges.

The report appears to generalize abuses described by individual victims and conflate them into a single narrative. This is not an acceptably rigorous approach; if we are to take the extensive testimony of witnesses at their word, we must also acknowledge that when such testimony fails to mention a particularly shocking practice or condition, that represents possible evidence that they did not experience the practice (to a point). For example, the report states (pp. 30–31):

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Former detainees consistently testify to sleeping in two-hour shifts on the floor, on their sides or in shared beds. Witnesses also commonly describe detainees sitting on plastic chairs for 12-14 hours straight or with their hands and feet shackled at all times, save for writing exercises, but including during sleep.

These two sentences are cited to the statements of victims 124, 300, 1723, 1725, 2209, and 2947 in the Xinjiang Victims Database. Of these, only the account of #124 aligns with the above statements in full. One other, #2947, also mentions that he and his classmates "had to sit on plastic stools, on a cement floor, for 14 hours a day." He further states that "we’d [the fifteen roommates in his cell] go to sleep and would take turns guarding each other in two-hour shifts." (It appears the author may have mistaken this for sleeping only two hours a night.)

(c) Inflicting conditions to bring about group destruction

This is a particularly weak argument because of the lack of evidence that abuse was done "calculated to bring about its physical destruction in whole or in part" per the Convention. The report lists some of the objectively horrible things Uyghurs have had to endure:

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Uyghurs have been expelled from their homes and sent to internment camps en masse, where they are deprived of adequate food, clothing, medical care, and shelter, and often only then “released” directly into forced labor schemes. Sleep deprivation, starvation, and unsanitary, dangerous, and overcrowded conditions are commonly reported in the camps. ... detainees generally experience extreme weight loss within the camps. Detainees are either denied showers altogether, or only permitted showers on a weekly, monthly, or bimonthly basis, without privacy.

Ignoring the issue of whether or not the above represent universal or near-universal features of all camps, the conditions laid out above, horrific as they are, do not meet the threshold of genocide. The report again selectively quotes (p. 30) the judgment of the International Court of Justice in Croatia v. Serbia, leaving out the portion about physical destruction highlighted in gray:³

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Deliberate infliction on the group of conditions of life calculated to bring about its physical destruction in whole or in part, within the meaning of Article II (c) of the Convention, covers methods of physical destruction, other than killing, whereby the perpetrator ultimately seeks the death of the members of the group. Such methods of destruction include notably deprivation of food, medical care, shelter or clothing, as well as lack of hygiene, systematic expulsion from homes, or exhaustion as a result of excessive work or physical exertion.

The report also cites the decision in Akayesu (1998) in support of its claims that the conditions in Xinjiang camps meet the threshold of genocidal behavior under section (c), because Akayesu held that "Article II (c) 'should be construed as the methods of destruction by which the perpetrator does not immediately kill the members of the group, but which, ultimately, seek their physical destruction'.⁴ This similarly neglects to mention the context of the remarks. Akayesu specifically made its interpretations of cruel conditions with regards to Nazi concentration camps and the findings of Israel v. Eichmann (1966).⁵ ⁶

As always, one cannot avoid the legal obligation for proving genocidal intent, as succinctly noted Krajišnik (2006):⁷

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At the same time, it follows that “failure to provide adequate accommodation, shelter, food, water, medical care, or hygienic sanitation facilities” will not amount to the actus reus of genocide if the deprivation is not so severe as to contribute to the destruction of the group, or tend to do so.

The conditions in the camps do not meet this high standard based on the body of credible evidence available to us thus far.

Footnotes
  1. Lemkin, Axis Rule in Europe, 79.
  2. Croatia v. Serbia (Application of the Convention on the Prevention and Punishment of the Crime of Genocide), No. 1077, Judgment of the International Court of Justice, February 2015, ¶ 160.
  3. Croatia v. Serbia, ¶ 161.
  4. Akayesu (1998), ¶ 505, in Uyghur Genocide, 30.
  5. Akayesu (1998), ¶¶ 706–7; 711-12.
  6. MacDonald and Hudson, "The Genocide Question", 438-39.
  7. Prosecutor v. Momčilo Krajišnik (2006), IT-00-39-T, Judgment of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, September 2006, ¶ 862.

Part IV: Genocidal act (d), imposing measures to prevent births

The argument of genocide in Xinjiang based on Article II(d)—"Imposing measures intended to prevent births within the group"— is by far the strongest, in my opinion, and it is one over which data in the coming years may well alter my view (though we must remember the data is ultimately produced by the Chinese government, which would have a motive to falsify any damning statistics). I have written about the drastic decline in birthrates in Xinjiang since 2017 here, analyzing the statistics compiled by Adrian Zenz and others. In the time since then, I have done a lot of thinking about the implications of the findings and the circumstances more generally.

In short, the decline in Xinjiang is 1) unprecedentedly rapid; 2) clearly impacting, if not outright targeting, non-Han; and 3) not anywhere near satisfactorily explained by the official justification, namely, that the people of Xinjiang suddenly and spontaneously decided they all were ready to be "modern" and have few children in line with state policy.

The thrust of the argument in this section, however, is that the assertion of genocide still fails to conclusively demonstrate that the imposition of coercive birth control measures is intended to destroy Uyghurs in whole or in part because the measures are substantively similar to those imposed primarily on the Han for most of the last half century. To the extent this is true, it represents strong evidence that while cruel and inhumane, these policies are not directed at Uyghurs with genodical intent.

The primary difference between what was imposed on the Han and is being currently imposed on Xinjiang is the speed of measures implemented in (some parts of) Xinjiang thus far, but I am not aware of evidence showing the scale is beyond what China has done elsewhere before.

While it is true that birth control measures have been enforced at an unprecedentedly rapid pace in Xinjiang, but that is subtly—and critically—different from it being implemented at an unprecedentedly intense scale, based on examination of previous Chinese family planning policy. Just as with the one-child policy and its predecessors, some counties and areas are particularly brutal in their enforcement, but that alone is insufficient evidence of state intent to destroy Uyghurs.

What is presented below is an articulation of the strongest counterargument to Article II(d) vis-à-vis Xinjiang that I have considered. I am by no means convinced it is ironclad, and it is by no means exhaustive. It may turn out to be that birth control measures are implemented at an unprecedented scale across Xinjiang, but ultimately, that evidence has yet to be presented.

Rapid birth decline and potential causes

Besides birth control policy, there are additional plausible influences on the change in birth rate in Xinjiang. Whether or not that changes our assessment of genocidal intent is another question, but for now, these four are:

  1. A pervasive atmosphere of terror and uncertainty
  2. A huge volume of adults in reeducation camps
  3. A huge volume of adults transferred to work in factories away from their hometowns
  4. Economic development and modernization leading to a natural decline in birthrates

As I detail in the post on suppression of birthrates, factor 4—the backbone of the Chinese state's explanation of policy—is thoroughly unconvincing to me; the decline in birth rates is far too rapid for this to be true. (China has ironically put itself in a propaganda bind; it can't admit factors 1 or 2 even play a role at all, even if it might lessen the apparent impact of the argument of birth control policy as genocide.)

As for the other three, the question is of the extent to which each factor is causing the declines. We can never know for certain, especially without hard data on numbers of people in the camps, etc. Even then, it'd be quite the challenge to determine.

Factor 1 should be fairly self-explanatory. Particularly in the south, Xinjiang is sometimes likened to an open-air prison. If you are a free Uyghur, it is likely you know at least a few people taken away (in some villages, where one-tenth or one-fourth of all adults are gone), and Party cadres might come to your home specifically to monitor your family's ideological status. It seems reasonable to assume that at least to some degree, this would repress birth rates. A young couple that got married a few years ago and might normally be thinking about a child around now may well be holding off.

The second factor, the huge number of people detained and imprisoned, is one that I do not think I gave enough thought to in my original examination of declining birth rates. If we assume the higher end of the credible figures, just over one million (or more speculatively, 1.5 million),¹ that means approximately one in ten adults has been detained at some point. That necessarily has an impact on birthrates.

I am unaware of testimony of births within reeducation camps, and I assume camp administrators do not want detainees having children while they are there at least as a matter of logistics and hassle. There is indeed limited testimonial regular birth control is dispensed. Among the thirty-three individuals cited in Uyghur Genocide for their testimony, eight mention repeated treatment with unidentified substances, either as in injections, oral medications, or both. Three women (Tursunay Ziyawudun, Gulbahar Jelilova, Zumret Dawut) link the medications to the cessation of their periods, suggesting some form of mandatory contraceptive. Zenz notes two local county budget documents specifically mentioning Depo-Provera, a non-permanent, long-term contraceptive (recovery of fertility taking up to 18 months after injections stop) for use in family planning programs.² †

Uyghur Genocide argues that the Karakax List, a small, leaked spreadsheet of detainees in Karakax County of Hotan is conclusive evidence that the motive of the campaign is specifically to prevent births. This is because the most cited reason for detentions in the List are birth policy violations, and more confusingly, because the government is targeting those between 18-40 years of age. But statistics I delve into below show Hotan Prefecture is an extreme outlier in the implementation of birth control policy; it represents over five-sixths of all sterilizations imposed in 2018 in the region, for example. The argument about age ranges is thoroughly unpersuasive, merely asserting that because people between 18 and 40 are of childbearing age, the government is targeting them because they are of childbearing age.

Labor transfer programs and related policies represents another, possibly even larger and longer-term disruption. Adrian Zenz in a March 2021 report estimated up to 1.6 million rural laborers were at risk of forced transfer. Note that this is a figure for how many are at risk, not how many are or will be transported elsewhere to work in factories, but it is useful to broadly illustrate the scale.³ Evidence discovered by Zenz also suggest these programs are intended to run for a few years at a time.

Labor transfer programs are a regular feature of Chinese poverty alleviation policy (and indeed have been a feature of Xinjiang policy with a decidedly assimilationist bent⁴), but there is substantial evidence that even the labor transfer schemes that are not directly tied to reeducation camps are still marked by significant elements of coercion. Nevertheless, it would be very premature to conclude that any and all laborers "exported" from Xinjiang are all necessarily enslaved.⁵ (In fact, the issue for supply chains is that it is functionally impossible to distinguished voluntary laborers from forced laborers.)‡

"Balancing" versus destruction and genocidal intent

So is the goal of birth control policy to destroy the Uyghurs in whole or in part, or is it the state's desperate and brutal attempt to keep what it sees as a critical balance in ethnic populations necessary for long-term stability? The latter goal, to be clear, represents a seriously disturbing "internal" colonialism, just as it was when Stalin first advised Mao to move Han to the restive border region to ensure access to its natural resources. But reprehensible as that may be, it is not conclusively oriented towards the literal destruction of Uyghurs.

The alternative explanation is that the goal of the state is to implement existing family planning policy that has generally been disregarded when it comes to ethnic minorities in Xinjiang, and to do so as soon as possible in some areas. Its public motives appear to be both out of concerns that also drove it to implement family planning policy among the Han as well as specific fears of extremism.

There are parallels to the implementation of birth control policy among Han in the 1970s and 1980s, but with a crucial difference of efficacy, and relatedly, speed. Local implementation of birth control policy could vary wildly, especially before the mid-/late-1980s, in no small part because the state relied on grassroots cadres.⁶ Opposition to these policies at the local level was very intense, contributing to difficulties in implementation and enforcement.⁷ This stands in stark contrast to the staggering capacity of the state today, particularly in Xinjiang, where such opposition would be taken to represent extremism.

The Uyghur Genocide report relies extensively on Zenz' June 2020 report on family planning policy in Xinjiang. As Zenz notes, before 2015, "it was common practice for Uyghurs to have children in excess of state-mandated limits. Population planning offices were understaffed and local Uyghur officials frequently flouted birth quotas themselves. When caught, Uyghurs simply paid fines."⁸ Zenz moreover notes that the most extreme declines in birth and natural population growth rates—e.g. in Hotan—are far more excessive than what is called for by the Xinjiang regional government.⁹

Indeed, the idea of a coordinated region-wide birth control policy crackdown is not supported by the most recent evidence from the Xinjiang Statistical Yearbook. The number of birth control procedures performed in 2018 in Xinjiang generally correlates with a higher presence of minorities (with the particularly notable outliers Kashgar and Turpan).

image

Based on the 2019 Xinjiang Statistical Health Yearbook, I calculated the rate per 100,000 of birth control procedures (BCPs) in each of the 14 administrative divisions of Xinjiang. I assumed that in each and every area of Xinjiang, BCPs are only implemented among Turkic minorities (Uyghurs, Kazakhs, Kyrgyz, Tajiks, and Uzbeks). Averaged across all of Xinjiang, we get about 2185 birth control procedures per 100,000 Turkic Muslims.

(Note also that with the exception of Hotan (66.7%!) and Aksu (19.6%), for all of these regions, sterilizations represented less than 3.5% of these operations. Across all of Xinjiang, just over 30% of BCPs were sterilizations. 25.8% of all operations were sterilizations in Hotan.)

The question then becomes: is the implementation of family planning policy because of a targeted desire to enact the literal destruction of Uyghurs, or is it an attempt to bring birth rates in line with other groups, with some regions implementing policy much more harshly than others? Is the the latter still genocidal?

The above-mentioned 2185 per 100,000 figure is significant because it further helps us contextualize the implementation of family planning policy with in relation to China's previous policies directed at the Han. Consider the chart below, drawn from the 2012 China Statistical Health Yearbook (Table 7-6-1) and World Bank population data for China:

image

The most obvious part of the graph is the brutal spike in 1983. 20.7 million sterilizations and 17.8 million IUD insertions (and 14.4 million abortions) were performed in that year alone.¹⁰ Out of a population of 1.023 billion, that equals around 3763 birth control procedures per 100,000, and 1408 abortions per 100,000. The 1983 all-China birth control figure is higher than all parts of Xinjiang in 2018 except for Hotan (see chart above). The Chinese average over those 40 years—1348/100k—is higher than the 2018 rate of procedures from Urumqi, Altay, Ili, Turpan, and Kashgar, based on the previous table that restricts procedures to just Turkic Muslims. Time will tell if this remains the case—and as Zenz notes, Kashgar, at least, has gotten sensitive about its data, and I would not be surprised if that trend continued or expanded as the state tries to hide the drastic decline in birthrate.¹¹

The problem of outliers

The argument put forth by Zenz and Uyghur Genocide fails to explain why the most compelling examples of unusually zealous population control—the near-zero natural growth rate target in Kizilsu, the massive use of sterilizations in Hotan—are as sporadic as they are. Zenz notes that at least on paper, these particularly shocking targets run counter to Xinjiang's region-wide policy goals. I have not seen any explanation as to why the variance exists. If we assume a centralized or even regional policy of elimination, the disparity is particularly puzzling.

Han and Uyghur birth control policy in comparison

The 1970s saw the first time modern China forayed into systematic, enforced family planning. In 1971, the State Council set the goal of dropping the annual population growth rate from 1970's 2.5% to 1% and 1.5% in urban and rural areas, respectively. The next Five-Year Plan heightened this drive, setting a target of 1% and .6% by 1980.¹² Like the one-child Policy, this campaign ("Later [births], Longer [intervals between births], Fewer [overall births]"— 晚、稀、少) relied heavily on coercion in many areas and was severely invasive,¹³ though neither pushed for as aggressive a drop as as have seen in Xinjiang in the last few years. Even so, the drop in China's fertility rate was "at an extraordinarily rapid pace not previously experienced by any other population over a comparable span of time."¹⁴

Note that these 1970s policies specifically excluded ethnic minorities, and ethnic minority birthrates nationwide remained on average 0.7–0.9 points higher (per 100,000) than Han birthrates from the end of the Great Leap Forward famine in 1963 through 2010.¹⁵ Data from the 2010 census shows that at that time, the rate of people in Xinjiang having three or more children was over double the rate for all of China.¹⁶

From Zhang p. 16. The dashed line is Han, the other is ethnic minorities.
From Zhang p. 16. The dashed line is Han, the other is ethnic minorities.

Looking at the qualitative aspects of the birth control/family planning campaign in Xinjiang in documents cited by Zenz, there is also evidence that the campaign is substantially analogous to what the Han underwent, albeit at a much more rapid pace. As appears to be the case, at least based on Zenz' citations of various local laws, sterilizations are done after the second or third child, and IUDs after the first.¹⁷ For Han, sterilization after the second or third child became a standard in the early 1980s,¹⁸ ¹⁹ as was IUD insertion after the first.²⁰ Zenz cites Xinjiang government documents stating that "rural women who 'voluntarily' opt for sterilization after their second child, and hence forgo having a third child, receive one time payments of up to $700 (5,000 RMB) and ongoing annual cash rewards".²¹ Such incentives schemes were features present in birth regulations within China since at least 1979.²² Zenz also cites the testimony of Zumret Dawut, who confirms that she had a third child and was fined, and was "offered" sterilization—which she chose to submit to under threats of internment. Rakhima Senbay, who had had four children, was forcibly fitted with an IUD. Both of these acts represent inexcusable violations of the women's bodily autonomy, but the question is: if the government wants Uyghurs to disappear, why wait until after violations occur?

What does appear unusual about the birth control and family planning campaign in Xinjiang is the fact that it is being implemented despite Xinjiang's birthrate being below replacement level (see here). This at first glance further seems to indicate the goal of the literal destruction of Uyghurs, in whole or in part.

But such birth policy overkill is far from unusual in China, and, in fact, it is in many ways the norm. Chinese birth control policy has historically explicitly striven for an eventual growth rate of zero.²³ The 1970s birth control campaign, after all, brought down China's fertility rate by over half, to around 2.6 (cf. replacement level around 2.1),²⁴ but even so, the stricter one-child policy was introduced and maintained for over twenty years after China's national birth rate had fallen below replacement level.²⁵

With the one-child policy, the state radically entered the reproductive lives of Chinese women across the country, promoting the "four operations" (四种手术: IUDs (that cannot be easily removed without a doctor), abortions, vasectomies and hysterectomies) even in very remote areas. Particularly in rural areas, sterilization and IUDs were heavily preferred.²⁶ This seems to be broadly the case with Xinjiang, the primary difference being speed of enactment.

There are other historical similarities. While admitting that official data must be treated very cautiously, Greenhalgh noted that such data put contraceptive use among married couples at 77% in 1987, and 84% in Shaanxi province ("contraceptive measures" were overwhelmingly (>95%) IUDs or sterilization in Greenhalgh's study).²⁷ Citing a 2019 government budget document (rows 180-189), Zenz states that "Xinjiang planned to subject at least 80 percent of women of childbearing age in the rural southern four minority prefectures to intrusive birth prevention surgeries (IUDs or sterilizations)", but that seems largely in line with Greenhalgh's figures, though admittedly "childbearing age" is a broader demographic than "married couples". (Zenz does not appear to thoroughly elaborate on why "actual shares likely [are] much higher" in the body of his report; on page nineteen, he estimated that Kashgar and Hotan only had "3.0 percent of their married women of childbearing age" give birth that year, implying it is the result of birth control policy without examining the differences between "could not or would not get pregnant".)²⁸

Similarly, Uyghur Genocide further cites (p. 31) Zenz' discovery that two counties had planned to sterilize 14-34% of married women, and further notes that the numbers correspond to the findings of a doctor in Turkey that one in four diaspora Uyghur women had been sterilized, some unknowingly. But researchers in 2000 discovered that "approximately half of all women of reproductive age report that they or their husbands are sterilized" in China, so this is not (yet) adequate evidence of specific targeting of Uyghurs out of line with what has been imposed on the Han—and moreover, it only represents two counties.²⁹ (Also, most Uyghur diaspora in Turkey arrived before the crackdown beginning circa 2017 under Chen Quanguo.³⁰)

Like the locality in Greenhlagh's study, where IUDs were much more popular than sterilization, 2018 data at least suggested that the overwhelming preference for prefectures besides Hotan was IUDs. Again, the difference here seems to be speed of implementation, rather than scale, and that speed seems driven by Hotan's figures in particular.††

Overall, I am not convinced the evidence presented yet indicates that the swift, coercive, and unquestionably terrifying implementation of birth control measures on Uyghurs and Turkic Muslims more generally in Xinjiang represents a departure in anything but speed from the norms laid down in the 1980s. Much, though not all, of this speed seems to come from the outlier of Hotan, where the government has evidently decided to pursue the issue as its first and foremost priority. It is unclear why Kashgar did not follow suit, nor Turpan. The high variance in regional levels of birth control implementation is itself something of a mystery not addressed by the arguments that China is committing a genocide through prevention of births: why wait? Even though there is variance among detention rates in Uyghur majority and non-majority areas,³¹ the variance is much greater among birth control policy.

A driving logic of the birth control campaign was economic, heavily influenced by a Malthusian conception of scarcity and state capacity that was promoted by primarily by the West. In the 70s and 80s, in fact, many Western observers specifically commended Chinese birth control policy as eminently responsible.³² ³³ The state is similarly concerned with the economic development of Xinjiang and views high population growth as an obstacle to that end, and it also considers high fertility to be a risk factor for extremism.³⁴ (This is possibly because the state interprets "extra" births represents in itself a willingness to flout the nominal rules against three or more children, and thus government authority, and sees the opposition to some forms of birth control as inherently conservative and religious.) Absent evidence that the state is, for example, trying to permanently drop the Uyghur birthrate below the Han, the more straightforward explanation for state intent regarding birth control policy is that it seeks to impose the same order it imposed on the Han that it did on Turkic minorities, and to do so very quickly, regardless of the human suffering involved.

On the other hand, Ziyawudun also states that conjugal visits among spouses were allowed provided the woman take birth control pill first, so period loss may have been due to severe stress independent of the medication or that the side effect was not because the drug was specifically acting upon reproductive systems. Qelbinur Sedik stated that she was told injections were of calcium (there are such things as regular calcium injections used to treat deficiencies, but I am unaware if they need to be administered so frequently) and that "the pill was to help them sleep".

State-linked outlets (see e.g. the Global Times) mention the existence of paired spousal living arrangements in labor transfer settings, and given the testimony regarding conjugal visits even in some internment camps, this is not an outlandish claim. Even so, we can also reasonably assume that birth control is heavily "encouraged" even just as a matter of factories not wanting to lose laborers for maternity reasons. If births did occur, I assume the would appear in the statistics of the province or region in which they happened, not Xinjiang.

†† An apparent difference between traditional Chinese birth control policy and Xinjiang's is penalization. Women are at least sometimes punished for "illegal" births with internment in reeducations camps, even after the fact, whereas violations in the 20th century among Han predominantly were met with stiff fines and/or forced abortions (fines being well documented for Xinjiang as well, but forced abortions less so, at least at present).

Footnotes
  1. Adrian Zenz, "Brainwashing, Police Guards and Coercive Internment: Evidence from Chinese Government Documents about the Nature and Extent of Xinjiang’s 'Vocational Training Internment Camps'," Journal of Political Risk 7.7, July 2019.
  2. Adrian Zenz, "Sterilizations, IUDs, and Mandatory Birth Control: The CCP’s Campaign to Suppress Uyghur Birthrates in Xinjiang," Jamestown Foundation, June 2020, p. 19.
  3. Adrian Zenz, "Coercive Labor and Forced Displacement in Xinjiang's Cross-Regional Labor Transfer Program: A Process-Oriented Evaluation," Jamestown Foundation, March 2021, p. 19.
  4. Roberts, "The biopolitics of China's 'war on terror'," 9.
  5. Adrian Zenz, "Beyond the Camps: Beijing’s Long-Term Scheme of Coercive Labor, Poverty Alleviation and Social Control in Xinjiang," Journal of Political Risk 7.12, December 2019, §§4–5.
  6. Whyte, Feng & Cai, "Challenging Myths," 155.
  7. Susan Greenhalgh, Just One Child: Science and Policy in Deng's China, 2008, pp. 211, 232.
  8. Zenz, "Sterilizations, IUDs, and Mandatory Birth Control," 10.
  9. Zenz, "Sterilizations, IUDs, and Mandatory Birth Control," 10.
  10. Whyte, Feng & Cai, "Challenging Myths," 154.
  11. Zenz, "Sterilizations, IUDs, and Mandatory Birth Control," 9.
  12. Whyte, Feng & Cai, "Challenging Myths," 149.
  13. Whyte, Feng & Cai, "Challenging Myths," 150.
  14. John Bongaarts and Susan Greenhalgh, "An Alternative to the One-Child Policy in China," Population and Development Review 11.4, December 1985, p. 585.
  15. Zhang Liping (张丽萍), "Transformation in Births among China's Ethnic Minority Population" (中国少数民族人口的生育转变), Heilongjiang Social Sciences 2013 No. 5 (《黑龙江社会科学》2013 年第 5 期), pp. 16–17.
  16. Wang Penggang (王朋岗), "Analysis of Changes and Influencing Factors in Xinjiang Fertility Rate Levels" [新疆人口生育水平的变化及影响因素分析], 2018, p. 26
  17. Zenz, "Sterilizations, IUDs, and Mandatory Birth Control," 13.
  18. Susan E. Short, Ma Linmao and Yu Wentao, "Birth Planning and Sterilization in China," Population Studies 54.3, November 2000, p. 279.
  19. Whyte, Feng & Cai, "Challenging Myths," 150.
  20. Susan Greenhalgh, "Controlling Births and Bodies in Village China," American Ethnologist 21.1, February 1994, p. 8.
  21. Zenz, "Sterilizations, IUDs, and Mandatory Birth Control," 18.
  22. Greenhalgh, Just One Child, 92.
  23. Greenhalgh, Just One Child, 180; 202–3; 239.
  24. Short, Ma & Yu, "Birth Planning and Sterilization," 279.
  25. Whyte, Feng & Cai, "Challenging Myths," 153–4.
  26. Greenhalgh, "Controlling Births and Bodies," 7–8.
  27. Greenhalgh, "Controlling Births and Bodies," 14–15.
  28. Zenz, "Sterilizations, IUDs, and Mandatory Birth Control," 3; 19.
  29. Short, Ma & Yu, "Birth Planning and Sterilization," 279.
  30. Mettursun Beydulla, "Experiences of Uyghur Migration to Turkey and the United States: Issues of Religion, Law, Society, Residence, and Citizenship," in Jureidini, Ray and Said Fares Hassan (eds.), Migration and Islamic Ethics, 2019, p. 181. Beydulla notes that of the estimated 40,000 or so Uyghurs in Turkey, most are not refugees, and they have a long history in the country.
  31. Adrian Zenz, "'Thoroughly reforming them towards a healthy heart attitude': China’s political re-education campaign in Xinjiang," Central Asian Survey 38.1, September 2018, pp. 120–2.
  32. Chelsea Follett, "Neo-Malthusianism and Coercive Population Control in China and India," CATO Institute Policy Analysis no. 897, July 2020, pp. 7–8.
  33. Whyte, Feng & Cai, "Challenging Myths," 154.
  34. Zenz, "Sterilizations, IUDs, and Mandatory Birth Control," 7–8.

Part V: Genocidal act (e), forcible transfer of children

I want to be particularly delicate in this section because, again, I am not here to minimize the trauma and suffering of families torn apart by the removal of loved ones. The impact of this on children's wellbeing and mental state is unquestionably grave, and indeed, the state acknowledges as much insofar as it urges psychological counseling for the children affected (the attitude seems to be: this is a tragic but necessary evil, given that their parents of course need to go through reeducation and related programs, or even outright imprisonment, to handle their alleged "extremism".) But examining the horrific phenomenon from a legal standpoint, it does not meet the threshold for genocide.

Legal background

Article II(e) is also something of the black sheep of the Genocide Convention. It is something of a leftover of original drafts that specifically criminalized both physical-biological genocide and cultural genocide. As late as May 1948, drafts of the Convention by the Ad Hoc Committee on Genocide of the United Nations Secretariat had a separate article that stated "genocide also means any deliberate act committed with the intent to destroy the language, religion, or culture" of a group through suppression of their languages and destruction of their cultural heritage.¹ This article was dropped from the final draft due to the opposition of settler states like South Africa, Canada, and New Zealand.² Article II was almost identical in these drafts, lacking only section (e).

In fact, section (e) was added last and "almost as an afterthought, with little substantive debate or consideration" compared to the others.³ Strangely, it was added in after Secretariat negotiations had already rejected enshrining the concept of cultural genocide into the Convention's final draft. This presents a problem, because there is a strong argument to be made that section (e) is inherently cultural. As MacDonald & Hudson write:⁴

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All of the other categories of genocidal acts relate to the physical and biological destruction of the group and so attribution of intent is directed to material destruction. In the case of forcible transfer, the result would be, on its own, long-term cultural destruction of the group. Physical and biological destruction would only occur simultaneously if acts falling under any of the other categories of genocidal acts were also performed. But in this case, culpability would arise from those acts alone. At root, culpability for forcible transfer of children on its own would seem to require that alleged perpetrators have intended the cultural extinguishment of a protected group. It is for this reason that there is so little international jurisprudence concerning this genocidal act.

In fact, to date there has never been a conviction of genocide based solely on Article II(e), but it has figured prominently in quasi-legal examinations of potential genocide in settler colonial states.⁵ This is in fact where Article II(e) is most frequently invoked: discussions of treatment of indigenous peoples by settler colonial states, especially regarding residential school systems in the United States, Canada, and Australia. These schools were separated native children from their families and communities, generally with the expressed goal of "civilizing" them and having them integrate into society not as "savages" but as fully assimilated citizens.

In 1997, the lengthy Australian government-commissioned report Bringing Them Home was published. On the basis of Article II(e), Bringing Them Home formally argued that Australia had committed genocide against aboriginal peoples through a concerted 20th-century campaign separating aboriginal children—who would come to be called the Stolen Generation—from their families. The "schools" in which they were raised were designed to rid them of their culture and traditions. Policies and circumstances varied from state to state, but for many if not most students, contact with family was cut off,⁶ and in some cases, child welfare laws were abused to take infants away permanently.⁷ Some were never even told they were aboriginal.

The designation of genocide was highly controversial, however, and the ruling conservative government of Australia at the time refused to issue a formal apology (opting instead to just express "regret"). Even so, one of the two commissioners and authors of the report, Sir Ronald Wilson, would go on to distance himself from the term, calling its use "a mistake" despite the gravity of the crimes committed.⁸

From a victim quoted in
From a victim quoted in Bringing Them Home (p. 79): "We was bought like a market. We was all lined up in white dresses, and they’d come round and pick you out like you was for sale."

In Canada, the similar Indian Reservation School (IRS) system, operated mainly by various Christian denominations, was notoriously brutal. In the most severe schools and periods, mortality rates could be as high as 50%.⁹ Some 150,000 children passed through the schools, which were located outside reservations.¹⁰ The result is deep, lasting trauma with "parallels between IRS survivors and genocide survivors in other contexts [that] are often striking."¹¹

Even so, international legal jurisprudence views the act of transferring children from one group to another through the lens of genocidal intent; that is, there must be proof that the transferral constituted a premeditated attempt to destroy the group because the "legal emphasis [is] on provable pre-meditation over the demographic and other consequences of the crime" itself (much to the frustration of many genocide scholars).¹²

Thus, because there is no major legal precedent to guide us, the strongest case to be made about the Uyghur genocide under Article II(e) would be comparing conditions to the indigenous children's transfer programs most commonly discussed above. What is happening in Xinjiang does not, however, meet these standards.

Situation in Xinjiang and Break Their Roots

The Article II(e) section of the Uyghur Genocide report relies heavily on Adrian Zenz' 2019 report, "Break Their Roots: Evidence for China’s Parent-Child Separation Campaign in Xinjiang". While I have elsewhere defended the conclusions Zenz' work on the whole after having examined and validated underlying sources myself, I take issue with several aspects of the way the Uyghur Genocide report takes paper in particular. The major finding—that the state has begun caring for children left without primary caretakers because of their internment—is important in its own right, but it is wrapped up in layers of insinuation about cultural genocide—some well founded, but some not at all. The “Break Their Roots” title, in fact, is misleading.

The term "break their roots" is pulled directly from a 2018 notice issued by the government of Kashgar, asking whether the separation of children is "being deployed as the ultimate weapon of the state to 'break their lineage, break their roots, break their connections, and break their origins'[.]"¹³ But this line is very clearly not about children at all, nor Uyghurs in general—it is directed at "two-faced persons", i.e., those Party members who claim to support the Party but in reality oppose it or are not enthusiastic enough in their implementation of policy. This specifically includes Han officials, like Wang Yongzhi.

To oversimplify, "Break their Roots" argues that their has been a massive expansion of state-led childcare facilities, and it very much implies, though does not specifically conclude, that this is "a method for suppressing the transmission of religious and cultural identity". More specifically, to adapt from the conclusion of the paper, Zenz' findings are as follows:¹⁴

  1. Xinjiang under Chen Quanguo sped up and expanded planned expansions of a network of childcare centers and boarding schools just as the mass internment and reeducation campaign began.
  2. "These care facilities are heavily secured, tightly controlled, and promote systematic and intensive linguistic and cultural assimilation."
  3. "State propaganda articles extol intergenerational separation as being highly beneficial for the children."
  4. Many, if not most, of the children in these facilities are there because one or more parents have been detained. The state closely monitors the status of these children and their relatives, and acknowledges the serious "socio-economic fallout and the negative psychological impact of intergenerational separation".

The key problem is with point 3 and intergenerational separation. A finding of intergenerational separation could theoretically support a finding of genocide, at least in the reading of Uyghur Genocide. The report selectively quotes the International Court of Justice in Croatia v. Serbia in an attempt to show that the separation from parents in the form of boarding schools demonstrates a threat to "the group’s capacity to renew itself, and hence to ensure its long-term survival”. But the full quote very much situates that within the context of physical destruction (evidently an attempt to get around the possible implicit recognition of cultural genocide that Article II(e) arguably entails):¹⁵

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As regards the forcible transfer of children of the group to another group within the meaning of Article II (e), this can also entail the intent to destroy the group physically, in whole or in part, since it can have consequences for the group’s capacity to renew itself, and hence to ensure its long-term survival.

In the context of Zenz' paper, moreover, this separation is not clearly intergenerational (emphasis added):¹⁶

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Driven by multi-billion dollar budgets, tight deadlines, and sophisticated digital database systems, this unprecedented campaign has enabled Xinjiang’s government to assimilate and indoctrinate children in closed environments by separating them from their parents. This separation can take various forms and degrees, including full daycare during work days, entire work weeks, and longer-term full-time separation. When taking into account the threat that Xinjiang’s education system makes children report on their parents, it is safe to assume that parental influence in general, and intergenerational cultural and religious transmission in particular, are being drastically reduced. In some instances, parental influence is quite possibly almost completely eliminated.

What Zenz is describing is a form of coercive cultural assimilation (and to be clear, Zenz, to my knowledge, has not argued that this represents genocide under Article II(e)). For the Stolen Generation of Australia or in Canada's Indian residential schools, cutoff from the mother culture and community was almost always complete. While Xinjiang is clearly marginalizing Uyghur language and culture in favor of Han-centric norms in its schoolrooms, such actions are not highly comparable based on the evidence Zenz and Uyghur Genocide provide, at least not to the extent that they merit the consideration of full genocide under international law.

Contact with family units and communities appears to be maintained, based on the evidence Zenz cites. Zenz notes that facilities where reeducation camp "graduates" are sent to work also have daycare facilities for children. He takes this as a sign of imposition of state-back norms, but the state consistently uses schools to propagate its political and (anti-)religious ideology, and is certainly doing so for Uyghurs, but that is the norm across all of China. It is unclear how daycares in factories represent intergenerational separation if we take these sources at their word and assume parents have their children during their time off.

Zenz also discusses the rise in boarding schools in the last three years. For instance, in April 2018, Yecheng County of Kashgar "mandated the relocation of 2,000 children from the surrounding rural areas to one single boarding middle school in the county seat." The mandate also describes the monthly break schedule and busing of students back from schools, presumably to their communities.

Is this rise in boarding likely to dilute Uyghur culture? I think so, and I assume that is deliberate, although it appears other areas of China have pushed for boarding schools as a means to centralize education across rural areas. In fact, the descriptions of some of these places in Xinjiang smack of patronizing chauvinsim and racism—teaching kids to have good hygiene, how to be polite, etc.—but that is, again, insufficient evidence for genocide via Article II(e).

It should be noted that statistics for 2019 indicate only one-fourth of all students in Xinjiang attend boarding schools, and 46.17% (a drop from 2017) of teachers are ethnic minorities, so the phenomenon is not yet all-encompassing. Even if we were to assume that most boarders were Uyghur, that still leaves a large number outside the boarding school system.

Zenz shows that Uyghur language and culture is indeed being marginalized, as evidenced by this document from Toksun. But again, the high criteria for genocide and the term "intergenerational separation" present an obstacle. The document still notes that Uyghur language classes and homework exist. While unquestionably sidelining the language, even nominal connection with indigenous linguistic traditions was absolutely unheard of in Canada's IRS, the United States' Orwellian Indian Child Welfare Act, or Australia's Stolen Generations.

Zenz also portrays many of these schools as uniquely and heavily securitized as a way to bolster the analogy to internment camps. Some are indeed excessively fortified judging by documents Zenz produces. But the paper does not contextualize the securitization of school grounds within a national context: China has seen a relentless wave of knife attacks against schools in the last two decades, which underscores the gravity of the situation.

The Wikipedia list, by my count, gives around 30 attacks over the last ten years. Some of these are exceptionally gruesome, involving the systematic murder of children as young as four or five. Most recently, in January, police snipers shot dead a man holding a boy hostage outside his school after having stabbed seven of his classmates.

Such attacks are the first reason given by some of the Xinjiang school documents Zenz cites, such as that detailing the securitization of Kashgar primary schools and nurseries. The attacks are also no doubt the reason the Ministry of Education and Ministry of Public Security called for 100% of middle and elementary schools and nurseries to have at least assigned security guards, video surveillance systems and one-touch police alert buttons installed by the end of 2020—across all of China, not just Xinjiang.

In short, the securitization of these childcare facilities and schools is not adequately demonstrated to be unique in Xinjiang such that we can automatically consider this securitization to be an extension of the wider repression campaign. Rather, it more likely is a reflection of the existing fear of these attacks in China compounded by the specific fear of terror attacks by authorities, whose rhetoric often (absurdly) portrays Xinjiang as an outright warzone.

Beyond Zenz, media reports suggest the breadth of the assimilationist educational programs are quite large; AP reported that some Uyghurs interviewed stated the boarding schools have become functionally mandatory for Uyghur children, with use of the Uyghur language prohibited, despite their nominally bilingual status. AP also cited a Kashgar regulatory notice that called for the mandatory boarding of any student above fourth grade with a parent who is one of the "three types of people"—prisoners, inmates in detention centers, or detainees in re-education camps.

The same document also includes provisions for student welfare, including dormitory regulations, psychological counseling, communication with parents through letter and short videos, and days opening the schools for relatives to visit. This hardly negates the trauma of family separation that is the root cause of the need for things like psychological counseling, but it nevertheless complicates a view of the schools as specifically designed to isolate children from their communities in the same vein as the indigenous school systems or “break” them. This is important because for genocide in international law, for better or for worse, "the what is far less important legally than the why." ¹⁷

I find the argument that China is reconfiguring school systems to marginalize and weaken Uyghur culture highly persuasive, and I believe that alone is reprehensible. I do not believe that doing so, however, represents a sufficient reason to conclude the goal is to destroy Uyghurs, at least under the physiobiological standard set out above. Moreover, even in the face of the juggernaut of state violence, cultures are resilient, and the measures imposed by the Chinese may well backfire, so it is far from a given that the plans set down by China on paper will succeed—Zenz, in fact, argues they are unlikely to succeed.¹⁸ That does not excuse China's actions, of course, but might serve as a source of hope.

Footnotes
  1. "Draft Convention on the Prevention and Punishment of the Crime of Genocide," May 24, 1948, quoted in Jones, Genocide, 40–1.
  2. Jones, Genocide, 42.
  3. Schabas, William A., Genocide in International Law: The Crime of Crimes, 2009 (2nd edition), p. 201.
  4. MacDonald and Hudson, "The Genocide Question," 440.
  5. Jones, Genocide, 40.
  6. Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, report of the Human Rights and Equal Opportunity Commission of Australia, Ronald Wilson and Mick Dodson, commissioners, April 1997, pp. 7–8.
  7. Bring Them Home, 370–72.
  8. Ronald Wilson, quoted in Robert van Krieken, "Cultural Genocide in Australia" in The Historiography of Genocide (ed. Dan Stone), 2008, p. 130.
  9. MacDonald and Hudson, "The Genocide Question," 440.
  10. MacDonald and Hudson, "The Genocide Question," 431.
  11. MacDonald and Hudson, "The Genocide Question," 428.
  12. MacDonald and Hudson, "The Genocide Question," 440.
  13. Adrian Zenz, "Break Their Roots: Evidence for China’s Parent-Child Separation Campaign in Xinjiang," Journal of Political Risk 7.7, July 2019. Full quote: 对“两面人”进行全面清理,做到应收尽收,坚决消除隐患。落实“五防”“三学”要求,集中力量抓好职业技能教培中心管理工作。持续深入推进“断代、断根、断联、断源”措施,坚决斩断滋生暴恐分子的幕后黑手,坚决消除源头危害。
  14. Zenz, "Breaking Their Roots," §5.
  15. Croatia v. Serbia, ¶ 160.
  16. Zenz, "Breaking Their Roots," Introduction.
  17. MacDonald and Hudson, "The Genocide Question," 434.
  18. Adrian Zenz, "The Karakax List: Dissecting the Anatomy of Beijing’s Internment Drive in Xinjiang," Journal of Political Risk 8.2, February 2020, §5. "Regardless of these two systematic risks, the long-term success of Beijing’s strategy in Xinjiang relies on a near-perfect substitution of intergenerational transmission. As parental generations are severely weakened and forced into submission, a new generation of young Uyghurs is being raised in educational institutions that are tightly controlled by the Party. This strategy, however, will not likely succeed. The main reason for this is that Uyghurs and other ethnic minority groups are still identified as such and therefore know that they are somehow different. This sense of difference is greatly exacerbated by the fact that the Han majority continues to treat them as second-class citizens. Research by the author and others into the identity of minorities who grow up in Han-dominated contexts shows that the experience of being different reinforces their original identity."

Part VI: Against genocide

For the reasons outlined above, I believe Uyghur Genocide ultimately fails to prove that China is currently committing genocide as defined by the Genocide Convention. Despite the rampant human rights abuses in has enacted against them, there is insufficient evidence that China has an intent to bring about the literal destruction of Uyghurs in whole or in part. We cannot conclude genocidal intent on the necessary legal basis either on the statements of the government alone or the pattern of terrible abuses it has inflicted upon innocent men, women, and children in the region.

The disutility of "genocide"

Elsewhere I have written about the overwhelming support Muslim states have given to China over the United States with regards to the atrocities in Xinjiang. There is strong evidence that in many of these states, the people tend to take a much dimmer view of Xinjiang than their leaders often advertise, but at the same time, there is a deep-seated distrust—even hatred—of the United States and its allies who are leading the charge on the Xinjiang issue. The reasons for that should be obvious to anyone who has paid attention to US/NATO policy in the Middle East as of late.

Against this background suspicion, the hypocrisy of the United States is all the more salient. Secretary of State Mike Pompeo specifically rejected labeling the ongoing slaughter and ethnic cleansing of Rohingya Muslims in Myanmar a genocide in 2018, reportedly because he was worried it would push the country into China's orbit. He similarly refused to label Myanmar's actions genocide in 2020 as he was gearing up to do the same for China, despite State Department officials' attempts to get him to reconsider, and despite lawyers from the State Department's Office of the Legal Advisor concluding the evidence for genocide in Xinjiang was not robust enough to warrant the determination in early 2021. In 2019, Pompeo bypassed Congress to authorize further sales of weapons to Saudi Arabia to assist its prosecution of a repugnant and barbaric war in Yemen that has caused a shocking volume of death among civilians.

Yemeni civilians go through the rubble of a home destroyed by Saudi airstrikes in 2015, very possibly using bombs built and supplied by the United States of America. Via
Yemeni civilians go through the rubble of a home destroyed by Saudi airstrikes in 2015, very possibly using bombs built and supplied by the United States of America. Via Voice of America: "'My 10-year-old daughter Kefayah was killed in the last attack, and my house was completely destroyed,' said Abdullah Mohammed, a 29-year-old street cleaner who now lives with six other adults and at least 10 children, sharing three tiny rooms with no running water or electricity. 'I am homeless,' he added."

It should go without saying that the designation of "genocide" in the waning days of the Trump administration was not done out of genuine humanitarian concern for the sanctity of human life.

Nevertheless, there are plenty of non-Trumpists who support the designation on humanitarian grounds. Some assume that the issue is just one of volume, and that repeated employment of the grave term combined with sustained pressure on the international community will galvanize other nations and people into action. This view is, to put it bluntly, naive given the distinct lack of support from the international community at present.

Many supporters of the term will freely admit that the United States' hypocrisy is appalling, but they maintain that justice and truth demand we call a spade a spade. Valiant that may be, it misses the point: calling a spade a spade is not only possibly useless in this case (and, as I argued above, inaccurate), it is actively detrimental to any attempt at actually ameliorating the situation in the region.

Genocide is the crime of crimes, and by deploying that term, we signal to Beijing that we consider it a pariah. There is no going back. It is a deeply offensive term, as it should be, but in prematurely using it we have now completely eliminated the possibility for any sort of rapprochement on the issue, however slim those chances may have been in the context of the disastrous state of US-China relations over the last five years. The blatant politicization of the term with regards to Myanmar also tells the Chinese public that the United States cannot be trusted when it comes to these terms anyways, and tells the Chinese state that human rights is a pretext (something it already thinks): America does not want to protect Muslims, it wants to contain China. Finally, we have also raised the political costs of scaling down policies in Xinjiang. Xi has responded to the United States' denunciations reiterating the wisdom of it all and any criticism of human rights in Xinjiang has been strongly linked to nationalist sentiment.

Even if you do not believe rapprochement or amelioration was ever possible, though, you need to admit that a) the designation of genocide thus far has done nothing to noticeably alter Beijing's behavior and b) the blatantly political games at play in light of Myanmar and Yemen risk weaken US credibility on human rights issues of this scale worldwide. The benefits seem minimal. I have heard that one might be "to let others know such things are unacceptable," but this is ludicrous in the face of the US response aforementioned two countries.

I also view the idea that Western pressure is or will be key to reigning in Beijing's behavior as extremely improbable, which in turn undermines the central assumption of those who support the genocide designation. Supporters may point to Beijing's concessions over individuals whose families campaigned for their release or the attempt to portray the camps as "completed" beginning in late 2019 as signs of efficacy. Whether or not these changes are actually substantive is unclear. Beijing has doubled down on its use of suspect labor programs, repeatedly reiterated its unwavering stance in Xinjiang policy, and cracked down on officials who think to hesitate in its implementation.

Indeed, presumption of the effectiveness of Western pressure tends to ignore the more indirect, less confrontational pressure that we know Muslim countries have put on China. Kazakhstan, no doubt walking an extremely precarious tightrope, managed to secure the safety of many of its nationals without loud denunciations. I am certainly not about to buy tickets to the Beijing Winter Olympics, but we need to ask: is a boycott going to do Uyghurs any good? Will it deter future behavior? I would answer these questions with another question: do you think a boycott would have done the Tibetans any good, or just have stoked nationalist anger?

The designation of genocide is supposed to make Beijing a pariah state (although it has failed to do so as of yet). Thus, we should boycott the Olympics, which worked not so well in 1980 at stopping the Soviets in Afghanistan. It is naive to assume that the relatively narrow coalition of states that have coalesced in opposition to Beijing's actions in Xinjiang is substantive enough to alter the risk calculus it has made. The die are cast, and Beijing takes for granted that its actions will be criticized by the West, and that it can weather those criticisms.

Map by Catherine Putz in
Map by Catherine Putz in The Diplomat. Signatories of the 2020 letter in support (red) and opposition (blue) of China over Xinjiang. Note the refusal of even the Central Asian nations most impacted to sign on with the opposing letter. Far fewer countries signed the opposition letter than boycotted the 1980 Olympics, for reference.

I do not have a solution. In many ways, it may be too late for the US to do much besides offer support to Uyghur refugees and encourage others to intercede with China. The Trump administration designated genocide at the eleventh hour, and it would be politically costly for the Biden administration to undo this designation. We are going to be stuck with this word for decades, and meanwhile, while certainly deeply traumatized as a people, there will be Uyghurs in Xinjiang, touted as living evidence by the state that genocide never occurred. And if genocide didn't happen, that means everything the west said about China and Xinjiang must be a lie.

Awhile back, I tweeted about my misgivings on the word genocide. Many noted they felt the climate was such that they can't even discuss that word, because they will be treated as full denialists. (In response, several individuals insisted that I was contributing to genocide denial, if not actively engaging in an act akin to Holocaust denial.) Others dismissed the idea that the Chinese narrative is credible or effective, assuming that the predominant Western view of the situation must be a given, despite the map above. Elsewhere, I noted:

"Why that is" is construed by many in Western policy circles to be "why are countries so beholden to China" and "why are countries not listening to us"? But the question should be "why has the United States, the world's leading hegemon, maneuvered into a position wherein negotiation is literally impossible and there is no option left but punishment that will inevitably fail to alter anyone's behavior? How can we avoid that in the future?"

That question requires a much deeper look into US-China relations in a way that will likely irritate many of those, even on the left, who like to believe (even while publicly scoffing at the idea as passé) that there is truly something historically exceptional about our shining democracy on a hill.

Cultural genocide

In his book Radical Hope: Ethics in the Face of Cultural Devastation, Jonathan Lear describes the implications of existing after you undergo change and violence so utterly total that is fundamentally shifts your understanding of yourself, your community, and the world. Specifically, he centers the work around the utterance of Plenty Coups, a great leader of the Apsáalooke (Crow) people who died in 1932.

The Apsáalooke both demonstrate the gravity of cultural genocide and how it does meaningfully differ from the physiobiological genocide international law acknowledges. The Apsáalooke allied with the United States against their traditional enemies, the Oceti Sakowin (Sioux) and Tsitsistas (Cheyenne), and in this sense were actively complicit in the genocides of these tribes (in Black Hills War the and Colorado War, respectively, among other conflicts). As with all those who allied with the United States, this did not save them from the eventual confinement to reservations in violation of agreed upon terms, and the lasting devastation that brought onto them as a people spiritually and culturally.

I am initially persuaded by the viewpoint of Shaw and others who argue for the inclusion of cultural genocide under the umbrella of genocide, particularly based on my understanding of the United States' genocides of Native Americans. What Lear and other historians and Native Americans have described about their sufferings of their people on a cultural level makes it difficult to view the systematic loss of culture as anything but murderous. But as I noted earlier, Shaw admits that the term genocide in international law has drifted so far from the academic understanding that there is little chance of reconciling the two in the near term. We should at the very least understand that just because the Genocide Convention does not cover cultural genocide, this does not mean cultural genocide is not a useful category in and of itself for our personal understanding of what is happening in Xinjiang and has happened elsewhere.

Plenty Coups, c. 1908, via
Plenty Coups, c. 1908, via Wikipedia

Before his death, Plenty Coups dictated his life story to a white American ethnographer and writer, Frank B. Linderman. Linderman wrote that:¹

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Plenty Coups refused to speak of his life after the passing of the buffalo, so that his story seems to have been broken off, leaving many years unaccounted for. "I have not told you half of what happened when I was young," he said, when urged to go on. "I can think back and tell you much more of war and horse-stealing. But when the buffalo went away the hearts of my people fell to the ground, and they could not lift them up again. After this nothing happened. There was little singing anywhere."

(The United States nearly hunted buffalo to extinction in what often represented to a deliberate attempt to cut off Native Americans from the animal, a critical component of many tribes' diets and of great cultural significance to them.)

This pronouncement is stunning in that Plenty Coups was intensely active as a diplomat and lobbyist for his people's cause in the decades following the confinement of his people. As Lear argues, though, Plenty Coups and the Apsáalooke faced the annihilation of their traditional subjecthood, that is, their conception of the good and of what it meant to Apsáalooke itself. The rich cultural, social, and religious meanings that imbued Apsáalooke life in the same way our societies are imbued with such meanings were rendered nonsensical by their violent confinement in a reservation such that hunting, dancing, tribal war ceremony, and even cooking became concepts devoid of meaning. According to Lear:²

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Their problem was not simply that they could not pursue happiness in the traditional ways. Rather, their conception of what happiness is could no longer be lived. The characteristic activities that used to constitute the good life ceased to be intelligible acts. ... A number of tribal leaders gave voice to this confusion. The medicine woman Pretty Shield told Linderman, "I am trying to live a life that I do not understand." And Two Leggings, a lesser chief, gave a similar account of life on the reservation: "Nothing happened after that. We just lived. There were no more war parties, no capturing of horses... no buffalo to hunt. There is nothing more to tell."

Yet the Apsáalooke exist today, and while having suffered devastating and irreparable loss, they have still been able to forge for themselves a vibrant culture that continues in the face of adversity. This does not at all excuse the United States' past crimes against them, nor its ongoing neglect of its treaty duties towards Native tribes today. But even in the face of utter annihilation of one's way of life, it at least offers a ray of hope for any people facing the juggernaut of state violence directed at parts or the whole of their way of life.

"We have argued that 'cultural genocide' or 'ethnocide' may be appropriate as a ground floor to describe much of Canada's treatment of Aboriginal peoples and is often used by genocide scholars. This is employed when mass death did not accompany colonization, but where we see active attempts to destroy culture, language and religion, while stealing land and outlawing customs."³

I have used the term cultural genocide to describe what is occurring in Xinjiang because I believe the Chinese government is implementing a wide-ranging, coercive program designed to significantly alter the contours of Uyghur social, cultural, and religious life, and thus at least partially eliminating an "organic" aspect of Uyghur culture in a systematic and targeted way. As Lear and Plenty Coups help us understand, the qualification cultural is not meant to deny the gravity of the situation. It does, however, align our understanding more with what evidence is available to us based while avoiding the counterproductive impact of the bare "genocide".

Lurking beneath the state's counter-extremist justification for the staggering repression in Xinjiang is the possibility that in its eyes there is little meaningful distinction between "Uyghurness" and "extremism". There is a wealth of evidence in support of the idea that the campaign intended to destroy extremism is aimed specifically at Uyghurs and other Turkic minorities besides what I have outlined above, such as the numerous examples of extensive racial profiling and policies such as bianminka reminiscent of apartheid. While I am unsure of whether or not the state intends to eliminate Uyghurness as such, major aspects of Uyghur culture are still a predictable casualty of this is the repression.

Just as (physiobiological) genocide can be committed against groups in whole or in part, so too can cultural genocide be committed against cultures as a whole or in part. Uyghurs regard Islam as a crucial aspect of their collective identity,⁴ and the current climate actively discourages Uyghurs from representing that aspect of their identity.

This is because the Chinese government's view of extremism is wildly broad, functionally criminalizing an extensive range of completely benign religious behavior, as I have noted in commentary on translations like this and this. These draconian measures represent a repugnant attempt to forcibly mold Uyghur social, cultural, and religious practices into something more easily controllable and monitorable by the state. That is a grave violation of human rights—as well as rights nominally guaranteed by China's own constitution—but it is not genocide in terms of international law.

The Chinese state, for its part, appears to view its repression as merely as the restoration of traditional Uyghur culture, which conveniently overlaps with the form of Uyghur culture it considers most politically manageable. It views the shift towards things like hijab as the result of external forces, as if external influence cannot be a legitimate source of cultural development, and extremism, along the same lines of Islamophobia that has plagued the West. Yet cultures are not static and can evolve without sacrificing authenticity. As James Leibold and Timothy Grose haved noted, the prominence and importance of hijab among Uyghurs is far from a settled questioned—some reject it, some embrace it, others are indifferent. But the state has made it such that dynamic cultural push-and-pull is no longer possible; those who embrace hijab endanger themselves. "By redefining and reifying ethnic dress, the party-state is employing a cultural argument—Uyghur culture is veil free—to pursue what is essentially a much larger political aim—Uyghurs as chiefly modern, secular, and undifferentiated Chinese citizens."⁵

What is happening to the Uyghurs is the result of a crude racism that is by no means unique to China. Attempting to solve that racism and its concurrent crimes against humanity through the force of the word genocide as trumpeted by the United States and its allies will do little to alleviate those attitudes.

Appendix: Crimes against humanity in Xinjiang

The definition of crimes against humanity under international law comes from Article 7 of the Rome Statute, which established the ICC. Neither China nor the US (mainly due to the opposition of Republicans) has ratified the treaty. Article 7 Section 1 reads:

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For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The United Nations Office on Genocide Prevention notes that unlike genocide, "it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed." The International Criminal Court further states that acts merely be "performed in a systematic manner in the name of a State practicing ideological hegemony."⁶ Moreover, the ICC maintains that "are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority."⁷

It is immediately clear that China's campaign of mass internment in Xinjiang violates most of the provisions. Sections (e) and (i) should be obvious. Ditto, section (g) in the very least because of the stipulation against enforced sterilization. Common accounts of torture conducted by security officials make the case for (f) very easy, and sections (c) and (d) may fall under forced labor transfer schemes. Finally, the campaign also violates the more general section (h)—even if we were to for some reason concede China were not targeting Uyghurs as a race, culture or even religious group, the targeting would still be fundamentally political, in that it is against alleged separatists/extremists.

Footnotes
  1. Frank B. Linderman, Plenty-Coups: Chief of the Crows (1962 ed.), pp. 308–9, quoted in Jonathan Lear, Radical Hope: Ethics in the Face of Cultural Devastation, 2008, p. 2.
  2. Lear, Radical Hope, 55–6.
  3. MacDonald and Hudson, "The Genocide Question," 442.
  4. Dilmurat Mamut, "Controlling Religious Knowledge and Education for Countering Religious Extremism: Case Study of the Uyghur Muslims in China," FIRE: Forum for Research in International Education 5.1, 2019, p. 24.
  5. Leibold, James and Timothy Grose, "Islamic Veiling in Xinjiang: The Political and Societal Struggle to Define Uyghur Female Adornment", The China Journal 76, July 2016, p. 93. (Open-access manuscript available here.)
  6. Rome Statute of the International Criminal Court, Commentary (RSICC/C), Vol I., p. 359, quoted in Guy Horton, Dying Alive: A Legal Assessment of Human Rights Violations in Burma, report for the Netherlands Ministry for Development Cooperation, April 2005, pg. 203.
  7. RSICC/C, 359, in Horton, Dying Alive, 201.

Works cited

Non-legal literature:

🔓 indicates open-access works or those accessible through a free JSTOR account.

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Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families, report of the Human Rights and Equal Opportunity Commission of Australia, Ronald Wilson and Mick Dodson, commissioners, April 1997. (🔓)

Follett, Chelsea, "Neo-Malthusianism and Coercive Population Control in China and India," CATO Institute Policy Analysis no. 897, July 2020. (🔓)

Greenhalgh, Susan, "Controlling Births and Bodies in Village China," American Ethnologist 21.1, February 1994. (🔓)

Greenhalgh, Susan, Just One Child: Science and Policy in Deng's China, 2008.

Greitens, Sheena Chestnut, Myunghee Lee, and Emir Yazici, "Counterterrorism and Preventive Repression: China’s Changing Strategy in Xinjiang," International Security 44.3, Winter 2019/20. (🔓)

Harris, Rachel, "Islamophobia, the Global War on Terror, and China’s policies in Xinjiang," Society and Space, December 2007. (🔓)

Horton, Guy, Dying Alive: A Legal Assessment of Human Rights Violations in Burma, report for the Netherlands Ministry for Development Cooperation, April 2005. (🔓)

Jones, Adam, Genocide: A Comprehensive Introduction, 2011 (2nd edition).

van Krieken, Robert, "Cultural Genocide in Australia" in The Historiography of Genocide (ed. Dan Stone), 2008.

Lear, Jonathan, Radical Hope: Ethics in the Face of Cultural Devastation, 2008.

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MacDonald, David B. and Graham Hudson, "The Genocide Question and Indian Residential Schools in Canada," Canadian Journal of Political Science 45.2, June 2012. (🔓)

Mahmut, Dilmurat, "Controlling Religious Knowledge and Education for Countering Religious Extremism: Case Study of the Uyghur Muslims in China," FIRE: Forum for Research in International Education 5.1, 2019.

Moses, A. Dirk, "Empire, Colony, Genocide: Keywords and the Philosophy of History" in Empire, Colony, Genocide: Conquest, Occupation, and Subaltern Resistance in World History (ed. Moses), 2008. Relevant chapter fully accessible through the Google Books preview. (🔓)

Mundorff, Kurt, "A Cultural Interpretation of the Genocide Convention," doctoral dissertation in law at the University of British Columbia, December 2018. Mundorff's extensive dissertation contests the "prevailing interpretation of the Genocide Convention, which holds that the convention should be understood as excluding 'cultural genocide'" in favor of physical and biological destruction. (🔓)

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Wang, Penggang (王朋岗), "Analysis of Changes and Influencing Factors in Xinjiang Fertility Rate Levels" [新疆人口生育水平的变化及影响因素分析], 2018. (🔓)

Weiss-Wendt, Anton, "Hostage of Politics: Raphael Lemkin on 'Soviet Genocide'," Journal of Genocide Research 7.4, December 2005. (🔓)

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Zenz, Adrian, "Break Their Roots: Evidence for China’s Parent-Child Separation Campaign in Xinjiang," Journal of Political Risk 7.7, July 2019. (🔓)

Zenz, Adrian, "The Karakax List: Dissecting the Anatomy of Beijing’s Internment Drive in Xinjiang," Journal of Political Risk 8.2, February 2020. (🔓)

Zenz, Adrian, "'Thoroughly reforming them towards a healthy heart attitude': China’s political re-education campaign in Xinjiang," Central Asian Survey 38.1, September 2018. Open-access preprint available here.

Zhang, Liping (张丽萍), "Transformation in Births among China's Ethnic Minority Population" (中国少数民族人口的生育转变), Heilongjiang Social Sciences 2013 No. 5 (《黑龙江社会科学》2013 年第 5 期). (🔓)

Legal judgments:

Prosecutor v. Jean-Paul Akayesu (1998), ICTR-96-4-T, Judgment of Trial Chamber I of the International Criminal Tribunal for Rwanda, September 1998.

Prosecutor v. Jean-Paul Akayesu (2001), ICTR-96-4-T, Judgment of the Appeals Chamber of the International Criminal Tribunal for Rwanda, November 2001.

Prosecutor v. Vidoje Blagojević and Draga Jokić (2005), IT-02-60-A, Judgment of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, January 2005.

Prosecutor v. Vidoje Blagojević and Draga Jokić (2007), IT-02-60-A, Judgment of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, May 2007.

Bosnia and Herzegovina v. Serbia and Montenegro (Application of the Convention on the Prevention and Punishment of the Crime of Genocide), No. 921, Judgment of the International Court of Justice, February 2007.

Croatia v. Serbia (Application of the Convention on the Prevention and Punishment of the Crime of Genocide), No. 1077, Judgment of the International Court of Justice, February 2015.

Prosecutor v. Momčilo Krajišnik (2006), IT-00-39-T, Judgment of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, September 2006.

Prosecutor v. Radislav Krstić (2001), IT-98-33-A, Judgment of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia, August 2001.

Prosecutor v. Radislav Krstić (2004), IT-98-33-A, Judgment of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, April 2004.

Prosecutor v. Milomir Stakić (2006), IT-97-24, Judgment of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia, March 2006.