China’s worst excesses

Jennifer VenisWednesday 17 November 2021

Over the past year, the Uyghur Tribunal in London has broken with tradition by hearing evidence of an alleged genocide while the atrocity is said to be ongoing. As the Tribunal prepares to hand down its judgment on whether China is committing genocide against ethnic minorities in Xinjiang, Global Insight reviews the proceedings.

Concluding the first testimony of the second hearing of the Uyghur Tribunal in London, the Tribunal’s Chair, human rights barrister Sir Geoffrey Nice QC, delivered a stark summary: ‘Kneel and praise China or starve.’

This independent people’s tribunal seeks to determine whether China is committing genocide of Uighur Muslims and other Turkic Muslim populations in the region of Xinjiang.

Since launching in September 2020, the Tribunal has heard evidence from individuals claiming to be victims or witnesses of persecution, as well as academics and legal experts, via hearings conducted in June and September. Sir Geoffrey sits alongside Vice-Chair Nick Vetch, a businessman, and a panel of seven intended to operate as a jury. Its judgment will be presented in early December.

The allegations against China include all five prohibited acts under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the ‘Convention’): killings; living conditions intended to physically destroy the group; serious bodily or mental harm; forcible separation of children from families; and prevention of births. Any one of these acts, if committed with the intent to destroy the Uighur people as such in whole or in part, would amount to genocide.

The Tribunal will also consider the allegations of certain crimes against humanity, namely deportation; apartheid; forced labour; forced organ harvesting; enforced disappearances; destruction of cultural or religious heritage; and forced marriages.

Harrowing testimony

The witnesses’ accounts stretch back years, with one claiming his wife was forced to have an abortion at six months’ pregnancy in 2015. Many allege being banned from speaking Turkic languages; one claims they were told that all forms of religion are extremism.

Many allege being held in overcapacity cells, for example being placed alongside 41 other people in a space built for seven. One claims their cellmate was paralysed after physical torture. Some allege being compelled to confess to unknown crimes.

Several national parliaments and the US government have already declared they believe genocide and other atrocities are being perpetrated in China. However, as Sir Geoffrey explained, the Tribunal exists in the absence of any other public, evidence-based review of the allegations through courts or otherwise.

The UN High Commissioner for Human Rights, Michelle Bachelet, has requested unfettered access to Xinjiang to investigate the allegations. However, in September she noted access has not been granted and said her office is assessing the available information on allegations of serious human rights violations with a view to making it public.

The Chinese government vehemently denies all allegations of atrocities or human rights abuses against Uighurs or other ethnic groups. It says policies in the region are in accordance with the law and are intended to eradicate religious extremism, and that facilities described by critics as ‘concentration camps’ are re-education centres.

At the start of the June hearings, Hamid Sabi, Lead Counsel to the Tribunal, said counsel had written four times to the Chinese government through the embassy in London, inviting the state to participate through a Special Counsel or an observer, or by presenting evidence.

Instead, the Chinese Communist Party (CCP) has responded to the Tribunal’s existence with condemnation, and in March it sanctioned members of the Tribunal. In May, it claimed the Tribunal had adopted illegal proceedings, calling it a ‘serious provocation’ to the millions of ethnic groups in Xinjiang.

In a Chinese press conference after the June hearings, individuals who had previously been reported missing by witnesses appeared and spoke in favour of China and the CCP. The Tribunal asked that these individuals counter the claims about their experiences at a hearing, but no response to this request has been received and the individuals have not been heard from since.

The Tribunal cannot make recommendations or take any legal action if it determines atrocities have been committed. But, Sir Geoffrey explained, people’s tribunals ‘allow testimonies of those said to have suffered to be heard publicly’, and ‘serve to create a permanent body of evidence and a record, if found, of crimes perpetrated’.

What states, entities and individuals do with that record is then up to them.

Still, for witnesses alleging persecution, this is the only quasi-judicial space that will hear their voices and, depending on the outcome, offer some form of justice or vindication. Such is the weight behind these proceedings that heavy silences fell whenever witnesses became emotional. When Mehray Mezenhof’s voice faltered as she recounted her husband’s claims of detention in Xinjiang, the only other sound was the echo created by the domed ceiling.

Mezenhof’s husband is missing, presumed detained by Chinese authorities. She claims he was previously charged with separatism and taken to a re-education camp, later recounting his experiences to her upon his release. He claims he was strapped in a tiger chair – a piece of interrogation equipment described by some as an instrument of torture – for hours, that he was pushed to denounce his religion and live ‘more like the Han Chinese’, and also that he was forced to kneel on the ground and sing a song in praise of China or be denied food. His testimony convinced Mezenhof that the state wanted Uighurs stripped of their identities, culture and religion.

Geoffrey Cain, a US journalist studying historical genocides, has interviewed Uighur refugees and answered questions at the hearings about alleged ‘brainwashing’. ‘They were never cheerleaders for the regime’, he said of the refugees, but rather they felt ‘like a patient who had woken up from a car crash and had amnesia, they had been stripped of their identities’.

That some witnesses’ testimonies were relayed by a translator did not undermine the intensity of their accounts, such as when a Kazakh man cried while responding to a question, and the Tribunal had to wait to learn why. ‘Yes, I tried to commit suicide’, he said. He alleged that each time he was questioned in detention, he was told he wouldn’t be released for at least five years. The man said he was pushed to sign a document he couldn’t read to denounce his Kazakh citizenship.

‘[E]very time I recall my experiences, I just cry’, he said. He claims a guard told him ‘one day, China will conquer the world’, to which he responded, ‘no, you will never be able to conquer our people’.

The shape of genocide

With the help of legal experts, journalists and academics, the panel grappled with broader questions about what genocide looks like in the 21st century.

Cain claimed that when he visited Xinjiang, he had ‘the overwhelming feeling of stepping into the future. That this is a new kind of mass atrocity that has not been documented before with the use of these novel technologies.’

Those technologies include tools for mass surveillance that led another expert to describe Xinjiang as ‘an open-air prison’. The securitisation of the region, it was argued, was possible through the demolition and rebuilding of Uighur homes, which, alongside the demolition of sacred sites, was described as a ‘severing of the cultural connection to the land’.

The Tribunal considered what makes a group and what its whole or partial destruction looks like. Under the Convention, destruction might not be physical or biological, but annihilation of the social unit in terms of its distinguishing characteristics.

As Professor John Packer, Neuberger-Jesin Professor of International Conflict Resolution in the Faculty of Law at the University of Ottawa, explained, ‘if you have distilled and withdrawn all elements of the group and you are left only with bones and flesh and no [esprit de corps] and no community and no ability to self-generate and so forth, you have destroyed the group’.

However a group is destroyed, the central question of the Convention and therefore before the Tribunal remains whether a prohibited act is undertaken with the intent to eradicate the group.

There is no need, under international law, for a ‘smoking gun’ document outlining genocidal plans, nor a window into the minds of perpetrators. Otherwise, Professor Packer explained, a genocidaire could simply write a note to themselves stating their intent is not genocide but another goal.

Instead, he and others claimed, intent might be inferable by the sum and foreseeable effects of policies enacted, particularly where the perpetration of prohibited acts target the group’s regenerative capacity.

For example, the transfer of children away from the group and the prevention of births are prohibited acts with the foreseeable impact of preventing future generations of the group existing biologically or culturally.

One expert described the behaviour of children allegedly ‘re-educated’ in Xinjiang, claiming they refused to speak Uighur and called their Uighur names ‘weird’. She suggested the separation of children undermines the community identity, claiming, ‘this is going to destroy the Uighur nation’.

In respect of state and individual responsibility, it was claimed at the Tribunal that any policies that are allegedly genocidal in nature would be impossible to implement without the awareness of China’s government, and the state would at least have the authority to intervene after accounts of abuses began to be reported publicly.

Sir Geoffrey and legal experts also highlighted the obligations of the other states party to the Convention. Article One of the Convention requires all parties to undertake to prevent, as well as to punish, genocide.

There is no requirement for a court verdict determining genocide, nor a specified threshold of proof, for these duties under Article One to be activated. As such, states party to the Convention are not powerless bystanders, and are duty bound to act if they suspect a genocide might be about to occur.

International human rights lawyer Yonah Diamond explained that the responsibility to not commit genocide is not only to a state’s own people, but to the rest of the states party to the Convention. As such, he said, if genocide is being committed, ‘we’re all victims’.

Jennifer Venis is a freelance journalist and can be contacted at jennifer@jennifervenis.co.uk

Header pic: Shutterstock.com/Huseyin Aldemir