Key evidence regarding intent came from the ‘Xinjiang Papers’, leaked to the Tribunal in September, which connect senior PRC government figures with policies to ‘optimize’ the ethnic population.
Many experts, the US government and several national parliaments have reached the same conclusion on genocide.
The US Holocaust Memorial Museum’s Simon-Skjodt Center for the Prevention of Genocide meanwhile found in early November that while the intervention in Uyghur births ‘raises legitimate questions about the existence of the intent to biologically destroy the group’, more information is needed. But, while acknowledging the limited availability of verifiable information regarding the treatment of Uyghurs, its report concludes that the information available ‘gives rise to serious concerns that the Chinese government may be committing genocide’.
Such differing findings may not undermine the message of the Tribunal’s judgment – that the international community must act.
The Genocide Convention obliges states to prevent genocide, as well as punish it, explains Aarif Abraham, a barrister specialising in international law and former legal adviser to the Tribunal. It’s when any state learns of a serious risk of genocide – not the occurrence of genocide – that ‘it must use all means reasonably available to bring the situation to an end’.
But, Abraham adds, the enforceability of these obligations is challenging. For example, some governments are reluctant to assume their obligations until a court makes a declaration of genocide.
[The impact] is going to depend on the courage of those who hold the judgment in their hands as to when they’re going to stand up and what they are going to do with it
Co-Vice Chair, IBA War Crimes Committee
Abraham emphasises this is contrary to international law. ‘It’s the foreign offices, the ministers of justice in states around the world that should be grappling with these questions, and should put in place atrocity prevention mechanisms,’ he says.
China’s position as a global power makes it politically challenging for states to intervene and its government has already blocked a UN human rights investigation in Xinjiang, although a limited assessment of the situation in the region may still be released soon.
Further, China’s position on the UN Security Council and veto power, alongside the jurisdictional limits of the International Criminal Court and International Court of Justice, ensure that the prospects for formal international justice are slim.
‘That’s the vacuum people’s tribunals fill, to test allegations of atrocities in a formal setting with credibility and integrity,’ says Abraham. When a people’s tribunal does find genocide, ‘it’s very hard for states to then avoid obligations to prohibit, prevent and punish.’
China has consistently denied the allegations of atrocities. Following the judgment, a spokesperson for China’s Ministry of Foreign Affairs claimed the Tribunal ‘hired liars to make false statements and falsify evidence, in an attempt to craft a political tool to disrupt Xinjiang and smear China.’
Despite its lack of legal standing, the Tribunal’s judgment has nevertheless been seized upon.
UK parliamentarians have called for, among other things, a full diplomatic boycott of the 2022 Winter Olympics in China, which Australia, Canada, the UK and US have already committed to.
Ultimately, the impact ‘is going to depend on the courage of those who hold the judgment in their hands as to when they’re going to stand up and what they are going to do with it,’ says barrister Sareta Ashraph, who is Co-Vice Chair of the IBA War Crimes Committee.
Ashraph says however that the judgment has legal significance in its own right, due to the unprecedented nature of its findings of genocide on the basis of the prevention of births intended to biologically destroy.
She adds that, socially, the judgment brings the public’s understanding of genocide in line with the legal definition, including by increasing the understanding of how genocidal acts target and affect different genders differently.
In doing so, she says, ‘it means that groups of victims that have been historically marginalised or not made visible in genocide analyses or prosecutions are more likely now to be included.’
The Tribunal expressed some ill-ease at making such a finding, which Aldo Zammit-Borda, Reader in Law at City University and the Tribunal’s Head of Research and Investigation, explains is likely because, ideally, another formal mechanism would have already made such a finding so the Tribunal could refer to pre-existing interpretations of the law.
What’s more, the exact meaning of intent to biologically – as opposed to physically – destroy has not been fully explored.
As Ashraph explains, genocide has primarily been understood and litigated as mass killings intended to physically destroy a group.
For Zammit-Borda, the Tribunal has provided one answer to important legal questions regarding what form the intent to biologically destroy takes and whether the perpetrator is considering the reproductive capacity of the current group or the unborn members of the group, ‘but it will be interesting to see the continued discussion of these areas.’
Baroness Helena Kennedy QC, Director of the IBA’s Human Rights Institute, hopes that IBA members will take up the challenge. ‘As an organisation of lawyers this is a judgment which should be read and debated,’ she says. ‘It is a very considered piece of work by a panel which was led by a distinguished and hugely experienced lawyer.’
Perhaps of greatest importance is the Tribunal’s significance for the victims.
‘So far, the victims have made allegations of huge atrocities, and no state has given them due process or any access to justice,’ says Zammit-Borda. The Tribunal, he says, elevated their voices and gave them access to a limited form of justice.
Speaking at the press conference following the judgment, Dolkun Isa, President of the World Uyghur Congress, said ‘We can only hope that the world takes meaningful steps to end the genocide, crimes against humanity and torture, that the Chinese Communist Party is held responsible for such an atrocity.’
Image: Muslims activists stage a protest rally demanding stop genocide of Uighur Muslims in China, after Friday prayer in Dhaka, Bangladesh, on March 12, 2021