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By Elizabeth M. Lynch, September 13, 2022

On August 31, 2022, after a year-plus delay, criticism from the human rights community, and a Chinese government-run trip to China to “investigate” atrocities, the U.N. Office of the High Commissioner for Human Rights (OHCHR) issued its long-awaited report (“report” or “U.N. Xinjiang report”) about the Chinese government’s human rights violations in China’s predominately Muslim province of Xinjiang.  With high drama, then-Human Rights Commissioner, Michelle Bachelet, published the report 13 minutes before she was to step down from her position.

Many have reported on the Chinese government’s extensive lobbying to prevent the report from seeing the light of day so the fact that it was published at all is significant.  But according to Politico, the Chinese government was able to sufficiently water down the report’s conclusions (OHCHR provided China with a pre-publication draft).  And there is much to be critical of: the report states that all these human rights violations “may” constitute crimes against humanity when they clearly do; it glosses over the use of surveillance that makes the whole of Xinjiang – even outside of the internment camps – feel like a prison; there is no mention of possible genocide even though it is obvious that the Chinese government is preventing Uyghur births, a covered act under the Genocide Convention (“imposing measures intended to prevent births within the group”); and the report’s section on family separation shockingly omits any mention of the forced placement of over 800,000 Uyghur children in state-run boarding schools, also a covered act under the Genocide Convention (“forcibly transferring children of the group to another group”).  

Nevertheless, there are some strengths in the report that should not be ignored, most notably OHCHR’s complete rejection of the Chinese government’s statements that its actions in Xinjiang are necessary for national security.  Instead, OHCHR condemned China’s Counterterrorism Law, enacted in 2015, and calls it out for criminalizing the practice of Islam in China.  The Counterterrorism Law, and its corresponding implementing regulations, fail to abide by international human rights norms according to the report.  The definition of terrorism in the law is so vague that it “leaves the potential that acts of legitimate protest, dissent and other human rights activities, or of genuine religious activity, can fall within the ambit of ‘terrorism’. . . .”  OHCHR saves its strongest criticism for the law’s definition of extremism.  First the report notes that under international and U.N. practices, only “violent extremism” is to be punished; the Counterterrorism Law fails to make that distinction.  Instead, by defining extremism through “ideas,” “thoughts,” “clothing,” and “symbols,” it also punishes the mere practice of religion.  But even worse than the vagueness of the law, is that its implementation is even more nebulous.  In reviewing available Xinjiang judicial decisions that used the term “extremism,” OHCHR found that courts often labeled acts as extremist without explaining how those acts fulfilled the legal standards, leaving the OHCHR with the only conclusion that in China all Islamic religious behavior is “extreme.” 

These might seem like small points but the Chinese government constantly bats away criticism of its human rights violations in Xinjiang as necessary to prevent terrorism. So countering these false assertions is imperative.  Just look at the Chinese government’s response to the report.  The majority of its 122-page response is about the need to stamp out terrorism in Xinjiang.  But if OHCHR is now calling this b.s., other countries can no longer accept China’s excuses. 

Another positive is the report’s clear command that member states not send Uyghurs and other Chinese Turkic Muslims back to China, even if the Chinese government demands that they do.  Although the report makes no mention of genocide and only mentions crimes against humanity as “may” be happening, one has to wonder – if things weren’t so bad, why would OHCHR be telling countries not to send Uyghurs back to China?  OHCHR repeatedly states that sending Uyghurs back would violate the prohibition against refoulement (the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution) which means something pretty bad is happening in Xinjiang even if OHCHR does not want to slap a label on it.

Finally, perhaps the report’s most significant contribution is that even with its watered-down conclusions, OHCHR has put out such damning facts concerning the arbitrary detention, sexual violence, torture, and forced birth control perpetrated against Uyghurs that the world can no longer look away.  Expect this report to roil to the Human Rights Council (HCR) over the next few months, emboldening those countries who have long called on the HCR to do more and causing other countries that once might have defended China to no longer do so. 

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By Elizabeth M. Lynch, February 22, 2022

Originally published in Commonweal

Early last December, a group of nine British lawyers and human-rights specialists gathered in a wood-paneled room under the glass dome of Church House, near Westminster Abbey in downtown London. They were there to do what the United Nations and its member states have so far failed to accomplish: conduct a thorough review of five years of evidence regarding the Chinese government’s persecution of its minority Muslim Uyghur population in the province of Xinjiang, a sprawling semi-autonomous territory in northwest China. On December 9, after hearing days’ worth of live testimony and poring over thousands of pages of expert reports, as well as published regulations of the Chinese government and other leaked documents, the independent Uyghur Tribunal pronounced its verdict. It found the Chinese government guilty of crimes against humanity and genocide of its Uyghur population.

Such an important determination should not have taken this long, nor should the judgment have fallen to a people’s court. Since 2017 the world has known—through media reports, academic studies, and witness testimony—that the Chinese government has summarily interned more than 1 million Uyghurs and other Turkic Muslims in Xinjiang concentration camps. . . .

To continue reading click here. 

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By Elizabeth M. Lynch, December 12, 2021

Last Monday, the White House announced that, because of the “ongoing genocide and crimes against humanity in Xinjiang and other human rights abuses,” President Joe Biden will not be sending any diplomatic, government or other official representatives to the Beijing Winter Olympic Games.  With the U.S.’ announcement, other countries and territories have followed suit. New Zealand, United Kingdom, Canada, Australia, Scotland, Kosovo and Japan all have announced similar diplomatic boycotts.  To its credit, Lithuania preceded the United States in announcing a diplomatic boycott by three days.

But in light of the Chinese government’s ongoing persecution of Uyghurs and other Turkic Muslims – the unlawful internment of one to three million in camps (and yes, it is unlawful under Chinese law), the criminalization of their religion, the restriction on Uyghur births, the constant destruction of their mosques and other religious grounds, the seizure of Uyghurs’ passports, and the dehumanization of Uyghurs – a diplomatic boycott is not enough.  Our athletes’ participation in the shadows of what the U.S. government has declared a genocide and U.S. corporations’ Olympic sponsorship will make the Beijing Winter Games come off as business as usual.  We don’t look back on Berlin 1936 because we sent our diplomats to attend the Nazi’s Olympics.  We look back on the Berlin Summer Games because we allowed our athletes to perform before a regime that we knew was persecuting and dehumanizing its Jewish population.  And in allowing for business as usual, we demonstrated our lack of commitment to protecting Germany’s Jews and gave the Nazi government the imprimatur of global legitimacy.  With just a diplomatic boycott of the Beijing 2022 Winter Games, expect the same result which, if history is a guide, does not bode well for the Uyghurs.   

Additionally, leaving the moral responsibility to do more on the shoulders of our athletes is not only unfair to them, it is also dangerous.  Many of our athletes are in their late teens to mid-twenties, peak age to take on causes and protest.  In March of this year, likely recognizing their athletes’ proclivity to activism and the U.S.’ tradition of free speech, the U.S. Olympic Committee permitted demonstrations at the U.S. Olympic trials.  At this summer’s Tokyo Olympics, U.S. shot-putter Raven Saunders, while on the medal podium, held up her arms in an “x” in protest for the oppressed of the world.

But such protests in Beijing could result in severe consequence for our athletes under Chinese law.  Disrespecting the Chinese flag is a crime under Chinese Criminal Law (Article 299) and anything touching upon Tibet or Xinjiang, such as unfurling or wearing a Tibetan or East Turkestan flag or symbol, could be deemed inciting separatism (Article 103) or inciting ethnic hatred (Article 249).  Similar with any show of support for an independent Taiwan or for protestors in Hong Kong.  Even writing #WhereIsPengShuai could easily fall under the Chinese government catch-all, anti-activist criminal prohibition against picking quarrels and provoking troubles. (Article 293(4): “making disturbances in public places. . . .”).  Even if the Chinese government doesn’t want to throw the book at a foreign athlete, there is always administrative detention – a 15-day prison sentence without trial – as a result of “disturbing public order” that could be a good way to prove its point.

The fact that the world will be watching should not afford any comfort. The past few years have shown that the Chinese government has no qualms in using its legal system to prove a political point.  For almost two years, the Chinese government detained Canadians Michael Kovrig and Michael Spavor in retaliation of Canada’s arrest of Huawei CFO Meng Wanzhou.  American citizens and siblings Victor Liu and Cythnia Liu, who went to China to visit family, were forbidden from leaving for over three years, likely as a way to pressure their businessman father to turn himself in on fraud charges.  Even the United States Department of State has noted the political use of the legal system , warning Americans traveling to China that the “government arbitrarily enforces local laws, including by carrying out arbitrary and wrongful detentions and through the use of exit bans on U.S. citizens and citizens of other countries without due process of law.”

So what’s the Biden’s administration’s plan when one of our athletes is detained or not allowed to leave China?  Has the U.S. Olympic Committee informed athletes’ parents and family what it will do when their relative goes missing?  The Biden administration and the U.S. Olympic Committee need to be honest with our athletes and their families that protesting in China could have real consequences and if they do protest, communicate now what the U.S. government will do for them.  It’s funny how our choice to engage in a diplomatic boycott also puts us, the bastion of free speech, in the awkward situation that to ensure our athletes’ return, we have to tell them not to protest against some of the gravest human rights violation in the world today.  Perhaps a more complete boycott – athletes, corporate sponsors, media coverage – would have been the better choice, both morally and for the safety of our athletes. 

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By Elizabeth M. Lynch, February 15, 2021

It was disappointing to read The Economist‘s most recent piece about the atrocities in China’s Xinjiang province – “‘Genocide’ is the wrong word for the horrors of Xinjiang” given the hard stance it has taken in the past against the Chinese government’s violence, oppression and mass internment of Uighurs and other Turkic Muslims. But in its most recent article, by ignoring the sexual violence against Uighur and Kazakh women, The Economist demonstrates its lack of understanding of the crime of genocide under international law and perpetuates a misogynistic view of the crime.  

Although sexual violence has been a key element of most genocides – from Armenia in 1915 to the Rohingya today[1] – the term rape does not appear in either the Genocide Convention or the Rome Statute of the International Criminal Court.  But the systematic rape of women has repeatedly been found to constitute the physical element of genocide.  In 1998, the U.N. Tribunal for Rwanda found former Hutu mayor Jean-Paul Akayesu guilty of genocide for the systemic rape of Tutsi women in his community.[2] Specifically, the Tribunal held that systematic rape constituted the genocidal act of “causing serious bodily or mental harm to members of the group.”[3] More recently, the U.N.’s Independent International Commission of Inquiry on Syria concluded that the Islamic State of Iraq’s (“ISIS”) systematic rape of Yazidi women and girls constituted the physical element of genocide: “Rape can be a measure to prevent births [another defined genocide act under the Convention] ‘when the person raped subsequently refuses to procreate, in the same way that members of a group can be led, through threats or trauma, not to procreate.’”[4]

But in arguing that genocide is the wrong word to describe what is happening in Xinjiang, The Economist ignores clear legal doctrine.  Allegations of rape in Xinjiang’s concentration camps have been circulating since at least 2019.  Earlier this month, the BBC reported on the systematic use of rape and sexual torture against Uighur women in the concertation camps, with different women, from different camps, describing the same horrific acts perpetrated by Chinese state actors. The eerie similarity in these women’s stories is what gives them credibility, especially as the Chinese government’s sole retort is to state that these sources are “untrustworthy.” The Chinese government has also failed to give the U.N. High Commissioner on Human Rights access to Xinjiang for an independent assessment of what is happening there.  If The Economist failed to mention these women’s stories because it doesn’t think these stories “prove” genocide, “we should long ago have shifted the burden of proof away from the refugees and to the skeptics, who should be required to offer persuasive reasons for disputing eyewitness claims.”[5]

In addition to ignoring the well-developed doctrine that mass rapes can constitute the physical element of genocide, The Economist implies that the only action that could be “intended to prevent births” is “the systematic sterilisation of all women.” As show above, the United Nations – and the world – moved away from such a narrow definition years ago. The Economist does a disservice to its readers – and female victims of genocide – by offering such an inaccurate assessment. 

Ultimately though, it appears that The Economist wanted to make the argument that we shouldn’t get hung up on defining what is happening in Xinjiang as a genocide or as crimes against humanity; it’s all just a parade of horrors that need to end.  China Law & Policy has made this argument too (see here) since for both genocide and crimes against humanity, U.N. member states have the same “responsibility to protect.” But The Economist went too big in definitively stating that what is happening in Xinjiang is not genocide. The Economist does not know that and offers no proof or legal analysis; instead it merely states that genocide “exaggerates” the Chinese government’s crimes in Xinjiang.  But it doesn’t if you focus on the violence perpetrated against Uighur women.  The Economist – and the world at large – would be wise to heed the advice of Samantha Power in her authoritative book on the world’s missteps in stopping genocide in the past: “A bias toward belief would do less harm than a bias toward disbelief.”[6]

[1] Global Justice Center, Beyond Killing: Gender, Genocide & Obligations Under International Law, pp. 18-19 (Dec. 6, 2018), available at https://globaljusticecenter.net/files/Gender-and-Genocide-Whitepaper-FINAL.pdf.

[2] Samantha Power, “A Problem from Hell”: America and the Age of Genocide, pp. 485-86 (Harper Perennial 2002).

[3] Id.

[4] U.N. Human Rights Council, “They came to destroy”: ISIS Crimes Against the Yazidis, ¶ 145 (June 15, 2016), available at https://www.ohchr.org/Documents/HRBodies/HRCouncil/CoISyria/A_HRC_32_CRP.2_en.pdf.

[5] Power, supra note 2, at p. 506.

[6] Id.

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By Elizabeth M. Lynch, January 19, 2021

In one of his last acts as Secretary of State, Mike Pompeo stated that the Chinese government’s extrajudicial internment of 1.8 million Uyghurs, the torture and forced labor of Uyghur detainees, and the forced sterilizations and abortions of Uyghur women, amounts to crimes against humanity and genocide.  Hours later, in his confirmation hearings, President-elect Biden’s secretary of state nominee Antony Blinken agreed with Pompeo’s designation of genocide.  Immediately, the U.S. press heralded the bi-partisan nature of this genocide declaration.

But genocide is not just about the acts committed; it also requires government intent to physically or biologically destroy the group.  See Convention on the Prevention and Punishment of the Crime of Genocide (“In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”) (emphasis added).  By declaring genocide, the U.S. government could easily get bogged down in this required element, an element that even Pompeo left out of his declaration. Nowhere in his statement does Pompeo assert that the Chinese government had an intent to physically destroy the Uyghur people. 

That is why Pompeo’s declaration that the Chinese government’s actions in Xinjiang province amounts to crimes against humanity is more actionable, and has been for the past couple of years. Like genocide, crimes against humanity include acts that attack the very soul of a people and its culture: murder, extermination, torture, arbitrary detention, forcible transfer of a population, rape, sexual violence, forced sterilizations, apartheid. But unlike genocide, these crimes do not require an intent to biologically destroy.  Instead, acts that constitute crimes against humanity merely need to be part of a widespread or systemic attack directed at a group, with the perpetrator’s knowledge that his or her acts are part of this larger attack.  In looking at Pompeo’s declaration of genocide he states that “we are witnessing the systematic attempt to destroy Uyghurs.” In those words, he seems to mistake the element of crimes against humanity for genocide.

This isn’t to say that the crime of genocide is not occurring in Xinjiang nor that such a declaration is inconsequential. It certainly carries meaning and should. But the U.S. must ensures that it acts on these declarations and not just get caught up in a war of words with China and its allies, something that could more easily happen by solely focusing on genocide.  In fact, the United Nations, through a 2005 Resolution signed by all 193 member states, requires countries to respond similarly to both genocide and crimes against humanity. For both, states have a duty to “protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity” and must “use appropriate diplomatic, humanitarian and other peaceful means.” See ¶¶ 138-39.

To fulfill this obligation to protect, the U.S. must step up its efforts.  Pompeo’s statement, while full of important policy pronouncements, provided no new courses of action. Similarly, Blinken’s suggestions on how to respond – ensure that we don’t import cotton picked by forced labor and guarantee that we don’t sell surveillance technologies to China – didn’t break new ground.  Instead, the U.S. should be advocating a liberal asylum/refugee policy for Uyghurs. 

More obvious, the U.S. government needs to start discussing boycotting the 2022 Winter Olympics in Beijing and encourage allies to do the same.  How can the U.S. send its athletes to compete in games hosted by a country engaging in crimes against humanity and genocide?  To do so would render Pompeo and Blinken’s statements today hollow words and would embolden the Chinese government – and all governments – to continue genocidal policies.  The last time we ignored the genocidal intent of a host country – Berlin, 1936 – six million Jews were murdered by the governing party.  The 2022 Winter Olympics are a little more than a year away.  In fairness to our athletes, these discussions must begin now.  Also, making these discussions public now, might save some lives in Xinjiang. 

But the U.S. cannot go this alone, either boycotting the 2022 Olympic boycott or fulfilling its responsibility to protect. Only a multilateral response can defeat crimes against humanity; no individual country has ever been able to end a genocide. The U.S. must re-engage international institutions including re-joining the U.N. Human Rights Council, a body where has been dominated by China since the U.S.’ 2018 withdrawal from the Council.

Genocide is a bold word. Those words need to be followed up with bold action.  Failure to do so only weakens those post-World War II international institutions and treaties the Biden Administration has promised to uphold.  It also means that Uyghurs will continue to suffer while all we did was play word games.

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By Elizabeth M. Lynch, October 27, 2019

Uighur protester outside of China with a mask with the flag of East Turkestan and a Chinese flag covering her mouth

Last week, the Washington Post published my op-ed where I argued that what is being perpetrated against Uighur and other Turkic Muslim women – rapes, forced sterilization, forced abortion – are all crimes against humanity.  Since publishing that piece, many have asked why I decided to describe these acts as crimes against humanity?  Why am I not calling it genocide?  Or at least cultural genocide?

In the past few months, many have stated that the Chinese government’s actions in Xinjiang are akin to cultural genocide.  The government’s widespread razing of mosques; its destruction of Muslim burial grounds; its prohibition against certain religious baby names; its mass internment of 1.5 million Uighurs and other Turkic Muslims for no crime other than being Muslim; all of these reflect a Chinese government intent on destroying the Uighur culture and “Sinicize” them, making it cultural genocide.  But cultural genocide is not a crime under international law and thus, brings with it no legal duty for the world to stop it nor any punishment for the perpetrators.  In fact, the drafters of the Genocide Convention intentionally rejected the concept.  Instead, genocide under the Convention is limited to the biological or physical destruction of the group coupled with an intent to destroy.  When I spoke with Deborah Mayersen, a lecturer at the University of New South Wales at the Australian Defense Force Academy and an expert in the field of genocide studies, she was clear that she didn’t think that the situation in Xinjiang was genocide. “I do think there are warning signs, but at the moment [China] is not heading toward genocide” she told me.  “There would need to be some sort of disruption – an economic disruption perhaps that can be blamed on the Uighurs – for [China] to be on the trajectory toward genocide.”

“But we do have a fairly clear case of crimes against humanity” Mayersen emphasized.  Unlike genocide, crimes against humanity is not governed by a specific treaty.  Instead, it has developed through international customary law, with its use at Nuremberg, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda among other instances. Crimes against humanity include acts that attack the very soul of a people and its culture: murder, extermination, torture, arbitrary detention, forcible transfer of a population, rape, sexual violence, forced sterilizations, apartheid.  It might sounds a lot like genocide, but unlike genocide, these crimes do not require an intent to biologically destroy, an element we don’t yet have in Xinjiang.  Instead, acts that constitute crimes against humanity merely need to be part of a widespread or systemic attack directed at a group, with the perpetrator’s knowledge that his or her acts are part of this larger attack.

Because crimes against humanity is a legally recognized doctrine, it “brings with it the responsibility to protect” Mayersen told me, citing to a 2005 U.N. Resolution, signed by all 193 UN member states.  Under that Resolution, the international community is required to take quick and decisive action to protect the targeted group.

Protest in Brussels Calling on the EU to Speak Up Against the Internment of Uighurs

The unlawful internment of 1.5 million Uighurs and the removal of Uighur children from their families alone constitute crimes against humanity.  And rape and forced sterilization have been considered crimes against humanity for decades.  Sexual violence against women was a basis for crimes against humanity at the International Criminal Tribunal (ICT) for the Former Yugoslavia and of the ICT for Rwanda.  In 2013, the U.N. Human Rights Council, in its inquiry report on North Korea and after conducting a number of victim interviews, found sufficient evidence for a charge of crimes against humanity for the rape, forced abortions and sexual violence perpetrated against women.

Because there is more than sufficient evidence that what is happening in Xinjiang is crimes against humanity, activists, journalists and others must refer to it as such.  Only then is the world required to act.   To call it anything less gives the world a free pass and permits the Chinese government to continue to engage in its destruction of the Uighur people and their culture.

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By Elizabeth M. Lynch, October 21, 2019

Originally posted in the Washington Post

Mihrigul Tursun (L), testifying at the CECC hearing

Sitting in a hearing room in Congress, in a gray plaid hijab, her dark blond hair poking out, Mihrigul Tursun begins to cry. She is there to share the plight of her fellow Uighurs in Xinjiang. Her translator reads aloud Tursun’s prepared statement about her three separate detentions by the Chinese government in Xinjiang’s internment camps. As the translator recounts Tursun’s first detention — upon her release, she learned that one of her 4-month-old triplets had died — Tursun struggles to hold back tears. Click here to read the entire op-ed