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.

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.

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.

Originally posted in the Washington Post

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