Every so often, I witness a scene in my neighborhood that’s all too common in New York City. A single car is double-parked on a narrow side street in front of a large apartment building. A blocked, frustrated driver—say, of a school bus full of frenetic children, or a delivery van on a tight schedule—angrily lays on the horn, sometimes for a full minute or more. Sometimes the guilty party sheepishly emerges to move their vehicle. But just as often they don’t.
If this were not Queens but Hangzhou, a city near China’s eastern coast, there would be no need for honking. In China’s “smart cities,” surveillance cameras immediately flag double-parked cars and run their plates to identify the owner. Local city managers, known as the Chengguan, then order such cars be moved via text message. Traffic can then resume flowing within minutes.
This is one positive element of China’s increasingly data-driven governance, analyzed by veteran reporters Josh Chin and Liza Lin in Surveillance State: Inside China’s Quest to Launch a New Era of Social Control. Their presentation can make Hangzhou seem like a paradise of efficiency, even to Americans skeptical of government control. Given China’s extensive record of human-rights violations, it can be tempting to dismiss innovations like Hangzhou’s camera and AI-based technology as tools of oppression.
Now former U.N. High Commissioner for Human Rights, Michelle Bachelet
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”).
Uyghurs practicing their religion in China
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.”
Chen Xu, China’s Ambassador to the UN at Geneva
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.
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. . . .
Ann Buchsbaum (at that time Ann Fried), at the Dutch orphanage. 15 years old United States Holocaust Memorial Museum Collection, Gift of Anne Fried Buchsbaum
One of the few happy memories Ann would share from her childhood was the time she spent in a Dutch orphanage. She talked about it often—the endless fields of red and yellow tulips that surrounded the place; the Dutch princess who sometimes stopped by to visit; the day trips to Amsterdam to visit the Rijksmuseum. Every time Ann reminisced about her time there, her pale blue eyes would light up her thin, wrinkled face and a small smile would sneak across her lips. Tulips were her favorite flower.
Ann Buchsbaum (nee Fried) was already eighty-nine years old when I first met her in 2012, and her body was beginning to betray her. Only a few years earlier, Ann was going to parties in Manhattan, volunteering at her beloved museums, and reading voraciously. Now, hobbled with a walker, her tiny, hundred-pound frame slightly hunched, Ann’s outings were limited to a three-block radius around our Forest Hills apartment building. Her social circle had been whittled down to her home-health aides and a few hallway neighbors. But Ann still had her stories and an enthusiasm for life. I could never tell if that enthusiasm was genuine or just a habit—developed as a Jew who had survived Hitler’s Europe.
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. SeeConvention 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.
Mike Pompeo
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.
Antony Blinken at his Senate Confirmation Hearing, Jan. 19, 2021
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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