Most people, even if aware of human rights violations against the Uyghur people in China, are unaware of the legal complexities of declaring the situation a genocide. To the lay person, it seems straight-forward that gross abuses such as forced labour, torture, rape, forced abortions and sterilisations are clear indications of genocide. But the reality of determining genocide in legal terms is far more complex and intricate.
On the second day of the September hearings for the Uyghur Tribunal, testimony was delivered by a range of witnesses, raising common questions about the role of the tribunal in making a determination of genocide and the kind of impact it aims to have on governments.
John Packer and Yonah Diamond delivered a fascinating and compelling discussion on the findings of their report, in association with the New Lines Institute and Raoul Wallenberg Centre for Human Rights.
The report examines whether the actions of the PRC are in breach of the 1948 Genocide Convention. Mr Diamond made reference to the “repressive and sophisticated regime in Xinjiang, sustained by a complex hierarchy of government”, whose inherent systems of operation seem to indicate intent to commit genocide.
Mr Diamond explained that, under Article II of the Genocide Convention, a state must commit one of five acts with the intent to destroy (in whole or in part) a national, ethnic, racial or religious group, in order for a determination of genocide to be made.
Deconstructing for listeners the common misconception that genocide requires acts of mass killing, Mr Diamond highlighted that causing serious bodily or mental harm to members of the group, or imposing measures intended to prevent births within the group,
are both sufficient as methods of committing genocide. These forms of oppression are a familiar presence in Xinjiang.
The testimony heard from witness Rahima Mohammed Nuri can be considered in the context Genocide Convention, particularly in relation to the prevention of births. Ms Nuri shared details of her time working as a nurse in a Xinjiang hospital, where she was expected to perform forced abortions for women, some of whom were eight months pregnant. She recalled the trauma of performing such acts, which she believed to be totally unethical.
Over 100 Uyghur women received abortions at the hopsital each day Often the women would receive an injection to induce labour, and the children would be born, passing away only a few days after. Other operations including inserting IUDs also took place in these hospitals.
Ms Nuri shared that, as an act of resistance, she would help Uyghur women to have their IUDs removed in secret, as this was not a procedure they could undergo in public hospitals. She knew the risk involved, and confessed her belief that she would find it “impossible” to carry out such operations at present, due to the systematic and intrusive systems of surveillance in Xinjiang.
Ms Nuri recalled a particular time on which a Uyghur woman came to her, to give birth outside of the PRC’s limit on the number of children that Uyghur women are able to have. The woman in question gave birth to the child which died, and was then made to show a photo of the child to the Chinese authorities, to avoid being fined. Such a forced act of psychological trauma for a mother demonstrates the sheer barbarity and ruthless nature of Chinese family planning policies.
Looking again at the question of intent, Sir Geoffrey Nice QC (Chair of the Tribunal) and Dr Packer engaged in debate about the necessity of the term in a determination of genocide.
Dr Packer emphasised interpretations made in the report. Article I of the Genocide Convention requires states to prevent and punish genocide, and thus the idea of intent is fundamental to a determination. This may suggest that the intent behind the act is more important than the outcome: it is not a question of numbers, as Diamond suggested. This interpretation also questions the duty of states to act on allegations of genocide. Sir Geoffrey Nice QC has suggested that UK, US and Australian governments are all guilty of withholding critical evidence, in an attempt to renounce a responsibility to prevent genocide under the convention.
Regardless of whether the Tribunal panelists make a determination of genocide at the close of the hearings (a process which will undoubtedly be difficult, involving such legal intricacies), themes brought to light at today’s sessions demonstrate the sheer complexity of the crisis at hand.
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