Introduction
A so-called Uyghur Tribunal was launched in 2020 in United Kingdom by Sir Geoffrey Nice, the lead prosecutor for the International Criminal Tribunal that tried Slobodan Milošević’s war crimes in the former Yugoslavia based on the genocide allegations against Uyghur, Kazakh and other Muslim minorities in the Peoples Republic of China (PRC). Sir Geoffrey Nice, said on 9 December 2021 that its panel was satisfied China had carried out “a deliberate, systematic and concerted policy” to bring about “long-term reduction of Uyghur and other ethnic minority populations” and claimed to found out a genocide. He added that the panel believed senior officials including the Chinese president Xi Jinping bore “primary responsibility” for the abuses against Muslim minorities in the Xinjiang region. Reading the tribunal’s judgement, Sir Geoffrey said there was “no evidence of mass killings” in Xinjiang, but he said that the alleged efforts to prevent births amounted to genocidal intent.
It is not the legality of the so-called Tribunal that must be determined but whether the decision of the so-called Tribunal on genocide is legally legal. A genocide is defined as “the crimes of the crimes.” In addition, the word genocide is now often used by various groups and governments as a political strategy. The legality of the judgement of the so-called Tribunal is the answer if the so-called Tribunal is established as a political instrument of a political strategy against PRC or not. The legality of the judgement of the so-called Tribunal if is null and void, than the false accusations can be amount to hate speech under the definition of Sinophobia.
1. The Genocide Convention
The introduction of the concept of the crime of genocide into international law accepted to the work of the Polish lawyer Raphael Lemkin, who in his book “Axis Rule in Occupied Europe” in 1944, used the term ‘genocide’ for the first time. Even if genocide is a new word to the world, the crime is as old as the human history but only not named before specifically for the crime. Raphael Lemkin coined the term genocide as a hybrid combination of the Ancient Greek word génos “race, people” with the Latin caedere, “’to kill’” to refer to the “destruction of a nation or of an ethnic group”. Before the International Military Tribunal at Nuremberg, genocide was mentioned in the text of the indictment, but it did not form an independent crime. Genocide was recognized as a “crime under international law” by the 1946 General Assembly Resolution 96 (I), which defined it as “the denial of the right to exist for entire human groups”. The international normative framework for the crime of genocide is principally set out in the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention) in 1951 [1] Article II of the Genocide Convention contains the definition of genocide and therefore forms the “heart” of the Convention’s regime. The significance of Article II is restricted to defining genocide within the context of the Convention.
Article II of the Genocide Convention defines genocide as follows:
“Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group
Among the reasons the crime of genocide is called the “crime of crimes” is its special intent, dolus specialis to destroy as written in Article II. Genocide has two main players: the ones who elaborate the genocidal plan, the mens rea (“criminal mind” in Latin) and the ones who carry out the killings and other crimes that make up the actus reus (“guilty act” in Latin) of genocide. Among the reasons the crime of genocide is called the “crime of crimes” is the “genocidal plan”. The actus reus of genocide is making the transition of the genocidal plan, intent to the result of a genocide. The genocidal plan is defined as “intent to destroy in whole or in part, a national, ethnical, racial or religious group,” in Article II of the Genocide Convention.
If there is no mens rea or intent to destroy, there is no genocide but other kind of actus reus, atrocity crimes like war crimes or ethnic cleansing. In today’s world, to reach their own political goals, the crime of genocide allegations has begun to be used widely by different groups or by different States.
According to some, “if we can prove some certain allegations such as racial and religious discrimination, apartheid-like policies, and persecution of ethnic minorities, indigenous peoples, migrant workers and refugees, then we have a right to call this genocide.” In the “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia), Judgment, the International Court of Justice (ICJ) said that “for a pattern of conduct, that is to say, a consistent series of acts carried out over a specific period of time, to be accepted as evidence of genocidal intent , it would have to be such that it could only point to the existence of such intent, that is to
[1] Convention on the Prevention and Punishment of Genocide, (1951).
say, that it can only reasonably be understood as reflecting that intent”[1] The ICJ had rejected claims of genocide by Serbia and Croatia against each other during the Croatian war of secession from Yugoslavia. The Croatian government had alleged that Serbia committed genocide in the town of Vukovar and elsewhere in 1991. Serbia later filed a counter-claim over the expulsion of more than 200,000 Serbs from Croatia. About 20,000 people died during the 1991-1995 war, mostly Croatians. The Croatian town of Vukovar was devastated when it was occupied by Serbs for three months in 1991. Tens of thousands of ethnic Croats were displaced, and about 260 Croat men were detained and killed. Four years later, the Croatian military’s Operation Storm bombarded the majority ethnic-Serb Krajina area, forcing about 200,000 people from their homes. Forces on both sides had carried out violent acts during the war, however the Court rejected both the Croatian claim and the Serbian counter-claim on Genocide based on the fact that, neither side had provided sufficient evidence to demonstrate the “specific intent required for acts of genocide”. The ICJ ruling in Reservations to the Genocide Convention case in 1951, defined the Genocide Convention has been widely accepted as embodying principles that are part of customary international law. The ICJ confirmed that the prohibition of genocide is certainly also a peremptory norm of international law, or jus cogens, meaning, in the words of article 53 of the Vienna Convention on the Law of Treaties (VCLT), that it is accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted. This is the key point of the Genocide Convention.[2] The ICJ noted that the prohibition of genocide was “assuredly” a “peremptory norm of general international law jus cogens”.[3] In its Commentaries to the VCLT, the Articles on State Responsibility, and the Report on Fragmentation of International Law, the International Law Commission observed that the prohibition of genocide was a jus cogens norm. In addition, the vast majority of legal scholars contend that the prohibition of genocide amounts to jus cogens. [4] The prohibition of genocide is also jus cogens norm that is peremptory nature of the normative status of the prohibition of genocide automatically creates the obligation to prevent genocide. This logical conclusion finds support in the rationale of the ICJ, which held that “the
[1] Application of the Convention on the Prevention and Punishment of the Crime of Genocide, (Croatia v. Serbia), Judgment, ICJ Reports 2015 (I), p. 151, para. 510.
[2] Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Rwanda) (2006) ICJ Reports, para 64.
[3] Ibid.
[4] J.J. Heieck, ‘The Responsibility Not to Veto Revisited: How the Duty to Prevent Genocide as a Jus Cogens Norm Imposes a Legal Duty Not to Veto on the Five Permanent Members of the Security Council’ in R. Barnes and V. Tzevelekos (eds.), Beyond Responsibility to Protect: Generating Change in International Law (2016), pp. 103-122, p.107
obligation … to prevent genocide is both normative and compelling”.[1] As a result, it is a jus cogens norm to prevent genocide. Article 1 of the Genocide Convention gives responsibility to the States the responsibility to prevent and punish genocide as an erga omnes partes obligation.
While Article 1 of the Genocide Convention gives an obligation to prevent genocide as a jus cogens norm for the States, the question of how to fulfill the obligation to prevent arises. When trying to prevent a given activity, such as genocide, there exists the customary concept of international law, the due diligence standards. Due diligence usually requires some degree of knowledge of the risk of the occurrence of the relevant harm, which must be significant or serious.
In the Application of the Genocide Convention (Bosnia and Herzegovina v. Serbia and Montenegro) (Genocide case) one of the main issues was whether Serbia had breached its duty to prevent genocide under Article I of the Genocide Convention when it failed to take any measures to prevent the Bosnian Serb Army from committing the Srebrenica Massacre, a genocide that claimed the lives of 7,000-8,000 Bosnian Muslim men of military age. In addressing this issue, the ICJ had to first define the scope of the duty to prevent genocide, and then apply this law to the facts of the case. The ICJ accomplished this task by adopting a specific due diligence standard, which established the standard of care by which the conduct of states would be judged to determine whether the duty to prevent genocide had been breached. [2] The ICJ observed the objective element of the due diligence standard:[3] [I]t is clear that the obligation [to prevent genocide] is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of ‘due
[1] Case Concerning Application of the Convention on the Preventation and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 26 February 2007, infra note 47, at para. 427.
[2] J.J. Heieck, ‘The Responsibility Not to Veto Revisited: How the Duty to Prevent Genocide as a Jus Cogens Norm Imposes a Legal Duty Not to Veto on the Five Permanent Members of the Security Council’ in R. Barnes and V. Tzevelekos (eds.), Beyond Responsibility to Protect: Generating Change in International Law (2016), pp. 103-122, p.108
[3] Case Concerning Application of the Convention on the Preventation and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment of 26 February 2007, infra note 47, at para. 430.
diligence’, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position vis-à-vis the situations and persons facing the danger, or the reality, of genocide. On the other hand, it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result – averting the commission of genocide – which the efforts of only one State were insufficient to produce.
The ICJ continued its explication of the subjective element of the due diligence standard by noting that:[1]
[a] State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.
It is only when there is a specific intent to commit genocide that the duty to prevent genocide and its concomitant due diligence obligations are triggered. According to the ICJ, Serbia breached the due diligence standard in the Genocide Case and noted the following.[2] [a] State can be held responsible for breaching the obligation to prevent genocide only if genocide was actually committed. It is at the time when commission of the
[1] Ibid, para. 431.
[2] Ibid.
prohibited act (genocide or any of the other acts listed in Article III of the Convention) begins that the breach of an obligation of prevention occurs. In this respect, the Court refers to a general rule of the law of State responsibility, stated by the ILC in Article 14, paragraph 3, of its Articles on State Responsibility:
This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that would be absurd, since the whole point of the obligation is to prevent, or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent.”
In the Genocide case, the ICJ specified that the duty to prevent genocide is triggered if and only if the due diligence obligations indicates the requisite specific intent to commit genocide is present.
2. The so-called Uyghur Tribunal`s Genocide Judgement in Xinjiang, China
According the so-called Tribunal, it is satisfied beyond reasonable doubt that the PRC, by the imposition of measures to prevent births intended to destroy a significant part of the Uyghurs in Xinjiang as such, has committed genocide,[1] an extent by birth control and sterilisation. [2]To prove a genocide is being committed, the so-called Tribunal has defined “intent” (dolus special) the mens era in the section “Was There a Plan” as: [3] “Intermittent and fluctuating tension between the indigenous people in the region including the Uyghurs and Han-centric China intensified in 2014 following the spilling out of violence into ‘mainland’ China. The CCP launched the ‘War on Terror’ the purpose of which was to eradicate the perceived security threat posed by its Muslim minority population but also to
[1] The Uyghur Tribunal Judgment, para .190. https://uyghurtribunal.com/wp-content/uploads/2022/01/Uyghur-Tribunal-Judgment-9th-Dec-21.pdf
[2] Ibid, para. 178.
[3] Ibid. para. 178.
transform the region into a more integrated part of China for, amongst other purposes, economic benefit.”
The wording “but also to transform the region into a more integrated part of China for, among other purposes, economic benefit” is an open violation of the UN Charter in different senses. Xinjiang is a territory of China. In order to prove an intent for committing genocide, the so-called Uyghur Tribunal used some word games on the assumption that as if Xinjiang is outside the PRC and defined the economic integration of Xinjiang with other parts of China as if a crime. The integration of the economies of different regions of China is a solely a domestic matter of China, and it is a right of the Chinese people to be developed and integrated. In Article 2.7 of the UN Charter, it is written that “nothing contained in the present Charter shall authorize the UN to intervene in matters which are essentially within the domestic jurisdiction of any state”. The so-called Tribunal had even raised itself above the UN Charter, within the meaning of legibus solutus, not bound by law. A clear violation of the UN Charter by the so-called tribunal.
The so-called plan, as described in the judgement, was already made public for years by the PRC. The so-called plan can easily be found on different webpages of the UN. The so-called plan that the so-called Tribunal claimed to find out is just the Sustainable Development Goals (SDGs) of PRC. SDGs, also known as the Global Goals, were adopted by the UN in 2015 as a universal call to action to end poverty, protect the planet, and ensure that by 2030 all people enjoy peace and prosperity. The 17 SDGs are integrated—they recognize that action in one area will affect outcomes in others, and that development must balance social, economic and environmental sustainability. The SDGs are designed to end poverty, hunger, AIDS, and discrimination against women and girls. PRC’s SDGs also include 27 minority areas, such as Yunnan, Qinghai, Xinjiang and Inner Mongolia, in an effort to create new job opportunities and alleviate poverty through the combination of traditional and innovative practices. The so-called Tribunal had defined the SDG of PRC and one more time, defined itself above the UN by rejecting the SDGs of PRC.
The so-called Tribunal has objected the right to development of Chinese minorities which is a universal human right. The Declaration on the Right to Development made development a right for all individuals and peoples, with active, free and meaningful participation in its process and fair distribution of its benefits. Locally and globally. For present and future generations.[1] By opposing the right to development of the minorities in China, in fact, the so-called Tribunal has violated a universal human rights.
[1]Michelle Bachelet, United Nations High Commissioner for Human Rights
‘We Are All in This Together’ – Human Rights Council Biennial Panel discussion on the Right to Development, 17 September 2020 https://www.ohchr.org/en/issues/development/pages/developmentindex.aspx
In its judgment, in the section “Was There a Plan”, the so-called Tribunal had defined the minorities of the PRC as indigenous peoples. When the so-called Tribunal declared the minorities of PRC as the indigenous peoples, than the so-called Tribunal is obliged obligation to take into account 2 Declarations of the UN, the Declaration on the Rights of Indigenous Peoples and the Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in its judgement. The Declaration on the Rights of Indigenous Peoples does not introduce any special rights for indigenous communities other than the majority and clarifies how those rights apply to Indigenous peoples given their “specific cultural, historical, social and economic circumstances. Both declarations aim to achieve equality and prohibit discriminatory policies of the States among its citizens. Equality and non-discrimination are significant objectives of the Declarations.
If there exists a discriminative policy of the CPR for the birth control and sterilisation among its citizens, the so-called Tribunal`s finding of the “intend” could be named as a legal finding and can be claimed that PCR commits genocide against its indigenous population of Uyghur, Kazakh and other Muslim minorities. We need to control if the so-called Tribunal fulfilled its responsibility of the due diligence standard obligations as written in the Genocide Case of the ICJ.
2.1 Birth Control
China has a long history of prioritizing population control. Since the implementation of family planning policies, 400 million fewer people have been born in China. Family planning was first applied to the Han people in the region in the early 1970s, and ethnic minorities were exempt until the mid and late 1980s. The Measures on Family Planning released by the autonomous region in 1992 stipulated that urban Han residents could have one child per couple and those residing in farming and pastoral areas could have two, while for ethnic minorities, urban residents could have two children per couple and those in farming and pastoral areas could have three. Ethnic minority groups with smaller populations were not required to follow the family planning policy. This was one of the main reasons why the ethnic minority populations in Xinjiang maintained a rapid growth rate. Xinjiang amended the Regulations on Population and Family Planning in 2017, introducing universal family planning policies for all ethnic groups: two children per couple for urban residents and three per couple for rural residents.
In the jurisdiction of the so-called Tribunal, even if the wording “birth control” is used ten times, there is no mention of any discriminatory birth control policy of the PCR among its citizens and especially among Uyghurs, Kazakhs or other Muslim minorities. The implementation of the universal family planning policies for all ethnic groups: two children per couple for urban residents and three per couple for rural residents from 2017 can never be defined as a discriminative policy of the State. If there is no discrimination in the family planning in Xinjiang or in all the territories of the PRC, than no one can claim any intent, mens rea to commit genocide.
2.2 Sterilisation
In the jurisdiction of the so-called Tribunal, even if the wording “sterilisation” is used six times, there is no mention of any discriminatory sterilisation policy of the PCR among its citizens and especially among Uyghurs, Kazakhs or other Muslim minorities.
The so-called Tribunal used as evidence for intent, mens rea for committing genocide the usage of sterilization for women in the childbearing age and enforced sterilization. The so-called Uyghur Tribunal claimed that “by 2019 it was planned that over 80% in the rural southern four minority prefectures would be subjected to “birth control measures with long term effectiveness” without entering any detail.[1] The so-called Uyghur Tribunal in the same paragraph had written that “in 2018, Xinjiang fitted 45 times more net-added Intrauterine Device Sterilization (IUDs) per 100,000 of the population than China as a whole (963 vs. 21.5). Between 2015 and 2018, Xinjiang placed 7.8 times more net-added IUDs per capita than the national average.” The so-called Uyghur Tribunal had taken the data from an open source that is “China Health Statistics Yearbook 2019” which has an open access to any one in the World by internet. According to data from China Health Statistics Yearbook 2019, published by the National Health Commission, the number of new IUD insertion procedures in Xinjiang in 2018 came in at 328,475, accounting for only 8.7 percent of China’s total, which was 3,774,318. The evidence of the intent of genocide is taken from an open official PRC internet web page and if there is an intent to commit genocide, this information needed to be secret, not open to the public. The important question to be investigated as a due diligence standards is whether usage of IUDs are to prevent the Uyghur, Kazakh or other Muslim minority women`s to have children within the family planning policy of the PCR or not.
If sterilization is to be used as an evidence for genocide, first needed to be proved discriminative policies of the PRC against its own Family Planning Policy to prevent Uyghur, Kazakh and other Muslim minorities for urban residents having two children per couple and those in farming and pastoral areas having three children
Conclusion
[1] The Uyghur Tribunal Judgment, para .115. https://uyghurtribunal.com/wp-content/uploads/2022/01/Uyghur-Tribunal-Judgment-9th-Dec-21.pdf
The PRC has a non-discriminative birth control and sterilisation policy within the 56 ethnic groups living in China. The proof of non-discriminative policy nullifies the genocidal claims of any group against China. To prove a genocide against the Uyghurs, Kazakhs and other Muslim minorities, based on birth control and sterilization, one first needs to prove a discriminative policy of PRC against the targeted groups. Without prove of a discrimination policy, no one can claim of intent, or mens rea, required for committing genocide for PRC.
By not checking whether the birth control policy is based on discriminatory grounds, the so-called tribunal failed to fulfill its responsibility under the due diligence standards as written in the Genocide Case of the ICJ. There is no validity to the allegations of the so-called Tribunal’ on claims of genocide related to birth control against PCR.
By not checking whether the sterilisation policy is based on discriminatory grounds, the so-called tribunal failed to fulfill its responsibility under the due diligence standards as written in the Genocide Case of the ICJ. There is no validity to the allegations of the so-called Tribunal’ on claims of genocide related to sterilisation policy against PCR.
The non-legality of the judgement of the so-called Tribunal is supposedly an answer to the question of whether it is merely an instrument of a political strategy against PRC. The non-legality of the judgement of the so-called Tribunal with false allegations might amount to hate speech under the definition of Sinophobia as the so-called Tribunal had violated the UN Charter in its judgement within many aspects to achieve its political goal.
On the other hand, the non-legal judgement of the so-called Tribunal had proven one more time that PRC committed no genocide in Xinjiang against the Uyghur, Kazakh and other Muslim minorities
Prof Dr h.c Mehmet Sukru Guzel President of Center for Peace and Reconciliation Studies
