In January 2021, on his final full day in office, as his parting salvo, the former lame-duck US secretary of state Mike Pompeo dropped a bombshell by falsely accusing China of ‘genocide’ in the Xinjiang Uygur autonomous region.
Afterward, a few Western politicians, media outlets, and scholars jumped on the bandwagon to perpetuate the false accusation and unleash fiery rhetoric against China.
The plain facts on the ground and the well-settled law of genocide inevitably lead to the conclusion that it is past time to end the staggering untruth and the abuse of the G-word in Xinjiang.
Those familiar with contemporary history are aware of the origin of the term ‘genocide’.
The International Military Tribunal at Nuremberg used the term to describe the Nazis’ extermination of the Jews and the commission of atrocities during World War II.
Today, genocide is the gravest crime known to the law of nations. It is declared to be ‘the crime of all crimes.’
The heinous crime is the most vicious violation of human rights, even constituting a threat to international peace and security.
The serious nature of the crime presses for the utmost rigor and exactitude in applying the law and procedure to the facts, and requires the highest standard of proof to establish genocide.
Such a determination entails the most serious consequences, both politically and legally.
Thus, an allegation of genocide must not be made lightly to vilify any country to score political points.
Moreover, the escalation of the political rhetoric and malicious action on China-bashing in willful disregard of law and fact is muddying the definition of genocide beyond recognition.
This disinformation campaign and wanton abuse of law will lead to confusion over the legal definition of genocide, distrust of the law, and an erosion of its effectiveness.
The origins of the term genocide
The term genocide came into being against the backdrop of World War II. Raphael Lemkin, a Polish-Jewish jurist who had lost his relatives in the Holocaust, coined the term in his 1944 book Axis Rule in Occupied Europe to recount ‘the destruction of a nation or of an ethnic group’.
After World War II, the Nuremberg indictments mentioned genocide to describe Nazi Germany’s implementation of policies to exterminate racial and national groups, particularly European Jews, during the Holocaust.
States drew lessons from the scourge of the recent war. In December 1946, the first session of the United Nations General Assembly unanimously voted to adopt a resolution affirming that genocide is a crime under international law which the civilized world condemns, and requested a UN body to draw up a draft convention on genocide.
In December 1948, the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide (Convention) which defined the crime of genocide for the first time and obliged states to prevent and punish acts of genocide.
This was the first human rights treaty drafted and adopted under the auspices of the UN.
In a short period, a political consensus had been transformed into a legally binding international agreement.
It testified to the universal condemnation of genocide by the international community and represented their transcendence over political and ideological differences to eradicate this atrocity with resolve.
After the Convention came into force, the international community takes its duty seriously to pursue accountability for genocide to safeguard justice and to maintain international peace and security.
In the 1990s, the UN Security Council passed resolutions to establish ad hoc international criminal tribunals to prosecute international crimes, including genocide.
The International Court of Justice had decided cases concerning genocide under the Convention.
The International Criminal Court, established in 2002, can exercise jurisdiction over genocide under certain conditions.
It has prosecuted individuals for the international crime of genocide and brought several perpetrators to justice.
China’s attitude toward genocide
The Chinese nation has always embraced the traditional virtue of helping those in need.
Beginning with the First Opium War (1840-42), the Chinese people endured killings and ravages committed by the Western powers.
So they empathize with other nations that fell victims to the mass atrocities and strongly condemn genocide as the most abhorrent of international crimes.
During World War II, the Chinese people provided a ‘life-saving visa’ and a haven for European Jews at risk.
The People’s Republic of China acceded to the Convention in 1983. As a permanent member of the UN Security Council, China went on record to affirm its unwavering commitment to punishing genocide and other serious international crimes.
It was instrumental in the establishment and operation of ad hoc international criminal tribunals.
Chinese jurist Li Haopei was elected one of the founding judges at the International Criminal Tribunal for the former Yugoslavia to relentlessly pursue justice for the victims of atrocities and crimes.
Wang Tieya and Liu Daqun followed suit later to render distinguished service to the tribunal.
China is not a State Party of the ICC; however, it actively and constructively participated in the negotiating process since day one.
Moreover, China was a driving forc e behind the establishment of an independent, impartial, effective international criminal tribunal to fight against impunity in accordance with the purposes and principles of the UN Charter.
Under the Convention, genocide means specified acts ‘committed with intent to destroy, in whole or in part a national, ethnical, racial or religious group’.
The exhaustive list of such acts includes ‘killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group’.
The above definition has received widespread acceptance by the international community. It sets an extremely high threshold to establish guilt.
First, in terms of the act, it must be proven that there was the commission of specific acts under the Convention.
This is the most elementary requirement for a finding of genocide, and it must be established against the highest standard of proof, that is, ‘beyond a reasonable doubt’.
Considering the seriousness of the crime, the ICJ requires the key elements to be proved at a ‘high level of certainty’ and to ‘be fully convinced’ of the allegation.
Second, in terms of intent, it must be proven that there was a specific intent to destroy ‘in whole or in part’ a particular group.
This is a critical element for a finding of genocide. The ICJ took the view that ethnic cleansing may be a form of genocide only if it was done with the specific intent to ‘destroy, in whole or in part’ a particular group.
The specific intent must be specifically and clearly demonstrated and proven. The relevant case law shows that the specific intent may be inferred from a number of facts, but the finding of specific intent must be the ‘only reasonable inference’ to be drawn from the facts.
Under the Convention, customary international law, and relevant case law, a finding of genocide will subject the individual perpetrator to criminal punishment.
The concerned state might bear state responsibility for the offense and become the target for political and moral condemnation.
And the finding will profoundly affect the ethnic and racial relations of the state and region concerned.
So a finding of genocide must result from the application of authoritative, stern, inflexible legal rules. It must survive strict scrutiny of facts and withstand the test of time.
The Convention requires the trials to be held by courts of the territory where the crime took place, or by international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction.
Since the birth of the Convention, the ICJ and the ad hoc tribunals established by the UN Security Council have been tasked to make a finding of genocide.
A few states’ domestic courts had also conducted trials for the crime that occurred in their own territories. —Agencies