In 1944, Raphael Lemkin originated the word “genocide”. Genocide was derived from two Latin words called genos meaning “birth, race, stock, kind” and, cidum meaning “cutting or killing”.[1] The Genocide Convention[2] in its Article II defines genocide as any “acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”.[3] The same definition has been adopted and mentioned in Article 6 of the Rome Statute.[4] Genocide finds its mention among the most heinous and grave crimes in the world. Hence, it is often called as “crimes of crimes”.[5] It is imperative to note that in order to prosecute for genocide, it is required to establish the actus reus and mens rea. Moreover, it must be proved beyond reasonable doubt that the actions amounted to genocide. If any of the aforementioned elements are not established then the accused is entitled to acquittal.[6] In Prosecutor v. Juvénal Kajelijeli,[7] the court quite clearly established that the offender must possess the “specific intent” to cause ultimate destruction of the entire group or community. This “specific intent” is to be satisfied along with the “general intent” that exists in causation of such crimes. Due to this double intent requirement, the threshold for prosecuting an offender for genocide is extremely high. Under international law, it has often been observed that due to the high threshold involved in genocide cases, the charges for the crime of genocide are generally not confirmed as the case proceeds in the courts. As it was seen in the matter of Prosecutor v. Goran Jelisic[8], the accused was acquitted of the charges of genocide even when he was involved in persecution of several Muslims and Croats because the requirement for specific intent was not proved.[9]
As per the requirement of the definition of genocide, there must exist the intent to destroy the ethnical or religious group.[10] There does not exist any definition that define such groups, however it must be noted that the international criminal tribunals like International Criminal Tribunal for Rwanda (ICTR) and International Criminal Tribunal for the Former Yugoslavia (ICTY) through their decisions have sought to provide some clarity upon the situation. In Prosecutor v. Jean-Paul Akayesu trial,[11] the ICTR held that “an ethnic group is a group whose members share a common language or culture”. In another case before ICTR, Prosecutor v. Clment Kayishema trial,[12] the court went on to give the definition for ethnic group by stating that ethnic group is “a group which distinguishes itself through self-identification or, a group identified as such by others, including perpetrators of the crimes”. It is significant to note that the Uyghur Muslims mainly belong to the Sunni group of Muslims. Furthermore, they speak their own language which emanates from Turkish.[13] They believe that their community has roots ethnically and culturally near to Central Asia. It is also important to take into consideration that Uyghurs have been give the status of an ethnic minority by China itself among the 55 ethnic minorities.[14] Therefore, it can be rightly said that the community of Uyghurs satisfy the criteria of minority ethnic group.
As per the report of Human Rights Watch (HRW), close to a million Uyghurs were locked up in the internment camps by the Chinese Government. There was no due process that was followed at all. The number of people who were detained unjustly amounts to around 10% of the Uyghur population.[15] Further, as per Dr Erkin Sidick (President, Uyghur Projects Foundation), the number of Uyghur deaths has surpassed the number of Jews detained and killed in the Holocaust.[16] According to the Chinese program, “Pair Up and Become Family”, the Han Chinese men were directed to sleep with Chinese women,[17] the objective of which was to rape the Uyghur women under the garb of “promoting ethnic unity”. Moreover, the Chinese Government implemented the birth control measures due to which the Uyghur women were compelled to undergo sterilisations and abortions.[18] Those women who refused to undergo the abortions were forced to pay excessive fines and were threatened with detention. In addition to that, according to the BBC’s report, the children were separated from their families with the aim of isolating them from their ethnic group.[19] The law on genocide quite clearly mentions that acts constituting — “(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; and (e) forcibly transferring children of the group to another group”,[20] all amount to genocide. The abovementioned activities carried on by China against the members of Uyghur community all finds mention in the law on genocide i.e., Article 6 of the Rome Statute and the Article II of the Genocide Convention, and thus it can be said that there is existence of actus reus in the present case.
As stated above, it is certainly very difficult to establish the intent requirement successfully to prosecute an offender for genocide. Therefore, as per the Prosecutor v. Blagoje Simi judgment[21] the intent is usually established from criterions like — (i) widespread and systematic targeting of the victims; (ii) subjecting the people of a specific community through frequent acts of discrimination and destruction; and (iii) targeting a substantial number of people from the ethnic community. It is submitted that the acts carried out by China against the Uyghur Muslims satisfy all the above-mentioned criterions. The Chinese Government strategically launched the “Strike Hard Campaign against Violent Terrorism” in Xinjiang in 2014. Under the campaign, the people belonging to the “untrustworthy” category were sent to detention camp without following any due process of law. Such people were neither served with any arrest warrants nor were they given the access to legal counsel. The detainees undertaken this campaign mostly belonged to the Uyghur Muslim community. This gives an account of the discriminatory intent on the part of the Government of China. Moreover, the rates of incarceration of detainees are increasing day by day and that is coupled with the disappearances of detainees especially belonging to the Uyghur Muslim minority. This is reflective of the specific intent to hurt an ethnic group on the part of China. Furthermore, other programmes of China such as “Fanghuiju” which means “becoming families”, serves as a step-by-step procedure to destroy the ethnic community. The Uyghur men are separated from their wives under this strategy. This puts an obstruction on the ability of the Uyghur couples to procreate. This leads to decline in birth rate of the members of such community and thereby leading to wiping out of Uyghur community from the nation. Apart from these policies, China has been instrumental in passing draconian laws such as “Xinjiang Regulations on Religious Affairs”, which puts restraints on activities such as circulation of religious and ethnic documents, children’s involvement in religious activities, growing facial hair, etc. They have also banned teaching of the Uyghur language in schools. All of these activities by the Government of China are strongly indicative of their intent to annihilate the Uyghur Muslims community. Thus, the requirement of mens rea is also established in the present case.
Therefore, in the light of facts and law stated above, it is reasonable to infer that the activities of Chinese Government definitely amount to genocide against the Uyghur community.
† 3rd Year BBA LLB (Hons) Symbiosis Law School, Pune, e-mail: nipunbhatiaofficial@gmail.com.
[1] Gurdip Singh, International Law (3rd edn., 2015)
[2] Convention on the Prevention and Punishment of the Crime of Genocide (1948).
[3] Convention on the Prevention and Punishment of the Crime of Genocide, Art. II (1948).
[4] Rome Statute of the International Criminal Court, Art. 6 (1998).
[5] Prosecutor v. Kambanda, Case No. ICTR 97-23-S, Judgment and Sentence (4-9-1998).
[6] William A. Schabas, Genocide in International Law (2nd edn., 2009).
[7] Case No. ICTR-98-44A-T, (Trial Judgment and Sentence) 803 (1-12-2003).
[8] Case No. IT-95-10-A, Judgment, 5-7-2001.
[9] Charles Trueheart, “Bosnian Serb Gets 40-Year Prison Term: Camp Guard is Cleared of Charges of Genocide“, The Washington Post (15-12-1999)
[10] Convention on the Prevention and Punishment of the Crime of Genocide, Art. II (1948).
[11] Case No. ICTR-96-4-T, (Trial Judgment) 512 (2-9-1998).
[12] Case No. ICTR-95-1-T, (Trial Judgment) 98 (21-5-1999).
[13] “Why is there Tension between China and the Uighurs?“, BBC News (26-9-2014)
[14] “China’s Uighurs — What you need to know?“, DW News (4-12-2019)
[15] “Eradicating Ideological Viruses”: China’s Campaign of Repression Against Xinjiang’s Muslims, Human Rights Watch (9-9-2018)
[16] C.J. Werleman, ” ‘Death is Everywhere’ Millions More Uyghurs Missing”, Byline Times (24-8-2020)
[17] Rosie Perper, ” ‘This is Mass Rape’: Uighur Activist Condemns Program said to pay Chinese Men to Sleep with Uighur Women to Promote ‘Ethnic Unity’ “, Insider (24-12-2019)
[18] “China Forcing Birth Control on Uighurs to Supress Population: AP“, Aljazeera (29-6-2020)
[19] “China Forcing Birth Control on Uighurs to Suppress Population, Report says“, BBC News (29-6-2019).
[20] Rome Statute of the International Criminal Court, Art. 6, 17-7-1998, 2187 UNTS 90.
[21] Case No. T-95-9-T,(Appeal Judgment), 85 (International Criminal Tribunal for the Former Yugoslavia 17-10-2003).
