GRADUATE SCHOOL OF LAW
LL.M.INTERNATIONAL CRIMINAL LAW
Academic year 2019-2020
Cultural Genocide in the UN Genocide Convention
criticized concept or concealed crime?
Master Dissertation, submitted by Dieter Decraene Under the supervision of Prof. dr. H.G. Van der Wilt
Submitted at the final examination, for the degree of
Master’s of International Criminal Law (LL.M.)
from the University of Amsterdam.
E-mail: di.decraene@gmail.com Student Number: 12822531 Track: joint program
Word Count: 12.825 Date of Submission: 29 June 2020
"You don't have to burn books to destroy a culture. Just get people to stop reading them."
Table of Contents ABSTRACT ... 1 INTRODUCTION ... 2 I. RESEARCH TOPIC ... 2 I.CULTURAL PROTECTION ... 2 §1. Cultural Genocide ... 2 §2. Culture ... 2
II.RELEVANCE OF RESEARCH ... 3
§1. Case Study: de facto ... 3
§2. Case Study: de jure ... 5
II. RESEARCH QUESTION ... 5
III. RESEARCH STRUCTURE ... 5
I.MATERIAL DELINEATION ... 5
II.RESEARCH PLAN ... 6
III.METHODOLOGY ... 6
IV.SCHEMATIC REPRESENTATION ... 8
CHAPTER I. THE UN GENOCIDE CONVENTION ... 9
I. SUBSTANTIVE ASSESSMENT ... 9
I.PROTECTED GROUPS ... 9
§1. Culture ... 9
§2. Article II of the UN Genocide Convention ... 10
A. Nationality ... 11
B. Ethnicity ... 12
C. Race... 13
D. Religion... 13
§3. The Group and its members ... 14
A. The Uyghurs as a ‘social entity’ ... 14
B. The implicit recognition of cultural groups in article II UN Genocide Convention .. 14
II.ACTUS REUS ... 17
§1. Prohibited acts ... 17
A. Causing serious bodily or mental harm to group members ... 17
1. Physical harm ... 17
2. Mental harm ... 18
C. Forcible transfer of children to another group ... 19 §2. Contextual elements ... 20 III.MENS REA ... 21 §1. Intent ... 21 §2. To destroy ... 21 §3. In whole or in part ... 23 §4. As such ... 24
II. INTERMEDIATE CONCLUSION ... 24
CHAPTER II. THE CONCEPT OF CULTURAL GENOCIDE ... 26
I. HISTORICAL ASSESSMENT ... 26
I.INITIATION BY RAPHAEL LEMKIN ... 26
II.DRAFTING OF THE UNITED NATIONS GENOCIDE CONVENTION ... 27
§1. Secretariat Draft Convention ... 27
§2. Ad Hoc Committee ... 27
§3. United Nations General Assembly Sixth Committee ... 28
II. CONTEMPORARY ASSESSMENT ... 29
CHAPTER III. THE RENUNCIATION OF CULTURAL GENOCIDE ... 30
I. LEGAL CONSIDERATIONS ... 30
I.THE AD HOC COMMITTEE ... 30
§1. Cultural Genocide and Legal Uncertainty ... 30
§2. Assessment of legal arguments ... 31
II.THE UNGASIXTH COMMITTEE ... 32
§1. First argument: Gravity ... 33
§2. Second Argument: Human rights protection ... 34
A. First counterargument: renunciation of collective nature ... 34
B. Second counterargument: less rigorous commitments ... 35
C. Conclusion on second argument ... 35
II. INTERDISCIPLINARY CONSIDERATIONS ... 36
I.SOCIOLOGICAL CONSIDERATIONS ... 36
§1. An individualist conception of international law ... 36
§2. An individualist conception of cultural genocide ... 37
II. POLITICAL CONSIDERATIONS ... 40
§1. Cultural Assimilation ... 40
A. Methods of Cultural Assimilation: the United States scenario ... 40
B. One common pursuit and similar techniques: the Western states scenario ... 42
III. INTERMEDIATE CONCLUSION ... 43
CONCLUSION... 44
I. LEGAL ASSESSMENT ... 44
II. INTEGRATIVE ASSESSMENT ... 45
I.ELEMENTS IN SUPPORT OF CULTURAL GENOCIDE ... 45
II.ELEMENTS IMPEDING CULTURAL GENOCIDE ... 47
CONCLUDING NOTE... 48
BIBLIOGRAPHY ... 49
JURISPRUDENCE ... 49
INTERNATIONAL COURT OF JUSTICE (ICJ) ... 49
INTERNATIONAL CRIMINAL COURT (ICC) ... 49
INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR) ... 49
INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA (ICTY) ... 50
DOMESTIC JURISPRUDENCE ... 50
LEGISLATION ... 51
DOMESTIC LEGISLATION ... 51
INTERNATIONAL CONVENTIONS ... 51
UNITED NATIONS RESOLUTIONS ... 51
DOCTRINE ... 52 BOOKS ... 52 CONTRIBUTIONS ... 54 JOURNAL ARTICLES ... 55 MISCELLANEOUS... 58 UNDOCUMENTS ... 58 ICCDOCUMENTS ... 59 REPORTS ... 59
ABSTRACT
This research assesses whether the inclusion of ‘cultural genocide’ in article II UN Genocide Convention would enhance the legal protection of groups against any intended forms of cultural extermination. In addition, it shall scruzinize the practical feasibility and likeliness of the adoption of this crime within the Convention. These questions are dealt with against the backdrop of a practical case study, i.e. China’s repression of its Uyghur minority. In a first chapter, the crime of genocide de lege lata has been substantively applied to the case study, in order to illustrate the current shortcomings of the Convention with regard to cultural protection. A second chapter subsequently defines the crime of cultural genocide de lege ferenda, based on the historical propositions pertaining to its scope, as well as upon the contemporary understanding of ‘culture’. A third chapter subsequently provides an insight in the various interdisciplinary considerations that might have impeded the adoption of cultural genocide as an international crime. In particular, this research contends that both a fear of self-incrimination, as well as the prominent individualist perception on international criminal law have primarily hindered the inclusion of cultural genocide in article II. In sum, it is asserted that the adoption of cultural genocide within the realm of the Genocide Convention would indisputably bring about a more coherent legal protection against the ongoing intended cultural extermination of the Uyghur minority. From a more comprehensive viewpoint, however, the feasibility of the adoption of cultural genocide cannot be conclusively ascertained. At one hand, a number of elements namely seem to favor the inclusion of cultural genocide in the Convention. These can firstly be denoted in the actus rei of article II(b), (d) and (e); which seem to subtly counterbalance the persistently stark emphasis on physical and biological destruction. Moreover, the crime of cultural genocide as such does not seem to have been conclusively rejected from the scope of the Convention, which can be deducted from a comprehensive assessment of its preparatory works, as well as on the basis of a reading of the Convention pursuant to articles 31-33 VCLT. Furthermore, it seems that cultural groups are being increasingly included within the personal sphere of the Convention, which could potentially indicate a growing tendency towards the mutatis mutandis consideration of cultural and social aspects in relation to the ‘intent to destroy’. On the other hand, however, the aforementioned interdisciplinary apprehensions might still have a considerable impact today. Henceforth, regardless of the undeniable enhancement with regard to the legal protection of the Uyghur culture, it cannot be conclusively ascertained whether the adoption of cultural genocide under the Convention can be deemed likely or viable.
INTRODUCTION
I. RESEARCH TOPIC
I. CULTURAL PROTECTION
§1. Cultural Genocide
1. This research aims at assessing the concept of cultural genocide in international criminal law. More specifically, it shall be appraised to what extent the UN Genocide Convention can be applied vis-à-vis the intended destruction of a culture, and whether the inclusion of the crime of cultural genocide might enhance this substantive legal protection.
2. This assessment shall be conducted in light of a case study. This contemporary illustration should allow for a more integrative and practical understanding of the concept of cultural genocide. This comprehensive case study will be elaborated upon in the following part of this introduction, both de facto, as well as de jure. Subsequently, the relevance of the overarching topic of ‘cultural genocide’ shall concisely be outlined. Finally, a brief research question will be formulated, superseded by an overview of the structure of this thesis.
§2. Culture
3. Cultural genocide cannot be scrutinized in abstraction of the general notion of ‘culture’. Nonetheless, the latter term is dynamic and oftentimes ambiguous. Therefore, this research shall consistently make use of the commonly raised definition of ‘culture’ by Mikel Hogan et al.1
4. Pursuant to this understanding, a ‘culture’ embodies twelve non-cumulative key features,
encompassing: (I) a group’s social status; (II) shared history; (III) mutual value orientations; (IV) (non-)verbal language and communication processes; (V) healing beliefs and processes; (VI) family life processes; (VII) religion and religious practices; (VIII) art and other forms of expression; (IX) dietary preferences and practices; (X) recreational forms; (XI) manner of style and dress; and (XII) points of interaction within and between social groups,.2 Hence, whenever this thesis refers to ‘culture’, it shall allude to the ideological commonality comprising these twelve core aspects.
1 Mikel Hogan et al., The Four Skills of Cultural Diversity Competence: A Process for Understanding and Practice
(4th edn, Brooks and Cole Publishing 2013) 15; Sana Loue, ‘Cultural and Ethnic Differences’ in Marc D Gellman and Rick J Turner (eds) Encyclopedia of Behavioral Medicine (Springer Publishing 2013) 614-615.
2
II. RELEVANCE OF RESEARCH
§1. Case Study: de facto
5. The case study of this thesis concerns the detention of the Uyghur minority in the Chinese autonomous region of Xinjiang. This is an ethnic minority which encompasses around eleven million individuals in the Xinjiang province alone.3 Moreover, the Uyghurs have their own Sunni Islamic traditions, speak a Chagatai Arab language and have their proper traditions with regard to social values and family life.4 These cultural traditions are generally in stark contrast with the ideology and worldview of the Han Chinese, whom make up approximately ninety percent of the Chinese population.5
6. Ever since the annexation of the Xinjiang region to the People’s Republic of China in 1949, the Uyghur population has not ceased to pursue its claim to self-determination.6 Following decades of violent conflicts between the Uyghurs and the Chinese Communist Party (hereafter: ‘CCP’), the government has recently commenced the establishment of large-scale facilities, under the veil of so-proclaimed ‘vocational training camps’, or ‘counter-extremism centers’.7 The CCP namely argues that the Uyghurs – as a ethnic and religious minority – impose a terrorist threat upon Chinese society, and therefore ought to be re-educated.8 In a brief time span of five years, an estimated 1.5 million Uyghurs have been forcibly detained in these internment camps, which are spread all across the province of Xinjiang.9 Complementarily, millions of Uyghurs outside
3 Michael Clarke, ‘China and the Uyghurs: The “Palestinization” of Xinjiang?’ (2015) 22 Middle East Policy 125, 127–
146; Mahmut Dilmurat, ‘Controlling Religious Knowledge and Education for countering Religious Extremism: Case Study of the Uyghur Muslims in China’ (2019) 5(1) Forum for International Research in Education 17, 22-43; Gardner Bovingdon, ‘The Uyghurs: Strangers in Their Own Land’ (2012) 23(4) Journal of World History 1022, 1024-1028.
4 Jonathan N. Lipman, Familiar Strangers: A History of Muslims in Northwest China (University of Washington Press
1998) 222-235; Timothy Grose, Negotiating Inseparability in China: The Xinjiang Class and the Dynamics of Uyghur
Identity (1st edn, Hong Kong University Press 2020) 12-19.
5 Ibid.; John M. Friend and Bradley A. Thayer, How China sees the World: Han-Centrism and the Balance of Power in
International Politics (Potomac Books 2018) 8-9.
6
Michael E. Clarke, Xinjiang and China's Rise in Central Asia: a History (1 Routledge 2011) 112-133.
7 Human Rights Watch, ‘Eradicating Ideological Viruses: China’s Campaign or Repression against Xinjiang’s Muslims’
(2018), HRW Reports 09/2018, <https://www.hrw.org/report/2018/09/09/eradicating-ideological-viruses/chinas-campaign-repression-against-xinjiangs> (HRW Report) accessed 1 March 2020.
8 Sean R. Roberts ‘The Biopolitics of China’s “war on terror” and the exclusion of the Uyghurs, (2018) 50(2) Critical
Asian Studies 232, 232-258.
9 Adrian Zenz, ‘New Evidence for China’s Political Re-Education Campaign in Xinjiang’ (2018) 18(10) China Brief 12,
17; Patrick Dehahn, ‘More than a Million Muslims are detained in China, but how did we get that number?’ Quartz (New York City, 5 July 2019) <https://qz.com/1599393/how-researchers-estimate-1-million-uyghurs-are-detained-in-xinjiang> accessed 27 February 2020.
the camps are being subjected to mass surveillance, have restricted rights and are being obliged to attend regular political indoctrination sessions.10
7. It has been widely contended that these camps mainly serve an economic and geopolitical motive, as opposed to the CCP’s proclaimed rationale.11 In particular, it seems that the CCP predominantly intends to safeguard its political control over the autonomous region, by means of indoctrination and the correlating extermination of the Uyghur culture (e.g. by eradicating their language, religion and family connections).12
8. Little is known pertaining to the state of affairs inside the camps. Nonetheless, occasional testimonies by defectors, as well as reports by human rights organizations, have tenuously shed a light on the conditions inside the mass detention centers.13 These appear to be overcrowded, without regard for specific needs of the vulnerable. In addition, children are being detained separately from their parents, and each individual remains barred from all contact with family and any former acquaintances.14 It is also strongly prohibited to practice the Muslim faith.15 Moreover, detainees are obliged to unceasingly voice their loyalty to the CCP, as well as to learn Mandarin and abandon any habits or practices innate to their Uyghur culture.16 Furthermore, reports repeatedly emphasize the high number of physical and mental abuses in the camps, entailing torture and rape.17
10 Ibid.; Human Rights Watch, ‘China’s Algorithms of Repression: Reverse Engineering a Xinjiang Police Mass
Surveillance App’, HRW Reports 05/2019, <https://www.hrw.org/report/2019/05/01/chinas-algorithms-repression/reverse-engineering-xinjiang-police-mass-surveillance> (HRW Report II) accessed 1 March 2020.
11 Anna Hayes, ‘Interwoven Destinies: The Significance of Xinjiang to the China Dream, the Belt and Road Initiative,
and the Xi Jinping Legacy’, (2020) 29(121) Journal of Contemporary China 31, 31-45; Alexandra Ma, ‘This Map shows a Trillion Dollar Reason why China is oppressing more than a million Muslims’, Business Insider (New York City, 23 February 2019) <https://www.businessinsider.nl/map-explains-china-crackdown-on-uighur-muslims-in-xinjiang-2019-2?international=true&r=US> accessed 27 February 2020.
12 Austin Ramzy and Chris Buckley, ‘Absolutely no Mercy: Leaked Files exposed how China organized Mass
Detentions of Muslims’ New York Times (New York City, 16 November 2019), <https://www.nytimes.com/interactive/2019/11/16/world/asia/china-xinjiang-documents.html> accessed 14 May 2020; Lily Kuo, ‘Show no Mercy: Leaked Documents reveal details of China’s Xinjiang Detentions’ The Guardian (London, 17 November 2019) <https://www.theguardian.com/world/2019/nov/17/show-no-mercy-leaked-documents-reveal-details-of-chinas-mass-xinjiang-detentions> accessed 14 May 2020 (‘Xinjiang papers’).
13 HRW Report I (fn 7) accessed 14 May 2020.
14 Ibid.; Adrian Zenz, ‘Break Their Roots: Evidence for China’s Parent-Child Separation Campaign in Xinjiang’, (2019)
7(7) Journal of Political Risk 29, 33-37.
15 Ibid. 16
Ibid.
17 Ibid.; Office of the High Commissioner for Human Rights (OHCHR), ‘Committee on the Elimination of Racial
Discrimination reviews the report of China’ (2018), OHCHR News and Events 08/2018 <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=23452&LangID=E> accessed 2 March 2020.
§2. Case Study: de jure
9. Within the realm of international criminal law, this case study is relevant on two levels. Firstly, the primary objective of the Chinese internment camps concerns the eradication of the Uyghur culture, by means of forced detention, in combination with political and cultural indoctrination. Thus, the question arises whether these practices could be classified as genocide de lege lata. In addition, this case study might illustrate to what extent the adoption of cultural genocide could augment the legal protection of the Uyghur minority under the UN Genocide Convention. These questions infallibly touch upon the very core of this research.
10. Secondly, it has been reported that a vast number of Uyghur detainees have undergone a series of individual abuses. Though this research primarily addresses the protection of the collective Uyghur culture, these subsidiary abusive practices shall equally be taken into account whilst assessing the legal protection de lege lata of the Uyghurs in the subsequent chapter.
II. RESEARCH QUESTION
11. The research question of this thesis is: “Would the adoption of a concept of ‘cultural genocide
de lege ferenda’ enhance the substantive legal protection of the Uyghur minority under article II
of the UN Genocide Convention?”.
III. RESEARCH STRUCTURE
I. MATERIAL DELINEATION
12. This research has been restricted to the mere assessment of cultural protection under article II of the UN Genocide Convention. This study shall thus not elaborate upon other international crimes, nor will it expand upon diverging treaty sources or customary international law. Moreover, this research has been delimited to the assessment of the crime of genocide from a substantive perspective. Any procedural or evidential issues shall thus not be dealt with.
13. It is undisputable that this material delineation might to an extent impact the practical relevance of this research, as it leaves certain international crimes and instruments out of its scope. Nevertheless, it should be underlined that this thesis predominantly intends to rigorously analyze (the potentiality of) cultural protection under the UN Genocide Convention. Hence, this research does not aim at providing an extensive overview of the various legal qualifications and international instruments which might apply in view of the protection of the Uyghur culture
II. RESEARCH PLAN
14. The first chapter of this research shall asses to what extent the Uyghur case scenario falls within the scope of article II of the UN Genocide Convention. Namely, - though the crime of cultural genocide has been explicitly dismissed - the Convention potentially might still implicitly consider forms of cultural destruction within its scope. Hence, it shall be assessed whether – de
lege lata – the UN Genocide Convention offers any form of legal protection against the
intended destruction of a group’s culture. In doing so, the mens rea and actus reus components of article II shall be mirrored against the intended obliteration of the Uyghur culture.
15. The second chapter of this thesis shall be devoted to the study of the concept of cultural genocide de lege ferenda, which shall primarily be rooted in a historical assessment. The crime of cultural genocide has namely been deliberated upon in the past, both by scholars, as well as throughout the drafting stages of the UN Genocide Convention. Induced upon both this brief historical assessment as well as the contemporary understanding of ‘culture’, a definition of ‘cultural genocide de lege ferenda’ shall be construed.
16. In a third chapter, the aforementioned historical deliberations shall be critically assessed to divulge the several interdisciplinary issues which might have ultimately impeded the adoption of cultural genocide under the Convention. The insights gathered should allow for a better understanding of the feasibility and the practical likelihood of the adoption of cultural genocide today.
17. In a conclusion, it shall analyzed to what extent there already exists an implicit (and terminologically concealed) form of cultural genocide in article II of the UN Genocide Convention. Furthermore, it shall be substantively addressed whether there exists a complementary need to adopt a crime of cultural genocide de lege ferenda. In a second part, the conclusion will provide an overview of the various (interdisciplinary) elements in favor, as well as against the explicit recognition of cultural genocide in the Convention.
III. METHODOLOGY
18. The first chapter of this thesis will analyze the law of genocide from an internal and descriptive perspective. Given that this chapter concerns a legal qualification exercise, it shall deal with the law in the books.
19. The second chapter will be guided by a legal dogmatic method. This method shall be aimed at clarifying the content and significance of the concept of cultural genocide. In doing so, a historical and teleological working method shall be maintained. The scope of the concept of cultural genocide will thus be assessed chronologically, ranging from its initiation by Raphael Lemkin, up until its eventual dismissal during the Sixth Committee deliberations by the United Nations General Assembly in 1948. The analysis shall mainly be conducted in a teleological manner. Hence, a predominant emphasis will be put on the rationale behind the conception, rather than its black letter formulation.
20. In a third chapter, a historical and interdisciplinary approach shall be used to ascertain the various legal, political and sociological considerations that might have impeded the recognition of the crime under international law. This investigation shall be structured in a chronological manner. Hence, a first subchapter will assess the various interdisciplinary issues that were at stake during the ad hoc committee deliberations. A second subchapter will then scrutinize the impact of these same apprehensions during the subsequent discussions in the Sixth Committee of the United Nations General Assembly.
21. Both the assessments in the second and third chapters shall be conducted in abstracto. Henceforth, these descriptive and historical analyses will not deal with the case study at issue. 22. As opposed to the foregoing chapters, the conclusion of this research will be normative in
nature. This conclusion will externally consider the need to adopt cultural genocide in the Convention. In doing so, it will inductively combine the preliminary insights in the foregoing chapters. Analogous to the first chapter, this final assessment will be examined in concreto, thus taking into account the specific case study concerning the Uyghur minority.
IV. SCHEMATIC REPRESENTATION
23. The following scheme serves as a visual representation of the structure of this research.18
18
CHAPTER I.
THE UN GENOCIDE CONVENTION
24. This first chapter will briefly assess the potential protection of against cultural destruction under the UN Genocide Convention. In doing so, the substantive actus reus and mens rea elements of article II shall be rigorously applied to the Uyghur case study. This rationale behind this classification exercise relates to the question whether genocide de lege lata might offer some (indirect) protection vis-à-vis the intended destruction of cultural groups. Moreover, this chapter equally aims at outlining the remaining lacunae with regard to the protection of cultures under the Convention.
I. SUBSTANTIVE ASSESSMENT
25. Article II of the UN Genocide Convention states that genocide entails “the intent to destroy, in
whole or in part, a national, ethnical, racial or religious group”.19
Moreover, the article
specifies a closed list of actus rei.20 I. PROTECTED GROUPS
§1. Culture
26. Pursuant to the definition of Hogan et al., the Uyghurs can be deemed a ‘cultural group’.21 Nevertheless, the scope ratione personae of the UN Genocide Convention has been unequivocally limited to four groups.22 This list is exhaustive, as has been asserted by both the International Criminal Court (hereafter: ‘ICC’) and the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (hereafter: ‘ICTY’).23
In this context, it must be noted that the diverging ‘non-exhaustive’ stance of the Trial Chamber of the International Criminal Tribunal for Rwanda (hereafter: ‘ICTR’) in its Akayesu ruling has been generally
19 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into
force 12 January 1951) 78 UNTS 277 (‘UN Genocide Convention’).
20 Ibid.; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and
Procedure (4th edn Cambridge University Press 2019) 214.
21 Supra ‘Introduction’.
22 UN Genocide Convention (fn 19) art II. 23
Al Bashir Arrest Warrant ICC-02/05-01/09, ICC PTC I (4 March 2009) §134-137; Prosecutor v Krstic (Appeals Chamber judgement) IT-98-33-A, ICTY AC (19 April 2004), §6-8; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019) 211; Guglielmo Verdirame, ‘The Genocide Definition in the Jurisprudence of the Ad Hoc Tribunals’, (2000) 49 ICQL 579, 588-593.
dismissed, as this view allegedly has been based upon a wrongful teleological reading of the
travaux préparatoires of the Convention.24
27. Prima facie, it thus may be asserted that the scope ratione personae of the UN Genocide
Convention does not encompass the Uyghurs as a cultural group. Nonetheless, - in spite of this exhaustive enumeration in the chapeau of article II - some national domestic legal systems have adopted a more expansive list of protected groups.25 In casu however, Chinese domestic criminal law does not mention the crime of genocide, and thus a fortiori fails to make reference to the potential protection of cultural groups.26 Accordingly, the People’s Republic of China does not acknowledge genocide as a domestic crime, though tacitly refers to the UN Genocide Convention in article 9 of its criminal code. 27
28. Grounded upon these brief deliberations, it may be contended that: (I) the scope ratione
personae of article II of the UN Genocide Convention does not entail cultural groups; and that
(II) Chinese domestic law does not recognize a more comprehensive list of protected groups. Inducted upon these premises, the charge of genocide thus cannot be deemed applicable vis-à-vis the Uyghurs on the sole basis of their existence as a cultural group.
§2. Article II of the UN Genocide Convention
29. It has been argued that the scope ratione personae of the UN Genocide Convention does not encompass ‘culture’ as such. However, this does not necessarily imply that the Uyghur minority cannot be classified as a protected group under the UN Genocide Convention. As the ICTY Trial Chamber has recognized, the four protected groups namely are not distinct in an absolute manner, and might instead partially overlap, as they “help to define each other”.28 This ‘four
24 Prosecutor v Akayesu (judgement) ICTR-96-4-T, T Ch I (2 September 1998), §516; William Schabas, Genocide in
International Law (2nd edn Cambridge University Press 2009) 151-153; Antonio Cassese et al., Cassese’s International Criminal Law (3rd edn Oxford University Press 2013) 120.
25 Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure
(4th edn Cambridge University Press 2019) 211; Fanny Martin, ‘The Notion of Protected Groups in the UN Genocide Convention and its Application’, in Paola Geata (ed), The United Nations Genocide Convention (Oxford University Press 2009) 33-36.
26 Criminal Law of the People's Republic of China (1 October 1997); Wenqi Zhu and Binxin Zhang, ‘Expectation of
Prosecuting the Crimes of Genocide in China’ in René Provost Payam Akhavan (eds) Confronting Genocide (7 Springer Publishing 2011) 179.
27 Criminal Law of the People's Republic of China (1 October 1997), art 9: “For crimes stipulated in the international
conventions which the People’s Republic of China concluded or acceded to, if the People’s Republic of China exercised criminal jurisdiction within the scope of its obligations under the conventions, the present law applies.”.
28
corner approach’ is a commonly accepted standard in both international jurisprudence and doctrinal works.29
30. Consequently, the subsequent analyses shall assess whether the Uyghur minority could be classified as an ethnic, racial, religious, or national group.30 In this regard, it should be accentuated that these identifications rely upon both an objective context (i.e. the objective elements of a particular social or historical context)31, as well as a subjective determination (i.e. the subjective perception of the perpetrator)32.33 Henceforth, the ‘groups’ in article II UN Genocide Convention ought to be perceived as ‘social entities’, as opposed to purely scientifically distinctive classes.34 At last, it should be underlined that - as to the particular individual victim of the genocidal act -, it suffices that the perpetrator has an imputed perception on the individual’s membership to the group which he or she intends to destroy.35
A. Nationality
31. Regardless of the lack of an internationally accepted definition, the ICTR has made an attempt to define ‘nationality’ on the basis of the approach by the International Court of Justice (hereafter: ‘ICJ’) in its Nottebohm decision.36
In Nottebohm, the Court of Justice determined ‘nationality’ on the basis of a comprehensive and non-exhaustive list of objective factors, encompassing inter alia an individual’s habitual residence, centre of residence, family ties and his or her participation in social life.37 Thus, the ICJ seems to uphold a wholly objective approach, by means of establishing factually determinable ties, each of which the weight and importance might vary depending on the facts of the case.38
29 Prosecutor v. Nderubumwe Rutaganda (Judgement and Sentence) ICTR-96-3-T, TC I (6 December 1999) §56;
William Schabas, Genocide in International Law (2nd edn Cambridge University Press 2009) 128-133; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019) 212; Doudou Thiam, Special Rapporteur, ‘Fourth Report on the Draft Code of Offences against the Peace and Security of Mankind’ (11 March 1986) UN Doc. A/CN.4/398, §56.
30 UN Genocide Convention (fn 19) art II. 31
Antonio Cassese et al., Cassese’s International Criminal Law (3rd edn Oxford University Press 2013) 121.
32 Ibid.; Prosecutor v Bagilishema (Judgement) ICTR-95-lA-T, TC I (7 June 2001), §65.
33 Prosecutor v Semanza (judgement and sentence) ICTR-97-20, TC III (15 May 2003), §317; Robert Cryer, Darryl
Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019) 214.
34 Ibid. 213; Prosecutor v Akayesu (judgement) ICTR-96-4-T, T Ch I (2 September 1998), §702; UNSC, ‘Letter dated
31 January 2005 from the Secretary-General addressed to the President of the Security Council’ (1 February 2005) UN Doc. S/2005/60, §50.
35
Prosecutor v Musema (judgement and sentence) ICTR-96-13-A, TC (20 January 2000), §165; Antonio Cassese et al.,
Cassese’s International Criminal Law (3rd edn Oxford University Press 2013) 121.
36 Nottebohm Case (Liechtenstein v. Guatemala) (Judgement) [1955] ICJ Rep 1955, 22. 37 Ibid.
38
32. In addition, the ICTR defined ‘nationality’ as “a collection of people who are perceived to share
a legal bond based on common citizenship, coupled with reciprocity of rights and duties”.39 It thus seems credible to assert that the ICTR has mutatis mutandis adopted the ICJ’s objective ‘factual ties’ approach, though has equally included a second criterion. Namely, the ICTR explicitly put forward the additional necessity of a ‘perceived shared legal bond’, and therefore seems to juxtapose citizenship with nationality.40
B. Ethnicity
33. In Akayesu, the ICTR defined ‘ethnicity’ as “a group whose members share a common
language or culture”.41 In addition, it has been particularly contended that ethnically connected individuals should consider themselves as being similar at the hand of their shared ancestry - objectively real or not -, and are so perceived by others.42 Moreover, ethnicity is a fluid concept which largely depends upon both the self-identification of the members, as well as the objective existence of mutual cultural traits.43
34. It should be underlined that pursuant to the Akayesu approach, ethnicity depends upon the identifiable and separate shared premises of culture and language. This seems to be opposed to the aforementioned standardized perception on culture by Hogan et al.44 Namely, pursuant to this extensive understanding, ‘language’ is merely conceived as a substantial element of the overarching notion of culture. Furthermore, the understanding of ‘ethnicity’ in Akayesu, as well as the pursuant stress on mutual ancestry, seem to be convincingly covered by the Hogan definition as well, under the veil of the cultural traits of ‘shared history’, ‘social status’ and ‘mutual value orientations’.45
35. Hence, the precise correlation or causal relation between ethnicity, culture and language remain somewhat equivocal. Hogan et al. namely seem to uphold a causal comprehension of ethnicity,
39
Prosecutor v Akayesu (judgement) ICTR-96-4-T, T Ch I (2 September 1998), §511.
40 Carola Lingaas, ‘Defining the Protected Groups of Genocide through the Case Law of International Courts’ (2015)
ICD Brief 18/2015 <http://www.internationalcrimesdatabase.org/upload/documents/20151217T122733-Lingaas%20Final%20ICD%20Format.pdf> (‘ICD Brief’) accessed 20 March 2020; David Lisson, ‘Defining National Group in the Genocide Convention’, (2008) 60 Stanford Law Rev. 1459, 1459-1496.
41 Prosecutor v Akayesu (judgement) ICTR-96-4-T, T Ch I (2 September 1998), §512-515; Prosecutor v Kayishema
(judgement) ICTR-95-1, TC II (21 May 1999), §98; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An
Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019) 211; Antonio
Cassese et al., Cassese’s International Criminal Law (3rd edn Oxford University Press 2013) 121.
42 Tamotsu Shibutani and Kian Kwan, Ethnic Stratification: A Comparative Approach (Macmillan Company 1965) 42. 43 Ibid.
44 Supra ‘Introduction’. 45
language and culture, in which the former are conceived as foundational aspects of the latter. The ICTR, however, seems to put forward a correlation between language, culture and ethnicity.
C. Race
36. A group’s race can be asserted on the basis of “hereditary physical traits often identified with a
geographical region, irrespective of linguistic, cultural, national or religious factors”.46
This understanding thus seems to rely upon both biological, as well as geographical criteria. The idea that ‘race’ largely depends upon the genetic transmission of physical traits has been commonly dismissed as biologically unsound.47
37. Moreover, the ICTR’s conception was in part instilled upon the overall understanding of race at the time of the UN Genocide Convention deliberations, which was still heavily influenced by the wrongful premise of Darwinism in Nazi ethics.48 Pursuant to this conception, as well as to Lemkin’s earlier view, it was for instance proclaimed that European subgroups, such as the Jews or the Dutch, ought to be regarded as distinct races.49
D. Religion
38. In Akayesu, the ICTR described a racial groups as one where its members have ‘shared common beliefs, denomination or mode of worship’.50 De lege lata, this notion is deemed rather broad, and encompasses “all organized congregation of people with primarily spiritual beliefs, thus
not dominated by economic, political or other characteristics”.51
46
Prosecutor v Akayesu (judgement) ICTR-96-4-T, T Ch I (2 September 1998), §513; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019) 211.
47 Leda Cosmides, John Tooby and Robert Kurzban, ‘Perceptions of Race’, (2003) 7 Trends in Cognitive Sciences 172,
173; Maurizio Meloni, Simon Williams and Paul Martin, Biosocial Matters: Rethinking Sociology-Biology Relationship
in the Twenty-First Century (John Wiley and Sons Publications 2016) 6-25; Michael Yudell, Race Unmasked: Biology and Race in the Twentieth Century (Columbia University Press 2014), 204-205.
48
Richard Weikart, ‘The Role of Darwinism in Nazi Racial Thought’, (2013) 36(3) German Studies Review 537, 537-556; ICD Brief (fn 40) accessed 21 March 2020; David Moshman, ‘Us and Them: Identity and Genocide’ (2007) 7(2) International Journal of Theory and Research 111, 116.
49 Ibid.; Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for
Redress (Carnegie Endowment for International Peace 1944) 81.
50
Prosecutor v Akayesu (judgement) ICTR-96-4-T, T Ch I (2 September 1998), §512; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019) 211.
51 David Nersessian, Genocide and Political Groups (Oxford University Press 2010) 24; ICD Brief (fn 40) accessed 21
§3. The Group and its members
A. The Uyghurs as a ‘social entity’
39. Based upon the previous analysis, it may very well be asserted that the Uyghur minority ought to be regarded as a social group pursuant to the UN Genocide Convention. In the first place, it namely seems that they may very well be classified as a national group. On an objective basis, the Uyghurs namely can be considered as sharing the same Chinese citizenship, as well as the ensuing reciprocal (though partly restrained) rights and duties. In addition, the Chinese Communist party (the perpetrator) equally perceives the individual Uyghur detainees to be Chinese citizens, and therefore members of this group.52
40. Furthermore, the Uyghurs share the same Islamic religion, have their own language and (consider themselves to) share a common history, in light of their Central-Asian ancestry and their persistent past attempts to establish the independent nation of East-Turkistan.53 There thus seem sufficient objective criteria to classify the Uyghurs as a social group. In addition, the CCP explicitly targets the Uyghur population, which seems to suggest that in casu, the perpetrator does consider the victims to entail a social group as well. Hence, both the objective and subjective criteria underlying the identification of a group (and its members) adequately seem to have been met.
B. The implicit recognition of cultural groups in article II UN Genocide Convention
41. In spite of the current tendency in favor of a more socially nuanced four corner approach, this research has deliberately expanded upon the content and scope of the four groups in Akayesu. Both the expansive understanding of ‘groups’ in Akayesu, as well as the four corner approach can namely be regarded insightful in view of the protection of cultural groups, such as the Uyghur minority.
42. To be precise, the four corner approach namely implicitly obliges courts of law to take into account the various key factors of ‘culture’, as put forward by Hogan et al.54
By regarding
52 HRW Report I (fn 7), accessed 17 March 2020; Herbert Yee, ‘Ethnic Relations in Xinjiang: A survey of Uygur-Han
relations in Urumqi’ (2003) 12(36) Journal of Contemporary China 431, 431-452.
53 Shichor Yitzhak, ‘Liming on Two Legs: Uyghur Diaspora Organizations and the Prospect for Eastern Turkestan
Independence’, (2007) 6(48) Studies of Central Asia and the Caucasus 116, 118-124. Shichor Yitzhak, ‘Virtual Transnationalism: Uygur Communities in Europe and the Quest for Eastern Turkestan Independence’ in Jorgen S. Neilson and Stefano Allievi (eds) Muslim Networks and Transnational Communities in and across Europe (Brill Publishing 2003) 281-310.
54
groups as social constructs, courts will namely unequivocally have to assess the social status of a group, which is the first core element of ‘culture’ in the Hogan definition.55
Furthermore, this subjective and perceived (legal) bond between group members is equally a feature of nationality, pursuant to the ICTR’s judgment in Akayesu.56
As mentioned before, this subjective consideration is in stark contrast with the ICJ’s mere ‘factual ties’ consideration in Nottebohm. Hence, both the four corners approach, as well as the ICTR’s twofold definition of ‘nationality’ seem to indicate an overall tendency toward the consideration of a group’s perceived social status, which in its turn constitutes the first core element of ‘culture’.
43. Furthermore, it has been asserted that – both in Nottebohm, as well as in Akayesu - the ‘factual ties’ consideration of nationality inter alia depends upon the existence of family ties.57
Henceforth, courts are equally expected to take into account the family life of the victims, which encompasses the sixth enumerated element of ‘culture’ in the Hogan et al. definition.
44. Moreover, it has been contended that the notion of ‘ethnicity’ is rather broad, and encompasses a group’s shared history, mutual value orientations and language.58
Hence, this wide conception allows courts to take into account these three cultural facets. Nonetheless, there indisputably remains a persistent ambiguity concerning the precise causal relation between language, culture and ethnicity.
45. Furthermore, as opposed to the restricted and biologically unsound initial view on ‘race’, the
Akayesu definition once more widened the scope of this conception, by considering both
biological as well as geographical criteria.59 This renewed conception thus allows courts to equally assess the shared history of a group, which constitutes a core aspect of culture pursuant to the conception of Hogan et al.60
46. Lastly, the ICTR has maintained a rather extensive conception of religion, by taking into account all shared common beliefs, denominations or modes of worship.61 In conducting this analysis, courts of law thus unquestionably need to consider all forms of religious expression, as well as potential forms of art and expression that might indicate the existence of a common
55 Ibid.
56 Supra §2 ‘Article II of the UN Genocide Convention’. 57 Ibid. 58 Ibid. 59 Ibid. 60 Ibid. 61 Ibid.
belief, mode of worship or denomination. Hence, this expansive view on religion allows courts of law to incorporate the seventh and eight cultural factor of Hogan et al. into their assessment. 47. In sum, it has been asserted that ‘cultural groups’ do not fall within the scope of article II of the
UN Genocide Convention. Ostensibly however, a plethora of key features of ‘culture’ implicitly seem to play a role in the court’s assessment of the protected group and its members. The implicit recognition of these cultural facets has been the result of both the expansive definition of the four protected groups in Akayesu, as well as of the socially sensitive nature of the current four corner approach, which considers groups as entailing ‘social entities’, rather than as objective and scientifically distinguishable collectives. Henceforth, in spite of the lack of an explicit protection of cultural groups under the Convention, there exists a coherent tendency to implicitly and indirectly recognize the protection thereof under article II.
48. The abovementioned insights can be visually represented in the following schedule.62
62
II. ACTUS REUS
§1. Prohibited acts
49. The prohibited acts in article II UN Genocide Convention are exhaustive.63 Furthermore, it suffices that these acts are directed at one sole victim, as long as the particular act has been rooted in the required intent to destroy (part of) a group.64 The following concise analysis will touch upon three acts enumerated in article II, which are deemed the most relevant with regard to the case study at issue.
A. Causing serious bodily or mental harm to group members
50. Article II(b) of the UN Genocide Convention stipulates the genocidal act of causing serious bodily or mental harm.65 The required threshold of harm equalizes any “grave and long-term
disadvantage to a person’s ability to lead a normal or constructive life”.66
Nevertheless, the element of gravity does not require harm – mental, nor physical – to be of a permanent nature.67 Moreover, given that the notion of ‘serious’ concerns a value judgment, it ought to be considered on a case-by-case basis.68
1. Physical harm
51. In casu, human rights reports ostensibly attest to a pervasive usage of torturous techniques, as
well as habitual practices of ill-treatment.69 Some of the most commonplace examples include repeated beatings, prolonged shackling and being hung from ceilings and walls for multiple consecutive days.70 In addition, testimonies also report that detainees usually reside with 24 people in 12 square-meter rooms without fresh air, that torture is common in case of disobedience, and that random detainees are oftentimes terribly beaten, until they false positively confess to the alleged charge of terrorism.71
63 Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure
(4th edn Cambridge University Press 2019) 214; Claus Kress, ‘The Crime of Genocide under International Law’, (2006) 6 Int. Crim. Law Rev. 466, 480.
64 Ibid.; International Criminal Court ‘Elements of Crimes’, ICC-PIDS-LT-03-002/11 (2011) (‘ICC EOC’), article 6(b). 65 UN Genocide Convention (fn 19), art II(b).
66 Prosecutor v Krstic (Judgement) IT-98-33-T, ICTY TC (2 August 2001) §513. 67 Prosecutor v Kayishema ICTR-95-1, TC II (21 May 1999), §109.
68
Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University Press 2019) 215.
69 HRW Report (fn 7) accessed 1 April 2020. 70 Ibid.
71
52. Henceforth, these testimonies seem to correspond with the ICC Element of Crimes, which presuppose “a manifest pattern of similar conduct directed against that group or was conduct
that could itself effect such destruction”.72 This ‘contextual element’ shall be expanded upon
infra.73 Moreover, various testimonies report sexual violence and rape, both within the camps as
well as outside.74 These cases thus clearly fall within the realm of bodily and mental harm pursuant to article II(b) of the Convention.75
2. Mental harm
53. With regard to mental harm, it ought to be reiterated that a merely temporary or minor impairment of mental faculties cannot be deemed sufficient.76 Furthermore, any form of degrading treatment and/or the depreciation of rights should equally be taken into account.77 In
casu, many former detainees have attested to the experienced dread of being captured, their
sense of complete helplessness and the fear for their own safety, as well as for the safety of their family and friends.78 These examples have all been commonly accepted as constituting ‘mental harm’ under article 6(b) of the Convention.79
In addition, it has also been found that the act of forced deportation by itself can constitute mental harm.80
54. Hence, based upon this brief assessment, it could be contended that – prima facie – the genocidal act under article 6(b) UN Genocide Convention has been substantiated vis-à-vis the Uyghurs, both within the internment camps, as well as in the broader territory of Xinjiang.
B. Imposing measures intended to prevent births within the group
55. A second actus reus concerns article II(d), which includes acts of biological genocide, encompassing inter alia compulsory sterilization and forced abortion.81 With regard to the Uyghur scenario, several reports attest to cases of forced abortions and the sterilization of
72 ICC EOC (fn 64), article 6(b). 73 Infra. §2 ‘Contextual element’. 74
HRW Report (fn 7) accessed 1 April 2020.
75 Prosecutor v Akayesu (judgement) ICTR-96-4-T, T Ch I (2 September 1998), §731; ICC EOC (fn 64), article 6(b),
note 3.
76
Ibid., §502; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and
Procedure (4th edn Cambridge University Press 2019) 215.
77 Attorney-General of the Government of Israel v. Eichmann, District Court of Jerusalem, Judgment of 12 December
1961 (1968) 36 I.L.R, 340.
78 HRW Report (fn 7) accessed 1 April 2020. 79
Prosecutor v Blagovejic and Jokic (judgement) IT-02-60-T, ICTY TC (17 January 2005), §647.
80 Attorney-General of the Government of Israel v. Eichmann, District Court of Jerusalem, Judgment of 12 December
1961 (1968) 36 I.L.R, 340; Prosecutor v Blagovejic and Jokic (judgement) IT-02-60-T, ICTY TC (17 January 2005), §646.
81
Uyghur women.82 Furthermore, the CCP purportedly orders Han Chinese men to reside in the same houses as Uyghur women, whose husband are being detained in the internment camps.83 This “pair up and become family” policy is allegedly intended to enhance ‘ethnic unity’ in the Xinjiang province.84
56. These illustrations seem to demonstrate that the CCP’s impediment of reproduction is merely delimited to scenarios within the Uyghur group itself. In this context, particular consideration ought to be devoted to the words “within the group” in article II(d).85
Pursuant to this formulation, the prevention of births is not required to be absolute, as long as the capacity of reproduction is hindered within the group at issue.86 Hence, it can be concluded that the forced obstruction of reproduction within the Uyghur group in casu falls within the scope of article II(d) of the Genocide Convention.
C. Forcible transfer of children to another group
57. Article II(e) of the UN Genocide Convention has been most notably clarified in article 6(e) of the ICC Elements of Crimes.87 Hence, it has been contended that ‘children’ concern all individuals below the age of eighteen, and that physical force is not per se required, as threats of force or coercion suffice.88
58. In case of the Uyghurs, the separation of children from their parents, as well as their forced placement in so-called ‘child welfare institutions’ (i.e. state-run orphanages and special re-education camps), have been some of the most contentious practices by the CCP.89 It has been
82
HRW Report I (fn 7) accessed 15 April 2020; Nazreen Nawaz, ‘Report: The Forced Sterilization of Uyghur Women in China’s Concentration Camps: Another Arm of the Regime’s Genocide Campaign Against the Muslims of East Turkestan’ (7 September 2019) 1441 AH / 001; Olivia Enos and Yujin Kim, ‘China’s Forced Sterilization of Uyghur women is Cultural Genocide’ The Heritage Foundation (Washington D.C. 29 August 2019) <https://www.heritage.org/asia/commentary/chinas-forced-sterilization-uighur-women-cultural-genocide> accessed 15 April 2020.
83 HRW Report I (fn 7) accessed 15 April 2020; Alexandra Ma, ‘China is reportedly sending men to sleep in the same
beds as Uighur Muslim women while their husbands are in prison camps’ Business Insider (New York City 4 November 2019) <https://www.businessinsider.nl/china-uighur-monitor-home-shared-bed-report-2019-11?international=true&r=US> accessed 15 April 2020.
84 Ibid. 85
UN Genocide Convention (fn 19) art II(d).
86 Prosecutor v Tolimir (judgement) IT-05-88/2-T, TC (12 December 2012) §767; Elisa Novic, ‘Physical-biological or
socio-cultural destruction in genocide? Unravelling the legal underpinnings of conflicting interpretations’ (2015) 17(1) Journal of Genocide Research 63, 71.
87 ICC EOC (fn 64), article 6(e). 88
Ibid.; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and
Procedure (4th edn Cambridge University Press 2019) 217.
89 Sigal Samuel, ‘China’s Jaw-dropping Family Separation Policy’ The Atlantic (Boston, 4 September 2018),
estimated that tens of thousands of children have been forcibly separated from their families, and have thus been coercively transferred to the ethnic group of Han Chinese.90
59. Regardless of the lack of ICC jurisprudence with regard to this specific act, a closer analysis of the ICC Elements of Crimes – as well as of doctrinal research related thereto - indicate that the forced transfer of Uyghur children to the Han Chinese seemingly falls within the actus reus of article II(e) of the Convention.91
§2. Contextual elements
60. With regard to each genocidal act, the ICC Elements of Crimes presuppose that the “conduct
took place in the context of a manifest pattern of similar conduct directed against that group, or was conduct that could itself effect such destruction”.92
Firstly, the act must thus take place within an overarching context of genocidal acts (or crimes against humanity), and must fit into a ‘clear pattern’.93
It seems rather apparent that the aforementioned actus rei do occur against the backdrop of a manifest pattern of similar conduct, i.e. the forced detention and the overall ill-treatment of the Uyghur minority.
61. A second dissociative contextual element requires that the conduct at issue “could itself effect
such destruction”.94
In casu, the aforementioned acts do not seem to meet this element, since these acts as such do not put the CCP in a position where they might pose a real threat to the physical existence of the Uyghur group.95 In addition, the arguably divergent intent behind the detention of the Uyghurs and the ill-treatment within the internment camps is not relevant, as
(Washington D.C. 6 October 2019), <https://foreignpolicy.com/2019/10/06/xinjiang-china-uighur-camps-orphan-children-kazakhstan/> accessed 3 May 2020; HRW Report (fn 7) accessed 3 May 2020; Raza Zainab, ‘China’s Political Re-education Camps of Xinjiang’s Uyghur Muslims’, (2019) 50(4) Asian Affairs 486, 488-501.
90 Ibid.. 91
Sonja Grover, Humanity’s Children: ICC Jurisprudence and the Failure to address the Genocidal Forcible Transfer
of Children (Springer Publishing 2012) 261-316; Claus Cress, ‘The International Court of Justice and the Elements of
Crime of Genocide’, (2007) 18(4) Eur.j.Int.Law 608, 619-629.
92
ICC EOC (fn 64), article 6.
93 Valerie Oosterveld and Charles Garraway, ‘The Element of Genocide’ in Roy S. Lee et al. (eds) The International
Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers 2001) 41-47;
Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University 2019) 218.
94
ICC EOC (fn 64), article 6.
95 Valerie Oosterveld and Charles Garraway, ‘The Element of Genocide’ in Roy S. Lee et al. (eds) The International
Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational Publishers 2001) 41-47;
Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University 2019) 218.
the first contextual element merely requires the conduct to be similar, regardless of the underlying intent.96
62. In casu, the enumerated acts thus clearly seem to occur within the context of a clear pattern of
similar conduct against the Uyghur group. Hence, the contextual element has been met. III. MENS REA
§1. Intent
63. The acts in casu have been based upon the intent of the CCP, though genocide mustn’t necessarily be committed by the leaders/planners of destructive campaign.97 Furthermore, the
dolus specialis may be ascertained on the basis of factual circumstances98, including circumstantial evidence.99 Furthermore, it has been contended that all potential evidence ought to be considered in globo.100 In casu, there have been a number of internal documents which clearly seem to suggest the CCP’s unequivocal intent to destroy the Uyghur group, known as ‘the Xianjiang papers’.101
64. Based upon these convincing and clear internal documents, one may assume that the CCP does have an outspoken intent to eradicate the Uyghur minority. An in-depth analysis of this evidence falls outside the restricted scope of this research. Furthermore, the prevailing doctrinal discussion regarding the requirement of intention versus knowledge equally goes beyond the realm of this analysis.
§2. To destroy
65. Article II of the UN Genocide Convention has been restricted to acts intended to bring about either physical or biological destruction.102 This narrow conception of ‘destruction’ thus appears to be the core issue which eliminates cultural genocide from the Convention.103 A nuance ought
96 Ibid.; Al Bashir Second Arrest Warrant Decision ICC-02/05-01/09-3, ICC PTC I (12 July 2010), §13; Prosecutor v
Akayesu (Judgement) ICTR-96-4-T, T Ch I (2 September 1998), §505.
97
Prosecutor v Kayishema (Judgement in appeal) ICTR-95-1, ICTR AC (1 June 2001), §170.
98 Kai Ambos, ‘What does Intent to Destroy in Genocide mean?’, (2009) 91(87) Int. Rev. of the Red Cross 834,
834-858; Nikolas Kajkovic, ‘The politics of the ICJ Genocide case and its interpretation’, (2008) 21(4) LJIL 885, 885–910; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University 2019) 218.
99
Prosecutor v Seromba (Judgement) ICTR-2001-661, ICTR TC I (13 December 2006), §106.
100 Prosecutor v Stakic (Judgement) IT-97-24-A ICTY, AC (22 March 2006) §55. 101 Xinjiang papers (fn 12) accessed 14 May 2020.
102 UN Genocide Convention (fn 19), art II. 103
to be made in relation to domestic jurisdictions, which may very well broaden the scope of ‘destruction’ in their national laws.104
In this context, however, it should be reiterated that Chinese criminal law does not acknowledge the crime of genocide within its domestic system, and - a fortiori - has thus not expanded upon the concept of genocidal destruction.105
66. Furthermore, the ICTY has explicitly ruled that the ‘mere’ destruction of a group’s identity ought to be excluded from the UN Genocide Convention.106 The International Court of Justice (hereafter: ‘ICJ’) has equally asserted that genocide is merely restricted to the physical and biological destruction of a group.107
67. This unmistakably restricted reading of the chapeau of article II by both international courts seems to leave little to no room for any further considerations on cultural assimilation as a form of ‘destruction’. Nevertheless, the rationale behind these jurisprudential assertions has seemingly been exclusively grounded upon the travaux préparatoires of the UN Genocide Convention, and the particular contention that “the latter concept (of cultural genocide) was
eventually dropped”.108 However, this sole reliance upon the foundational works of the
Convention seems somewhat inconsistent with the general rules of treaty interpretation, as enshrined in articles 31 to 33 of the Vienna Convention on the Law of Treaties (hereafter: ‘VCLT’).109
In addition, article 32 explicitly determines that travaux préparatoires merely ought to be maintained as a subsidiary interpretative tool, in case the primary interpretative methods leave the precise meaning ambiguous or obscure, or result in a manifestly unreasonable or absurd reading.110
68. It thus seems rather questionable as to why neither the ICTY, nor the ICJ has further investigated the primary sources of interpretation (i.e. the ordinary meaning, the object and the
104 Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure
(4th edn Cambridge University 2019) 223.
105
Supra Chapter I, I.I.§1: ‘Culture’.
106 Prosecutor v Blagovejic and Jokic (judgement) IT-02-60-T, ICTY TC (17 January 2005) §666; Prosecutor v Krstic
(Appeals Chamber judgement) IT-98-33-A, ICTY AC (19 April 2004) §25; Prosecutor v. Momčilo Krajišnik (judgement) IT-00-39-T, ICTY TC (27 September 2006) §854.
107 Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) (judgement) [2007] ICJ Rep 2007, 43, §344; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (Judgment) [2015] ICJ Rep
2015, 3, §136.
108
Ibid.
109 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS
331 (VCLT) art 31-33.
110 Ibid. art 32(a)(b); Lars Berster, ‘The alleged Non-existence of Cultural Genocide: A Response to the Croatia v.
purpose of the Convention).111 Hence, the ICJ’s materially restricted reading of ‘destruction’ in
Croatia v. Serbia apparently appears to be based upon a similarly constrained interpretative
deliberation.112 Moreover, this method seems to be opposed to the ICJ’s habitual interpretative assessments of the object and purpose of treaties.113 Furthermore, it ought to be stressed that articles 31-33 of the VCLT have been widely regarded as constituting customary international law.114
69. Notwithstanding this analytical objection, ‘destruction’ in article II of the UN Genocide Convention is - de lege lata – still unequivocally and exhaustively limited to its physical and biological components. In this context, the transfer of a group which results in the splitting thereof can only be considered as genocide if there is an intent to physically or biologically destroy the group.115 In casu, the forced transfer of children to the group of Han Chinese is intended to destroy the cultural identity of the group.116 Given that there exists no proof of any intent of physical or biological destruction within or outside the camps, the Uyghur scenario does not seem to fall within the realm of physical or biological destruction. On a subsidiary note, however, attacks on cultural or religious property can still constitute “significant
evidence” of the intent to destroy.117
§3. In whole or in part
70. Genocide requires the intent to destroy a group “in whole or in part”118. A first issue concerns
the determination of the relevant geographical scope119, which in casu encompasses the Chinese province of Xinjiang, as this is the area in which the CCP targets and detains the Uyghur minority.120
111 Ibid., article 31. 112
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v. Serbia) (judgment) [2015] ICJ Rep 2015, 3, §136.
113 Case Concerning the Territorial Dispute (Libyan Arab Jamahiriya v. Chad) (Judgment) [1994] ICJ Rep 1994, 6,
§41; Case Concerning the Arbitral Award of 31 July 1989 (Guinea-Bissau v. Senegal) (Judgment) [1991] ICJ Rep 1991, 53, §48; Lars Berster, ‘The alleged Non-existence of Cultural Genocide: A Response to the Croatia v. Serbia Judgment’ (2015) 13 JICJ 677, 679.
114 Ibid. 115
Ibid.; Prosecutor v Blagovejic and Jokic (judgement) IT-02-60-T, ICTY TC (17 January 2005) §666; Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure (4th edn Cambridge University 2019) 223.
116 HRW Report (fn 7) accessed 18 May 2020.
117 Robert Cryer, Darryl Robinson and Sergey Vasiliev, An Introduction to International Criminal Law and Procedure
(4th edn Cambridge University 2019) 223.
118 UN Genocide Convention (fn 19) art II.
119 Case concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Serbia and Montenegro) (Judgment) [2007] ICJ Rep 2007, 43, §199.
120
