Posted by Oliver Young | Dec 15, 2021
Last Thursday, the Uyghur Tribunal delivered its judgment assessing evidence of the Chinese government’s alleged genocide of the Uyghur minority. Acting as an independent “people’s tribunal” and equipped with moral credibility but no enforcement powers, it determined “beyond reasonable doubt” that the government has indeed committed both crimes against humanity and genocide, and that Xi Jinping bears “primary responsibility.” The judgment, along with growing protests from activists, adds pressure on other governments to respond to the CCP’s human rights violations, notably by boycotting the Beijing 2022 Winter Olympics. Among the major verdicts contained in the Uyghur Tribunal’s Summary Judgment:
181. Torture of Uyghurs attributable to the PRC is established beyond reasonable doubt.
182. Crimes against humanity attributable to the PRC is established beyond reasonable doubt by acts of: deportation or forcible transfer; imprisonment or other severe deprivation of physical liberty; torture; rape and other sexual violence; enforced sterilisation; persecution; enforced disappearance; and other inhumane acts.
190. Accordingly, on the basis of evidence heard in public, the Tribunal 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.
The tribunal was led by British barrister Sir Geoffrey Nice, who previously led the prosecution against Serbian President Slobodan Milošević for war crimes in Yugoslavia. “Had any other body, domestic or international, determined or sought to determine these issues, the tribunal would have been unnecessary,” said Nice. The International Court of Justice at the U.N. will only accept a case that has been approved by the Security Council, over which China has veto power; in December 2020, the International Criminal Court (ICC) declined to open a case on Xinjiang without greater evidence, although new evidence was subsequently filed in June of this year. No national court has decided to take up a case thus far. Denied access to Xinjiang for further investigation, the U.N. Office of the High Commissioner for Human Rights announced it would soon release a report showing “patterns” of the Chinese government’s human rights violations in Xinjiang.
The judgment itself was ultimately quite narrow. The tribunal made its judgment based only on one of the five prohibited acts of the U.N. Genocide Convention necessary for proof of genocide: the prevention of births. It also determined that the Chinese government had committed seven out of the 11 crimes against humanity recognized by the ICC. Moreover, all of its judgments were reached “beyond reasonable doubt.” In a post on The China Collection, George Washington University law professor Donald Clarke argued that the tribunal’s overly cautious approach had unnecessarily restricted the judgment:
Finally, it is worth noting that the Bosnia case quoted above, which seems to be a leading case on this question, does not actually endorse the BARD [(“beyond a reasonable doubt”)] standard. It does reject Bosnia’s proposed preponderance standard. But it also seems to go out of its way to avoid saying “beyond a reasonable doubt.” Instead, it uses language such as “fully conclusive,” “clearly established,” and “high level of certainty.” This is closer to the “clear and convincing” standard than to the “beyond a reasonable doubt” standard. (For those who are not lawyers, the terms “preponderance,” “clear and convincing,” and “beyond reasonable doubt” are technical terms that are well understood to represent different, ascending levels of certainty.)
To sum up, then, the proper standard for an international legal tribunal would not have been higher than that set forth in the Bosnia case: “clearly established” or “high level of certainty,” which seems little less demanding than “beyond a reasonable doubt.” And there are good arguments that it should have been lower.
Given the above, and the fact that the Tribunal is not a state-recognized international legal tribunal, it’s unfortunate that the Tribunal chose BARD as its standard. I understand why it did so – to give more weight to whatever it did find – but that would have been most meaningful in an environment where large numbers of people accepted it as an unbiased judge. I don’t think that’s the world we’re in.
In any case, regardless of whether one thinks the standard is the right one, the fact is that failing to find genocide on various prongs of the definition (in many cases because of inadequacy of evidence of intent) beyond a reasonable doubt in no way implies that the evidence doesn’t justify a finding of genocide by any of the less demanding standards discussed above – for example, preponderance of the evidence. I think the Tribunal would have done well to tell us what it would have found under such a standard.
Throughout its hearings, the tribunal made repeated invitations to Beijing to present its version of the facts, but the Chinese government refused to participate. After the judgment was released, a Global Times editorial criticized the tribunal, calling it an “absurd drama” and “just a pseudo-court … with an obvious motivation to vent anger at China.” A foreign ministry spokesperson called it a “political farce performed by a few clowns.”
The judgment comes amid mounting scrutiny of the international community’s engagement with the “Genocide Olympics,” set to take place in China in February 2022. Several Western governments issued announcements that they will diplomatically boycott the games, including the U.S. on December 6, Australia on December 7, and the U.K. and Canada on December 8. New Zealand stated in October that it would not send any diplomatic representatives to the Olympics, citing concerns “mostly to do with Covid,” but also mentioning human rights. Aside from Lithuania, EU countries have largely avoided committing to any boycott of the Olympics, following France’s public decision not to boycott. France24 reported on President Macron’s characterization of the diplomatic boycotts as “insignificant”:
“To be clear: You either have a complete boycott, and not send athletes, or you try to change things with useful actions,” Macron said at a news conference Thursday, adding that he was “in favour of action that has a useful outcome”.
[…] Questioning the utility of the diplomatic boycott, Macron noted that he “didn’t hear anybody in the world say: Let’s not send our athletes. So we’re talking about something rather symbolic,” he said.
France would instead work with the International Olympic Committee on a charter guaranteeing the protection of athletes “given what has happened over recent weeks”, Macron said in an apparent reference to the case of Chinese tennis player Peng Shuai, who disappeared for three weeks after she made sexual assault accusations on social media against a former top Communist Party politician.
The European rejection of boycotts has only fueled activists’ protests. On Saturday, members of the Tibetan Youth Association in Europe and Students for a Free Tibet staged a peaceful protest at the IOC headquarters in Lausanne while IOC officials held a meeting. The protests built on momentum from previous demonstrations in Greece during the Olympic torch lighting ceremony, and at the IOC building in late November, when activists held a mock funeral for the IOC. Reuters described the activists’ call for an Olympic boycott at this weekend’s protest:
Two Tibetan students chained themselves to the Olympic rings outside the Swiss headquarters of the International Olympic Committee on Saturday to call for an international boycott of next year’s winter games
Two activists unfurled a banner over the entry to the building reading, “No Beijing 2022,” while five students got inside the building and held a sit-in protest.
“Despite mounting international criticism of the IOC and China, the Chinese regime’s human rights abuses in Tibet, East Turkestan, and Hong Kong continue unabated,” said Tenzing Dhokhar, Campaigns Director of TYAE, one of the protesters.
“By collaborating with China, the IOC is making itself an accomplice of the Chinese Communist Party’s crimes, which will be sports-washed by the Beijing Olympics.”
Meanwhile, in Australia, reports indicate that billboard companies have refused to display Chinese dissident artist Badiucao’s posters criticizing the “Genocide Olympics,” out of fear of retribution from China.