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Why Hasn’t the U.N. Accused China of Genocide in Xinjiang?

A new report from the Human Rights Office found “widespread arbitrary deprivation of liberty of Uyghyrs and other predominantly Muslim communities.” Some activists think it didn’t go far enough.

By Isaac Chotiner

September 13, 2022

The report was released by Michelle Bachelet, the U.N. High Commissioner for Human Rights, who left office within minutes of issuing it.Photograph by Fabrice Coffrini / Getty

Two weeks ago, the United Nations Human Rights Office published a report on China’s western Xinjiang region, where there has been large-scale repression of the Uyghur population and other predominantly Muslim communities. The report, released by Michelle Bachelet, the U.N. High Commissioner for Human Rights, who left office within minutes of issuing it, found that China’s government had committed violations that may amount to “crimes against humanity.” Although the report does not label China’s actions “genocide,” as the American government has, or even mention the term, it did find widespread and systemic abuse of human rights, including “arbitrary and discriminatory detention” of perhaps more than a million people. China tried to prevent the release of the report—which was repeatedly delayed after a draft was completed almost a year ago.

I recently spoke by phone with Nicholas Bequelin, a visiting fellow at the Paul Tsai China Center at Yale Law School. Bequelin, the former regional director for Amnesty International in Asia, worked on an early Human Rights Watch report on Xinjiang, in 2005. During our conversation, which has been edited for length and clarity, we discussed whether the U.N. went far enough in its conclusions, whether the “genocide” label should apply to Xinjiang, and what is really driving China’s repressive policies.

There appears to be some division among experts about whether this report is a long-awaited vindication of those who’ve been drawing attention to the horrific human-rights abuses in western China or whether the report is incomplete. How do you see it?

There’s been a lot of criticism of the High Commissioner on Human Rights over the publication of this report. A lot of this criticism overlooks the difficulty of the position. The Office of the High Commissioner is not Human Rights Watch or Amnesty International. Those are independent civil-society organizations with no ties to specific states. The High Commissioner is an international public servant in an interstate organization; it’s always a high-wire act to fulfill the mission of the office. In this case, the office was under tremendous pressure from China to not publish the report. At the same time, the credibility of the office was on the line because the amount of evidence in the public domain about the scale of abuses in Xinjiang is overwhelming.

Not publishing a factual report on the situation would have gravely undermined the authority of the High Commissioner’s office in the eyes of the general public, and within the U.N. system itself. Bachelet published it, but less than fifteen minutes before she was stepping down, which lets her successor deal with the fallout. Having said that, the content of the report, I think, is fair, balanced, and authoritative.

What within the report is so important?

The most important element of the report is that the violations in Xinjiang and the policies carried out in Xinjiang may amount to crimes against humanity under international human-rights law. This means that China is committing atrocities in Xinjiang, which is extraordinarily significant. To my knowledge, it’s the first time that the Office of the High Commissioner has reached this determination with respect to China. China has never been accused of committing crimes against humanity by a U.N. agency. And this also dovetailed with the conclusions of Human Rights Watch and Amnesty International, among other organizations, which have published investigations on Xinjiang.

Anything that fell short of that qualification would have been problematic. The very definition of crimes against humanity is abuses that are widespread and systematic. In this case, there is a deliberate policy to target a particular group—ethnic minorities in Xinjiang—and to carry out large and systematically repressive policies that entail very serious violations, such as enforced disappearances, torture, murder, sexual violence, and so on.

The report also establishes two important findings. The first is that the entire framework that China is relying on in this campaign to combat what its government calls terrorism and extremism is incompatible with its international human-rights obligations. The [supposed] crimes are vaguely defined. They are arbitrarily determined.

These are the crimes that China is accusing the Uyghurs of committing?

Correct. Terrorism, religious extremism, engaging in illegal religious activities, and so on. According to the U.N. report, the entire legal framework that China has put in place to combat what it says is the risk of terrorism or religious extremism is in contradiction with human-rights standards. It’s arbitrary, it’s vague, it’s politicized, and it doesn’t offer the kind of legal guarantees and remedies that should be present, especially with respect to deprivation of liberty. If you put people in an internment camp, there should be legal procedures for that. In the program that China has been rolling out for a number of years in Xinjiang that has led to the internment of hundreds of thousands of people, if not millions, none of these guarantees are present.

The second important element is that a range of very severe violations—torture, enforced disappearances, intimidation, the stamping out of religious or cultural expression—were found. Both the legal basis and the implementation of the campaign are profoundly violative of human rights, and that is extremely important when it comes from a U.N. agency.

Did the investigators find anything that should change the way we understand what’s been going on in Xinjiang? And, if so, how?

I don’t think that there is anything new in the report, but a lot of the information comes from the Office of the High Commissioner conducting its own investigation and examination. In other words, they didn’t collect news clippings and put it together in a nice report with a bow. They interviewed more than forty people, which is significant—these are firsthand-witness accounts—and reviewed and assessed the authenticity and authoritativeness of a wide range of documents and information, including internal documents from the Chinese state and the authorities in Xinjiang, satellite pictures, and a host of regulations and laws.

They conducted their own independent assessments and came to the same conclusions on many points. They did it in a very objective and balanced way, knowing that their findings would be scrutinized heavily in the public domain, by the member states, and by China itself.

Why does it matter that it’s a U.N. agency that publishes these reports rather than a newspaper or human-rights organization? I think it’s the difference between spectators at a sports game claiming that one of the teams has committed a foul and the referee calling out for a foul on the pitch. It’s an official sanction by the person, or, in this case, the U.N. agency, who has been given the explicit mandate to make these kinds of determinations. It carries a very different weight in international politics than independent reports by N.G.O.s, and certainly a heavier weight than anything that has been published so far.

To take your analogy further, you could say that a sports referee doesn’t just get to determine whether something was a foul but gets to punish the players for committing the foul. That would be a difference here.

Yeah, this is a limited analogy, but, when a report that makes this type of allegation is published, the Human Rights Council should be obligated to take further steps, either to set up a fact-finding mission or take action on the fact that these very serious allegations have been established. The Office of the Secretary General can’t just sit by and pretend that nothing happened. They have to take it up, and I think that’s the setup for a showdown between China, along with whatever allies among party states it manages to strong-arm, and the members of the U.N. who are serious about upholding human-rights standards.

The tone of the report is definitely very critical of China. You mentioned crimes against humanity. The report says that China “may” have committed crimes against humanity, correct? It doesn’t go all the way. Is that problematic?

No, that’s what this type of report does. It says that it may amount to crimes against humanity, which is a determination that has to be made by a different U.N. body. It was not for this report to unambiguously declare that crimes against humanity had been committed. It’s like saying, “Isaac murdered someone.” Until you’re found guilty, you are not a murderer. The maximum I can say is that Isaac may have murdered someone.

Some activists from the human-rights community, which you’ve obviously been a part of, were upset that the report didn’t use the label of “genocide.” Was that an oversight? If not, why do you think the genocide determination was or was not made?

There is an almost fetishistic belief that the qualification of genocide on a particular situation will trigger an international response that is lacking otherwise. That is why you see the accusations of genocide multiply. It has even been used by President Biden with respect to Ukraine. The issue for the qualification of the crime of genocide is that the bar is extremely high. You have to demonstrate the intent of the states to commit genocide, and that generally is quite difficult because states know better than to write a memo saying, “Let’s commit genocide.”

Even in the case of the Rohingya in Myanmar, there is still a very vehement debate about whether this constitutes a crime of genocide, and this is being now reviewed by the International Court of Justice and the I.C.C. Because it’s such a high bar, and because of the limited information that we have on what exactly is happening in Xinjiang and the nature of China’s policy, there just isn’t the amount of evidence that would firmly establish that this crime has been or is being committed.

I hear what you’re saying about people wanting to use the term to trigger a response, but how do you conceive of what genocide means, and do you think it should apply to western China, in your own opinion?

I don’t have a clear answer on this. I haven’t seen elements that would lead me to confidently say that this situation qualifies as genocide under international law, but I don’t exclude it, either. The main problem is information. For the crime of genocide, you need to have several elements. One of the elements is intent. You need to be able to demonstrate, and to demonstrate convincingly, before a court, that the state had the intent of committing genocide. That’s the first thing. The second is that you have a number of elements for the crime of genocide—which is that it has to be a systematic, widespread extermination, or attempted extermination, of a national, racial, religious, or ethnic group. There are elements that are present in the Chinese case, but it’s not clear that the intent is to lead to the extermination of a particular ethnic group.

If I understand correctly, this determination has been made by the U.S. government based on the pattern of forced abortions and coercive family-planning policies implemented by Chinese states, which have been confirmed by official data that show a very sharp decline in the rate of birth in Xinjiang. My issue here would be that these are policies that are not specific to Xinjiang, even though they might be, and probably are, enforced more strictly in Xinjiang since the beginning of this campaign. In that case, you would have to level the accusation of genocide against China in general, for genocide against its own population, for engaging in decades of very coercive family-planning policies. [China’s countrywide one-child policy ended in 2016. From 2017 to 2019, the birth rate in Xinjiang fell by nearly fifty per cent.]

My understanding is that China is also trying to erase Uyghur cultural and religious beliefs in a way that it is not with Han Chinese, right?

You’re absolutely right, but here is the rub. When the convention of genocide was being negotiated, in the mid-to-late-nineteen-forties, the original draft included two other categories that could be a threshold for the crime. One was targeting political groups and the other was everything related to cultural genocide. During the negotiations for the convention, these two categories were struck. It is regrettable, probably, that the definition of genocide was narrowed in international law to the extent that it was, but a clear outcome of this negotiation was to exclude cultural genocide from the definition of genocide.

A lot of what is accurately described in Chinese policies as an attempt to stamp out the separate cultural or religious identity of Uyghurs and other groups—because the state thinks that they can be a vehicle for separatist desperation or resistance to the Chinese-state project—is not covered by the Genocide Convention. That is my hesitation. In terms of whether there was a crime of cultural genocide, I think China would probably fit the bill in the case of Xinjiang or Tibet. Many scholars have argued to revise the definition of genocide and of crimes against humanity to capture these violations and qualify them properly.

So tell me, then, what you think China is doing in Xinjiang.

Broadly speaking, the ethnic minorities are perceived to be in the way of what the Chinese state wants to do in Xinjiang. Xinjiang is best described as a colonial setting. The grand goal of the Chinese state is to complete the colonization of Xinjiang. Let’s remember that the name Xinjiang itself in Chinese means “new dominion”; they want a fully domesticated population, turned into a region that is indistinguishable from the rest of Han China. The relation between Han Chinese, Uyghur, and other Turkic minorities in Xinjiang is glaringly a colonial situation, where you have a representative of a metropolitan center bearing a “superior” civilization and economy that are engaged in the process of “modernizing” and dragging into the future some “backward” minorities.

The problem for Beijing is that Xinjiang is the homeland of more than ten million people who are the original inhabitants of that area, which geographically is a part of Central Asia. Beijing has decided that these people have to be domesticated, turned into loyal citizens, or beaten into absolute submission. The counterterrorism argument, the fighting-religious-extremism argument, is not convincing, because, in this long-term colonizing project, the Chinese state has always accused these ethnic groups, Uyghurs and others, of being opposed to the state. After the establishment of the P.R.C., they were considered feudal societies, then they were revisionists, then they became separatists. “Extremist” or “terrorist” are just the last labels that China has been applying to a population that it tries to domesticate and that it feels is in the way of its colonizing project.

China sees the Uyghur population through the lens of loyalty. Beijing knows that it is carrying out policies in Xinjiang that effectively dispossess and suppress Uyghur culture. They assume that they do not have the political loyalty of these people. The entire campaign is designed to detect and punish whoever is disloyal. The frightening aspect of this campaign is that if you are a Uyghur or a Kazakh, it’s not good enough to be low-key and keep your opinions to yourself. You have to actively demonstrate your loyalty to the state and the Party, and you do that by reporting on your neighbor or denouncing a behavior that is characterized by the state as disloyal.

Unless you do that, you fall immediately under suspicion. That is why they have repression by algorithm, which has been documented through the exposé of the internal police database in Xinjiang, reports of people being arrested for totally innocuous behavior, such as receiving a phone call from abroad or having a beard. It makes sense only if you consider that Beijing assumes that everybody is disloyal and that the slightest sign of wanting to affirm a separate cultural or religious identity is evidence of this disloyalty, which must be beaten back through education and brainwashing.

The publication of this report was long delayed. It reached Bachelet’s desk almost a year ago, but she said that she wanted to go to China before finishing it. Was there any value in delaying the report till after her trip, or is your assumption that it was due to internal politics at the U.N.?

I don’t know. The word among U.N. insiders is that Bachelet tried to put the brakes on the report, and certainly publishing it at the very last minute before she stepped out is a slight, but nonetheless reprehensible, bureaucratic tactic. [Bachelet told The New Yorker, “The work was done with the involvement and input of staff from across the office. I had pledged to put it out before the end of my mandate, and I did so.”] The important question is whether she damaged or improved the authority of the office at the end of the day. Not publishing the report, or publishing a watered-down report, would have been very damaging for the Office of the High Commissioner. At the same time, confronting China directly may have invited a reprisal that could have damaged the standing of the office and its ability to carry out its work. She tried to find a balance between these two outcomes. I am not satisfied with the way she found the balance, but I am relieved that, at the end of the day, we have an objective and authoritative assessment of the gravity of the crimes being committed in Xinjiang.


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