Oumar Ba: This seems more like a final act to ramp up the fight with China, and hand off to President Biden one more complicated matter to deal with. This will likely be a defining bilateral issue in U.S.-China relations for some time: the Biden campaign had said last year that China was committing genocide against the Uighurs; Blinken, Biden’s nominee for secretary of state, says he agrees.
The question then is what this determination adds to the Biden’s administration’s plate and what happens next. [Former] Secretary of State Mike Pompeo “call[ed] on all appropriate multilateral and relevant judicial bodies” to join the U.S. in its effort to hold China accountable. The irony here is that Pompeo actively worked to undermine and incapacitate the International Criminal Court, which is the judicial body par excellence to hold perpetrators of genocide and other core crimes accountable.
Given that neither the U.S. nor China is a party to the Rome Statute, the only way for the ICC to gain jurisdiction over the matter would be through a United Nations Security Council referral, which in this case, is a non-starter. The Security Council is also unlikely to pass any resolution on the issue.
The U.S. — or any country that is party to the 1948 Genocide Convention — could file a case against China for violation of the convention before the International Court of Justice. Such a case would be akin to the The Gambia v. Myanmar. Although its ruling is binding on the parties to the dispute, the ICJ is not a criminal court and does not adjudicate individual criminal responsibility.
Yet, whether the U.S. designation leads to legal consequences for China in international forums or not, the primary impact is the rhetorical power of accusations of genocide. In the court of public opinion, accusations of genocide stick, as the rhetorical power of the word genocide is acute. As international criminal law scholar William Schabas argues, the crime of genocide holds a great symbolic significance unlike any other international crime because of its mystique.
Indeed, a nation determining that another one is committing genocide is first and foremost a political act (as evidenced by the Trump administration’s reluctance to make that determination concerning Myanmar). The U.S. accusing China of committing genocide constitutes a major escalation in bilateral tensions — but also affects world politics.
Jim Millward: The main impact is of course political. Even if the word “genocide” is controversial and hard to prove in court, this determination is powerful. For one thing, Uighur and other non-Han victims (judging from those whom I’ve communicated with about this) are gratified that the U.S. has officially labeled what’s happening to their relatives and friends as genocide, since that’s what many have been saying since the internment and imprisonment of up to 2 million people, along with physical and psychological abuse, family separation and birth suppressions that started becoming evident in 2017.
For another thing, the U.S. determination, together with tangible sanctions the U.S. has already implemented, could encourage other countries — close U.S. allies or not — to do likewise.
That said, there is a danger that debates over whether the term genocide applies in this case, or whether there is a path toward a judgment in a court of international law (neither China nor the U.S. are members of the International Criminal Court), could become a distraction.
Moreover, the last-minute timing and language of Pompeo’s statement, given that the Trump administration has picked many fights large and small with China over trade, technology, academic exchanges and other issues over the past four years, will inevitably color how this determination of genocide and crimes against humanity is viewed.
Pompeo claimed on Tuesday that “for the past four years, this Administration has exposed the nature of the Chinese Communist Party and called it what it is: a Marxist-Leninist regime that exerts power over the long-suffering Chinese people through brainwashing and brute force.” But that’s false, for three reasons:
First, the Chinese Communist Party is authoritarian, and thus Leninist — but hardly Marxist. Beijing’s current assimilation attempts actually run counter to China’s post-1949 multiculturalism, which celebrated a plurality of peoples. The Chinese government now argues that all ethnic groups within China are part of one homogeneous Chinese supergroup, the Zhonghua. [Chinese President] Xi Jinping even suggested recently that all non-Han people in Xinjiang are tied to ancient Zhonghua “bloodlines” — a throwback to the racialist arguments of the early Guomindang under Chiang Kai-shek.
Second, it’s not true that the Trump administration spent four years exposing the Xinjiang atrocities. The Uyghur Human Rights Policy Act of 2018, along with similar bipartisan bills in the House and Senate in 2019, found no support within the Trump administration. Treasury Secretary Steven Mnuchin and other officials working on trade issues argued that a spotlight on human rights abuses in China would upset prospects for a deal to resolve Trump’s tariff war with China. It wasn’t until last spring that Congress finally passed S.3744, the Uyghur Human Rights Policy Act of 2020 — which Trump signed in June 2020.
JCW: So what should we expect now?
OB: We may see the Biden administration use this determination to impose further sanctions on China and Chinese officials — and the U.S. may also look to rally its Western allies to hold China accountable for its actions in Xinjiang.
JM: What’s happening in Xinjiang clearly meets at least three of the five criteria of genocide, as defined in the 1948 U.N. Convention on the Prevention and Punishment of the Crime of Genocide, as well as the definition of crimes against humanity. Whether this can actually come before the ICJ or ICC — the ICC previously refused to hear a case put forward by two smaller Uighur exile groups — it is important to recognize atrocities and call them by their name. China’s Communist Party values its international image, and is suffering serious and lasting reputational costs for its policies in Xinjiang.