Interview with Chinese Law Expert Professor Donald Clarke on Human Rights Abuses in Xinjiang, China
Professor Clarke explains whether China’s actions in the Xinjiang region can be described as genocide under various definitions of the term.
Uyghur activists protesting in Washington, D.C. and calling for American action against China.
BY: NURLAN ORUJLU, STAFF MEMBER
Donald C. Clarke is a specialist in Chinese law and the David Weaver Research Professor at The George Washington University Law School. He joined the faculty at The George Washington University Law School in 2005 after teaching at the University of Washington School of Law in Seattle and the School of Oriental and African Studies at the University of London, as well as practicing for three years at a major international firm with a large China practice. He is fluent in Mandarin Chinese and has published extensively in journals such as the China Quarterly and the American Journal of Comparative Law on subjects ranging from Chinese criminal law and procedure to corporate governance. In addition to his academic work on Chinese law, Professor Clarke founded and maintains Chinalaw, the leading Internet listserv on Chinese law, writes at The China Collection blog, is a co-editor of Asian Law Abstracts on the Social Science Research Network, and has often served as an expert witness on matters of Chinese law. He is a member of the New York Bar and the Council on Foreign Relations.
In this interview, Professor Clarke discusses the ongoing human rights abuses in Xinjiang, China, whether Chinese government policy against Uyghurs constitutes “genocide,” and what other terms could appropriately describe the situation in mass detention camps and in Xinjiang in general.
This interview has been edited for clarity and length.
In recent years, some Western countries have ramped up their criticism of China’s actions in Xinjiang. Can you provide an overview of what has taken place in the region, specifically since the mid-2010s and what kinds of human rights abuses the Chinese government is accused of committing against China’s Uyghur and other Turkic-speaking Muslim minorities?
Let me make one important correction first. It is not just governments that are criticizing. In fact, governments have come quite late to this issue. It is individuals and non-governmental organizations that have taken the lead in uncovering and criticizing these abuses. It is important to make this clear, because China wants people to think this is entirely a government-to-government matter, and that allows China to make whataboutist arguments since few governments have entirely clean hands.
It seems that the most serious abuses that people are concerned about started around 2017 and began to be widely reported in 2018. They include the setting up of the detention centers where very large numbers of people—estimates range from several hundred thousand to well over a million—were detained without any proper legal basis under Chinese law and without any kind of due process. This was done based on the theory that Uyghurs need to be re-educated to cure them of the virus of extremism, with which they have allegedly been infected.
The so-called policy of re-education, better described as detention, has been part of an overall policy of assimilation and it represents a change in Chinese government policy in recent years. The traditional government policy in Xinjiang and other areas had not been as strongly assimilationist.
While some legal experts have called China’s actions genocide, there does not seem to be a consensus on how to characterize the ongoing human rights abuses. Do you think the term “genocide” as defined under Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide (the “Genocide Convention”) is an accurate representation of what is happening in Xinjiang?
I think it is fair to say that with the exception of the Chinese government, which denies that anything improper is going on, the main dispute over the term “genocide” is twofold. One is about the proper definition of “genocide.” The second is whether the element of intent is made out.
As to the first question, there are two schools of thought. One school says we should use the definition in the Genocide Convention, while the other school of thought, which was prominently represented by a piece in The Economist a few months ago, argues that “genocide” should only be understood as “mass killing.” I personally do not agree with the latter.
I think it is reasonable to define “genocide” as it is defined in the Genocide Convention, which has been around for decades and has been ratified by more than 150 states. That definition sets out several acts that constitute genocide if accompanied by an attempt to destroy, in whole or in part, a national, ethnic, racial, or religious group.
There does not seem to be much disagreement that some of the acts spelled out in the definition under Article 2 have taken place—for example, causing serious bodily or mental harm to members of the group.
We have seen a severe decrease in Uyghur birth rates, which is not accompanied by the same decrease in birth rates among the Han Chinese also living in Xinjiang. This decrease seems to be the result of a deliberate policy. There is also the transfer of Uyghur children away from their families. While children are not, as far as I know, being transferred to Han Chinese families, they are involuntarily being sent away from their parents to boarding schools. So, it seems that at least some of the factual premises of genocide as defined under Article 2 of the Genocide Convention are made out.
What are some of the significant points of contention with respect to the element of intent?
Some of the main considerations include determining what kinds of acts would count for showing intent and what should be the standard of proof. While some argue that the standard of proof should be “beyond a reasonable doubt,” others argue that it is sufficient to show intent by the preponderance of the evidence or something in between the two.
My understanding is that there is general consensus that the standard of proof is certainly something less demanding than “beyond a reasonable doubt” because we use that in criminally convicting individuals, and there is no particular reason why the same standard should be applied when for other purposes we are deciding under international law that genocide is taking place.
Another issue I would like to raise, which does not seem to get enough attention, is whether it makes any difference that we can establish intent or not. In other words, a lot of arguments about the showing of intent do not address why it is important to show intent when it comes to deciding how the international community should respond to the ongoing human rights abuses when the facts show that we are witnessing crimes against humanity. As defined under the Rome Statute of the International Criminal Court (the “Rome Statute”), crimes against humanity do not include a special intent requirement, and there is no serious question that the Chinese government has committed acts that would qualify under the Rome Statute as crimes against humanity. If we know there are crimes against humanity, that should arguably call for the same kind of intervention by the international community even if we are not sure that the intent requirement has been met under the Genocide Convention.
Other than the Genocide Convention, are there any international legal documents or principles on which legal scholars can rely to determine whether there is genocide happening in Xinjiang?
As far as I know, there is no other generally accepted legal definition on which the legal community can rely. The other definition, as I mentioned, is the colloquial or popular definition—mass killing—as referred to by the article in The Economist. The Economist article relies on the popular definition and the etymology of the word.
Defining a word by looking at its etymology is silly because the words are defined based on how they are actually used. To say that a word is defined by the way most people use it is not an inherently silly argument, but here we have another definition in the international legal context. It is contained in an international legal instrument that has been around for roughly seventy years and has been signed onto by more than 150 governments. To say that the definition in the Genocide Convention is not a legitimate one would be absurd.
Thus, we can fully acknowledge that there are two definitions out there. We have two different communities, the international legal community and the lay English-speaking community, that are using the word differently. We then need to determine the criteria for choosing between the two. When we are talking about relations between states and asking governments to react to human rights abuses committed by other governments, it seems odd to prefer the lay English definition over the definition agreed upon by the international legal community, including the Chinese government itself.
Does the term “cultural genocide” have any significance under any international legal principle that can be applied to this case?
Cultural genocide is not a legal term of art. It is a metaphor which in effect relies upon a quite narrow and somewhat popular notion of genocide, because arguably cultural genocide is already included in the definition of genocide in the Genocide Convention. For example, taking children away from their parents in a certain group and raising them in a different community while causing no direct physical harm to the parents may be an attempt to destroy a group’s culture, no matter how well you treat the parents and the children otherwise. That would be genocide under Article 2(e) of the Genocide Convention. Even though a government acting under this policy would not be killing anybody, it would still be destroying a culture.
To summarize, the problem with the term “cultural genocide” is that it implies that it is not real genocide, whereas read literally under the terms of the Genocide Convention, taking children away from their parents is destroying a culture, which would be covered under Article 2(e). However, there are things that could be metaphorically called “cultural genocide” that are not otherwise covered by the Genocide Convention. For instance, I do not think banning the use of the language, destroying culturally significant sites by digging up the gravesites or destroying mosques, or not allowing freedom of religion would be considered genocide under the Genocide Convention. That, of course, does not mean that it is all right to do these things.
Nurlan Orujlu is a rising third-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from the University of Michigan in 2016.