A recent report by anthropologist, Dr. Adrian Zenz, highlights concerns associated with the forced birth control of several Uyghur women by Chinese authorities. There have been reports that these women have been forcibly sterilised, been forced to have abortions, or have had intra-uterine contraceptive devices (“IUDs”) inserted without their consent. These follow the problematic trend of several claims and condemnation against the treatment of members of the Uyghur community in China who have been allegedly locked up in re-education camps, given their ethnic minority status.
There has been a brewing discourse of how these mass sterilisations of Uyghur women could qualify as a genocide in the region of Xinjiang. Dr. Zenz notes that Hotan and Guma, regions with a significant population of members of the Uyghur community, planned to sterilise between 14-34% of the women between the age of 18 and 49 in a year. His report further highlights the sweeping crackdown post-2016 that has transformed Xinjiang into a ‘draconian police state’, that clearly intrudes on the zone of reproductive autonomy of women.
Given this, this piece analyses the framework of the 1948 Convention on the Prevention and Punishment of Genocide (“Genocide Convention”), and tests the viability of demanding accountability from Chinese authorities. Further, it would be prudent to delve into the recent Order by the International Court of Justice (“ICJ”) on provisional measures in The Gambia v. Myanmar. This would be particularly insightful, given the Court’s usage of erga omnes and erga omnes partes obligations.
Narrative of Detainment and Birth Control of Uyghur Muslims
An anonymous video posted in 2019 has recently resurfaced amidst the recent reports alleging forced sterilisation of Uyghur women. The drone footage showcases several blindfolded and shackled men, in what appeared to be an ‘inmate transfer.’ Of these, several of them appear to be belonging to the Uyghur population, as well as other minority communities. In this light, the UK recently accused China of human rights abuses against the Uyghur population — particularly in light of recent allegations of several Uyghur people being detained in Chinese ‘re-education camps’. While these camps have been called voluntary ‘vocational and training’ camps, this has been debunked by the leaked ‘China Cables’ document, obtained by the International Consortium of Investigative Journalists (“ICIJ”). The ICIJ documents reveal the high level of security, secrecy, methods of indoctrination, and manner of punishment to be awarded to detainees in these camps.
In February 2020, the Karakax List was leaked to international media organisations such as the BBC, showcasing the records of over 300 individuals. The list highlights each individual’s background, religion, and interpersonal relationships, and indicates the extent of surveillance by the State. It also addresses the basis for detaining networks of individuals, where aspects such as loyalty, guilt by association, and religious symbols were considered. Below is a brief insight, based on the report by Dr. Zenz, which primarily showcases the spike in the number of detainments for birth control violations. This troubling count showcases mass incarceration of individuals who belong to a minority Muslim ethnic group, who have allegedly failed to comply with a draconian and intrusive policy, seemingly on the basis of religion. These incarcerations are further only for ‘violations’, which are in addition to the forced sterilisation programs against the women of the Uyghur community.
The Claim of Genocide
Article II of the Genocide Convention requires — first, an ‘intent’ to destroy (in whole or part) a national, ethnic, racial or religious group [the mental element]; and second, the aspect concerning the tangible means by which such intent is carried out [the physical element]. Once an act meets this threshold, it qualifies as a genocide, punishable under Article III.
To declare a genocide, the intent is the most difficult to determine, as it involves dolus specialis (or specialised intent), which holds the crime of genocide at a significantly high threshold. It is also why the term ‘genocide’ must be used sparingly, given that cultural destruction or dispersion themselves do not meet the criteria.
In this context, the Uyghur community is a Turkic-speaking, ethno-religious minority in China. Some have argued that while the Chinese government may not seek to physically eradicate them, they certainly seek to subjugate and dominate them. Further, evidence suggests that the birth control campaign in Xinjiang, after China’s two-child policy, was instituted against women who had less than the limit, as well as women who refused to abort. Further, while the use of IUDs and sterilisation fell across China, there was a sharp increase in their usage in Xinjiang. These factors indeed contribute to showcasing ‘intent’.
The second prong of analysis is quite clear. Article II(d) of the Genocide Convention clearly highlights that “imposing measures intended to prevent births within the group” qualifies as the physical element. Dr. Zenz, in his report, concludes that the policies in Xinjiang specifically met this criteria in the Genocide Convention, which deals with birth suppression. However, for a concrete claim, there needs to be further investigation. At present, human rights groups have called for a United Nations investigation into the mass detentions in China. Further, the United States Commission on International Religious Freedom has warned that the forced sterilisation of Uyghur Muslims showcases evidence of genocide.
Erga Omnes Partes: The Gambia v. Myanmar
While the International Criminal Court (“ICC”) has the mandate to try individuals charged with genocide, this would not be a suitable forum in the context of China, given that it is not party to the Rome Statute. However, the birth control crisis could be brought within the purview of the ICJ.
The recent Order in The Gambia v. Myanmar, witnessed the ICJ holding that “any state party to the Genocide Convention, and not only a specially affected State,” may invoke State responsibility in case of failure to comply with its erga omnes partes obligations (para 40). This is particularly significant in terms of attributing state responsibility. As Pillai realises, though The Gambia being a small State not ‘specially affected’ by the atrocities, it still had standing to bring legal action against Myanmar — both, as a State party to the Genocide Convention (erga omnes partes obligation), and also as a part of the international community of States (erga omnes obligation).
In this regard, since China has ratified the Genocide Convention, there is certainly a compliance requirement. The first is where the ICJ has showcased the existence of the common interest between all parties to the Genocide convention in preventing acts of genocide. Where these are owed by any State party to all other States parties to the Convention. Further, obligations that are erga omnes partes indicate that each State party has an interest in their compliance in all circumstances (para 41).
The issue of population suppression itself has come to light because of the recent investigations by Dr. Zenz and the Associated Press. The sudden drop in the number of birthrates in the region of Xinjiang needs to be read in light of the larger narrative of mass incarcerations, surveillance and human rights abuses in the region. The nature of these abuses range from re-education camps on the basis of religion and politics, to forced labour. It calls for forced assimilation of the ethno-religious minority into the mainstream population.
At present however, there is no formal investigation into the happenings in Xinjiang. China has denied the allegations of forced sterilisation as well as the persecution of those belonging to the Uyghur community. China’s ambassador to the UK, Liu Xiaoming, has also denied the existence of concentration camps and stated that ‘people in Xinjiang enjoy [a] happy life.’ Ironically, the denial came the same day as the New York Times investigation revealing how Chinese companies were using a government program mandating members of the Uyghur community to engage in forced manufacturing of P.P.E kits in the midst of the COVID-19 pandemic.
Mahima Balaji is the Director of the Jindal Forum for International and Economic Laws. She is currently a final year student at Jindal Global Law School, Sonipat.