The genocide charge to China was made on the final day of Donald Trump’s administration by then-Secretary of State Michael Pompeo, who, “made no secret of his belief in lying as a tool of US foreign policy.” Both President Biden and his Secretary of State Anthony Blinken have endorsed former Secretary of State Mike Pompeo’s mentioning of a “genocide” against the Muslim Uyghur population in China’s Xinjiang province.
This year’s American State Department Country Reports on Human Rights Practice (HRP) follows Pompeo in accusing China of genocide in Xinjiang. But the HRP uses the term only twice, once in the preface and the other one in the executive summary of the China chapter, readers are left to guess about the evidence. Much of the report deals with issues like freedom of expression and free elections, which would constitute a gross violation of human rights; but it is not evidence of genocide.
The duty to prevent genocide is a jus cogens norm. A jus cogens norm is defined as a peremptory norm of general international law that is “accepted and recognized by the international community of states as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”
President Biden’s accusation of “genocide” against the Muslim Uyghur population in China’s Xinjiang province is in the sense of preventive measures. A general preventive measure comment for the international community as a whole originated from the ergaomnes character of the rights and obligations of the Convention on Prevention and Punishment of the Crime of Genocide (Genocide Convention) as reaffirmed by the International Court of Justice (ICJ) in the Bosnian Genocide case.
Understanding Article I of the Genocide Convention
The obligation to prevent genocide is codified in Article I of the Genocide Convention. In the Bosnia Genocide case, the International Court of Justice (ICJ) mentioned that Article I of the Genocide Convention was not territorially limited and that it was an obligation of conduct and not one of the result. The ICJ premised the extraterritorial obligation to prevent a State’s capacity to influence.
Having identified such an independent and extraterritorial obligation to prevent, the ICJ underscored the relevance of due diligence in understanding its contents. The ICJ expressed its finding that the obligation to prevent arises, “at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed” implies a risk assessment that, at the very least, has close synergies with procedural due diligence obligations.
According to John Heieck, Article I of the Genocide Convention and customary international law, whose sole purpose, as a communal, rather than a unilateral or bilateral, interest, is to prevent the destruction, in whole or in part, in peacetime or in war, of national, ethnic, racial, and religious groups.
It is indeed difficult to imagine a treaty provision that protects more the overriding interests and fundamental values of the international community of States as a whole than the duty to prevent genocide. The duty to prevent genocide and its concomitant due diligence obligations under Article I of the Genocide Convention and customary international law amount to jus cogens.
The due diligence responsibility amounting to jus cogens must be fulfilled before making any code of conduct. It is the due diligence responsibility amounting to jus cogens that gives the international community an ergaomnes responsibility to protect the term Genocide and the Genocide Convention from the misuse and degradation.
The question of whether the US has fulfilled its due diligence responsibilities amount to jus cogens before mentioning Genocide in China or not is an ergaomnes responsibility of the international community as a whole. If the answer to this question is negative, the legality of the mentioning of the US of any genocide in China cannot be defined as a legal code of conduct but simply be defined as negationism of the truth for today in China.
Furthermore, if any negotiation of truth is to be linked with a UN Convention, it should be noted that Article 103 of the UN Charter automatically nullifies any negotiation of truth.
Negotiation of the truth: Muslim Uyghur genocide allegations in China
The US government’s accusation of genocide against China stems from a single source: a June 2020 paper by Adrian Zenz, published by Jamestown Foundation, “Sterilization, IUDs and Mandatory Birth Control: The CCP`s Campaign to Suppress Uyghur Birthrates in Xinjiang.”
Articles by the Associated Press, CNN, and BBC also relied on Adrian Zenz’s article to claim that plunging Uyghur birth rates and the application of birth control measures in Uyghur counties of the Xinjiang region as proof of a policy of “demographic genocide.”
Just days after the publication of Zenz’s paper, former US Secretary of State Pompeo issued a statement denouncing China’s alleged policy of “forced sterilization, forced abortion, and coercive family planning” as genocide. US Secretary of State Pompeo personally credited the “Adrian Zenz’s revelations” as a fulfilled due diligence report amount to jus cogens. US Secretary of State Pompeo’s statement needs to be in conformity.
The ICJ in the Bosnian Genocide case specified that “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.” Adrian Zenz’s used the wording of “serious concerns” in his report in the conclusion part as:
“These findings raise serious concerns as to whether Beijing’s policies in Xinjiang represent, in fundamental respects, what might be characterized as a demographic campaign of genocide per the text of Section D, Article II of the UN Convention on the Prevention and Punishment of the Crime of Genocide.”
It was necessary to analyze Adrian Zenz’s commentary on Section D, Article II of the Genocide Convention through the Vienna Convention on the Law of Treaties (VCLT) to understand the relationship between his findings and the Genocide Convention.
Article 31.1 of the VCLT provides the principal rule of interpretation of a treaty: “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.”
Interpreting the terms of a treaty
The terms can be interpreted in two forms: i) ordinary meaning or conventional one: founded in a language used in a linguistic community, and ii) special meaning or non-conventional: the parties may have felt the necessity to introduce a new term in the treaty, or they agree to give another interpretation to the words already existent. This last situation is complicated and uncommon because in that case, they would have to prove the desire of giving a different meaning to an ordinary one.
In accordance with Article 31.2 of the VCLT, in order to interpret a term in a treaty, the context is also of main relevance, “It is obvious that the treaty must be read as a whole, and that its meaning is not to be determined merely upon particular phrases which, detached from the context, may be interpreted in more than one sense”, so, in these regards, we also have to take in consideration its preamble, annexes and any agreement or instrument related to the treaty in connection with its conclusion.
Good Faith, object, and purposes have a direct relation to the implementation of treaty obligations. Article 31 gives pride of place in its opening sentence in para. 1 to good faith (bona fides) which is “one of the basic principles governing the creation and performance of legal obligations”. The notion is also referred to in the third preambular paragraph and in Article 26 of the VCLT on pactasuntservanda.
The crucial link is thus established between the interpretation of a treaty and its performance. When interpreting a treaty, good faith raises at the outset the presumption that the treaty terms were intended to mean something, rather than nothing. Furthermore, good faith requires the parties to a treaty to act honestly, fairly and reasonably, and to refrain from taking unfair advantage. Article 31 envisages good faith as being at the center of the application of General Rule.
The text of Section D, Article II of the Genocide Convention should be analyzed through the VCLT. The text reads as “imposing measures intended to prevent births within the group”. There exist two criteria with the ordinary meaning for genocide, i) intend and ii) within the group. The preamble of Article II defines the group as “national, ethnical, racial or religious”. The ordinary meaning of Section D, Article II according to VCLT means “intend” must target national, ethnic, racial, or religious groups or groups only.
Variations in official policy
According to the ICJ, Article II requires a further mental element, as a special or specific intent or dolusspecialis. The ICJ specified that it is not enough that the members of the group are targeted because they belong to that group that is because the perpetrator has a discriminatory intent. Something more is required. The acts listed in Article II must be done with intent to destroy the group as such in whole or in part. The words “as such” emphasize that intent to destroy the protected group. Indicative of the presence of a specific intent (dolusspecialis) should inspire the acts.
ICTY asked in the Kupreškic et al. case “the mens rea requirement for persecution is higher than for ordinary crimes against humanity, although lower than for genocide. In this context, the Trial Chamber wishes to stress that persecution as a crime against humanity is an offense belonging to the same genus as genocide. Both persecution and genocide are crimes perpetrated against persons that belong to a particular group and who are targeted because of such belonging.”
The variations in official policy toward birth control by the Chinese communists are traced. It has undergone 4 major stages of change since the foundation of the People’s Republic of China: 1)1949-1953; 2)1954-1977, 3)1978-2001, 4)2002 to the present. In the first stage, the government encouraged the birth. During that time, the new population theme was the importance of a large population to production.
The second stage began the promotion of family planning. Birth control was actively promoted through newspaper articles, birth control clinics, and the training of cadres in birth control guidance. Late marriage and population limitation were the themes of this effort. The period during 1978-2001 saw the tightening of the policy of birth control, which encouraged one child for a family. The late marriage continued to be promoted; the recommended ages for marriage for women were 23-27 and 25-29 for men.
From 2002, the policy of birth control underwent gradual liberation, ending the most extreme state birth control project in history. China strictly enforced its one-child policy on the majority of its population but was more liberal toward ethnic minorities, including the Uighur. Xinjiang records a positive overall population growth rate, with the Uighur population growing faster than the non-Uighur population in Xinjiang during 2010-2018.
Despite the fact that it is an ethical and academic obligation, Adrian Zenz failed to mention the birth control regime in the whole of China in his report. The criteria of “intent, dolus special” and “within-group” for serious concerns about genocide would have been inconclusive if Adrian Zen’s discussed the forced birth control regime of China as a whole in his report.
Adrian Zenz failed the principal rule of interpretation of the Genocide Convention subject to Article 31.1 of the VCLT. Adrian Zenz failed to write a fulfilled due diligence report amount to jus cogens.
Justice linked to good faith
The principle of justice is linked to the principle of good faith, which is included in the very concept of pactasuntservanda. As an element of the principle pactasuntservanda, the principle of good faith binds subjects of international law to identify in good faith the actual circumstances and interests of States within the scope of a rule; to select the applicable rule or rules in good faith.
Furthermore, it demands to ensure that the application of rules is truly compatible with their letter and spirit, as well as with concepts of international law and morality and other obligations of the subjects; to define in good faith the limits on rules so as not to apply them in such a way as to cause damage to the rights and legitimate interests of other subjects, and to prevent abuse of rights.
The principle of good faith fulfillment of obligations prescribes a rule of fairness, which governs the ways and means of implementing international legal norms. For example, it is inadmissible to use deception. The latter is known to be a ground for challenging the validity of treaties, as is fraud.
The UN Charter creates obligations to the member states as the constitution of the international legal community. There is no room for a category of “general international law” existing independently beside the UN Charter. Instead, the UN Charter is the supporting frame of all international law and, at the same time, the highest layer in a hierarchy of norms of international law.
Article 103 of the Charter of the UN reads as follows: “In the event of a conflict between the obligations of the Members of the UN under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”
This provision whose main aim is to secure the efficacy of UN action in the maintenance of peace by according priority to the obligations incurred under the Charter over other treaty commitments – is replete with a plethora of uncertainties, ranging from the root of its meaning to points on interpretation. Any negotiation of truth when is linked with a UN Convention, it should be noted that Article 103 of the UN Charter automatically nullifies any negotiation of truth on a legal basis.
The US has not fulfilled under the principle of good faith its due diligence responsibilities amount to jus cogens before mentioning Genocide in China. The allegation of the US on Genocide to China is null and void in the UN legal system. The charge of genocide should never be made lightly.
Inappropriate use of the term may escalate geopolitical and military tensions and devalue the historical memory of genocides such as the Holocaust, thereby hindering the ability to prevent future genocides. The international community as a whole has the ergaomnes responsibility to protect the norm Genocide from the misuse and degradation from the statements of the US officials, including President Biden.
The writer is a Turkish expert in the fields of law and human rights. He is a Ph.D. and Honorary Professor of the Azerbaijan International Academy of Sciences. He was nominated three times for the Nobel Peace Prize. The views expressed in the article are the writer’s own and do not necessarily reflect the editorial policy of Global Village Space.