Policy Options in Response to Crimes Against Humanity and Potential Genocide in Xinjiang

The below article was published by Just Security, Photo credit GREG BAKER/AFP via Getty Images

Violence and persecution in China against the Uyghur Muslim minority has drawn important attention recently, including on these pages. Among other condemnations, the Biden campaign has described China’s treatment of the Uyghurs as “genocide.” As the evidence of abuses continues to mount, the Trump Administration has issued a robust, and unprecedented, set of sanctions. Given China’s burgeoning global influence, it is easy to assume that there are no other effective levers when it comes to human rights issues, be it the persecution of the Uyghurs or the crackdown in Hong Kong.

Such a fatalistic attitude is understandable, but misplaced. Indeed, there are a number of distinct and cumulative actions the United States, its partners and allies, and other members of the international community can undertake—alone and in concert with each other—to address this human rights tragedy and pressure China to reverse course.

This post collects some of these ideas in one place, with a focus on how the United States and others within the international community can mount a robust response to confirmed persecution against the Uyghurs and other Turkic minorities in Xinjiang. This playbook, with adaptations, is equally relevant to events in Hong Kong and can be deployed against other human rights abusing states around the world.

Background

The Uyghur people of northwest China, like other Chinese citizens of Turkic descent, have long been the subject of discrimination and persecution. The treatment of this Muslim minority took a perilous turn in the 1990s, following the collapse of the Soviet Union, when Beijing launched an assimilation movement in Xinjiang province (a.k.a. East Turkistan or the Xinjiang Uyghur Autonomous Region) and began imposing elements of a police state. The articulated concern was that the region was fostering separatism, extremism, and terrorism. What began with the repression of expressions of Islam and the harassment of activists demanding greater Uyghur autonomy has devolved today into a violent, even genocidal, policy of ethno-religious persecution.

Upwards of a million Uyghurs have been rounded up and confined within a network of concentration camps (dubbed “vocational centers” or, more chillingly, “re-education camps” by the Chinese authorities); many have been subjected to torture, enforced disappearance, and forced labor. Those not detained are under near constant surveillance following a duplicitous program of “Physicals for All” that collected reams of biometric data. Recently, a new study reveals a regional effort to forcibly sterilize Uyghur women in order to permanently alter the regional demographics. And now information is emerging that Xinjiang obstetricians were ordered to commit late term abortions and even infanticide if Uyghur families exceed their “family planning” quotas. All told, this systemic discrimination is being described as a Chinese apartheid. (For a detailed discussion of this brutal history and a legal characterization of the current violence, see the analysis from Stanford Law School’s Human Rights & Conflict Resolution Clinic).

China is a powerful global actor, whose influence is growing daily via its Belt and Road Initiative, its vast trade network disseminating irresistibly cheap goods, its ostensibly unconditional foreign aid and investment programs, its soft-power people-to-people exchanges and “Confucius Institutes,” and even its “Covid-19 Diplomacy.”

It is also an increasingly adept player on the international political stage, particularly as it occupies the vacuum left by the United States’ retreat from multilateralism. One need only witness the July 2019 letter joined by 37 countries, many of them Muslim-majority, in China’s defense, responding within days to a letter condemning events in Xinjiang that was signed by only 22 mostly Western states. The asymmetry in support was all the more remarkable in that it emerged out of the U.N. Human Rights Council, the central cog of the United Nations’ human rights machinery. Attesting to China’s increased international engagement, and the risks to the international order that this involvement entails, the United States recently appointed a special envoy to counter China’s influence in multilateral institutions.

Nonetheless, given the dire situation in Xinjiang, the international community must come together to oppose the revival of concentration camps, the imposition of ethno-religious persecution, campaigns of forced sterilization, and other crimes against humanity. These atrocities merit a resolute global response, and more can be done to pressure China to change course.

The United States is uniquely positioned to help form a united front and organize a concerted multilateral approach by coordinating the invocation of a range of domestic authorities and multilateral arrangements to squeeze China where it is most susceptible to pressure: its economic bottom line.

Sanctions

The United States has issued increasingly robust sanctions against China. So far, it has publicly sanctioned one government entity, about 50 Chinese firms, and four officials (though more may be subject to visa restrictions) in connection with persecution in Xinjiang, including senior Chinese Communist Party (CCP) officials Chen Quanguo (Politburo member and Party Secretary of Xinjiang, who perfected his tools of repression in Tibet) and Zhu Hailun (Deputy Party Secretary of Xinjiang). The Trump administration’s recent actions on Xinjiang (including but not limited to a raft of sanctions) are welcome, but they came very late, have been implemented haphazardly rather than in coordination with allies, and seem clearly colored by political considerations.

There are ways that the United States can magnify the impact of this approach:

  • S. Sanctions—while welcome—need to be part of a bigger strategy. That should include coordinated actions with allies, particularly Canada, under its Sergei Magnitsky law, and the United Kingdom, which recently implemented its own version of the Global Magnitsky Act called Global Human Rights. This is the first time the U.K. has implemented sanctions separate and apart from the EU, which should also be encouraged to follow suit. So far, the U.K. has targeted individuals in Russia, Myanmar, North Korea, and Saudi Arabia in a way that mirrors U.S. designations.
  • Likewise, inspired in part by repression in Hong Kong, the Japanese Diet is debating establishing its own Magnitsky program, which would help undermine the perception that targeted sanctions are a “western” tool. Encouraging this move and coordinating sanctions with like-minded states against Uyghur repression will magnify the impact of U.S. sanctions.
  • The inaction of—and indeed enabling by—the governments of Muslim-majority states in the face of China’s actions has been remarkable (all the more so when compared with their robust reaction to potential genocide in Myanmar, particularly from the Organization of Islamic Cooperation (OIC)). The United States should encourage its Muslim-majority allies to be more outspoken in defense of the Uyghurs—and of the precious principle of religious freedom—in order to broaden the coalition of states engaged on this issue and to amplify the condemnation of China’s discriminatory and anti-Muslim policies.
  • In addition to targeted sanctions, the United States should look for other ways to stigmatize those responsible for designing and implementing repression in Xinjiang, particularly at senior levels within the U.S. government, through strategic messaging and diplomatic interventions.

Multilateral Efforts

Although China can control the U.N. Security Council through the exercise of its veto, it does not enjoy this prerogative in other multilateral fora, such as the U.N. General Assembly. The United States and like-minded states need to align themselves and respond in coalition to the human rights crisis underway in Xinjiang. The U.S. Commission on International Religious Freedom (USCIRF) is well placed to inspire and coordinate the U.S. response. Options:

  • There is an ongoing effort to initiate an international fact-finding mechanism to definitively document the Chinese government’s human rights violations (including but not limited to Xinjiang). In June, 50 U.N. special procedures mandate holders called for as much, manifesting an unprecedented degree of coordination. They have also called on China to allow for independent missions to China, a demand that has largely been rebuffed with one exception being the under-secretary general for counter-terrorism, which risked affirming the Chinese narrative that it is battling terrorism in the region. Anyone who cares about religious liberty and human rights should get behind this movement, even U.N. skeptics. Human Rights Watch and other human rights organizations are spearheading a parallel effort by NGOs.
  • Although the Trump administration unwisely withdrew its membership in the Human Rights Council in 2018—which has significantly weakened its ability to influence this important forum for good—the United States should encourage allies and other concerned nations to build a coalition to hold a special session of the Human Rights Council devoted to China and to launch a fact-finding mission, commission of inquiry, independent expert, or other investigative body focused on the Uyghur persecution. This latter option, however, has been complicated by the fact that China—in the absence of concerted opposition—has potentially captured the council, as revealed by its campaign to build support there for its repressive policies. Indeed, China has recently been elected to the council’s Consultative Group, which has influence over the appointment of human rights experts and so-called Special Procedures positions.
  • If action within the Human Rights Council is foreclosed, the United States and others should work to put the situation in Xinjiang on the agenda of the U.N. General Assembly, perhaps during September’s high-level General Debate week. States could also request that the General Assembly invoke the “Uniting for Peace” resolution, Resolution 377A, which provides that in cases in which the Security Council—due to a lack of unanimity among its permanent members—fails to act according to its mandate to maintain international peace and security, the U.N. General Assembly shall consider the matter immediately and may issue recommendations to U.N. members for collective measures.  At the moment, 27 U.S. allies have issued a cross-regional joint statement in support of these efforts and condemning the arbitrary detention, widespread surveillance, and persecution against Uyghurs and other ethno-religious minorities, as well as the repression in Hong Kong. This signals a ready pool of partners to organize a multilateral response.
  • The United States could also organize an Arria-formula meeting at the Security Council—a course of conduct not subject to the Chinese veto. Arria meetings can be convened to hear the views of individuals and organizations on matters within the competence of the Security Council. The United States could invite U.N. human rights mandate holders to report on the situation in Xinjiang alongside other human rights researchers who have uncovered and painstakingly documented the abuses. Such meetings can be webcast in order to raise awareness of the issues discussed.
  • The United States should use its influence within the World Bank and other international financial institutions (IFIs) to ensure that China does not receive funding or loans for projects, particularly ones that would enable it to carry out persecution against the Uyghurs. In 2019, for example, the World Bank finally ended funding for dubious “vocational schools” in Xinjiang; it remains unclear whether sufficient due diligence was conducted in advance for these projects—an acute concern raised by the U.S. Congressional-Executive Commission on China (CECC), which pointed out that funds were used to purchase facial recognition technology and night vision cameras. Although no longer a “developing” nation, China still borrows heavily from the World Bank, at below-market rates.
  • Finally, the United States can work through the Inter-Parliamentary Alliance on China (IPAC) to coordinate a response to persecution against the Uyghurs, including specific parliamentary actions at the country level above and beyond operating collectively within the United Nations. IPAC includes cross-party legislators from a number of states, including the U.S. (Marco Rubio and Robert Menendez), Australia, Canada, Germany, Japan, New Zealand, Norway, Sweden, Uganda, the U.K., and the European Parliament. Upholding universal human rights and promoting trade fairness are among its core goals.

Supply Chain, Export Controls, & Trade Measures

The Chinese government has implemented a vast system of forced labor in Xinjiang, which supplies much of the world’s cotton (22 percent). China is also transferring Uyghurs to factories around the country. Supply chains that start in Xinjiang end with celebrated global brands—Gap, C&A, Adidas, Uniqlo, Tommy Hilfiger, and more (the full list is here)—and in U.S. markets. Indeed, China supplies more than a third of the apparel entering the United States. Given the robust legal framework in the United States on human trafficking and forced labor, more can be done to ensure that goods produced through forced labor do not make their way into our homes:

  • The Trump administration’s July 1 Xinjiang Supply Chain Business Advisory is non-binding; this should be upgraded through the enactment of an Executive Order or other binding regulation.
  • The sanctioning at the end of July of the Xinjiang Production and Construction Corps (XPCC) (a quasi-governmental paramilitary and business conglomerate that runs prisons and schools in Xinjiang and is the largest producer of cotton in China), in conjunction with a pressure campaign from human rights and labor organizations, has led a number of fashion retailers—including Abercrombie, Lacoste, Adidas, and PVH (which owns Calvin Klein, Van Heusen etc.)—to commit to cutting all ties with suppliers in Xinjiang. This has been followed a renewed push by human rights groups aimed at other household brands, such as Amazon and Nike, to follow suit.
  • Going forward, the White House could convene the 10 biggest firms with a presence in the Xinjiang autonomous region to discuss the protections the companies have put in place, or should put in place, to ensure that goods produced through persecution are not connected to U.S. firms or sold within the United States. U.S. Rep. Ilhan Omar (D-MN) and colleagues have already reached out to the CEOs of some of these key corporations; the letters (available here) specifically identify concrete connections between the brands and particular factories that are employing forced labor. These discussions should be disseminated to the public, so they can make informed consumer decisions.
  • The U.S. should strengthen the enforcement of U.S. import bans on products produced in Xinjiang. U.S. Customs and Border Protection can prohibit goods from entering the United States—and launch a civil enforcement action against importers when goods do enter—under the Trade Facilitation and Trade Enforcement Act of 2015, 19 U.S.C. § 1307. (CPB recently won an enforcement action against Pure Circle for importing stevia made with forced labor from China). Several Chinese goods are already subject to Withhold Release Orders (WRO). Garments and cotton are of particular concern, given the complete vertical integration of the apparel industry in Xinjiang.
  • Congress should explore legislation on corporate liability and the possibility of imposing a duty of care on U.S. corporations doing business in the region or other corporations doing business in Xinjiang and seeking to access U.S. markets. Indeed, it is unfortunate that the role of U.S. corporations in Xinjiang is coming to light just as other U.S. companies relying upon the labor of children in the chocolate industry in West Africa—Nestlé and Cargill—are trying to gut the Alien Tort Statute. The United States must continue to research which Chinese companies are knowingly using forced labor or producing surveillance and other repressive equipment (including tech enabling the collection and storage of biometric data) and add them to the entities blacklisted from the U.S. market and U.S. capital.
  • Congress should pass the proposed Uyghur Forced Labor Prevention Act which would establish a rebuttable presumption that goods produced in the internment camps are the result of forced labor.
  • The United States should update existing export controls to ensure U.S. manufactured surveillance and other technologies are not being deployed to commit persecution, including facial recognition and AI-enabled tech. Republican senators, under pressure from small arms lobbyists, stripped strong provisions to this effect in an earlier version of the Uyghur Human Rights Policy Act; those measures are being reconsidered for inclusion in the next National Defense Authorization Act (NDAA).
  • All of this work should be undertaken in concert with the European Union, where there is a lot of concern and debate over China’s human rights record, particularly in the aftermath of China’s COVID diplomacy and the crackdown in Hong Kong. A joint U.S.-EU effort will ensure a united front and prevent China from simply switching markets, buyers, and technology sources if the United States tightens its approach.

In-House Atrocity Crimes Determination

There is no formal process within the U.S. government for undertaking a legal analysis of mass atrocities underway, including identifying the commission of particular crimes against humanity or acts of genocide. However, the government does respond to public and civil society pressure in this regard, particularly when the atrocities are particularly grave and targeted.

In the past, the United States has initiated its own research to inform policy and strategic messaging. The most notable example is the Atrocities Documentation Team deployed to study the violence in Darfur, Sudan, which led Secretary of State Colin Powell to conclude that genocide was underway. Similar studies have been conducted in the “Two Areas” of Sudan (Southern Kordofan and Blue Nile) and with respect to persecution against the Rohingya Muslims in Myanmar/Burma.

The USCIRF has already compiled a lot of information on the violence in Xinjiang, but more can be done as part of a whole-of-government effort:

  • The United States can initiate its own analytical investigation into the persecution in Xinjiang and the existence of genocide indicators, either using in-house intelligence experts (the State Department’s Bureau of Intelligence and Research) or outside human rights implementing partners, such as the Public International Law and Policy Group (which conducted the Myanmar study), in consultation with the State Department Legal Adviser’s Office. Indeed, such an analysis is mandated by the Uyghur Human Rights Policy Act of 2020 and finds support in a letter by 78 bipartisan members of Congress working through the CECC that requests an official determination as to whether the Chinese government is perpetrating atrocity crimes.
  • The United States could better orient the intelligence community (IC) toward better understanding what is happening in Xinjiang, with an eye towards developing information that can be shared (including through targeted declassifications) with human rights groups, partners, and the United Nations. U.S. experts from the IC and the Federal Bureau of Investigations (FBI) can also be invited to verify leaked Chinese government documents, such as the China cables, which China has claimed are fakes. By way of example, the FBI was instrumental in verifying the Caesar photographs smuggled out of Syria, which depict industrial grade torture and summary executions in Syrian prisons.
  • The U.S. Holocaust Memorial; Museum has already warned that crimes against humanity—particularly imprisonment through mass detention and a range of forms of ethno-religious persecution—are underway. Its Simon-Skjodt Center for the Prevention of Genocide could follow up on the most recent allegations and update its conclusions accordingly.
  • The Elie Wiesel Genocide and Atrocities Prevention Act makes atrocity prevention and response a key U.S. priority, an independent grounds for undertaking a legal analysis of the harm underway.

Humanitarian Assistance

The humanitarian impact of this campaign of ethno-religious persecution is acute. The United States can do more to provide humanitarian relief to survivors, particularly with and in countries across the border, such as Tajikistan, Kazakhstan, and Kyrgyzstan, but also farther afield. Some ideas:

  • The United States could provide financial support for psycho-social rehabilitation to address the trauma experienced by survivors of disappearances, detention, and persecution and by their loved ones in the diaspora.
  • The U.S. should work with border nations and others that have hosted Uyghur refugees to assist them in caring for Uyghur refugees and prevent them from caving to China’s pressure to forcibly deport Uyghurs back to China in violation of the principle of non-refoulement. China is a party to the 1951 Refugee Convention, so the UNHCR could be mobilized on this issue.
  • The U.S. might also ease visa restrictions on Uyghurs, expedite asylum applications, or even establish a form of Temporary Protected Status to Uyghurs who make their way here. The Hong Kong Safe Harbour Act, a bipartisan and bicameral bill, offers an interesting model. It waives all refugee caps, so Hong Kongers will not count towards any limits set by the Administration (or be “in competition” with refugees from other crisis zones), and enables people to apply for entry at any embassy or consulate. It also offers immediate entry for those who were arrested since 2019 (e.g., journalists, first responders and protesters), so there is no need to wait for approval to receive refugee status. It also calls on our allies to adopt similar programs.
  • The United States can support Uyghur cultural institutions in the diaspora, particularly in Uyghur communities, to reverse China’s efforts at cultural erasure.
  • There is a large Uyghur community in the United States, many of whom arrived after the violence escalated in the 1990s. Many of them have experienced surveillance and threats by China on American soil; the United States should make sure Uyghurs here are free from such harassment.
  • In all its efforts, the United States should endeavor to amplify the voices of, and show solidarity with, victims/survivors in order to put a human face on the repression. It should also echo the conclusions of other credible voices, such as human rights and civil society groups, that are focused on the persecution against the Uyghurs.

Accountability Options

Options for legal accountability are limited. There are no prospects for plenary International Criminal Court jurisdiction, as China would block any potential referral by the U.N. Security Council. Limited territorial jurisdiction exists over forced deportations from Cambodia and Tajikistan, which are ICC members, but it is unlikely that the ICC prosecutor would move forward with a full investigation on such narrow grounds. Additional explorations should be undertaken to determine whether corporate principals hailing from ICC member states are enabling or involved in the repression in Xinjiang through their business arrangements.

That said, there are some options under other human rights treaties ratified by China.

  • China has ratified the Genocide Convention but has not accepted the International Court of Justice’s (ICJ) jurisdiction over disputes arising out of the interpretation or application of the treaty. So, there is no option to reproduce the Gambia v. Myanmar litigation before the ICJ. China has also ratified the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT); China does not, however, recognize the competence of the Committee Against Torture to investigate alleged acts of torture, as provided for in Article 20 of the Convention, or of the ICJ to hear disputes over the interpretation of enforcement of the treaty. So, there is no option to reproduce the Belgium v. Senegal precedent under the CAT. The General Assembly could potentially seek an advisory opinion under either convention, however.
  • There is no regional human rights body with jurisdiction over China, but several U.N. treaties that China has ratified have enforcement bodies. They include the International Convention on Economic, Social & Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Racial Discrimination (CERD), the above-mentioned CAT, and the Convention on the Elimination of Discrimination Against Women (CEDAW). These committee have jurisdiction over China in the form of periodic reviews of its compliance with the parent treaty. None of these has an individual complaints mechanism with jurisdiction over China, however. China has also ratified the Slavery Convention, which prohibits slavery in all its forms, but it has no enforcement body.
  • The CERD Committee, which monitors implementation of the Convention on the Elimination of All Forms of Racial Discrimination, has an early warning and urgent action procedure that can be invoked to prevent and respond to violations of the treaty. This mechanism can involve field visits and follow-up actions. In addition, any state party to the convention can initiate a state complaint against China under Article 11 of the treaty. Unlike other such human rights treaty complaint mechanisms, this process is not subject to either an opt-in requirement or an opt-out option, so China would be bound to appear and defend itself. Historically, these state-to-state mechanisms have not been well-used, but they are available for states with the courage and conviction to invoke them. The CERD Committee last reviewed China in 2018, before the emergence of the most recent revelations about the extent of the persecution. It reconvened in 2019 amidst worsening allegations of persecution. China responded with an “upgraded defense” of denialism and a letter of support, led by Belarus and signed by a number of states with weak commitments to human rights.
  • In order to maximize the efficacy of these human rights mechanisms, the United States could fund credible human rights documentation and advocacy groups—within the U.S. and in the wider region—to conduct open-source research to establish a body of evidence that could be used in future accountability efforts and to identify perpetrators for sanctions and other purposes.
  • Finally, there may be criminal and civil accountability options in the courts of the United States and elsewhere. National prosecutors connected through the Eurojust and related networks of prosecutors who have been mandated to prosecute international crimes should share information and resources on the individual responsibility and travel of potential perpetrators so they can be apprehended or served with process under international crimes statutes. As VP Biden argued during the debates, the United States should “hold to account the people and companies complicit in this appalling oppression.”

Aid Conditionality

Although China is no longer a recipient of as much foreign development aid as it used to be, there are still some levers here that could be used.

  • The U.S. could condition counterterrorism (CT), drug enforcement, and other forms of aid and cooperation on dismantling the Uyghur concentration camps, ending identity-based persecution, and making other durable improvements in the treatment of the Uyghur community. To the extent that CT aid remains in place, it should focus on forms of community consultation and engagement that are consistent with international human rights standards.

The Olympics

  • As the 2022 Olympics draw closer, raising the potential of a boycott could create new leverage on Beijing and bring increased scrutiny to corporate brands that sponsor the Olympics, particularly when there is a nexus to the apparel industry.

This list is by no means exhaustive, and I welcome suggestions for additions. What matters is that the international community takes a united stand to end the stunningly sweeping crimes against humanity that China is committing in Xinjiang.