Foreign Policy, 23 December 2020

Below is an article published by Foreign Policy.

U.S. Secretary of State Mike Pompeo has ordered a review to determine whether China’s repression of ethnic Uighurs in Xinjiang amounts to genocide, several officials and people familiar with the matter said, raising expectations that America’s top diplomat may charge China with committing genocide before he leaves office next month.

Pompeo has instructed Morse Tan, the U.S. ambassador-at-large for the Office of Global Criminal Justice, to oversee the internal review. The review would involve an assessment by the State Department’s acting legal advisor, Marik String, and the head of the State Department’s internal intelligence shop, as well as the department’s human rights and regional bureaus, according to current and former officials.

The review could trigger a final determination from the United States, following years of pressure from U.S. lawmakers and human rights organizations, and would be a significant symbolic and diplomatic message by itself. But what the outgoing Trump and incoming Biden administrations decide to do if and when the determination is made matters as much, if not more, human rights experts said—as it could include imposing sanctions or other economic penalties.

Officials said the timing of when the determination will be made is unclear. If it is made in the final weeks of the Trump administration, it could significantly raise tensions between Washington and Beijing just as President-elect Joe Biden enters office—though Biden’s campaign already used the word “genocide” to describe the crackdowns in Xinjiang as early as August.

The review comes as lawmakers from both parties have increasingly called on the Trump administration to act over human rights abuses in Xinjiang. In October, Sens. Bob Menendez of New Jersey, the top Democrat on the Senate Foreign Relations Committee, and John Cornyn, a Texas Republican, introduced a bipartisan resolution designating China’s treatment of the Uighurs and other ethnic minorities in Xinjiang as genocide.

The United States rarely makes a formal declaration of genocide, considered one of the most serious crimes against humanity in international law. If confirmed, this would be the first genocide determination by the State Department since March 2016, when U.S. Secretary of State John Kerry determined that the Islamic State terrorist organization was “responsible for genocide” against the region’s Yazidi, Christian, and Shiite Muslim
minorities. In August 2017, President Donald Trump’s first Secretary of State Rex Tillerson also concluded that the Islamic State was “certainly responsible for genocide.”

During the George W. Bush administration, then-Secretary of State Colin Powell declared that the Sudanese government had committed genocide against ethnic minority groups in Darfur, a decision that was followed by a U.N. Security Council resolution triggering an investigation into mass atrocities by the International Criminal Court, which later charged the country’s then-president, Omar al-Bashir, with genocide.

President Bill Clinton’s secretary of state, Warren Christopher, also cited the mass atrocities in Bosnia and Rwanda as genocide. In recent years, China has undertaken a sweeping campaign of repression against what are estimated to be millions of Uighurs and other ethnic minorities in its western Xinjiang province under the guise of security and counterterrorism programs. Human rights groups have reported that Uighurs are being rounded up in mass internment camps and face human rights abuses such as forced labor, brainwashing, arbitrary detentions, mistreatment, torture, and even forced abortions and sterilization.

The Chinese government has consistently denied any wrongdoing, dismissing reports from human rights organizations and claiming the internment camps were for vocational training and countering extremism. It has rejected Western criticisms of its human rights records and rebuked the United States for “interfering” in its internal affairs.

The Trump administration levied sanctions against Chinese officials involved in running the detention camps and designated companies that allegedly used forced labor from the camps. But top Trump officials have so far shied away from labeling the crackdown in Xinjiang as a genocide. In August, Politico reported that the Trump administration was considering the move, but until this point hasn’t kickstarted the formal determination process.

Trump’s former National Security Advisor John Bolton wrote in his memoir that at a dinner at the G-20 meeting in Osaka, Japan, in June 2019, Chinese President Xi Jinping explained to Trump why he was building mass internment camps. “According to our interpreter, Trump said that Xi should go ahead with building the camps,” Bolton wrote. Last year Foreign Policy reported that sanctions on Chinese officials had been drafted by late 2018, but were put on ice as the Trump administration pursued trade talks with
Beijing.

Some current and former officials attribute the timing of this new review to push from Congress. Others describe it as an eleventh-hour move by the outgoing administration to box in Biden on his China policy. Legislation spearheaded by Republican Sen. Marco Rubio to prompt the secretary of
state to make a determination on whether China’s crackdown in Xinjiang constitutes genocide was included as part of broader appropriations package passed on Monday.

Rubio, acting chairman of the Senate Intelligence Committee and member of the Senate Foreign Relations Committee, is a vocal critic of China.
“Regardless of motivation, it is the right thing for the Trump administration to do,” said Francisco Bencosme, a senior policy advisor with the Open Society Foundations. After that, he said, the question is how the determination will be made meaningful—such as by getting like-minded countries to join the United States in a genocide determination or by prompting international organizations to carry out an investigation.
Biden’s campaign used the term “genocide” to describe Beijing’s policies beginning in August, laying down its marker on human rights issues in China and setting the stage for a tense relationship between the two rival global powers once he takes office in late January. But formalizing that decision as president could prove tricky.

Traditionally, the State Department based its decision on a rather narrow interpretation of genocide in the Genocide Convention, which requires the perpetrator to intend to physically destroy a people in whole or in part, a standard that may not have been met in Xinjiang.

Previous deliberations have been cautious. During the Obama administration, the State Department weighed whether Syrian President Bashar al-Assad’s regime had committed genocide in a violent crackdown on civilians living in opposition-controlled territory that resulted in the deaths of hundreds of thousands of civilians. It concluded it did not have sufficient evidence for the determination.

Given the symbolic and diplomatic weight of such a determination, there is still no clear-cut blueprint or formula for the department to follow; each case is handled differently depending on the circumstances, current and former officials said. The requirement that perpetrators intend to “destroy” a people is literal elimination, not just erasing their cultural identity, said Todd Buchwald, who served as special coordinator in the State Department’s Office of Global Criminal Justice and who coauthored a major study on the history of the department’s genocide determinations for the Holocaust Memorial Museum.

“The popular definition of genocide is different from the legal definition of genocide. The hardest thing for the State Department in coming to view on this is how do you prove, and how do you show, sufficient evidence to infer intent,” said Anna Cave, who served as principal deputy in the Office of Global Criminal Justice. “In most cases perpetrators don’t say expressly ‘it is my intent to destroy this group in whole or in substantial part.’”