China’s Forced Sterilization of Uyghur Women Violates Clear International Law

(Editor’s Note: This is the first of two articles discussing human rights violations against China’s Uyghur population. The second article, by Connor O’Steen, considers what steps the international community could take in efforts to halt and redress these violations.)

As new evidence emerges of the Chinese government’s forcible sterilization of Uyghur women, communities around the world are sure to recognize elements of a familiar pattern. Official measures to control the Uyghur population in China’s Xinjiang region reportedly aim for nearly no population growth, through a combination of sterilization and long-term birth control measures. Plans are said to include “subject[ing] at least 80 percent of women of childbearing age … to intrusive birth prevention surgeries” and punishing birth control violations by internment in “training” camps. At the same time, there has been a dramatic increase in the population growth of the Han community, China’s majority ethnic group, in Xinjiang.

Adrian Zenz, the author of the new report on these measures, describes his findings as “rais[ing] concerns that Beijing is doubling down on a policy of Han settler colonialism” and “provid[ing] the strongest evidence yet” that China is carrying out a genocide of the Uyghur population.

Heartbreakingly, forced sterilization is a practice that has persisted into this century and overwhelmingly targets Indigenous women and members of other minority groups, transgender people, persons with disabilities, and intersex people. Failures to eradicate these practices and provide redress for previous eras’ “population control” measures have helped permit involuntary sterilization to continue in many places. In some countries and circumstances, sterilization is mandated or carried out under color of law, while in others it may be illegal but goes unpunished. The body of international law identifying forced sterilization as both an atrocity crime and a human rights violation has expanded to address the many current-day iterations of this form of eugenics, though the challenge of compliance remains.

Troubling Similarities

Though the abuses in Xinjiang may be of a different scale than other recent examples of enforced sterilization practices (possible exceptions include India’s sterilization camps), the methods and the aims remain familiar. Chinese policies in Xinjiang bring to mind compulsory or coercive sterilization campaigns in other countries. In the United States, as many as 25% of Native American women and 35% of Puerto Rican women of childbearing age were sterilized in the 1960s and 1970s, and 20,000 disproportionately Latinx Californians were sterilized in the first half of the century. In Peru, authorities sterilized more than 200,000 mostly rural women between 1996 and 2001. In Uzbekistan, Romani women have been the primary victims of enforced sterilization by the State.

These horrifying campaigns have echoes in the more insidious targeting for sterilization of women in prison (or facing incarceration) in the United States, Indigenous women in Canada and other countries, Romani women in Eastern Europe, and women living with HIV in East and Southern Africa. In addition to pressure and misinformation, a common tactic is threatening to withdraw access to public assistance for women who do not “agree” to sterilization, as has happened in Kenya, or threatening to terminate parental rights. Many governments are still, or were until recently, requiring trans people to undergo sterilization or genital surgery in order to have their gender identity recognized.

Other human rights violations common to settler colonialism are evident in Xinjiang, too. Chinese “re-education” camps and “boarding schools” for Uyghurs recall the “residential schools” designed to forcibly break the familial, linguistic, and cultural ties of Indigenous children in Canada, the United States, and elsewhere in the last century and earlier. The many abuses against the Uyghur population have the apparent aims of controlling, culturally assimilating, and repressing these communities or, in the alternative, eradicating them. The government may also stand to benefit from increased natural resource extraction and the profits of forced labor.

Impunity and Lack of Redress

Domestic redress has been limited. In Peru, advocates continue to seek accountability for Fujimori-era forced sterilizations, despite setbacks. Peru has yet to fully fulfill the terms of a 2003 friendly settlement agreement before the Inter-American Commission on Human Rights, pursuant to which it committed to conducting administrative and criminal investigations into those responsible for the forced sterilization, and resulting death, of María Mamérita Mestanza Chávez, one of the victims of Peru’s mass sterilization campaign. Victims of discriminatory and coercive sterilization programs in the United States have long sought reparation — including through legislative initiatives to compensate victims, such as in California, North Carolina, and Virginia — with mixed results.

In the absence of national reckoning, some victims have sought redress at the international level. Dealing mostly with individual allegations — and not alleged patterns or systemic practices — human rights oversight bodies have condemned forced sterilization, whether officially sanctioned or not, in a growing body of jurisprudence on informed consent, bodily autonomy, gender-based violence, and discrimination. Their decisions add to the earlier recognition of forced sterilization as an international crime.

International Criminal Law and Its Domestication

The Rome Statute of the International Criminal Court explicitly recognizes forced sterilization as both a war crime and crime against humanity of sexual violence. Although not explicitly referenced in the Charter of the International Military Tribunal at Nuremberg, the Tribunal found the Third Reich’s forced sterilization programs to constitute a war crime with regard to sterilization experiments in concentration camps, during the “Doctors’ Trial.”

The Rome Statute also recognizes “imposing measures intended to prevent births within the group” as an act of genocide, when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” This language mirrors that of the Genocide Convention and the statutes of the international criminal tribunals for Rwanda and Yugoslavia, and it has been interpreted to include sterilization and “forced birth control.”

Relatedly, the history of the coerced sterilization of Indigenous women in Canada, combined with many other types of State action and inaction, led the National Inquiry on Missing and Murdered Indigenous Women and Girls to conclude there were “serious reasons to believe Canada is responsible for committing genocide against Indigenous peoples.”

Many States have codified atrocity crimes in their domestic criminal codes, including in their assertion of universal jurisdiction over crimes committed elsewhere. For example, the Follow-up Mechanism to the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence against Women (“Convention of Belém do Pará”) has assessed and encouraged national criminalization of forced sterilization as a common crime and as a crime against humanity, war crime, or act of genocide among its State parties.

Developments in International Human Rights Law

Human rights law defines forced sterilization as any sterilization procedure carried out in the absence of the person’s full, free, prior, and informed consent. Consent is not valid unless the person has adequate and accurate information about the procedure and its consequences, as well as time to deliberate, without any coercion or inducement. In 1999, United Nations Special Rapporteur on violence against women Radhika Coomaraswamy published a report that first addressed forced sterilization as a violation of multiple human rights and as a means of violating the prohibition against torture and cruel, inhuman, and degrading treatment (though, limited to instances involving physical force or detention). Coomaraswamy identified a State obligation to “act with due diligence to prevent, investigate, and punish violations” in this context.

Regional and U.N. human rights bodies have since widely and repeatedly confirmed that forced sterilization practices violate multiple human rights, including the right to be free from torture and cruel, inhuman, or degrading treatment. Many of the relevant statements are referenced in an extensive 2014 U.N. inter-agency report on forced sterilization. Forced sterilization was also expressly prohibited by an international human rights treaty for the first time in 2014, with the entry into force of the Council of Europe Convention on preventing and combating violence against women and domestic violence (known as the “Istanbul Convention”). More recent developments include the Inter-American Court of Human Rights’ judgment in I.V. v. Bolivia, which concluded that the failure to obtain proper consent for a tubal ligation from a woman in labor violated her rights to physical integrity, humane treatment, personal liberty and security, respect for honor and dignity, respect for private and family life, freedom of expression (with respect to access to information), and freedom to raise a family.

In view of the specific circumstances or treaty, human rights bodies may find other violations as well, including of the rights to sexual and reproductive health and to decide the number and spacing of children. In many contexts, the rights to non-discrimination and equality are also at issue.

Human rights bodies have made clear that States’ obligations go beyond refraining from forcibly sterilizing people, to protecting against forced sterilization by monitoring and regulating healthcare providers, establishing domestic informed consent standards, investigating allegations, and providing effective remedies to victims.

Importantly, however, human rights bodies’ decisions have generally involved individual victims — often women sterilized after being admitted to the hospital to give birth. This focus on individual instances has led to a tendency not to assess whether such individual allegations fit a larger discriminatory pattern or prior history, particularly where the State denies any policy or characterizes a forced sterilization as “lapse of judgment” on the part of individual doctors. While human rights bodies have urged States to investigate sterilizations that are alleged to be part of a systemic practice, none of these bodies have really grappled with how to dismantle the systems allowing sterilization practices to happen in the first place, or to provide widescale redress.

Accountability in Xinjiang

The international prohibitions on forced sterilization are clear, and they provide multiple avenues for clarifying the facts, pressuring the Chinese government to stop the abuses against Uyghur women, and seeking accountability. They are, however, limited.

The path to individual criminal liability for mass forced sterilizations in China is not straightforward. The Chinese government has reportedly neglected to prosecute even forced sterilizations that it deemed prohibited by law in the past, and attempts to hold Chinese authorities accountable in foreign courts for torture and other crimes have not succeeded. China is not a party to Rome Statute, although there are other possible avenues to the International Criminal Court’s jurisdiction, including the argument that the court has competence because the abuses against Uyghurs involved Cambodia and Tajikistan, which are parties to the Rome Statute.

With regard to the State’s accountability in relation to such crimes, China has not accepted the jurisdiction of the International Court of Justice (ICJ) over inter-State disputes arising under the Genocide Convention and multiple human rights treaties. If China were to agree to the ICJ’s jurisdiction over a particular dispute, a useful precedent is unfolding. In an ongoing case before the ICJ, Gambia alleges Myanmar has violated the Genocide Convention in its treatment of the Rohingya, including through “measures to prevent births” within the group. Among other policies, authorities have limited the number and spacing of Rohingya children. An obstacle to enforcing any possible ICJ judgment with regard to China, however, is that it could veto Security Council resolutions calling for its compliance, as the United States has done.

Separately, international human rights oversight of China is robust, though constrained. Like approximately 20 percent of States, China is not subject to the jurisdiction of an independent regional human rights body. However, it is a party to several U.N. human rights treaties, including the International Covenant on Economic, Social and Cultural Rights (ICESCR), International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and Convention against Torture (CAT), and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Each of these treaties has been interpreted to prohibit forced sterilization. China has not accepted any individual complaint proceedings under these treaties, meaning that oversight of its human rights practices is conducted wholly through periodic reviews by treaty bodies, the Universal Periodic Review (UPR), and the visits and other commentary of special procedure mandate holders. Each of these processes depends on information and engagement from civil society organizations, who are essential in uncovering abuses and creating the conditions for accountability; this work is made more difficult by governmental repression and retaliation.

Despite the challenges, a number of U.N. human rights bodies have repeatedly urged China to stop and prevent involuntary sterilizations for decades. For example, in her 1999 report, Coomaraswamy specifically called out China, indicating that “despite the assurances by the State Family Planning Commission that ‘coercion is not permitted,’ there has been no indication of sanctions being taken against officials who perpetrate such violations.” In 2016, the U.N. Committee against Torture called on China to “ensure the effective prevention and punishment of coerced sterilization and forced abortion” and to ensure all such allegations would be investigated, those responsible held accountable, and redress provided to victims. While such recommendations were not specific to Xinjiang or the Uyghur population, the Committee did separately address the “custodial deaths, disappearances, allegations of torture and ill-treatment and reported use of excessive force” in Xinjiang. Other treaty bodies have similarly asked China to address the prevalence of forced sterilization throughout the country, as a consequence of a common preference for sons and family planning policies, including the former one-child policy.

U.N. bodies have also repeatedly raised their concerns with regard to abuses against Uyghurs in Xinjiang. The engagement of U.N. experts with China, some of which is summarized in a November 2019 letter to the government and a June 2020 press release, has addressed a broad range of issues in the region. In response, however, China has criticized the experts, rather than addressed their concerns. Change in Xinjiang will, it seems, require sustained oversight and more pressure than human rights bodies alone can bring to bear.

As Connor O’Steen discusses in an upcoming companion piece on Just Security, the United States and other governments have unilateral and multilateral options to promote accountability and put pressure on Chinese authorities to end these abuses. On the multilateral side, this could include pushing for a specialized U.N. inquiry, such as through a mechanism like the new Independent Investigative Mechanism for Myanmar.

For now, the full scale of forced sterilization in China and around the world is unknown, in part because of governments’ failure to collect or share relevant data, authorities’ failure to adequately investigate allegations, the stigma and trauma that may prevent victims from coming forward, and justified mistrust of law enforcement or governmental authorities among affected communities. While the human rights standards are clear, there is no existing roadmap for remedying mass forced sterilizations and preventing their insidious recurrence. It has not yet been done.

(Author’s note: The author’s organization, the International Justice Resource Center, has been part of human rights advocacy concerning forced sterilization, including with regard to Canada. The views expressed in this article are those of the author, writing in a personal capacity.)

Image: A Uyghur woman holds a child in her home as they prepare food during the Corban Festival on September 12, 2016 in Turpan County, in the far western Xinjiang province, China. (Photo by Kevin Frayer/Getty Images)

 

About the Author(s)

Lisa Reinsberg

Executive Director of the International Justice Resource Center. Follow her on Twitter (@LReinsberg).