On her final day in office, former United Nations High Commissioner for Human Rights Michelle Bachelet issued a long-awaited report on the Chinese government’s actions in Xinjiang. Among other things, the U.N.’s highest-ranking human rights official determined that the Chinese government has committed serious human rights violations against the largely Muslim, Uyghur population, and even more damning, that there is a substantial basis to believe that the government has also committed crimes against humanity.
Yet horrific as it is, the report’s substance is less surprising than the circumstances in which it was issued. The report’s content, and the context of its creation, reveal just as much about Beijing’s influence at home and aboard, and the role of some U.N. institutions to promote “fundamental rights and freedoms.”
The Chinese Government’s History of Repression in Xinjiang
The Aug. 31 report culminates a five-year effort that came in response to numerous press accounts, reports from human rights groups, and other U.N. bodies documenting the Chinese government’s increasingly repressive measures in the far western “autonomous region.” Xinjiang covers one-sixth of China’s territory. When the People’s Republic of China established full control in 1949, about 75 percent of the population were ethnic Uyghurs, Kazakhs, and other non-Han, mostly Turkic peoples. Most of these were also Sunni Muslims. As early as the 1990s, Beijing adopted policiesintended to “Sinocize” the area. The influx of Han Chinese reduced the Uyghur population to 45 percent, creating marked economic inequality and resentment among the indigenous population. That resentment led to outbreaks of violence, most notably riots in 2009, as well as a string of terrorist incidents. Among the most serious of these involved a knife attack that killed 37 people at the Kunming train station in 2014.
The Chinese government seized the opportunity to respond, at first predictably, but soon enough in ways that exceeded even the most pessimistic expectations. Early reactions included a “strike hard” campaign directed against “Uyghur terrorism.” These came in conjunction with efforts aimed at effectively destroying Uyghur culture, including the destruction of mosques and the prohibition of religious practices. By 2017, the government had established the now notorious policy of interning Uyghur men in “vocational” centers, internment camps that according to some estimates have houses well over one million people. At the same time, Xinjiang has become a model surveillance state, ranging from high tech cameras and DNA collection to local Chinese Communist Party officials living with Uyghur Muslim families. Beyond all this have come efforts to reduce the Uyghur Muslim population by such methods as providing Uyghur women bounties to marry Han Chinese men.
All this led to the report, and ultimately to its grim determinations. Yet horrific as it is, the report’s substance is less surprising than the circumstances in which it was issued. The content and context serve as timely reminders of just how boldly authoritarian – in truth, totalitarian – Chinese President Xi Jinping’s regime has become both at home, and increasingly, abroad. Conversely, the report’s appearance indicates that some U.N. institutions have yet to abandon the organization’s core commitment to “fundamental rights and freedoms.”
The U.N. High Commissioner’s Conclusions
First are the report’s conclusions themselves. Paradoxically, the most provocative finding on crimes against humanity is also the more tentative. As the report points out, the Chinese government is bound by the prohibition against crimes against humanity as a matter of jus cogens, peremptory norms that constitute the highest level of international law. Under the mostly widely recognized definition, which appears in Article 7 of the Rome Statute, such crimes encompass certain acts including torture, enslavement, and forced population transfer “when committed as part of any civilian population, with knowledge of the attack.” But the report hints at a legal conclusion while stopping short of a complete analysis. In fact, it says only that there is sufficient evidence to consider that the Chinese government “may” have committed crimes against humanity without specifying which of the possible acts it has in mind. Nonetheless, the report’s account of the Chinese government’s actions makes clear that among the relevant criminal acts include: forcible transfer of population; imprisonment or other severe deprivation of physical liberty of international law; torture, and persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender grounds.
Few violations of international law could be more serious. Crimes against humanity impose liability not just on States, but individuals as well. They necessarily echo the atrocities that led to their creation at the Nuremburg and Tokyo tribunals following World War II, and the genocides in Rwanda and Yugoslavia that closed the twentieth century. That Bachelet would go so far to suggest they may have occurred makes the allegations more serious still.
The tentative finding on crimes against humanity overshadows the more concrete conclusion that China committed serious human rights violations. Both the evidence and the list are prodigious. Among other things, the report recounts vague and overbroad security laws, exceptionally harsh “counter-terrorism” measures, and Xinjiang’s notorious “Vocational Education Training Centres,” in which by some estimates over 1 million Uyghur men have been interned.
As the report concludes, these extreme measures have resulted in extensive breaches of China’s obligations under international human rights law: “The implementation of these strategies, and associated policies in XUAR [Xinjiang Uyghur Autonomous Region] has led to interlocking patterns of severe and undue restrictions on a wide range of human rights.” A partial list: torture and cruel and degrading treatment; prolonged arbitrary detention; denial of religious freedom; lack of medical care for detainees; violation of reproductive rights through, among other things, forced sterilization; forced disappearance, and family separation.
Left Unsaid: The Crime of Genocide?
The indictment is appalling, but incomplete. Conspicuous by its absence is any mention of genocide. For all that human rights groups, governments, including the United States, and tribunals have done to advance this charge, the word does not even appear in the report. For better or worse, the rhetorical stakes the term entails could not be higher, exceeding even the emotive clout of crimes against humanity. In addition, the legal definition of genocide makes it difficult to establish. As defined in Article 6 of the Rome Statute, the definition applies to certain acts such as killing, causing serious bodily or mental harm, imposing harsh conditions; imposing measures intended to prevent births, and forcibly transferring children when “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.”
The problem lies with the threshold requirement of specific intent to destroy a particular group in whole or in part. Genocidal regimes and actors tend not advertise their purpose, especially in closed authoritarian states like China. Intent may be inferred, but that requires substantial circumstantial evidence. For these reasons, advocacy groups and some governments disagree as to whether the Chinese government’s actions in Xinjiang demonstrate a sufficient intent to reduce the Uyghur population as opposed to “merely” transforming it into loyal, non-religious, Chinese citizens or simply countering terrorism and “extremism.”
These reasons alone should have been enough for the report to raise the issue. Clearly substantial evidence exists that the Chinese government has committed many of the acts that constitute genocide. And at the very least, the report should have noted the basis for disagreement over intent. The fact that a genocide charge is at least colorable would carry its own weight, given the term’s historic resonance. That said, crimes against humanity and systemic human rights violations, depending on the scale, can involve more human misery than certain types of technical genocide. For example, a given state could commit genocide by instituting a program to reduce births to intentionally destroy, in part, a small ethnic or religious population. Conversely, another given state could engage in crimes against humanity through a systematic campaign of murder and rape against a general civilian population regardless of ethnicity, resulting in the deaths of millions. Put another way, here the specter of crimes against humanity and massive human rights violations should be galvanizing enough.
And genocide is not the only omitted issue. Slavery, or at a minimum forced labor, also receives no mention. As with the genocide charge, advocacy groups and governments have advanced credible allegations that both the internment camp system, and discrimination against the Uyghur population generally, has resulted in forced labor practices. Such exports as products as cotton and dates, among others, have been associated with these charges. These concerns were serious enough to prompt Congress to enact the Uyghur Forced Labor Act in 2021, which creates a rebuttable presumption that the importation of any goods, wares, articles, and merchandise produced in Xinjiang cannot enter the United States unless the Commissioner of U.S. Customs and Border Protection determines, among other things, that by clear and convincing evidence, the goods, wares, articles, or merchandise were not produced using forced labor. The report is a missed opportunity for the U.N.’s highest human rights authority to highlight this issue more thoroughly.
Retreat, Counterattack, or Rearguard Action?
Beyond its substance, much controversy surrounded the report’s release – that is, until, the release actually occurred. In the preceding months, if not years, Bachelet as High Commissioner came under severe criticism for her weak stance on China. Exhibit A is the report itself which Bachelet began more or less five years earlier. Nor did it help when she undertook a mission to Xinjiang earlier this year under state-controlled conditions so strict, they were almost beyond parody. How the U.N.’s highest human rights official, herself a torture victim in Chile, could fall so glaringly short might show the power successful Chinese pressure. That pressure only grew as her days in office dwindled.
Then on Aug. 31, minutes before her term expired, when almost everyone in the human rights movement had given up hope, the report came out. Was this a cagey feint? A sort of human rights Muhammed Ali rope-a-dope? Or at the end of the day, was it a retreat nonetheless, with a high U.N. official feeling constrained by a powerful member of the U.N. Security Council Permanent Five until she was almost literally out the door and beyond official reach?
The truth perhaps lies somewhere in between. China has indeed placed enormous pressure on U.N. officials and institutions inspecting its human rights record. Among other things, the Chinese government in recent years has: sought to exclude the report of a U.N. team from its Universal Periodic Review by the Human Rights Council (HRC), prevent discussion of human rights issues in the Security Council, and introduced resolutions at the HRC that diminish the U.N.’s commitment to core civil and political rights. As far as its own citizens go, that pressure has actually been fatal. In 2013, a Chinese human rights advocate, Cao Shunli, who was bound for a HRC meeting in Geneva, was stopped at the airport in Beijing and later died in state custody. More mundane diplomatic pressure clearly extended to the Office of High Commissioner. Yet despite all that, late and incomplete as it is, the report came out as an indictment of grievous crimes against one of the U.N.’s most powerful members. If not a triumph, it is a victory when any such successes are in short supply.
Martin S. Flaherty teaches international law and human rights at the School of Public and International Affairs at Princeton and Columbia Law School. He is also the Leitner Family Professor of International Human Rights at Fordham Law School.