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The Nuremberg Charter & Trials in light of modern acts of genocide: the people of Uyghur


The Nuremburg Trials and subsequent Charter are seen as the inception of modern international human rights law. They have set the foundation in which key legal principles have the scope to not only exist as a legal safety net but be a challenge to potentially infringing frameworks to prevent tragedies from reoccurring. Genocide is one such crime, and it is frequently mentioned in discussions concerning the treatment of the Uyghurs in China. To understand the severity of the actions taken by China from a legal standpoint, it is paramount to understand the concept of genocide under international law through relevant statutory provisions and instances criminal before tribunals.


Defining genocide


The term ‘genocide’ was coined by Raphael Lemkin during WWII, taking its etymology from Greek and Latin to translate as killing a tribe or race.[1] Following the Nuremburg Trials, it was seen as the ‘crime of crimes’,[2] and the implementation of the Convention on the Prevention and Punishment of the Crime of Genocide 1948 (herein known as the Genocide Convention), developed on Lemkin’s definition creating a much broader definition. According to Article 2 of the Genocide Convention, genocide is not just the killing of a race or tribe but rather the:


‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group’.[3]

What is important to note and lends itself well to the discussion is Article 3 of the Genocide Convention, which was later expanded by Article 25(3)(e) of the Rome Statue of the International Criminal Court 1998 (herein the Rome Statute) (ICTR)concerning the incitement to commit Genocide.[4] According to both legal frameworks, if an individual 'directly and publicly incites others to commit genocide'[5] or shapes a conspiracy to commit genocide,[6] then they have committed a crime against international law. There is no explicit requirement to physically commit genocide. Genocide, according to the Rome Statute, has a much broader scope, in that the crime is punishable whether the physical acts set out in Article 2 of the Genocide Convention have occurred or not. This interpretation was brought forward in the ICTR case of Nahimana, where the trial court heard evidence that the drafters of the Genocide Convention intended that incitement convictions did not require genocidal actions.[7]


Examples of genocidal actions in Uyghur oppression


It is evident that what is occurring in Xinjiang Uygur Autonomous Region (Xinjiang, XUAR) can be construed as genocide. Such evidence of genocidal actions is found in the testimonies of forced sterilisation. In 2019 – 2020, reports had surfaced from Xinjiang regarding forced sterilisation practices. One woman stated that she was forcibly sterilised by tubal ligation.[8] Some have stated that they had been forced to take birth control pills or were injected with unknown fluids without permission, to prevent menstruation.[9] Forced sterilisation has been designed to curb the population of the Uyghurs, and reports have shown a sharp decline in births in Xinjiang in comparison to the rest of China, 'by almost a third in 2018'.[10] China has acknowledged this sharp decline in birth rates, but has denied the accusations,[11] in direct violation of Article 2 (d)[12] and 6(d)[13] of the Genocide Convention and the Rome Statute respectively, in which genocide is being classed as 'imposing measures intended to prevent births within the group'.[14] Forced sterilisation has been designed to curb, prevent, or stop the continuation of a population, to kill a tribe or race.




The ad hoc tribunals: Rwanda and the former Republic of Yugoslavia


Using methods to prevent the growth of a population is not a new or entirely uncommon form of committing genocide. This had been observed in two landmark tribunals in the 1990s: the International Criminal Tribunal for Rwanda (ICTRw) and the International Criminal Tribunal for the Former Yugoslavia (ICTY). The two landmark cases heard by the above tribunals broadened the scope of what is considered as genocide, creating depth and nuance into Lemkin’s initial definition.


During the conflict within the former Yugoslavia, it was reported that Muslim Bosniak women were sent to ‘rape hotels’ at the behest of soldiers in the war.[15] The purpose of these ‘rape hotels’ had a sinister meaning; through rape, the population of Bosniaks, would be culled and diluted, thereby proving genocidal intent towards an ethnic group.[16] This idea of genocide is supported by the case of Krstic, which has set out the mens rea for genocide: ‘the mens rea of the offence, which is described as the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’.[17] It was held that rape could be used as a tool of genocide if the ‘requisite elements are met’.[18] Many have argued that the mass and systematic rape of the Bosniak women was part of a larger scale of genocide.[19]


The concept of rape as a genocidal act was later solidified in the ICTRw and the trial of Jean-Paul Akayesu.[20] Cases such as Akayesu[21] and Krstic[22] have aided in determining this wider definition of genocide and provide strong legal precedence when determining China’s treatment of the Uyghurs. Actions taking place in these cases can be directly compared to current ongoings in Uyghur camps, showcasing China’s clear violation of international law.


In 2021, Linda Thomas-Greenfield, President Biden’s nomination for ambassador to the United Nations, stated that the acts carried out in XUAR had been tantamount to genocide, adding that she ‘experienced and witnessed a genocide in Rwanda’.[23] Comparisons between Uyghur oppression and the Rwandan genocide can be drawn, notably with relation to sexual crimes. The ICTRw declared rape as a form of genocide, and it was the first Tribunal to recognise it as such. The Tribunal held that rape could constitute a genocide, where it is committed with the intention to destroy an ethnic group, (the Tutsi people).[24] This was built on the foundation created by its predecessor, the ICTY, which cemented rape as a crime against humanity.[25] Taking these legal frameworks and applying them to the events in XUAR is not a legally complex nor a challenging task. For instance, the ‘Pair up and Become Family’ program is another means China has used to debilitate and oppress Uyghurs.


Reportedly, Han Chinese men would be sent to monitor the homes of Uyghurs for signs of ‘extremism’ and sleep in the same beds as Uyghur women.[26] While the government claimed this as a promotion of Chinese unity, reports have found that men would rape and sexually assault Uyghur women, particularly those whose husbands are detained in the internment camps.[27] These instances of rape, in most cases, lead to forced pregnancies, under the guise of marriage.[28] These actions show clear genocidal intent and intention to cull a population based on the difference of ethnicity and religion. China’s actions are in clear violation of the Genocide Convention and the Rome Statute, and the acts committed in the XUAR have grave similarities with those seen in both the ICTY and ICTR.


Opposing Views: Is China committing genocide?


While it seems evident that China is committing genocide in XUAR, under key international legal instruments, there are some who claim that the relevant findings ought to be rejected in their entirety.[29] The premise of this argument is that genocide is the darkest crime committable within international law, and to say that China's actions are akin to this and to draw comparisons to the Holocaust is hyperbolic.[30] Slawotsky claimed that there has been no evidence of physical extermination or any intention to exterminate the group.[31] He argues that the measures imposed by China, within XUAR, correspond to strict discipline, and form of part of strong counter terrorism initiatives.[32]


China has stated many times that the actions taken in Xinjiang with the Uyghur is not tantamount to genocide.[33] According to high-ranking Chinese officials, what is occurring in Xinjiang is simply a re-education; an attempt to cultivate a homogenised culture in China as a nation with rather than several pockets of different ethnicities.[34] It is also a measure for China to safeguard their nation against terrorism.[35] China has always been a nation fixated on the idea of a unified state, with the same ideals across the entire country.[36] However, these points are easily rebuffed when examining the wording of Genocide Convention and the Rome Statute as to the definition of genocide.



Concluding remarks


When evaluating the actions of China in XUAR, it is justifiable to claim genocide is taking place. China has satisfied all criteria of genocide. Evidence of torture, rape, enslavement and forced sterilisation, are all key indicators of genocidal intent. The developments made off the back of the Nuremberg Trials and its Charter have been reinterpreted and applied in later criminal tribunals as well as statutory material. It is clear that the history between international law and the crime of genocide lends itself perfectly to the oppression committed within the XUAR. China ought to recognise its actions and cease from continuing further oppression.





Endnotes

[1] Raphael Lemkin, 'A Modern Crime' (prevent genocide international, April 1945) accessed December 31, 2022. [2] United Nations, Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (London Agreement), 8 August 1945, accessed 26 March 2023. [3]UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, (1948) United Nations, Treaty Series, vol. 78, p. 277, accessed 31 December 2022. [4] UN General Assembly, Rome Statute of the International Criminal Court, 17 July 1998, ISBN No. 92-9227-227-6, accessed 31 December 2022. [5] Ibid. [6] Art 2 Genocide Convention (n3). [7]The Prosecutor v Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze (Judgement and Sentence) [2003], ICTR-99-52-T, International Criminal Tribunal for Rwanda (ICTR), accessed 31 December 2022. [8] Ivan Watson, Rebecca Wright and Ben Westcott, ‘Xinjiang Government Confirms Huge Birth Rate Drop but Denies Forced Sterilization of Women’ (CNN, September 21,2020), accessed November 2, 2022. [9] The Associate Press, ‘China Cuts Uighur Births with IUDS, Abortion, Sterilization’ (AP News, June 29, 2020), accessed November 2, 2022. [10] Ibid. [11] Ibid. [12] Art 2 Genocide Convention (n3). [13] Art 25(3)(e) Rome Statute (n4). [14] Ibid. [15] Ehlimana Memisevic, ‘Promoting a Bosnian War ‘Rape Hotel’ Means Erasing History’ (Balkan Insight, August 25, 2020), accessed 2 March 2022. [16] The Prosecutor v Jean-Paul Akayesu (Trial Judgement), ICTR-96-4-T, International Criminal Tribunal for Rwanda (ICTR), 2 September 1998, accessed 2 March 2022. [17] Prosecutor v Radislav Krstic (Appeal Judgement), [2004]IT-98-33-A, International Criminal Tribunal for the former Yugoslavia (ICTY), accessed 31 December 2022. [18]Prosecutor v Anto Furundzija (Trial Judgement), [1998], IT-95-17/1-T, International Criminal Tribunal for the former Yugoslavia (ICTY), accessed 31 December 2022. [19] Edina Becirevic, Genocide on the Drina River (Yale University Press 2014) 117. [20] ICTR (n16). [21] Ibid. [22] ICTY (n17). [23] Laura Kelly, ‘Biden Administration Reviewing China Genocide Designation’ (The Hill, January 27, 2021) accessed November 2, 2022. [24] ICTR (n16) . [25] 'Sexual Violence: A Tool of War (United Nations, March 2014) accessed November 2, 2022] [26] Shohret Hoshur, ‘Male Chinese ‘Relatives’ Assigned to Uyghur Homes Co-Sleep with Female ‘Hosts’' (Radio Free Asia, August 18, 2021) accessed November 2, 2022. [27] Kelly (n23). [28] Gavin Fernando, ‘Chinese Government Slammed over ‘Mass Rape’ Program’ (news.com.au, December 23, 2019) accessed November 2, 2022. [29] Joel Slawotsky, ‘Is China Guilty of Committing Genocide in Xinjiang?’ (2021) 20 Chinese Journal of International Law 625. [30] Ibid. [31] Ibid. [32]Ibid. [33] Stephanie Nebehay, 'China Rejects Genocide Charge in Xinjiang, Says Door Open to U.N' (Reuters, February 22, 2021) accessed March 2, 2023. [34] Lindsay Maizland, 'China's Repression of Uyghurs in Xinjiang' (Council on Foreign Relations, September 22 2022) accessed March 2, 2023. [35] Slatowsky (n29). [36] Michael Clarke, 'Ethnic Separatism in the People’s Republic of China History, Causes and Contemporary Challenges' (2013) 12 European Journal of East Asian Studies 109.


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