Is There a Need to Criminalize Cultural Genocide?
By Nicole Di Maria
Cultural genocide and national security, where does China stand today?
The concept of cultural genocide[1], and the possibility to address it, have been discussed since the drafting process of the Genocide Convention. However, during the UN meetings to discuss said Convention, the actions referring to cultural genocide were removed from the draft[2]. Some scholars argue that the international community needs a universal understanding of cultural genocide in international law[3]. One of the modern examples that highlighted the consequences of our lack of it, is the case of the “re-education camps” in the Chinese region of Xinjiang.
Through an inquiry into the historical context of the Xinjiang case and the legal response available in the international system, this work analyzes the possibility for cultural genocide to exist as a separate category of genocide. Moreover, it recognizes that the criminalization of “cultural genocide” as a different category of genocide is complicated to address due to the difficulties in defining thresholds in legal complexity and State sovereignty.
The analysis of the Xinjiang case requires examining China’s ethnic separatism, as well as understanding how national security policies led to the creation of “re-education” camps. To explain the issue, we ought to denounce the misconception that the People’s Republic of China (PRC) is culturally homogeneous. This idea comes from the presence of 91.5% of Han Chinese in the population[4]. However, even if the 55 non-Han ethnic minorities that live in China add up to just 8.49%, they represent more than 113 million people. Not all these minorities have been a threat to the territorial integrity of the PRC, but the Xinjiang Uyghur Autonomous Region (XUAR) and the Tibetan Autonomous Region (TAR) are. After the creation of the PRC in 1949, a system of “national regional autonomy” was implemented. This latter allowed the 55 non-Han ethnic minorities to achieve their own goals within a unified Chinese State following the leadership of the Han-dominated Chinese Communist Party (CCP)[5].
Already throughout the Maoist era, the policies implemented by the CCP — such as those of the Great Leap Forward and the Cultural Revolution — have addressed the influence of religion and ethnic minorities’ elites overlooking local circumstances. When fighting the capitalist superstructure that did not correspond to a socialist economic scheme, the CCP also targeted the practices of ethnic minorities due to their non-conformity to the regime’s ideals. More grievances matured in territories like XUAR and TAR due to the economic disparities widened by Deng’s economic policies. Intuitively, the continuous state-interference, brought these minorities to various insurgencies subsequently suppressed by the State. Among the policies used to suppress the protests, there were also regular Strike Hard anti-crime campaigns, aiming at accelerating trials to sentence criminals for “illegal religious activities” and fueling separatist attitudes[6].
At the beginning of the twenty-first century, things did not improve. The worldwide fear towards terrorist movements after 9/11 incentivized islamophobia. In China, such a hateful environment led to the delegitimization of separatist movements that were growing in Xinjiang and fueled the repressive policies against minorities. Following the Strike Hard campaigns, the labeling of minority groups as promoting “illegal religious activities” furthered the idea that terrorism was spreading in the PRC[7]. With Xi Jinping as the President of the CCP, new laws were implemented to have a stricter grip on domestic security.
China started shifting its securitization focus from external factors to internal ones through a new National Security Law approved in 2015. The change in PRC’s security concerns towards the domestic sphere highlights the weight of the policies targeting minorities in the country[8]. Article 2 of the new law defining the concept of “national security” shows a problematic approach[9]. Indeed, the definition does not provide any specific definition of what constitutes a threat. Additionally, in 2015, another law framing antiterrorism legislation was adopted. The new law presented quite broad definitions too. In Article 3, “terrorism” is defined broadly enough to make activities pertaining to genuine religious practices illegal in the PRC[10]. This counter-terrorism law particularly targeted the Uyghur population of Xinjiang, creating more restrictions on the rights of minorities with separatist views. In 2018, this counter-terrorism law was amended, allowing the establishment of “vocational education centres”[11] with the scope of countering extremist thoughts via education, skills training, and psychological institutions[12]. Now, taking this historical context into consideration, we might argue that the CCP has always been implementing policies — overtly or covertly — aiming at the absorption of ethnic and religious minorities. At this point, it is necessary to take a step back and look at the current international legal framework available to tackle genocide.
Genocide in International Law, analyzing it from Lemkin to external Treaties.
In the aftermath of World War II, Professor Lemkin’s[13] efforts to campaign in favor of making genocide an international crime began. On December 11, 1946, Resolution 96(I) was adopted by the General Assembly. It officially affirmed that genocide was a crime under international law[14]. Throughout the discussion process to finalize the text of the Convention, there have also been negotiations regarding the presence of cultural genocide as a separate category of genocide. Indeed, Professor Lemkin had described three forms of genocide: physical, biological, and cultural[15]. He saw cultural genocide as the most important part of the Convention[16], but due to the ambiguity intrinsic to the concept, States voted against its inclusion in the Convention[17].
To highlight the differences between the Draft Convention and its final text, we ought to note what elements are common between the current definition of genocide and the original definition of cultural genocide. This latter’s means of perpetration were conceived to be: (a) forced transfer of children to another human group, (b) forced and systematic exile of individuals representing the culture of a group, (c) prohibition of the use of national language even in private intercourse, (d) systematic destruction of books printed in the national language, or of religious works, or prohibitions of new publications, (e) systematic destruction of tangible cultural elements[18]. Meanwhile, the current definition of genocide includes the following means of perpetration: (a) killing members of the group, (b) causing serious bodily or mental harm to the members of the group, (c) deliberately inflicting conditions of life on the group that bring to its total or partial physical destruction, (d) imposing measures to prevent births, (e) forcibly transferring children of the group to another[19]. On December 10, 1946, the crime of cultural genocide was voted out from the Convention by 25 votes to 16, with 4 abstentions[20]. To summarize the debate that was furthered on the topic, it is useful to look at the interventions from Pakistan, Venezuela, China, Sweden, Canada, and Iran. Pakistan and Venezuela argued in favor of maintaining the crime of cultural genocide, recalling RES 96(I) to denounce the elimination of cultural genocide as contrary to the spirit of said Resolution. Furthermore, Venezuela argued that relying only on Human Rights treaties for the criminalization of cultural genocide would make the Convention useless due to the existence of domestic legislations outlawing genocidal actions[21]. Similarly to Venezuela[22], China voted in favor of maintaining the article, stating that the mere use of Human Rights treaties would make the criminalization of cultural genocide less binding[23]. Sweden, Canada, and Iran voted against keeping the article, for historical reasons and political limits.
While the arguments above mentioned are useful for understanding the strains of narrowing down the concept of cultural genocide, Iran’s arguments against the inclusion of cultural genocide in the convention are more centered on the practical difficulties of applying the concept. First, Iran argued that RES 96(I) itself focused on genocide’s physical aspects. Additionally, Iran affirmed that there is an inherent practical difficulty in determining the concrete elements that form a culture and that once those are established no domestic legislation could interfere with them. Moreover, the inclusion of cultural genocide would imply the protection of barbarian cultural practices[24]. The issues raised by all the above-mentioned States are considerations that still need to be taken into account when addressing the topic of cultural genocide.
As of nowadays, cultural genocide is not treated within international law[25]. But before considering how current international law is protecting cultural heritage, it is necessary to note another essential way in which cultural genocide is significant in international law. Indeed, the characteristics that constituted the crime of cultural genocide as intended by Lemkin, are important in establishing the mens rea[26] in a case of genocide. Genocide, being a crime of specific intent, requires tribunals to prove the mental state of the perpetrator, so the destruction of the specific characteristics of a group can be used to prove the intent of the aggressor to eliminate a group as such[27].
Therefore, it is possible to construct the actus reus through the addressing of nonphysical genocidal crimes. In the case of Xinjiang, it might be argued that the destruction of an important mosque in May 2023[28] might be considered evidence to show the intent to destroy Xinjiang’s population of Muslim Uyghurs[29]. However, further circumstantial evidence needs to be gathered to prove the intent[30]. On this note, there are other issues to face during the construction of both the mens rea and actus reus in the context of cultural genocide. These issues refer to the struggles to identify what constitutes a protected racial, ethnic, religious, or national group. The acts of cultural genocide, in which the perpetrator targets the symbols of a group’s unique heritage, are helpful in delineating the group itself [31].
In current international law, there are several specialized treaties and conventions on cultural protection, aiming at safeguarding the intangible and tangible heritage of cultures. One of the most important documents is the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property[32]. This shows the international community’s commitment to protecting the illicit transportation of cultural properties. Two years later, another Convention targeting non-movable cultural heritage has been adopted. This is the Convention for the Protection of the World Cultural and Natural Heritage[33], from 1972. Said Convention provides definitions for cultural and natural heritage[34] as two different categories. Through this tool, the international community agreed to constitute an intergovernmental committee[35] to enhance the recognition of world heritage sites while better ensuring their protection. Although other treaties that protect cultural heritage exist[36], in this context, it is important to look at the Convention for the Safeguarding of the Intangible Cultural Heritage[37], which establishes the existence of a committee[38] to protect intangible cultural heritage, and clearly defines what intangible cultural heritage means and how it is manifested[39].
The Uyghurs’ situation and the limits of International Law.
Now, it is possible to analyze the violations of international law in the case of Xinjiang. The International Consortium of Investigative Journalists (ICIJ) has released classified documents central to the China Cables[40], of which authenticity has been confirmed by experts[41]. Such documents show the scale of Beijing’s initiatives and policies to tackle the terrorist threats coming from the Muslim groups of the country. The leaked documents, together with the declarations from survivors of the camps, offer a comprehensive view of the serious crimes that are still being perpetrated in China.
In a telegram leaked by the ICIJ, coming from the Communist Party commission in charge of Xinjiang’s security apparatuses, there are instructions on how to improve the quality of education and trainings in the camps. To do so, it is overtly stated that the facilities must be furnished with full video surveillance coverage of both dormitories and classrooms, to ensure that there are no blind spots left[42], not allowing the right to privacy to the “students”[43]. In the same leaked document, it is asked to make the “students” adhere to a concentrated study of the national language (Mandarin), as well as the gradual employment of such language in students’ daily communication. According to the telegram, such method is used for the “de-extremification” of students[44]. Nonetheless, Article 2(2)(a) of the Convention for the Safeguarding of the Intangible Cultural Heritage, includes “oral traditions and expressions, including language” as one of the manifestations of intangible cultural heritage.
Another of the leaked documents, presents a criminal judgment for a citizen of Uyghur nationality[45]. In such judgment, the defendant is accused of “incitement to ethnic hatred and ethnic discrimination”. The accusations seem to have come due to the man preaching the beliefs of his religion, labeled by the document as incitement of extremist religious thoughts. To the Court, the incitement came from the defendant stating that one would become a kafir (i.e., non-believer) through lack of prayers and other behaviors considered sinful to his religion. On this note, other leaked documents give instructions to state’s officials about what to do once a student is brought back to his family. They received order to explain to the students’ families that their relatives had been exposed to religious extremism and needed to be eradicated of their violent thoughts, as well as using references to some “disease” and “virus” to be eradicated[46].
It seems that Xi Jinping gave several private speeches to officials after an outbreak of violence in Xinjiang perpetrated by Uyghurs, dating back to 2014. In those speeches, Xi had already called for the use of “organs of dictatorship” to deal with extremism but did not explicitly refer to the creation of re-education camps[47]. However, now that witnesses are releasing declarations as survivors of the camps, the situation appears to be the one anticipated by Xi’s speeches. Gulbahar Haitiwaji, a Uyghur author, tells her story about how she survived a Chinese re-education camp[48]. She discloses it was in 2016 when she received a call saying she had to go back to Karamay, a city in Xinjiang, to sign some documents after she had been living in France for ten years.
Haitiwaji’s testimony provides essential details concerning the strict security measures implemented in Xinjiang. When Haitiwaji went to sign the papers for which she had been called back to China, she was brought to a room with two policemen, who accused her daughter of being a terrorist due to a picture of the girl smiling and holding a separatist flag of East Turkistan, which had been banned by the CCP. After an interrogation, she was brought to one of the re-education facilities. She says that the officials were forcing people to move restlessly, punishing them for fainting, and occasionally making them disappear after such occurrences. Moreover, Haitiwaji denounced officials chaining her up to her bed for 20 days as a punishment. Her statements framed the camps as under military rules, subjecting students to strict discipline, including silence, physical taxation, punishing yawns, whispers, and wipe movements after accusing them of praying.[49] She also states that what were called vaccines, were shots to enforce sterilization[50]. According to a UN Office of the High Commissioner for Human Rights report from 2022, China may be guilty of serious violations of human rights[51]. In 2023, more than fifty UN State members agreed to issue a joint declaration[52] to condemn the Chinese government’s crimes against humanity committed against Uyghurs and Turkic groups.
Conclusion
China has a long history of policies aiming at the assimilation of separatist movements and people such as the Uyghurs. Economic inequalities and legal discrimination are issues that non-Han minorities are still facing today. If anything, stances of systemic violations of human rights in the so-called “re-education” camps are coming to the surface. However, although some scholars above cited have been talking about these occurrences as modern instances of cultural genocide, modern international law does not criminalize it as such.
As mentioned, the criminalization of “cultural genocide” as a different category of genocide is complicated to address because of the legal thresholds and State sovereignty issues that arise, as well as the definitional ambiguity intrinsic to the concept itself. Due to the existence of treaties protecting tangible and intangible cultural heritage, together with the treaties protecting human rights, it is already possible to tackle human rights violations in cases such as Xinjiang’s camps.
However, the current limits in addressing the crimes relating to cultural genocide should neither limit future debates on the topic nor block further investigations to face the current situation in Xinjiang and better design stronger measures.
Note
[1] UN Secretary-General. “Draft Convention on the Crime of Genocide,” June 26, 1947. https://digitallibrary.un.org/record/611058 at 26: defines “cultural genocide” as “the destruction by brutal means of the specific characteristics of a group.”
[2] “Official Records of the 3rd Session of the General Assembly: Legal Questions: 6th Committee: Summary Records of Meetings, 21 September — 10 December 1948.” 1948. https://digitallibrary.un.org/record/698144 at 206.
[3] Finnegan, Ciara. 2020. “The Uyghur Minority in China: A Case Study of Cultural Genocide, Minority Rights and the Insufficiency of the International Legal Framework in Preventing State-Imposed Extinction.” Laws 9 (1): 1. https://doi.org/10.3390/laws9010001. And: Nersessian, David. 2018. “The Current Status of Cultural Genocide Under International Law.” SSRN Electronic Journal. https://doi.org/10.2139/ssrn.3287134.
[4] Clarke, Michael. “Ethnic Separatism in the People’s Republic of China History, Causes and Contemporary Challenges.” European Journal of East Asian Studies 12, no. 1 (March 2013): 109–33. https://doi.org/10.1163/15700615-13120108 at 109.
[5] Ibid. at 110-113.
[6] Ibid. at 119-123.
[7] Ibid. at 130.
[8] Finnegan, Ciara. 2020. “The Uyghur Minority in China: A Case Study of Cultural Genocide, Minority Rights and the Insufficiency of the International Legal Framework in Preventing State-Imposed Extinction.” Laws 9 (1): 1. https://doi.org/10.3390/laws9010001 at 7.
[9] National Security Law of the People’s Republic of China, Order No. 29 of the President, 2015, https://lawinfochina.com/display.aspx?id=19663&lib=law at art.2 defines the concept of “national security” as: “a status in which the regime, sovereignty, unity, territorial integrity, welfare of the people, sustainable economic and social development, and other major interests of the state are relatively not faced with any danger and not threatened internally or externally and the capability to maintain a sustained security status.”
[10] Finnegan, at 7.
[11] “China Uighurs: Xinjiang Legalises ‘re-Education’ Camps.” BBC News, October 10, 2018. https://www.bbc.com/news/world-asia-45812419.
[12] Finnegan, 7-8.
[13] Raphael Lemkin was a Polish-Jewish jurist, born in 1900, who coined the word “genocide”. https://encyclopedia.ushmm.org/content/en/article/coining-a-word-and-championing-a-cause-the-story-of-raphael-lemkin.
[14] United Nations General Assembly. Resolution 96(I) of 11 December 1946. https://digitallibrary.un.org/record/209873.
[15] UN Secretary-General. “Draft Convention on the Crime of Genocide,” June 26, 1947. https://digitallibrary.un.org/record/611058, at 25-26 defines physical, biological, and cultural genocide respectively as: actions intended to cause the death of members of a group or injuring their physical integrity, actions aimed at the extinction of a group by systematic restriction of births, actions aimed at the destruction of the specific characteristics of a group.
[16] Bachman, Jeffrey S. 2019. “An Historical Perspective: The Exclusion of Cultural Genocide from the Genocide Convention.” In Cultural Genocide. Routledge. Available at https://doi.org/10.4324/9781351214100, at 47.
[17] Official Records of the 3rd Session of the General Assembly: Legal Questions: 6th Committee: Summary Records of Meetings, 21 September (10 December 1948.) https://digitallibrary.un.org/record/698144, at 203 is found an instance such as the declaration of Mr. De Beus (Representative of Netherlands) addressing the issue, saying that: there was an essential difference between cultural genocide and genocide as defined in article I, cultural genocide fell rather within the sphere of the protection of human rights, and cultural genocide was too vague a concept to admit of precise definition and delimitation.
[18] “Draft Convention on the Crime of Genocide”, at 27-28.
[19] It must be noted that the “Convention on the Prevention and Punishment of the Crime of Genocide”, available at https://treaties.un.org/doc/Treaties/1951/01/19510112%2008-12%20PM/Ch_IV_1p.pdf, presents the mentioned genocidal actions as such when it is present an intent to destroy a national, ethnic, racial, or religious group as such.
[20] Official Records of the 3rd Session of the General Assembly, at 206.
[21] Ibid. at 193-196.
[22] Ibid. at 195, Venezuela stated that not including cultural genocide would have meant overlooking at its means of perpetration due to their “less spectacular” nature while allowing them to achieve their goal of losing humanity’s heritage in form of cultural contributions.
[23] Ibid. at 198.
[24] Ibid. at 200-201
[25] Prosecutor v. Krstić, Case No. IT-98-33-A, p. 8, para. 20, (ICTY Trial Chamber Apr. 19, 2004), https://www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.pdf, stating that “[C]ustomary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. [A]n enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.”
[26] Genocide is an international crime based on the intent of the perpetrator to purposefully wanting to destroy a certain group, which is oftentimes hard to prove. See Article 2 of: Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948. United Nations Treaty Series, vol.1, chapter IV, https://treaties.un.org/doc/Treaties/1951/01/19510112%2008-12%20PM/Ch_IV_1p.pdf. [27] Prosecutor v. Krstić, p. 106, para. 53, stated that: “The destruction of culture may serve evidentially to confirm an intent, to be gathered from other circumstances, to destroy the group as such.”
[28] Al Jazeera. “Clashes at Ancient China Mosque over Planned Demolition.” Al Jazeera, May 30, 2023. https://www.aljazeera.com/news/2023/5/30/clashes-at-ancient-china-mosque-over-planned-demolition.
[29] Prosecutor v. Krstić, p. 106, para. 53, takes the case of a mosque destroyed as the confirmation of intent to destroy the Srebrenica part of the Bosnian Muslim group.
[30] Ibid. at p.106, para. 54, states that: “[…] the intent to destroy the group as a group is capable of being proved by evidence of an intent to cause the non-physical destruction of the group in whole or in part, except in particular cases in which physical destruction is required by the Statute. This is not an excepted case. Consequently, the fact that, in this case, women, children and the elderly were allowed to survive did not signify an intent which was at variance with that which is required.”
[31] Nersessian, David. 2019. “A Modern Perspective: The Current Status of Cultural Genocide under International Law.” In Cultural Genocide. Routledge. Available at https://doi.org/10.4324/9781351214100, at 71.
[32] UNESCO. “Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property.” Paris, 10 November, 1970. https://www.unesco.org/en/legal- affairs/convention-means-prohibiting-and-preventing-illicit-import-export-and-transfer-ownership-cultural.
[33] UNESCO. “Convention for the Protection of the World Cultural and Natural Heritage.” Paris, 16 November, 1972. https://www.unesco.org/en/legal-affairs/convention-concerning-protection-world-cultural-and-natural-heritage.
[34] Ibid. at Art.1, Art.2.
[35] Ibid. at section III.
[36] Stances of said other treaties are: Convention for the Protection of Cultural Property in the Event of Armed Conflict, with Implementing Regulations (1954), Convention on the Protection of the Underwater Cultural Heritage (2001), available at https://www.coe.int/en/web/herein-system/unesco.
[37] UNESCO. “Convention for the Safeguarding of the Intangible Cultural Heritage.” Paris, 17 October, 2003. https://www.unesco.org/en/legal-affairs/convention-safeguarding-intangible-cultural-heritage.
[38] Ibid. at Art. 5.
[39] Ibid. at Art. 2. (1), (2).
[40] The ICIJ describes the China Cables as “an investigation into the surveillance and mass internment without charge or trial of Uighurs and other Muslim minorities in China’s Xinjiang province, based on leaked classified Chinese government documents.” Available at https://www.icij.org/investigations/china-cables/about-the-china-cables-investigation/.
[41] In their article “Read the China cables documents” available at https://www.icij.org/investigations/china-cables/read-the-china-cables-documents, the ICIJ states that the documents’ authenticity was confirmed by “several leading experts, including James Mulvenon, vice-president of Defense Group Inc, Adrian Zenz, a senior fellow in China studies at the Victims of Communism Memorial Foundation in Washington, D.C. and several intelligence sources who cannot be identified”.
[42] Ibid. at para. 3.
[43] Article 12 of the UDHR available at https://www.un.org/en/about-us/universal-declaration-of-human-rights, states that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” Moreover, Article 17(1) of the ICCPR available at https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en, also states that: “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.”
[44] Stated at paragraph 8 of the telegram, available at https://www.icij.org/investigations/china-cables/read-the-china-cables-documents/.
[45] The court document is available at https://www.icij.org/investigations/china-cables/read-the-china-cables-documents/.
[46] Kuo, Lily. “‘Show No Mercy’: Leaked Documents Reveal Details of China’s Xinjiang Detentions.” The Guardian, November 17, 2019. Available at https://www.theguardian.com/world/2019/nov/17/show-no-mercy-leaked-documents-reveal-details-of-chinas-mass-xinjiang-detentions.
[47] Ibid.
[48] Haitiwaji , Gulbahar, and Rozenn Morgat. “How I Survived a Chinese ‘re-Education’ Camp for Uyghurs.” The Guardian, January 12, 2021. Available at https://www.theguardian.com/world/2021/jan/12/uighur-xinjiang-re-education-camp-china-gulbahar-haitiwaji.
[49] Ibid.
[50] Statement that, if proven right, would mean the CCP is a step closer to being accused of genocidal crimes. Indeed, as previously mentioned, “imposing measures intended to prevent births within the group” is a part of the genocidal actions listed in the Genocide Convention. See Article 2(d) of: Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948. United Nations Treaty Series, vol.1, chapter IV, https://treaties.un.org/doc/Treaties/1951/01/19510112%2008-12%20PM/Ch_IV_1p.pdf.
[51] Charbonneau, Louis. “UN Member Countries Condemn China’s Crimes against Humanity.” Human Rights Watch, October 23, 2023. https://www.hrw.org/news/2023/10/23/un-member-countries-condemn-chinas-crimes-against-humanity#:~:text=UN%20Member%20Countries%20Condemn%20China’s%20Crimes%20Against%20Humani ty, More%20than%2050&text=The%20UN%20report%20corroborated%20the,Turkic%20Muslim%20communitie s%20in%20Xinjiang.
[52] Ibid.