This post has been contributed by Professor Wade Mansell, Module Convenor for Public International law.
Those of you who do not follow the international news in the UK or USA may be unaware of current controversies considering the crime of genocide. You will of course be familiar with the current case in the International Court of Justice (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), and have probably followed the very recent events after the Myanmar military seized total power once more from the elected party, – The National League for Democracy. But while the application proceeds in the ICJ at a pace typically less than rapid, the relevance of genocide to events elsewhere has arisen. In perhaps his final poisoned chalice (tainted gift) to the incoming Biden administration, Secretary of State Mike Pompeo in his last day of office, labelled China’s administration in Xinjiang genocidal in its conduct towards the Uyghur minority. Such a label has not been rescinded by Biden, or his Secretary of State, Antony Blinken, and may have implications for the future relations between China and the US. More of that shortly.
Meanwhile in the UK a related issue has arisen. The current government found itself confronted not only by the Opposition, but by many of its own backbenchers who were arguing that there should be an obligation to ensure that future trade partners of the UK were not committing genocide. Worse still, in the eyes of the government, attempts were made to give British courts the power to determine if a country was guilty of genocide. Had the proposal passed, the UK would have become the first State in the UN to allow genocide cases to be considered in domestic courts.
To understand the implications of these issues, brief comments on the Genocide Convention, 1948 are relevant. It was of course drafted in a belated reaction to the Holocaust (belated in the sense that it was not prosecuted as a separate crime at Nuremberg but only as a war crime and/or a crime against humanity), and received the unanimous approval of the UN General Assembly. Article II of the Convention defines the crime of genocide as meaning:
any of the following acts committed with 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.
As is often noted, cultural genocide is not included within the Genocide Convention which is confined to acts that are physical. The obligation accepted by the parties to the Convention is stated in Article I, viz.
The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.
It is this obligation that underlies the current controversies in both the USA and the UK and has been described as ‘a tug-of-war between expediency and morality’. In the case of the USA, which ratified the Convention only in 1988, its delay having been caused firstly by the usual fear that sovereignty might be infringed, and secondly by apprehension that the provisions of the Convention might conceivably be argued to be relevant to the plight of either Native Americans, or even African Americans, successive US administrations had been circumspect in applying the ‘genocide’ label arguing that to do so could give rise to intervention or other unwanted obligations. Thus when discussing the war in Bosnia and even the massacres in Rwanda, the Clinton administration would refer only to ‘acts of genocide’. More recently the word has been used more freely (Darfur and the killing of Iraqi Kurds) but has not yet been applied to Myanmar and the Rohingya persecution. No criteria have been spelt out as to when the word is appropriate in US administration-speak. (Some impartial observers might see this US reticence as an example of how seriously the US does take those international obligations which it has elected to accept.)
The result of the use of the ‘genocide’ word has been to encourage human-rights advocates in their demands that actions be taken against China in order to apply pressure upon that Government to resile from its current Uyghur policies. Such action might be sanctions against named Chinese officials, a boycott of the next Olympic winter games due to be held in 2022 in Beijing, or further constraints on trade. Here the difficulty is of course that such actions are not only unlikely to lead to the hoped for changes in Chinese policies, but might in fact lead to a Chinese retaliation which could be more damaging to the US, than US actions are to China. The dilemma facing the Biden administration is clear, but if it fails to act having accepted the description of Chinese policies as genocidal it might ‘diminish the power of an accusation of genocide to shock the world’s conscience’.