What Does Calling Something a Genocide Actually Mean?

(Bloomberg) -- On his last day in office, U.S. Secretary of State Mike Pompeo issued a “determination” accusing China of committing “atrocities” against its Uighur minority in the country’s Xinjiang region. He alleged the government and Chinese Communist Party were responsible for crimes against humanity similar to those prosecuted at the Nuremburg Trials after World War II. He also leveled the charge of genocide, which he said was ongoing and described as “the systematic attempt to destroy” the Uighurs by the Chinese party-state. The practical impact of the determination is unclear.

1. What are crimes against humanity?

The origin of the term is unclear but the concept first arose in the context of the slave trade and abuses under European colonialism in Africa. The 1998 Rome Statute that established the International Criminal Court to investigate and prosecute such offenses defines it as crimes including murder, rape, torture and enslavement “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The U.S. signed the Rome Statute in 2000 but no president has submitted it to the Senate for ratification. China didn’t sign it.

2. How is genocide defined?

It was first recognized as a crime under international law in 1946 by the United Nations General Assembly, after the horrors of the Holocaust. A 1948 U.N. convention defines it as specific acts, including killings, sterilizations or removal of children, “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Proven intent on the part of the perpetrators to physically destroy a defined group is crucial here, according to the UN, as opposed to cultural destruction or dispersal of a group, though in particular the latter could still constitute a crime against humanity.

3. When has it been used?

Prior to the creation of the ICC, ad hoc international tribunals set up by the UN have declared that the killings of Tutsi civilians in 1994 in Rwanda and massacres of Muslim men in 1995 in the Bosnian city of Srebrenica were genocide. In 2008, the ICC charged Sudan’s former President Omar al-Bashir with genocide, saying the evidence showed he had masterminded and implemented a plan to largely destroy three ethnic groups in Darfur. The Khmer Rouge Tribunal in Cambodia has accused the group’s former leaders of genocide related to the killings of Vietnamese and Cham minorities in the country. The ICC and the International Court of Justice, the UN’s highest tribunal, are also investigating Myanmar for alleged atrocities committed against its Rohingya Muslims, including “ethnic cleansing” and “crimes against humanity” with “genocidal intent.”

4. What powers do the courts have?

The ICC, established in 2002 under the Rome Statute to investigate and prosecute international crimes, has limited power. In the first place, the court has jurisdiction only over countries that are party to the statute, though the UN Security Council can refer cases from countries that aren’t a party to the court as well. However, as permanent members of the Security Council, China and the U.S. hold veto power to block referrals to the ICC. The court is also dependent on the cooperation of states, whether or not they are party to the Rome Statute, to do its job. It needs this cooperation to arrest people, collect evidence and protect witnesses. In practice this means the court has very limited ability to bring cases against individuals accused of crimes against humanity or genocide when these individuals are part of a government in power.

5. What impact does the U.S. declaration have?

It’s unclear, especially with a new administration coming in. When then-Secretary of State John Kerry declared in 2016 that Islamic State had committed genocide, he acknowledged the move was largely symbolic, but said the U.S. would support efforts to build a case for international prosecutions against the terrorist group. In his statement, Pompeo called on “all appropriate multilateral and relevant juridical bodies, to join the United States in our effort to promote accountability for those responsible for these atrocities.” He said the State Department would continue to investigate and would make its evidence available to “appropriate authorities and the international community to the extent allowable by law.” The U.S. had already levied sanctions against senior party leaders and state-run enterprises and banned some imports from the region.

6. Could there be other ramifications for China?

In a December report, the ICC rejected a call by exiled Uighurs to investigate China, citing jurisdictional issues. But there are other potential pressure points. By making a genocide determination, Pompeo might have given more credence to calls to boycott companies that do business in Xinjiang. Walt Disney Co. found itself in hot water last year because it shot parts of its “Mulan” remake in Xinjiang and thanked some of the region’s government entities, including a police bureau blacklisted by the U.S., in the movie’s closing credits. That prompted an immediate call to boycott the movie. Twitter, meanwhile, has locked the official account for the Chinese Embassy to the U.S. after a post that defended the Beijing government’s policies in the western region of Xinjiang, where critics say China is engaged in the forced sterilization of minority Uighur women.

The Reference Shelf

• QuickTakes on the ICC and the situation in Sudan and Myanmar.
• The Rome Statute in full and the ICC explains how it works.
• A Congressional Research Service report on Uighurs in China.
• Human Rights Watch wrote to the International Olympic Committee to raise concerns about holding the 2022 Winter Olympics in Beijing.
• A UN panel report concluded Islamic State was guilty of genocide against the Yazidi minority in Syria.

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