HAVING BRANDED China with committing the most heinous of crimes, the Biden administration is confronting diplomats and multinational firms with a vexing question: how do you compartmentalise genocide? The term was first applied by Mike Pompeo, the outgoing secretary of state, in his last full day in the job. The Biden administration has declined to rescind it. Thus the question is likely to haunt Olympic sponsors and athletes too, as next year’s winter games in Beijing draw closer.
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The administration contends it can work alongside China on matters like climate change, while excoriating it as genocidal because of its abuses of the Uyghur minority in the northwest province of Xinjiang. But human-rights advocates are watching to see if the administration will stick by the accusation and follow it up with severe penalties—or, by failing to do so, diminish the power of an accusation of genocide to shock the world’s conscience.
The Biden administration is considering what penalties, including sanctions on individual officials, it might add to measures put in place by the Trump administration. Biden officials also expect the genocide designation to bring new pressure to bear on multinational firms operating in China. One lawyer with experience combating crimes against humanity described fielding calls from companies with business in China asking what the designation might mean for them. “You put China together with the term ‘genocide’ and you’re in new territory,” this lawyer said.
Whether seen against the history of American indulgence of Chinese human-rights abuses, or the history of American reluctance to level accusations of genocide against even weak, murderous states, the administration’s move is extraordinary. So far no allies have shown much interest in lining up behind America. Joe Biden avoided the word on a call with Xi Jinping on February 10th. China has rejected the charge of genocide and warned against trying to interfere in matters like its approach to Xinjiang or Hong Kong. “They constitute a red line which must not be crossed,” according to China’s top diplomat, Yang Jiechi.
The American approach to naming and punishing genocide has been a tug-of-war between morality and expediency almost from the start. Like the word “genocide” itself, the UN convention describing the crime was created in the wake of the Holocaust. Under President Harry Truman, America signed the treaty in 1948, after it was unanimously approved by the General Assembly. (China has also signed the treaty.) But the Senate resisted ratifying it, out of fear it might infringe on American sovereignty, or that African-Americans or Native Americans might invoke its provisions against their own government.
Almost twenty years on, in 1967, Senator William Proxmire of Wisconsin vowed to argue for the genocide convention on the floor of the Senate each day it was in session until ratification. It took him more than 3,000 speeches across 19 years to win the argument. Two years later, in 1988, Congress complied with a stipulation of the treaty by passing its own anti-genocide law, which replicates the UN’s definition of the crime. The American law empowers the justice department to arrest and prosecute foreign officials it can connect to a campaign of genocide, but the law creates no obligation to do anything. Past administrations have nevertheless been reluctant to invoke the term, fearing that they would be conjuring intense pressure to act.
The Clinton administration took to referring carefully to “acts of genocide” during the Bosnian war and the slaughter in Rwanda, prompting one exasperated reporter to ask at a State Department briefing, “How many acts of genocide does it take to make genocide?” Eventually, the Clinton State Department did apply the word “genocide” to both those cases. That administration would go on to describe the mass killing of Iraqi Kurds in 1988 as genocide. Subsequent administrations applied the term to slaughter in Darfur, in 2004, and in areas under the control of ISIS in 2016 and 2017. The American government has never spelled out a process for arriving at a determination of genocide.
America has yet to stamp Myanmar’s persecution of its Rohingya minority as genocide. But in light of the deployment of the term to describe the treatment of the Uyghurs, the Biden administration is coming under intensified pressure from members of Congress and human-rights groups to invoke the word against Myanmar too. Antony Blinken, the secretary of state, has said he will review whether the treatment of the Rohingya amounts to genocide.
Many human-rights advocates argue that the case for genocide is more stark against Myanmar than against China. The UN convention says that genocide refers to acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. These advocates worry that it is harder to establish intent without evidence of mass slaughter, which has not been documented in Xinjiang, and that as a result the Biden administration may, in effect, define genocide downward. But others note that the UN convention, like the American law based on it, calls out “measures intended to prevent births within the group” as well as forced transfers of “children of the group to another group.” Journalists and NGOs have found extensive evidence of both practices in Xinjiang.
Rather than diluting the genocide convention, its application to Xinjiang could fulfil a deeper reading of the treaty. Raphael Lemkin, the Polish lawyer who invented the word “genocide”, had studied the developments that led to the Nazis’ campaign of extermination. The convention, which he helped draft, aimed not just to punish genocide but to prevent it in the first place.
As a result, some human-rights advocates regard calling out the treatment of the Uyghurs as a potentially important step forward in applying the treaty’s principles. According to this view, China’s government may be playing a long game in Xinjiang, committing genocide not by killing off the Uyghurs but by working across time to erase their identity as a people. “They have patience,” says Beth Van Schaack, a professor of human rights at Stanford Law School and a former deputy to the state department’s ambassador-at-large for war-crimes issues. “You can imagine them doing it in a much more methodical, slow way, even if it takes three generations.” The task the Biden administration has now set itself is to find a way to honour Mr Lemkin’s vision without blowing up the world’s most important bilateral relationship.■
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This article appeared in the United States section of the print edition under the headline “Genocide aside”