This article is written by Indrasish Majumdar, LawSikho Intern. The article has been edited by Ruchika Mohapatra (Associate, LawSikho).
This article has been published by Abanti Bose.
Forced injections and unknown pills are not fictional horrors from scary movies, but a reality many Uyghurs have to encounter in mass arbitrary internment today. Human Rights abuses in Xinjiang against Uyghur women and children abound. The concerns over alleged forced abortion and sterilisation of Uyghur Muslims were recently raised by a US-based think tank “The Jamestown Foundation”. Human Right activists, in light of the findings, solicited an investigation into the potential genocide. Countless allegations of mass surveillance, detainment of Uyghurs in re-education camps based on their Muslim minority status and human rights violations were made following claims of mass sterilisation.
Forced sterilisation and population growth suppression
Central to the report are the findings of German Researcher Sr. Adrian Zenz, a virtuoso on the Uyghur population. The report comprises a combination of regional data, interviews with women who had been at internment camps and policy documents disperse light on attempts by the Chinese officials to suppress population growth among ethnic minorities in the Xinyang region, through forced abortions. To offset the disproportionate sex-ratio and ageing workforce caused by the one-child policy, in 2015 the Chinese government ratified the two-child policy nationwide. However, in terms of implementation, the treatment of Uyghur women varies significantly when compared to the Han population. Birth control campaigns were conducted in the Xinjiang region against women who exceed the two-child limit and refused to undergo an abortion, as well as against women who had children less than the limit. The Han women (majority), on the other hand, were encouraged to have more children.
The report expounded, the forced injection of IUDs (a form of birth control), sterilisation surgeries and injections to stop periods in Xinxiang increased tentatively by 60 per cent between 2014-2018. The nationwide use of IUDs in comparison fell. Population growth in the two largest Uyghur prefectures fell by 84 per cent between 2015 and 2018 as birth rates declined by about 24% in 2019 compared to the national average of 4.2%. The report revealed the Government envisaged “subjecting at least 80 per cent of women of childbearing age to intrusive birth prevention surgeries” and punishing birth control violators by internment in “training” camps. The author of the report describes his findings as “raising concerns that Beijing is doubling down on a policy of Han settler colonialism” while “providing the strongest evidence yet, that the Chinese government is carrying out a genocide of the Uyghur population.”
What constitutes genocide?
Dr Zenz concluded his findings by raising a question “whether Beijing’s policies in Xinjiang represent, in fundamental respects, what might be characterized as a demographic campaign of genocide per the text of Section D, Article II of the U.N. Convention on the Prevention and Punishment of the Crime of Genocide.”
Article 2 of the Convention on “The Prevention and Punishment of the Crime of Genocide” describes genocide as “the mental element of intent to destroy, in whole or in part, a national, ethnical, racial or religious group and the physical element of imposing measures intended to prevent births within the group.” Therefore, to prove a crime of genocide a two-tier test needs to be satisfied. An intention “to destroy, in whole or in part, a national, ethnical, racial or religious group ” coupled with the physical component. Zen contends the situation of Uyghur’s falls under “imposing measures intended to prevent births within the group” aiming to check reproduction by targeting the group’s demographic structure.
Even though it is uncommon, a genocide may occur in apparently peaceful situations. Historically, most genocides such as the Holocaust or the Rwandan genocide, have relied on the physical component of killing members of the oppositions or inflicting serious mental or bodily harm amidst armed conflict, but the same is not without exceptions.
A state or a group of states may bring a claim of genocide before the International Court of Justice against China concerning a breach of erga omnes obligation (an obligation owed by all states to the international community as a whole) and the International community may have the jurisdiction to prosecute individuals for serious crimes against humanity e.g. genocide.
Redress under International Law
Forced sterilisation is recognised as a war crime and crime against humanity of sexual violence by the Rome Statute. The Statute additionally recognises “imposing measures intended to prevent births within the group as an act of genocide, when committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” Atrocity crimes such as genocide have been codified by many states in their domestic criminal codes. “The Follow Up Mechanism” to the “Inter American Convention on the Prevention, Punishment and Eradication of Violence against women” has encouraged the national criminalisation of forced sterilisation as “a crime against humanity, a war crime, or act of genocide among its State parties.”
Human rights law defines forced sterilization “as any sterilization procedure carried out in the absence of the person’s full, free, prior, and informed consent. Consent is not valid unless the person has adequate and accurate information about the procedure and its consequences, as well as time to deliberate, without any coercion or inducement.”
Regional and U.N. human rights bodies have confirmed that forced sterilization practices violate multiple human rights protocols, including “the right to be free from torture, cruel, inhuman, or degrading treatment”. The bodies have clarified the obligation of states’ goes beyond eradicating forcible sterilisation, to preventing forced sterilization by regulating healthcare providers, creating domestic informed consent standards, investigating allegations, and providing the victims with effective remedies. “Article 1” of “CEDAW” defines discrimination as “any distinction, exclusion or restriction made based on sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women”. The forced abortion of Uyghur women is discriminatory per the enumerated standards. The sterilisation additionally vitiates “Article 9 of ICCPR” “(International Covenant on Civil and Political Rights)” the “Right to life and liberty of an individual” and “Article 12 of ICESCR” “(International Covenant on Economic, Social and Cultural Rights)” incorporating reproductive autonomy as a part and parcel of the Right to Health.
Some contemporary cases have iterated the importance of consent concerning the reproductive rights of women since the insertion of intrauterine injections in Uyghur women is performed without their informed consent. “The Inter American Court court of Human Rights’ ‘ held in “I.V. v. Bolivia” “the failure to obtain proper consent for a tubal ligation from a woman in labour violated her rights to physical integrity, humane treatment, personal liberty and security, respect for honour and dignity, respect for private and family life, freedom of expression (concerning access to information), and freedom to raise a family.”
The Namibian Supreme Court in “The Government of the Republic of Namibia v. LM and others” a case wherein 3 women were deemed sterile after testing HIV positive held “the practice of sterilization must be made with informed consent, as opposed to merely written consent.” In “V.C v. Slovakia” wherein the consent of a woman was obtained concerning a particular matter while she was in labour, the Court held “consent cannot be given in duress and consent given under duress did not amount to informed consent.” In “Cheung v. Canada” the Canadian Court of appeals held the state-run sterilisation of women “an extreme violation of basic human rights as to be persecutory.”
Holding China accountable before the ICC
Holding China accountable for the forced sterilisation of Uyghur Muslims is possible albeit difficult. The Chinese Government has reportedly failed to prosecute forced sterilisations on previous occasions, even though it deemed the same illegal. Any attempt towards holding Chinese authorities accountable before the ICC for hate crimes and ancillary tortures has failed since China is not a party to the Rome Statute. Concerning the accountability of particular states in China relating to the atrocities, China has additionally repudiated the jurisdiction of ICJ over inter-state disputes arising under the Genocide Convention and manifold Human Rights Treaties. The Human Rights oversight of China is robust. Twenty per cent of the states in China are not subject to an independent human rights body or treaty.
However, multiple legal routes prohibit forced sterilisations and provide avenues to pressurise the Chinese Government to put an end to the abuse against Uyghur women and glean accountability. Even though China is not a party to the “Rome Statute”, the abuses against Uyghurs involve Tajikistan and Cambodia, which are parties to the statute. On the same grounds, China can be brought within the jurisdiction of the ICC. China is also a party to “The International Covenant on Economic, Social and Cultural Rights (ICESCR)”, “International Convention on the Elimination of All Forms of Racial Discrimination (ICERD)”, “Convention against Torture (CAT)”, and “Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)”, and all these treaties directly or indirectly proscribe enforced sterilization.
“Article 1 of the Convention against torture” defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” The sterilisation of Uyghur Muslims contravenes the article and China being a signatory should respect and ratify the provisions in “good faith”.
China has repeatedly been asked to respect its international obligations and ensure steps to prevent Human Rights violations. In 2016 “The Committee against Torture” called on China to “ensure the effective prevention and punishment of coerced sterilization and forced abortion and to ensure all such allegations would be investigated, those responsible held accountable, and redress provided to victims.” The committee specifically addressed “custodial deaths, disappearances, allegations of torture and ill-treatment and reported use of excessive force” in Xinjiang. In the 1999 Report of the “UN Special Rapporteur on violence against women”, Radhika Coomaraswamy berated China alleging “despite the assurances by the State Family Planning Commission that ‘coercion is not permitted,’ there has been no indication of sanctions being taken against officials who perpetrate such violations.”
Mihirigul Tursun, an Uyghur woman currently living in exile in the U.S was the first to testify before the “Congressional-Executive Commission”, dispersing light on the forced sterilization of Uyghur women in the internment camps at the Amnesty International’s conference in Tokyo. Tragically, after coming to the U.S and undergoing medical examinations, Tursun’s worst nightmares were confirmed. She had been sterilized and lost permanently the ability to conceive again. The three triplets she had birthed before being sent off to the camp underwent some unknown surgery performed without her information or consent. One of them died and the other two exhibited serious health issues.
The forced sterilisation of the Uyghurs in China is still conspicuous, partly because of the Government’s lackadaisical attitude coupled with the failure of the authorities to investigate the alleged atrocities, the trauma and stigma debarring the victims from coming forward and the prevailing mistrust (though justified) in the judiciary and executive. Even though the legal arguments are justified no roadmap exists preventing forced sterilizations and their insidious recurrence in China. Since legal recourse is not the most effective answer to the alleged atrocities, diplomatic pressures might help e.g. the sanctions notified in early July on Chinese officials by Washington in light of the atrocities being committed in Hong Kong. It is all the more important to put a lease on the dragon concerning the human rights violations since it appears so blissfully unbothered about what the rest of the world thinks as exemplified by the recent “Security Law” enforced in Hong Kong.
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