Feds under fire for deferring decision to declare China’s actions against Uyghurs as genocide

As MPs across the partisan spectrum question why the Canadian government has yet to declare that the Chinese government’s repression of Uyghurs constitutes genocide, Global Affairs says an international court or tribunal must be the one to make the declaration, but international law experts say that’s not the case.

As a state party to the Convention on the Prevention and Punishment of the Crime of Genocide, more commonly known as the Genocide Convention, Canada has an obligation to declare a genocide is occurring when one is taking place, say international law experts, and deferring such judgement to an international court is nothing more than an excuse to not act.

MPs on the House Foreign Affairs Committee questioned Global Affairs officials on March 28 as to why the government hasn’t made a declaration of genocide more than a year after the House of Commons voted unanimously to declare that a genocide is being committed by China against its Uyghur population and other Turkic Muslims. The non-binding vote, which passed with 266 votes in favour and none against on Feb. 22, 2021, had the support of all parties, including 87 Liberal MPs. Cabinet members, however, abstained from the vote.

A March 2021 report from the Subcommittee on International Human Rights concluded that China is committing genocide as defined under the Genocide Convention. The report was adopted by the House Foreign Affairs Committee. In it, the subcommittee called on the government to declare the Chinese government’s persecution of Uyghurs an act of genocide.

Beijing has long denied that a genocide of Uyghurs is taking place in Xinjiang.

Bloc Québécois MP Stéphane Bergeron (Montarville, Que.), his party’s foreign affairs critic, said in French that Global Affairs has “strangely enough” refused to acknowledge that genocide is taking place.

“It’s as if everything that is obvious for many people, including for Parliamentarians in Canada, was not for Global Affairs,” he said at the committee on March 28, asking what is stopping Canada from recognizing that a genocide is taking place.

Global Affairs official Jennie Chen, executive director for Greater China Policy and Coordination, said a declaration of genocide is one for the government to make, and officials will provide advice to ministers “when that time comes.”

But later in the committee hearing, Global Affairs director general and deputy legal adviser Carolyn Knobel said a “determination of whether a situation constitutes a genocide must be done by a competent international court or a tribunal, bearing in mind the complex legal thresholds that are involved.”

Knobel suggested that finding “specific intent” to commit genocide is “key” to making such a determination. She said without a finding of “specific intent,” breaches of international law would instead amount to crimes against humanity, or war crimes.

The Hill Times asked Foreign Affairs Minister Mélanie Joly’s (Ahuntsic-Cartierville, Que.) office whether the government believes that only an international court or tribunal can determine whether a genocide has taken place. A spokesperson for Global Affairs responded on behalf of the minister’s office.

“We have the responsibility to work with others in the international community in ensuring that any allegations of genocide are investigated by an independent international body of legal experts,” spokesperson Christelle Chartrand said in an email, noting that Canada is “deeply disturbed” by reports of human rights violations in Xinjiang.

Chartrand said Canada has “repeatedly” called on Beijing to allow the Office of the United Nations High Commissioner for Human Rights and UN Special Procedures to have “immediate, unfettered, and meaningful access to Xinjiang.” 

In 2018, the Canadian government recognized Myanmar’s persecution against the Rohingya as an act of genocide through a motion in the House, which was supported by cabinet ministers. No international court or tribunal had made that determination at the time. A case under the Genocide Convention is currently before the International Court of Justice.

Speaking at the House Foreign Affairs Committee on March 24, Joly said Canada takes allegations of genocide “very seriously, particularly in the Xinjiang Uyghur region,” noting that was a reason Canada did not send elected officials to the Beijing Olympics in February.

The U.S. government under then-president Donald Trump declared in 2021 that a genocide was taking place in Xinjiang. That determination has been upheld by the Biden administration.

Conservative MP Garnett Genuis (Sherwood Park-Fort Saskatchewan, Alta.), a member of the House Foreign Affairs Committee, told The Hill Times that the government’s delay in recognizing the situation as a genocide is “totally unacceptable.”

He said when the Subcommittee on International Human Rights conducted its study, it heard from many international law experts, including former Liberal justice minister Irwin Cotler, who made the case that nation states that are parties to the Genocide Convention have an obligation to recognize genocide when it is happening and to discharge their obligations under the convention.

“Canada has been failing to live up to its obligations under the Genocide Convention. It is an obfuscation and a denial of our responsibilities for the government to suggest that we shouldn’t act unless or until there is some determination by some to-be-identified international body,” he said. “Fundamentally, Canada’s responsibilities as a state party under the Genocide Convention are clear: it is to recognize and respond to genocide when it has happened, not to wait for somebody else to tell us first.”

Genuis said the government’s lack of determination to date is a decision in itself.

“The effect of continually saying that they are thinking about it is to not act,” he said.

Liberal MP Sameer Zuberi (Pierrefonds-Dollard, Que.), who subbed in at the March 28 committee meeting, told The Hill Times that while he understands why the government wants to wait on an international court to determine whether genocide is taking place, he stands by the subcommittee’s designation and his support for the House motion to recognize genocide.

“I believe that where we should be going as a country is to recognize that genocide is occurring,” he said, noting it would be “good” if the Canadian government follows the U.S. government’s lead.

Zuberi said in their testimony, Global Affairs officials recognized that hundreds of thousands of children are being separated from families, which he said is “one of the key elements of genocide.”

“So, I’m hopeful that we will land there as a country,” he said, adding that each country should make its own legal determination of whether a genocide is taking place. “Our determination doesn’t necessarily rest on those international [bodies] to determine genocide is in fact occurring.”

In the meantime, he said more can be done to prevent goods made with forced labour from entering the Canadian market.

Experts dispute the government’s position that it’s up to international courts and tribunals to determine whether a situation is genocide.

“[The government doesn’t] want to act. Their position is ‘we don’t know—we can’t really say, we’re not really sure, and therefore business as unusual. We can trade [and] and we can do all sorts of things.’ They’re avoiding their obligation,” said John Packer, the University of Ottawa’s Human Rights Research and Education Centre director.

“The Genocide Convention actually prescribes that states are supposed to act to prevent,” he said, noting that includes cases where there is an active genocide, or a risk of genocide. “If the argument of the government is that we can’t do anything until there’s a determination by the court of law, that’s post facto. That means you never have prevention. … ‘Never again’ becomes ‘forever always,’ because you’ve missed the whole raison d’etre of the thing.”

Packer said there is no provision or law that dictates that an international court must be the body to declare whether a genocide is taking place, and said a state must make that determination itself before bringing an action before an international court.

“In order to bring a case, you must allege a case, and to allege a case in international law means that you must determine that there is a breach,” he said.

International human rights lawyer Sarah Teich, a senior fellow at the Macdonald-Laurier Institute, echoed Packer, saying the Canadian government has an obligation to act.

“If you look at the Genocide Convention, nowhere does it say that that an international court must declare genocide before it can do anything,” she said, noting that Canada, as a state party of the convention, has treaty obligations to punish genocide.

If Canada waits on international courts to declare a situation to be genocide, it would probably be in breach of its obligations, Teich said, adding that it’s “long overdue” for Canada to declare the Chinese government’s persecution of Uyghurs as genocide.

“If Canada is so concerned about wanting it to come from an international court, then Canada should refer the situation to an international court and start taking those steps. But we don’t actually see that happening,” she said. “This is another indicator that really this is kind of just an excuse.”

Mehmet Tohti, executive director of the Uyghur Rights Advocacy Project, said that by citing the need for an international court determination, the Canadian government is not upholding its “international legal responsibility to prevent genocide, and prosecute those responsible for genocide and protect the vulnerable victims of genocide.”

Tohti said it’s “troubling” that the government is still focused on pushing for an independent investigation, as Beijing hasn’t allowed unfettered access to Xinjiang. He said he has little optimism for UN High Commissioner for Human Rights Michelle Bachelet’s visit to China in May.

“The Chinese government has made clear to the high commissioner that there is no unfettered access, meaning she cannot go wherever she wants to go. She cannot visit the places she wants to visit. And she cannot talk with the people she wants to talk,” he said.

Liberal MP Ali Ehsassi (Willowdale, Ont.), chair of the Subcommittee on International Human Rights, asked Global Affairs officials at the House Foreign Affairs Committee last week why a declaration of genocide has taken so long after the House voted in favour of recognizing the situation as genocide.

In her testimony, Chen said the government is looking forward to Bachelet’s visit to China. “What’s been important for us is it has been an independent investigation by international experts. This has long been our position for many years now,” she said.

Bergeron called Canada’s stance “bipolar,” while Genuis said there is a “clear divergence between the legislative branch and the executive” in declaring whether a genocide is taking place.

“It is frustrating for me, it’s frustrating for Liberal MPs, and it’s frustrating for Canadians because Canadians elect Members of Parliament. They don’t elect the executive, but the legislative branch is supposed to hold the executive accountable for the steps they’re taking and the executive has been able to get away with inaction,” he said.

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Source: Feds under fire for deferring decision to declare China’s actions against Uyghurs as genocide