China's Treatment of Turkic Muslims

Listen & Download

The Federalist Society hosts Prof. Beth Van Schaack and Mr. John Bellinger for a discussion about the current treatment of Turkic Muslim civilians by the People's Republic of China ("PRC"), under a policy that the PRC describes as a counter-terrorism campaign but that others have described as a genocide. Prof. Van Schaack is the Acting Director of the International Human Rights Clinic at Stanford Law School, and previously served as the Deputy to the Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice of the U.S. Department of State. Mr. Bellinger is a partner at Arnold & Porter, and previously served as Legal Adviser to the Department of State, as Senior Associate Counsel to the President, and as Legal Adviser to the National Security Council.

Featuring: 

John B. Bellinger, III, Partner, Arnold & Porter

Prof. Beth Van Schaack, Leah Kaplan Visiting Professor in Human Rights, Stanford Law School

 

Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.

Event Transcript

[Music]

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Evelyn Hildebrand:  Welcome to The Federalist Society's teleforum conference call. This afternoon, February 22, we discuss "China's Treatment of the Turkic Muslims." My name is Evelyn Hildebrand, and I am Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the expert on today's call.

 

      Today, we are fortunate to have with us Mr. John B. Bellinger. John is a Partner at Arnold & Porter LLP. John heads the firm's Global Law and Public Policy Practice. And he has also held several senior presidential appointments in the U.S. government, as Legal Advisor to the Department of State, Senior Associate Counsel to the President, and Legal Advisor to the National Security Council at the White House in the George W. Bush administration.

 

      After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for us when we get to that portion of the call. With that, thank you for being with us today. And John, the floor is yours.

 

John B. Bellinger:  Thanks, Evelyn, and hello everybody. Thank you all for listening in. I'm here in Washington, D.C. today, and we hope that I will be joined in a few minutes by Beth Van Schaack of Stanford University. And she may be calling in shortly, but I'm going to start. Beth is more of an expert on the actual human rights treatment of the Uighurs in China, more on the facts. And although she's also a lawyer, I'm going to focus more on the issues relating to the law.

 

      So what I'm going to do over the next few minutes is talk about the Genocide Convention of 1948, which defines U.S. obligations under the Genocide Convention and provides the definition of genocide. I'll talk about how genocide determinations are made, generally. And then I will talk about the genocide determination that was made by Secretary Pompeo at the end of the Trump administration and that has now been accepted by Secretary of State Tony Blinken in the Biden administration, and we'll talk about next steps. And as I said, I hope that Beth will be able to join us shortly.

     

      So just to put in the legal framework, generally, U.S. obligations with respect to genocide, our international obligations are defined in the Genocide Convention of 1948, which the U.S. had a key role in negotiating and signed in 1948. The Convention defines genocide as certain acts, killings, serious bodily harm, etc., committed—and this is the important part—with an intent to destroy in whole or in part a national ethnic, racial, or religious group. So I'm going to come back to those different pieces of the definition, because those are important when the U.S. is making a genocide determination.

 

      But before I begin to parse the treaty, I want to just give you a little bit of interesting history of the Genocide Convention. The U.S. signed it in 1948, promptly transferred the Convention to the Senate in 1949 with the recommendation that the Senate give its advice and consent. And then the treaty languished, as some of you may know, for nearly 40 years. The Senate ultimately did not give its advice and consent to the treaty until 1986. And then President Ronald Reagan ratified the treaty in 1988, 40 years later, after it was signed.

 

      The reason that happened is that, in the early 1950s, even though the United States had played a key role in negotiating the Convention, that some conservatives in the country grew concerned that a treaty like the Genocide Convention and certain other human rights treaties would infringe on U.S. sovereignty and potentially subject the U.S. to the jurisdiction of international tribunals, like the International Court of Justice or criminal tribunals. There was no ICC at that point.

 

      So the treaty languished for quite a long period of time. Some really absurd arguments, at least in my view, were made suggesting at the time by those who were opposed to the Convention, suggesting that the United States itself might be accused of genocide. The then President of the American Bar Association suggested that if a white motorist killed a black child, that the United States might be hauled before the International Court of Justice and accused of genocide. Then later, during the Vietnam War, concerns that the United States might be accused of genocide during the Vietnam War.

 

      So the treaty languished for quite a long period of time. Some of you may recall Senator William Proxmire became famous for giving more than 3,000 consecutive speeches on the floor of the Senate urging that the Senate give its advice and consent to the treaty, starting in the, I think, the 1970s all the way through the time that it was ultimately approved in the late 1980s. Finally, the support of Ronald Reagan for the treaty is what put it over the line. And it was approved by a very large vote. And Reagan ultimately ratified it in 1988.

 

      So that's the history of the Genocide Convention. Let me talk about how genocide determinations are made, culminating in the determination recently made with respect to the Uighurs. If you want to do a deep dive into this subject, I recently co-chaired the Advisory Committee of a U.S. Holocaust Memorial Museum paper on how genocide determinations are made. And if you google it, there's an excellent paper written by the former U.S. Ambassador for War Crimes, Todd Buchwald.

 

      In general, there's no formal procedure to make genocide determinations set forth by statute, or even in State Department regulations. Generally, it is the Secretary of State who makes the determinations, since it's an issue involving the interpretation of a treaty and events in other countries. There appear to only have been five formal determinations that genocide has been occurring made by previous Secretaries of State, and those were in Rwanda, Bosnia, Sudan, and then twice in Iraq. The genocide determinations raise legal policy and political issues. And I'd like to talk about each of those in part, most significantly, about the legal issues.

 

      The big takeaway here, for people listening, is that the use of the term genocide in common parlance and used by the press, and even members of the Congress and human rights groups, is much broader than the legal definition of genocide in the Convention. In common parlance, people often use genocide to mean a real serious abuse of some group in another country. But as I mentioned earlier, the Convention is much, much narrower. And for there to be a determination of genocide by the United States, at least under the Convention, it has to -- the facts have to fit the following legal requirements.

 

      First, there has to be an intent to destroy, in whole or in part, a national ethnical, racial, or religious group. The most difficult thing is to show intent that a foreign group, or foreign country, or foreign government actually has an intent to destroy. It may be very clear, as in the case of the Uighurs, that the Chinese government is doing very bad things, or that the Sudanese government was doing very bad things. But there has to be a showing of an intent to destroy. And so trying to find that intent can be very difficult through intelligence sources or otherwise.

 

      Second, it's not just some human rights killings or violations. It has to be an intent to destroy, in whole or in part, a group. And the Senate has defined, in part, to mean in substantial part, meaning to essentially wipe out the entire group. So again, that can be a very difficult showing to make that there is an intent by a foreign government or group to destroy an entire group, or at least most of it, not just a lot of people.

 

      And then finally, it's limited to certain kinds of groups, although fairly broad, a national ethnical, racial, or religious group. You'll note that that does not cover, though, a cultural group. So cultural genocide, an intent or effort to destroy the culture of a group in a country, is not specifically covered by the Convention. And that's why you will occasionally see statements made by human rights groups or others that cultural genocide is occurring. And that's because actually the wiping out of a culture is not covered by the Genocide Convention itself. And so people refer to cultural genocides.

 

      So to fit these legal requirements of the Convention is really quite difficult. And it's one reason why the State Department determinations have been often slow to be made, and that the lawyers at the State Department, the office I previously headed, are very careful in parsing these words.

     

      This can sometimes cause internal conflict inside the State Department with, say, the Bureau of Human Rights pushing for a genocide determination, and the lawyers saying, "We understand the concerns, but we've not been able yet to see an intent to destroy," or "We may see an intent to destroy, but it's not in whole or in part." Often, members of Congress or human rights groups have criticized the State Department for being slow to make a genocide determination and will blame it on the lawyers. So those are the legal requirements of the narrow definition in the Convention.

 

      Next, I want to discuss policy concerns. Because there's nothing that obligates the United States to make a genocide determination, the decision to do so is generally made for policy reasons. And over time, the U.S. government has often been slow to make a genocide determination, in part because it is difficult to then decide what to do, having made a genocide determination.

 

      Here is another key point. The Genocide Convention does not require the parties, including the United States, to take actions outside their own territory. There's no obligation to take -- engage in humanitarian intervention, to take military action, or to take action against another country. So all the U.S. legal obligations under the Convention are actually quite limited simply to prevent genocide, or punish genocide, or those who've committed genocide who are inside the United States.

 

      Still, the United States is often reluctant to make a genocide determination because there is a moral force to finding genocide. Once a genocide determination has been made, the pressure is then on the Executive Branch to take some action. So that can be a deterrent to making a genocide determination.

 

      Finally, unfortunately, as with everything these days and in the past, the genocide determinations can be subject to political pressures. There's often lobbying by groups. Usually, the political party that's out of power is accusing the political government that is in power of failing to make a genocide determination. Human rights groups pressure the Executive Branch to make a genocide determination. Members of Congress often write to the State Department to say, "Why are you being so slow?"

 

      Just to give you an example of the past political pressures, at the end of the Obama administration when ISIS in Iraq and Syria was killing me members of the minority group, the Yazidis, the Obama administration had determined that ISIS was, in fact, committing genocide against Yazidis. But this led conservatives in the country in both Congress and around the United States to say, "Well, why hasn't a similar determination been made with respect to Christians? Why are you, the Obama administration, more concerned about Yazidis than you are about Christians?" And that ultimately led John Kerry to make a determination that there was also genocide being committed against Christians by ISIS.

 

      But one of the bottom line recommendations at the U.S. Holocaust Memorial Museum paper, for which I served on the advisory committee, was that the United States shouldn't get quite so wrapped up in using the g-word in determining whether genocide has actually occurred. Don't let that, essentially, that perfect determination prevent the United States from calling lesser offenses crimes against humanity or human rights atrocities. It's more important to call out the bad things that are happening than to ultimately use the g-word of genocide.

 

      So with that background, let me talk about what happened at the end of January with respect to the Uighurs. Again, I hope that Professor Van Schaack will be able to fill in a lot of the detail about what has actually been happening in China. I suspect that people are listening because they have been reading about the gross human violations -- human rights violations that have been committed against the Uighurs in Xinjiang province. On the --

 

Evelyn Hildebrand:  -- And you know, this is -- I apologize. This is the perfect segue. Professor Van Schaack, Beth, did just join the call, so I'd like to introduce her now, if that's all right with you, John?

 

John B. Bellinger:  Sure. Why don't we do that and then maybe I can just finish the part that I am talking about. But why don't you go ahead and introduce Beth, please.

 

Evelyn Hildebrand:  Yeah, absolutely. Wonderful. Okay. So for everyone on our call, Professor Van Schaack is the Leah Kaplan Visiting Professor in Human Rights at Stanford Law School. She's been a Faculty Affiliate with Stanford Center for Human Rights and International Justice. Professor Van Schaack also served as Deputy to the Ambassador-at-Large for War Crimes Issues in the Office of Global Criminal Justice at the U.S. Department of State, and we're very pleased to welcome her to the call today.

 

      And with that, I will hand the floor back over to you, John. But between the two of you, you can continue to discuss this topic. Thank you both.

 

John B. Bellinger:  Great. And I ought to just say here, Beth is an old friend. We served together on the Secretary of State's Advisory Committee on International Law. I've been out to see her at Stanford, and we've worked together on a number of different things, so happy to be paired with her today.

 

      Beth, I'm just wrapping up. I've talked a little bit about the Genocide Convention and why genocide determinations are difficult as a legal policy and political matter. So I'm just going to end by talking about the determination that was made with respect to the Uighurs.

 

      On his last full day in office, Secretary Pompeo announced that he had determined that the Chinese government was engaged in genocide as well as crimes against humanity against the Uighurs. Now, what's interesting is that he did not provide any evidence or detailed evidence that fits the specific legal criteria that I mentioned earlier with respect to the Convention. He said that the Chinese government had shown an intent to destroy the Uighurs, but he did not detail what that intent was or how it was going to destroy the Uighur population in whole or in part.

 

      So he made a very serious determination but did not provide detailed evidence for it. He made that on his last full day in office. And as the incoming Secretary of State, Tony Blinken, was getting ready for his confirmation hearing, it's possible that the timing was intentional to put Secretary Designate Blinken into a difficult spot, at that point.

 

      He was then asked at his confirmation hearing whether he agreed that genocide was occurring, and he said that he did agree. And the Ambassador to the U.N. Designate, Linda Thomas Greenfield, though, said one week later that the Biden administration is studying the issue and that the proper internal procedures at the State Department had not been followed. So it does appear that, although the Biden administration agrees that the Chinese government is committing genocide against the Uighurs, that they were concerned about the process.

 

      So what's going to happen next? Right now, no other country in the world has made a similar determination that genocide is taking place against the Uighurs. Obviously, for any sanctions or pressure on the Chinese government to be effective, the United States will need to build a multilateral coalition of other countries to try to put pressure on the Chinese government. But in order to do that, the Biden administration is going to need to build out the case better.

 

      So I suspect that what will happen is that the lawyers at the State Department, with assistance from the intelligence community, will try to build more of a legal case to show that genocide is occurring against the Uighurs so that that can then be used as part of a global diplomatic effort to persuade other countries to join the United States in finding that genocide has occurred. This could be difficult, though. I think other countries may be reluctant to accuse the Chinese government of genocide because of trade relations between most countries and China. But if only the United States has accused China of genocide, and other countries do not, then that would not be as effective a policy.

 

      And then finally, whether the United States is acting alone or is acting in concert with others, what then is the appropriate response when a country has committed genocide? China is in a very different position than the countries or groups that the United States has made genocide determinations with respect to previously, such as Rwanda, in Bosnia, Iraq, Sudan, ISIS. It was easy to isolate those groups like ISIS or countries like Sudan. It's really not possible to isolate China.

 

      So that may result in a mismatch between the rhetoric of accusing China of genocide but then not being able to have any effective sanctions. I don't think that you're going to see the United States or any other country in the world essentially trying to cut off all of trade relations with China the way we did with the apartheid South Africa. But if it ends up being much more targeted sanctions, just focused on slave labor in Xinjiang or the use of surveillance technology by Chinese companies against the Uighurs, then you have a fairly narrow sanction in response to an accusation of genocide against China.

 

      So it's too early to see what the Biden administration is going to do, whether they will build out the case more legally to provide more evidence, whether they will try to embark on a global diplomatic campaign, and then what the sanctions are that both the US and other countries may provide.

 

      So with that, I will turn it over to Beth, and look forward to hearing her thoughts as well.

 

Prof. Beth Van Schaack:  Hi. Good morning everybody. Thanks so much, John. I caught most of your intervention. So I apologize for logging on a little bit late. I agree with almost everything -- in fact, I think I agree with everything that John has said, which I usually do with John. But I thought I would just circle back to a few points to just add some nuance and additional detail, particularly when it comes to what's actually happening on the ground in Xinjiang.

 

      I, of course, have not been there. Nobody has. It's been very difficult for human rights documentarians to get access. So much of what we're learning is coming from individuals within the diaspora or individuals who have been able to flee the situation and are now living on the border somewhere or elsewhere. And so we're really dependent upon these eyewitnesses to really understand what's going on in Xinjiang because it's been very closed off.

 

      And so as John mentioned, the gravamen of the crime of genocide is this intense question, and that's always very difficult. Of course, from open sources we can only glean so much, and there have been some really important documents that have been leaked by courageous individuals within the regime that have started to give some indication that that intent may exist. And I imagine that Secretary of State Pompeo, and now the Biden administration, may have access to additional confidential and classified sources that may be weighing on their decision to make this genocide determination. Obviously, the rest of us don't have access to that. And so it remains to be seen what sort of information they have that is bearing on intent.

 

      When we think about genocide, from the colloquial sense, we often think about this idea of mass killing. And so sometimes it's hard to wrap our heads around the idea that genocide could be committed without mass killing. And we're not necessarily seeing that in Xinjiang. But when you read the Convention carefully, it lists five equally valid ways in which a regime or individual can commit genocide. And mass killing is one of them, but it's not the exclusive one.

 

      So we also have causing serious bodily or mental harm to members of the group, and deliberately inflicting upon the group conditions of life that are calculated to eventually bring about its physical destruction. Here, we call this sort of slow death, where it may be easier at times for a group of perpetrators or a repressive regime to gradually bring about the destruction of a group rather than bringing a lot of attention upon itself by engaging the mass killings and then having to deal with mass graves, etc.

 

      And so we've seen this in Rwanda, and the jurisprudence emerging out of the War Crimes Tribunal there, that even where you have extremely harsh conditions of life, so long as it's coupled with this intent to destroy the group, genocide can be found even absent mass killing.

 

      We also have two additional means or ways in which genocide may be committed that have never been fully flushed out in the jurisprudence, but the Xinjiang situation really brings heightened attention to them. And the first is imposing measures intended to prevent births within the group, and the second is forcibly transferring children out of that group.

 

      We're seeing both of these measures in Xinjiang, where Uighur women are being subjected to enforced sterilization and forced abortions at rates that are much, much different than other parts of China. China has responded to this in a tin-eared way by saying, "Oh, well, we are trying to limit births everywhere around the country. And so it's no different what's happening in Xinjiang. We're just finally getting around to focusing on Xinjiang." And that, really, I think, is very hollow when you look at the actual data that has been produced that shows the high rate of IUD use and reporting from victims that say that they were given all sorts of measures and interventions to prevent them from reproducing and separating them from their partners.

 

      We're also seeing children being taken from Uighur families and moved to Han Chinese families on the theory that they would be raised, then, as Han individuals. And that would help to contribute to the destruction or elimination of the Uighurs as a unit or separate community within the Chinese mosaic of minority groups.

 

      The point about cultural genocide is important here as well, in that the idea of transferring children is the one indication we have within the treaty itself of this idea of cultural genocide that we also -- groups that are intending on eliminating a minority group within a community or a country often will also want to destroy any manifestations of that group from a cultural perspective. And so while cultural genocide per se is not prohibited by the Genocide Convention, evidence of cultural erasure can serve as evidence of genocidal intent.

 

      And so, for example, the destruction of mosques, the prevention of individuals using their native language or engaging in cultural practices is gratuitous if, in fact, what is underway is what a regime will often claim is an attempt at countering terrorism, which is another excuse the Chinese government has raised for the concentration camps in Xinjiang, etc. And so why would you need to destroy mosques? Why would you need to prevent the use of particular languages, etc., if, in fact, what's happening is a counter-terrorism exercise versus an effort to erase the identity of the Uighur community? And so we will often look to this evidence of cultural erasure to help flush out the existence of genocidal intent.

 

      The situation in Xinjiang is tricky also because, and John mentioned this, high degrees of forced labor and human trafficking in the region. And many, many industries are really infected, including the fashion industry, but not limited to that. A lot of the protective gear that we're using, gloves, etc., actually emerged from Xinjiang, unfortunately. And so that has heightened the concerns about forced labor within this particular area.

 

      Keeping the Uighur alive is actually useful, economically, to the Chinese regime because it literally has a captive audience here in order to produce these goods and then feed it into international markets. And so that's a countervailing factor in a way to a finding of this genocidal intent. And so that's where falling back on this idea of causing serious bodily and mental harm and deliberately inflicting on the group conditions of life that will eventually, over time, lead to the destruction of the group. It's important to focus on those other elements of genocide in order to not lose sight of what might be a long-term effort by regime to eventually eliminate a group.

 

      And then also, echoing John, while it's important to get this right, and I generally support the U.S. government undertaking an empirical process to make such determinations when it's merited, I also don't want the levers of government to get caught up in this semantic inquiries when there is no question that crimes against humanity are underway in Xinjiang. Crimes against humanity are equally serious under international law. This term encompasses a constellation of acts that are made criminal under international law when they are committed as part of a widespread or systematic attack against a civilian community. It's not necessary to show this surplus of intent that so characterizes genocide.

 

      And so to a certain degree, when we're thinking about measures in response, it shouldn't matter whether or not it's genocide per se or whether we're seeing crimes against humanity. What should matter is the gravity of the harm to vulnerable populations. And that should trigger appropriate responses. To be sure, the Genocide Convention is a convention on both the prevention and punishment of genocide. And so there's at least some vague obligation to engage in some preventative action.

 

      Crimes against humanity, by contrast, have no dedicated treaty, although one is underway right now. It's being negotiated within the General Assembly based upon a draft by the International Law Commission. But as John mentioned, the obligations of prevention are really left to individual states. They have the discretion to determine how they want to engage in those preventative exercises.

 

      And so under my view, and I think John would agree, that once the level of harm surpasses a certain level of gravity, that's when the states of the world, including the United States, but also working with partners and allies, should be looking for ways to alleviate the situation and to encourage China to mitigate the harm that it's committing against this group.

 

      And so we should already be thinking about measures—John has mentioned some of them—certainly trade measures, sanctions, ensuring that our supply chains are not infected with human trafficking and forced labor, thinking about documentation of abuses, trying to get the International Committee of the Red Cross in to confirm the conditions of detention, thinking about accountability. How can our domestic accountability authorities be used here, particularly if individuals are traveling?

 

      We have certain crimes under the federal penal code that might be applicable here and that apply to extra territorial activity. We should be thinking about sanctions. And the Trump administration was quite strong on this and sanctioned a whole number of entities that are state linked, which has sort of pushed the state of the art, in terms of sanctions. And I'm hopeful that the Biden administration can look for other entities and individuals who are helping to hold up and to bolster this repressive regime and add them to those sanctions list.

 

      And then, humanitarian assistance. We should be looking for ways to alleviate the harm, helping refugees, engaging in resettlement, thinking about temporary protective status, working on behalf of the family members of Uighurs who have been detained to try and get at least those individuals released.

 

      I'll just end by, again echoing John, with how hard this is when we're dealing with a state like China. It's much easier against weaker states and terrorist organizations to think about what a robust response looks like. And so we have to be smart and targeted, and also, I think, work with China to try and help it identify off-ramp ways and situations and circumstances in which it can alleviate the harm that's being caused to Uighurs, and to be able to calibrate our response such that we can reward reflections and efforts, or at least measures, that appear to be relaxing the real repression that's being imposed upon this already beleaguered community.

 

      So I'll stop there. I'm happy to entertain questions and continue the conversation.

 

John B. Bellinger:  Why don't I, then, ask you a couple of questions, Beth, and then we'll open it up for the audience as was suggested, maybe in about 7 to 10 minutes. So I'm going to just actually give you all of my questions at one time. And then if you can't remember them, then I'll come back and ask.

 

      So one, I'll ask a question against interest here, which is did you think that the lawyers in the Legal Adviser's Office were too strict in their interpretation of the Genocide Convention? For the audience, I should make clear, although Beth and I did not work together at the State Department at the same time, the bureau in which she was the -- or the office in which she was the Deputy Director, the office of the Ambassador for War Crimes, was a client bureau of the Legal Adviser's Office. And, in fact, the ambassador at the time working with Beth was one of our former star lawyers in the Legal Adviser's Office, Todd Buchwald.

 

      So I'd be interested -- in fact, maybe before I do go on to the other questions, let me ask you that, Beth, because you're obviously an accomplished lawyer yourself. You're well aware of the pressures that are put on the State Department, generally. And there have even been letters from Congress writing in, saying, "What's the matter with those lawyers at the State Department? Why are they being so pinheaded in their view of the Genocide Convention?" So let me ask you that first, and then I want to ask about how we work with other countries to try to build a coalition.  

 

Prof. Beth Van Schaack:  Sure. Yes, it's a great question. I don't have any inside information here. But I have seen recent reporting from Colum Lynch that there was, in fact, this internal schism where the lawyers in the Legal Adviser's Office were taking a more conservative, if we can use that word, approach to interpreting the definition of genocide. And it was the policy we saw, and Secretary Pompeo, in particular, personally really interested in seeing this designation be made.

 

      I have written [inaudible 36:52] a post in which I argued in support of Secretary Pompeo's determination. And I walk through the elements of genocide, given what I know about the open source information that's available to us, and show that it was legally defensible to reach that conclusion. And so I was, in fact, supportive of this.

 

      I think part of where I was comfortable coming out is we're not talking about a criminal court where we have to find proof "beyond a reasonable doubt." This is a determination by one government that a set of practices, or a policy that they're seeing through their open source, and also probably other sources, at least rises to the level of or is arguably a genocide, an ongoing genocide, or there may be episodes of genocide happening at multiple levels. It's not clear if it goes all the way up to Beijing in all grounds, or the Communist Party, or if it's happening at a more regional level, or we may have individual perpetrators within Xinjiang who are exercising or acting with genocidal intent.

 

      And so we don't need to necessarily pin that down entirely to be able to make such a determination that we're in a realm that genocide is incipient or a concern. And so I was comfortable with Pompeo's determination. And I wrote this piece in support of it, basically.

 

John B. Bellinger:  And I will say, I have not seen -- well, none of us have. Beth knows more about the facts on the ground in China than I do. I was concerned by reports that the Secretary of State had overruled the lawyers, which as having been the Department's former Chief Legal Officer, I prefer not to see the lawyers overruled. But in general, when the United States makes statements like this, I'd prefer to see them supported with evidence. In the U.S. Holocaust Museum report, which I think, Beth, you are maybe also an advisor to --

 

Prof. Beth Van Schaack:  Yep.

 

John B. Bellinger:  -- one of the things that we said was the genocide determinations that are based on doubtful evidence or deviations from the internationally accepted legal definition will be less effective in helping to mobilize support for action to address the atrocities. And so that actually leads me to my next question, because this is --

 

Prof. Beth Van Schaack:  -- Actually, John, if I could just quickly, before you go on.

 

John B. Bellinger:  Yeah.

 

Prof. Beth Van Schaack:  I want to echo that point. I think that's incredibly important. And in the past, we have seen the U.S. government not only reveal the underlying basis for making these determinations but also deploying interdisciplinary interagency teams out in the field in order to collect information. And Secretary of State Colin Powell was the first to do this on the border of Darfur, Sudan, interviewing witnesses, doing statistical analysis. And that helped to undergird the determination made under the Bush administration that genocide was happening in Darfur.

 

      I completely agree with you that it's much preferable to develop that in-house expertise and body of information to support the determination. It will be that much more powerful if we do so. Obviously, we don't have access to Xinjiang. But we could, as a government working with partners, which I know is the direction you're heading, put together a team to go to the border to interview survivors and to come up with our own body of information so we're not relying upon human rights organizations and victims organizations, who are well meaning. But we should be developing our own information on these situations so that we feel confident in whatever determination we make.

 

John B. Bellinger:  Well, once again, Beth and I agree. And I would have preferred to have seen, rather than a rush to make this determination on the Trump administration's last day in office, I would have preferred to have seen a more seamless handoff to the Biden administration with a well-developed case that was then handed over. I think, now, there's going to have to be, essentially, some backfilling to develop the case that can then be used.

 

      As I had said earlier, particularly when we have a country like China, but really almost any country, if the U.S. is out there all by itself, it's just not going to be effective. But this is going to be a real uphill battle to persuade other countries that genocide is occurring for a couple reasons. One, because the legal standard is quite narrow, and two, many other countries have trade relations with China and are less willing to take China on as an adversary.

 

      Beth, my next question is, we were the lawyers, you were our policy clients. It's probably going to be the new War Crimes Office, perhaps in conjunction with the policy bureaus, maybe the Undersecretary for Civilian Protection, who will then go out to launch this campaign to persuade our allies like the British, or the Canadians, the Australians, the Germans, or the Japanese, that we've got this right. So imagining what you've done in the past when you tried to build a global coalition on certain points and about what is going to be necessary in the future, what do you think? What should we be looking for in the next three months, or six months?

 

Prof. Beth Van Schaack:  Yeah, I think that's exactly right. We have to be able to do this in a coalition. And I would hope that, putting aside whether it's genocide or not, the fact that we have pretty clear crimes against humanity happening on a widespread and systematic basis in Xinjiang would be enough to inspire partners and allies to join in a coalition, to think about how to be smart here.

 

      And many of these states, including the United States, have very robust anti-trafficking, anti-forced labor regimes in place that actually required due diligence on the part of local companies who are doing business in areas, and also require a pretty strong scrutiny of incoming supply chains to ensure that consumer goods and other goods that are coming into the country are not infected by this forced labor.

 

      And so I would suggest a very targeted Xinjiang-focused approach, to say, "Listen, China. We have a whole bunch of other issues with you, climate change, etc., but we are all committed to ending forced labor and human trafficking. And so we need to have better indications that goods that are coming into our collective countries are not being produced by virtue of forced labor."

 

      Likewise, on the outflow, I think we need to ensure that our tech companies—I'm sitting here in the middle of Silicon Valley—are not essentially complicit in the kind of harms that are being committed within Xinjiang in terms of the excessive surveillance state, etc. And so working with private industry in Silicon Valley and the Silicon Valleys of the world to make sure that we're not allowing the export of technology that is being used to perpetuate these forms of abuses, that strikes me at a minimum as something we could be doing.

 

      We also could be together putting pressure on China to allow humanitarian organizations in to ensure that individuals are not being mistreated. And the ICRC, the International Committee of the Red Cross, takes a very neutral approach. Their work is entirely confidential. And if they could be deployed and allowed in to at least work with China to improve the conditions of individuals who are in detention, I think that could go a long way towards alleviating the humanitarian concerns. 

 

      And then gradually, I would hope that we could find ways in other multilateral fora, including potentially the Human Rights Council in Geneva, or the General Assembly where China does not enjoy a veto, where we could imagine putting together a larger coalition of states that could at least engage in some strategic messaging around what's happening here in defense of the Uighurs.  

 

John B. Bellinger:  So I'll just respond on two points, and then open it up for questions in 60 seconds.

 

      So one, agree on monitoring. I suspect that the ICRC is going to say that they are not the right organization because they operate only in an international or non-international armed conflict. And since there's no armed conflict here, I think they would say they don't have jurisdiction.

 

Prof. Beth Van Schaack: Maybe, although they have done monitoring of other detention situations. And so I don't know. You're generally right that that's true, but they've also worked in other situations. And so if it's not the ICRC, then another organization that would have --

 

John B. Bellinger:  -- Some other group.

 

Prof. Beth Van Schaack: Yeah.

 

John B. Bellinger:  And then just to reiterate a third time, I think, which Beth and I both agree on, and this really was my concern about the unilateral statement made on the last day of the administration, is we are just not going to be effective in raising these issues with China unless we can do this multilaterally. And in order to do it multilaterally, we're going to have to get other countries to agree that genocide is actually occurring.

 

      I agree with Beth that I think that most countries will agree that there have been serious human rights abuses, crimes against humanity, ethnic cleansing. And again, this goes back to the Holocaust Museum report, is let's not always get wrapped up in the g-word, but to make sure that when serious offenses are occurring that we agree that those are occurring and then take action against those. So I think that's going to be where there is going to be agreement with other countries, but we are going to need to get other countries on board with us.

 

      So with that, why don't we open it up. If there are questions, we can take questions. And if not, Beth and I can go back and continue to bat this around.

 

Evelyn Hildebrand:  Wonderful. Thank you so much for such a great discussion. We will now go to audience questions. While we're waiting for people to line up in the queue, I wanted to ask, or perhaps I'll just hand the floor back over to you, but if either of you could comment on the significance of China being on the United Nations Human Rights Council, is that something that you could comment on, given what we've discussed so far today?

 

John B. Bellinger:  Beth, do you want to take that?

 

Prof. Beth Van Schaack:  I'd be happy to weigh in. Yeah, sure.

 

      So the Human Rights Council is supposed to be kind of a club good where states that have at least strong records, they need not be perfect, but they need to have strong records of promoting and protecting human rights, both internally and in their foreign policy. And it really was quite a disappointment that China was elected to the Human Rights Council most recently, particularly given that evidence had emerged very clearly of the harm that was happening in Xinjiang. Everyone's eyes were wide open with respect to that. And so it really is a concern.

 

      I would like to think that if the United States had remained a member—we actually relinquished our position on the council under the administration of President Trump—I think if we had remained on the council, we might have been in a position to build a better coalition against that. There's no question that China has filled the void that has been left by the U.S. as we've withdrawn from some of these multilateral fora. And so while the Human Rights Council is not perfect, it's a place where things can get done.

 

      For example, the council has created a number of commissions of inquiry they have focused on repressive situations around the world. And it could be a forum in which a commission of inquiry could be created for Xinjiang precisely to create the kind of documentation that we need to undergird a finding of genocide and crimes against humanity. But the U.S. is not there, and so that coalition wasn't built. And so China was able to be elected.

 

      And it does undermine the strength and the power of the Human Rights Council, particularly now that China controls a key seat on the council which has the ability to inform and control what items and elements get onto the agenda. And so it can use the council to deflect attention away from its own abuses and abuses of its allies and on to other states that it has no interest in or would like to shine a light on. And so it's definitely unfortunate, and I wish the U.S. had stayed on the council so that we could have tried to at least block this, or at least control and cabin the ability of China to utilize the Human Rights Council for its own interests.

 

John B. Bellinger:  Before we take the first question, let me just say that I actually agree with that. I think this issue of the Human Rights Council splits Republicans. The Bush administration did not join the new Human Rights Council when it was set up, and we had internal debates over that.

 

      I am one to say that I think it is better to be on the inside trying to push for reform rather than on the outside, just letting the Human Rights Council get worse, and worse, and worse. I'm going to agree with all the criticisms that are made by conservatives of the Human Rights Council. And yes, one can say, "Well, why should one be part of a Human Rights Council that has a number of human rights abusing countries on it?"

 

      On the other hand, it's clearly going to get worse if the United States, with its leadership and with its effective negotiators, is not there to try to set the agenda. And as Beth said, and this is what we really have seen happening, both in the U.N., the Human Rights Council, and numerous other places around the world, that when the United States pulls back into self-isolation, then China fills that void.

 

      So questions?

 

Evelyn Hildebrand:  That's great. And at the moment, we do not have any callers in the queue. In the meantime, if either of you have other areas that you would like to address, or I have some questions that I would be happy to ask, as well.

 

John B. Bellinger:  Ask away.

 

Prof. Beth Van Schaack:  Yeah, go ahead.

 

Evelyn Hildebrand:  Okay, great. I was curious if you could discuss—and you can certainly take the conversation any direction you think is best—but the differences -- obviously, there are differences between what's happening in Hong Kong at the moment. Do you think that there are points of distinction or points of similarity that you would like to discuss?

 

John B. Bellinger:  Beth, again, I'll let you go first.

 

Prof. Beth Van Schaack:  Okay. Well, the two situations are -- I don't know if it's two sides of the same coin, but they're both indicating a Chinese regime that has been feeling increasingly emboldened. It's not sensing any resistance. It's gradually increasing its repression and trying to consolidate its rule across the entire country.

 

      And it has always seen Hong Kong as a source of independence where individuals and citizens have gotten used to a certain level of free speech, engagement with the international community, etc., and it wants to quell that. There's no question about it. And because I think the international community has been fractured here, and we've not seen the U.S. be able to build coalitions in support of human rights in these realms, China has seen an opportunity and has taken advantage of that opportunity.

 

      I think Xinjiang is of a different order when we're dealing with the direct repression and targeting of a particular group, a sort of discrete and insular group, as we would say from U.S. constitutional jurisprudence, that's clearly being targeted on the basis if its religion and having its free exercise of religion being infringed upon by the Communist Party. So that's different than free speech advocates who are taking to the street in Hong Kong.

 

      But I think there's a commonality here, which has an increasingly emboldened China willing to abuse and repress its own citizens, comfortable in the recognition that it will not receive much resistance from the international community.

 

John B. Bellinger:  Beth, I've got another question for you. It might be a practical question since, perhaps, some of the people on the phone are lawyers. And it's a difficult one. What about the U.S. companies that are actually operating in Xinjiang? If you take a pure approach, you can say, well, one should just not have any part of this. One should leave. One should make sure one does not have any Uighur labor in one's supply chain.

 

      On the other hand, you're familiar with the arguments on the other side that that can then just -- that leaves people unemployed. It leaves things worse. U.S. companies may then have completely clean hands, but the Uighurs involved may actually be worse off. What's your advice to U.S. companies who operate in the region? You mentioned the textile industry earlier.

 

Prof. Beth Van Schaack:  Yeah. I think that's less of a concern, the concern about leaving people -- workers worse off, because they're being subjected to forced labor. These people are not being paid. So I think U.S. companies should use their economic might to band together—and I recognize that there are collective action problems here; some of these companies are competitors with each other—but should band together to themselves put some pressure on China. They should not want their own supply chains to be infected with forced labor.

 

      Now, there is no international treaty yet. There's one that's under negotiation that would put hard obligations on companies. But I would hope that companies, through exercise of their shareholders and their just concern for the wellbeing of individuals in the world, would not want to be associated with or even be considered at all complicit with what's happening in Xinjiang. And so I would hope that U.S. consumers, myself included, would be willing to pay a few extra dollars for a t-shirt now and again in order to ensure that it's not being made by individuals that are detained in camps that are reminiscent of the early days of the Holocaust. 

 

      And so I think companies should do their best to make a true scrutiny of where their goods are being sourced from and up/down the supply chain. And then use the power -- the economic power that they have in China to say to China, "Listen, we want access to the factories. We want to make sure that people are being treated appropriately. And if they're not, we want to see reforms or we're going to source these goods elsewhere."

 

      I know that's a lot to ask. I know there are bottom line implications to that. I'm not blind to these. My husband hands me, every year, his disclosure around trafficking and allows me to make sure that it's as robust as it can be to ensure that where he's sourcing from his company are clean. It's tough, but I think American consumers, I think, should be demanding it. And i think we should expect nothing less from companies that are headquartered here.

 

John B. Bellinger:  Well, we're going to be out of time.

 

Evelyn Hildebrand:  Awesome. Thank you both. Yes.

 

Prof. Beth Van Schaack:  Thank you so much for focusing on this issue. It's really important. John, it's always a pleasure to speak with you and to appear in forums like this with you. And I really appreciate the Society for taking such an interest in this issue.

 

John B. Bellinger:  The feeling is mutual. Greetings from a cold and snowy East Coast, Beth. We wish we were all out in California.

 

Prof. Beth Van Schaack:  Yes. I have to say, it's lovely here. Sorry to brag.

 

John B. Bellinger:  Thanks very much, Beth. Take care.

 

Prof. Beth Van Schaack:  Be well, everybody. And thank you for convening us.

 

Evelyn Hildebrand:  And on behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today. And I want to thank our audience for participating. We welcome listener feedback by email at info@fedsoc.org. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.

 

[Music]

 

Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.