Debating genocide, but in whose language?
To legally categorise what is happening in Xinjiang as crimes against humanity or genocide assumes genocide is the crime of crimes and necessarily entails killing. We need to decolonise genocide.
How to legally categorise what is happening in Xinjiang is subject to ongoing debate. Recently, Human Rights Watch released a report which categorised it as crimes against humanity. This is in contrast to the other two earlier released expert reports from the UK and US which attempted to label it as genocide.
Things are not straightforward in the political world. The Dutch parliament in February this year passed a non-binding motion which calls the treatment of the Uighur Muslim minority in China genocide (following Canada and followed by UK). However, even in the Netherlands, the first European country that took such a move, the cabinet begs to differ from its parliament. Its Foreign Minister indicated that the Dutch government does not wish to use the term genocide because the situation has not been declared as such by the United Nations or by an international court.
Much of this debate on ‘crimes against humanity v. genocide’ is happening in a context that can be well explained by Philips Sands in his book East West Street. ‘These two distinct crimes (genocide and crime against humanity), with their different emphases on the individual and the group, grew side by side, yet over time genocide emerged in the eyes of many as the crime of crimes, a hierarchy that left a suggestion that the killing of large numbers of people as individuals was somehow less terrible.’
On Xinjiang, the reason to drop the term genocide has been summarised by Professor Schabas, an expert at Leiden Law School. He took the view that it is wrong to label the situation in Xinjiang as genocide in the absence of physical destruction, as the international legal jurisprudence pronounced the other way.
Echoing on that point from a linguistic angle, an earlier Economist article opinionated: ‘[b]y the common understanding of the word, it is not [genocide]. Just as “homicide” means killing a person and “suicide” means killing yourself, “genocide” means killing a people.’ Hence, in the absence of killing, the author’s opinion is that what is happening in Xinjiang is not genocide but crimes again humanity, and if foreign forces make what sound like baseless allegations of mass killing, ‘patriotic Chinese will be more likely to believe their government’s line, that Westerners lie about Xinjiang to tarnish a rising power’.
With years of working on international law in China and in the Chinese context, I cannot help but ask, is this true? When answering whether labelling genocide makes sense to the Chinese, whom by the way mostly know nothing about what is happening in Xinjiang, in whose language are we doing this? When defining genocide and debating if there is genocide, is there a need to first decolonise the word genocide?
As one of the six official languages of the UN (including its principle judicial organ ICJ),Chinese is also an official language of the Genocide Convention and the International Criminal Court (which China is NOT a member of). When it comes to treaty interpretation, the Chinese version bears the same weight as English and other official languages in the Genocide Convention (Article 10). At least in law.
The word ‘genocide’ was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. This word remains the same in other Latin official languages of the UN, i.e. French, Spanish (also worked fine in Cyrillic Russian). However, genocide in its ‘Greek and Latin shape’ was blocked by Chinese, a language that uses characters and the only one that does not use any forms of alphabet in the six UN official languages.
In line with other legal translations (it is fair to assume Lemkin had no Chinese language skills) in modern Chinese law, translators of the convention/UN used sense-for-sense translation. We then have ‘种族灭绝 (Zhong Zu Mie Jue)’ as genocide’s shape in the Chinese language, which bears little resemblance to the word genocide phonetically or in its appearance. While 种族(Zhong Zu) can correspond to geno and 灭绝(Mie Jue) to cide, the word “灭绝” has no direct link to the world杀(killing) in the Chinese language (for reference, suicide is 自杀 and homicide is他杀).
Interpreting the word 灭绝 in the Chinese language would require another article, however it certainly does not condone a ‘killing only’ definition. In layman’s terms, ‘灭绝’ in the Chinese language is commonly used as a biological term as ‘extinct’. In fact, extermination (when used in crimes against humanity) in the Rome Statute is also translated as 灭绝.The fact that modern international criminal law also does not require killing as part of extermination might also be more evidence that, unlike cide in English, 灭绝in Chinese does not necessarily conflate with mass killing.
As linguistic scholars like Professor Lynn Mario T. Menezes de Souza (citing Joseph, Makoni and Pennycook) reminded us in Glocal Languages, Coloniality and Globalization from below, language is a political construction; language classification is a political construct instrumental for the control of variety and difference. We need to not only see language and its study as inherently implicated in ideology and politics (local, national, colonial or Eurocentric) but to also understand the interrelationships that prevail in order to seek ways to reconstitute the constraining consequences of these interrelationships.
If we indulge in the Chinese context even further, China like any other civilisation has its own share of genocide in its rich history. While Lemkin thought of the Holocaust as the paradigmatic example of genocide, Chinese lawyers might think of their own historic context when trying to resonate with this concept. In the first ever commentary of the Rome Statute in the Chinese language, edited by three international law expert practitioners/scholars, Judge LIU Daqun, a veteran diplomat and judge from the International Criminal Tribunal for the former Yugoslavia (ICTY) raised the example of ‘扬州十日、嘉定三屠’(literal translation: ‘10 days in Yangzhou and 3 assaults on Jiading’. Yangzhou and Jiading are both towns around modern day Shanghai) when he explained the definition of genocide. When Manchu (an ethnic minority from the north which ruled China’s last dynasty Qing) conquered China, they demanded the Han Chinese to either change their costume including the much treasured hairstyle or perish. ‘10 days in Yangzhou and 3 assaults on Jiading’ was referring to the mass atrocities that followed when this was met with resistance. There was a genocide, but the victim group also happened to be today’s most populous ethnic group on earth. Unlike the Armenian genocide or the Holocaust, here, the subjugation was remembered more than the extermination of the ethnic group.
Genocide might not seem to be the crime of crimes in the modern Chinese context as well. Eurocentric mindsets claim modern international criminal law was born with Nuremburg as a response to Nazi atrocities (period) and conveniently left out what was happening in the Far East with the Tokyo trial. While in Europe it was the holocaust that exceeded the existing legal categories of law, hence the invention of genocide was necessary, it is the Japanese atrocities like the rape of Nankin that captured the imagination of cruelty in China. To label genocide as the superior evil might even first have trivialised the suffering of the mass innocent victims in the Far East.
To end, I considered the words of another Chinese Judge, Xue, the Chinese judge at the Peace Palace. When commenting on taking away Asia’s alleged ‘ambivalence’ towards international law, she asserts that ‘the current practice of international law and institutions first need to be reviewed’ and ‘for a more representative and democratic legal system, the focus perhaps is not on the East, but the West’. I rarely agree with her, but I see the relevance of her point in the current debate as a need to decolonise the word genocide.
Interesting. Yet, not really relevant when dealing with the legal world or legal terminology with all due respect:
First, legal meaning, differs totally from ordinary and universal meaning. For example, the word "person" referring typically to human being, can mean legally, in certain codes or laws, to include also, corporation. So, one should always, look for the specific legal meaning, prescribed typically, in the section of "Definitions" in certain code or law.
Second, and in accordance, even in China, laymen, don't understand nothing in law and legal issue. So, this is universal gap. The gap between the law, and understanding of laymen. This is universally so. So, to bring here the exotic perception of far East Asia, is not relevant simply, with all due respect.
Third, we can illustrate it, by the legal meaning of Genocide indeed. What is the main legal meaning:
With the intent, to exterminate certain ethnic group, criminal acts are committed. But, not killing or murdering necessarily, but also through, starving them, sterilization etc.... Not necessarily killing them at once as layman may think simply or perceive it so.
I quote from the Rome statute, article 6:
For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
End of quotation:
So we read, not only killing, but preventing births. Transferring children etc.....
Finally, the law doesn't deal with subjective perception, but rather, objective, factual and legal configurations, on the ground. Occurrences. Not theoretical linguistic analysis. The terminology of crime of all crimes, doesn't matter. What counts, is: evidences, and legal and factual configurations, with respect to factual occurrences, and mental state of perpetrators.
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