Parliamentary Committee Notes: Use of the Term "Genocide" and the Situation in Xinjiang
PROC – Foreign Interference
Date: January 27, 2023
Classification : SOLICITOR-CLIENT
Fully releasable (ATIP)? No
Branch / Agency: GAC
Proposed Response:
- The legal determination of whether a situation constitutes the crime of genocide must be done by a competent court or tribunal, bearing in mind that the legal definition of genocide is precise and complex, as outlined in international treaties such as the Convention on the Prevention and Punishment of the Crime of Genocide and the Rome Statute of the International Criminal Court.
- There has been no legal determination by a competent national or international court or tribunal that China is committing genocide.
- Unanimous consent motions, such as the House of Commons motion calling the situation in Xinjiang a genocide, are non-binding statements of solidarity that reflect the will of Canadian parliamentarians, but they do not constitute legal determinations.
- Where there is no international court or tribunal with jurisdiction capable of making such a determination, we would rely on findings of UN or other authoritative and independent fact finding bodies.
- A report by the Office of the United Nations High Commissioner for Human Rights has found that "arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslim groups […] may constitute international crimes, in particular crimes against humanity". The report does not refer to genocide, however.
- The Government of Canada has been clear that egregious human rights violations are occurring against Uyghurs and other ethnic and religious minorities. Given mounting evidence of the Chinese Government's systematic ill-treatment of these groups in Xinjiang, Canada will continue to advocate for meaningful and unfettered access to Xinjiang by independent UN experts.
- Responsive re Federal Court decision – The Federal Court struck the Application brought by the Uyghur Rights Advocacy Project on the basis that no reviewable conduct had occurred, and the Application raised issues that were not justiciable. Any additional information or views should be sought from the Minister of Justice.
Background:
In October 2020, the Subcommittee on International Human Rights of the House of Commons' Standing Committee on Foreign Affairs and International Development concluded that China's actions against the Uyghurs constituted genocide within the meaning of the Genocide Convention. Then Foreign Affairs Minister Champagne noted that Canada took the allegations of genocide very seriously and would continue to push for these allegations to be investigated through an international independent body. On February 22, 2021, the House of Commons unanimously passed a motion calling for Canada to recognize the human rights abuses in Xinjiang, China as genocide.
On August 31, 2022, the UN Office of the High Commissioner for Human Rights issued a report on the human rights situation in the Xinjiang Uyghur Autonomous Region. The report noted ongoing human rights violations and abuses in Xinjiang, which may constitute "international crimes, in particular crimes against humanity," but did not reference any commission of genocide.
On February 3, 2022, The Uyghur Rights Advocacy Project (URAP) filed an Application for judicial review of the acts and omissions of the Government of Canada, in relation to what it stated was an ongoing genocide against members of the Uyghur population in China. It contended that Canada was not respecting its obligations under the Genocide Convention to take steps to prevent the ongoing genocide, including that Canada had failed to recognize a genocide against the Uyghurs.
On January 26, 2023, the Federal Court struck the Application, on the basis that the Application had no possibility of success, including because no reviewable conduct had occurred. The Court noted that it was "not the role of the Court to tell the Government of Canada what policy to adopt, including foreign policy." The Court also found that the Application raised issues that were not justiciable, and that "other branches of government" were better placed to make decisions on the matters raised by URAP. In particular, it noted, "it is up to the Federal Government to decide whether a genocide has taken place," and at that point, international obligations would be engaged.
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Contacts:
Prepared by: Teresa Crockett, Deputy Director, Accountability, Atrocity Crimes, and International Courts and Tribunals, (343) 597-5640
Approved by: Carolyn Knobel, Director General of the Legal Bureau and Deputy Legal Adviser, and acting Assistant Deputy Minister of the Legal Bureau and Legal Adviser, (343) 203-2554
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