In the past few months, there has been an increased focus on China’s treatment of Uighur Muslims in the north-western city of Xinjiang. Beijing has employed an elaborate policy that seeks to prevent Uighur Muslims from practicing their religion as well as their culture. Under the pretence of re-educating the community, the Chinese authoritarian regime has detained Uighur Muslims in internment camps where they are being subjected to physical and mental torture on a regular basis. During the course of their detention, Uighur Muslims are being forced to commit acts that are in violation of their religious beliefs. Moreover, Beijing has been using its influence and economic power to bring back Uighur Muslims who have been living abroad or fled from Xinjiang so as to ensure that they are unable to practice their religion as well as raise their voice against the mass detention of their community. Once they are forcefully brought back, they are subjected to widespread torture that amounts to human rights violations. This systematic oppression of the Uighur Muslim community has been termed by many as ‘cultural genocide’.
For a long time, the deplorable situation of Uighur Muslims was ignored by the international community. However, due to changing political considerations and rising anti-Beijing sentiment due to the Covid-19 pandemic, several countries including the US have called out Beijing over its treatment of the Uighur Muslim Community. Moreover, in an effort to seek justice for the Uighur Muslim Community, two Uighur activists groups known as the East Turkistan Government in Exile and East Turkistan National Awakening Movement have filed a complaint against People’s Republic of China before the International Criminal Court.
The complaint has been filed against top leaders of the Chinese Communist Party officials on the grounds that China’s detention of Uighur Muslims amounts to genocide and crimes against humanity. It is worth noting here that the Uighur exiles are being represented by a group of leading international lawyers based in London. According to Anne Coulon, one of the lawyers working on the case, the team is “in possession of overwhelming and very serious evidence that can support charges of crimes against humanity and genocide against Chinese Officials”. She further noted that “The seriousness of the alleged acts is such that the prosecutor should open an investigation”.
The purpose of this article is twofold: firstly, it shall discuss whether there are sufficient grounds to hold China accountable for genocide as well as crimes against humanity under public international law, and secondly, it shall attempt to establish whether China can be brought before the ICC.
China’s Obligations under International law
Even though religious freedom is guaranteed under Article 36 of the Chinese constitution, it is impossible for Uighur Muslims to seek constitutional relief under the authoritarian regime of the Chinese Communist Party. In such a scenario, international law seems to be the only legal recourse available to the Uighur Muslim Community.
China is a state party to the 1948 Convention on the Prevention and Punishment of Crime of Genocide. Under Article I of the convention, state parties to the convention are required to punish and prevent genocide under international law. Apart from the Genocide Convention, China is also a state party to the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESR). Article 20 and Article 27 of the ICCPR provide safeguards against religious discrimination. Similarly, Article 13(3) of the ICESR provides for the parent’s right to educate their children in accordance with their religious beliefs.
Under the Rome Statute, China can be held liable for its treatment of Uighur Muslims as per Article 6 and Article 7. Article 6 of the Rome Statute defines genocide by listing several acts such as killing, sterilization etc that are “committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group”. Similarly, China can be held liable for Crimes Against Humanity under several provisions of Article 7 of the Rome Statute. However, China is not state party to the Rome Statute and that prevents ICC from exercising jurisdiction over the crimes. The next part will analyse whether there is a way through which the international criminal court can exercise jurisdiction over the crimes or not.