China’s Liability for Uighur Genocide Under International Law- Part II

How can the ICC exercise jurisdiction over the matter?

If the International Criminal Court decides to launch an investigation against Beijing over Uighur genocide and prosecute the Chinese Communist Party, it would be the first attempt to hold Beijing accountable for its crimes against Uighur Muslims before the International law community. However, it will not be easy for ICC to investigate the Uighur genocide directly as China does not accept the jurisdiction of International Criminal Court.

Article 12 titled ‘Preconditions to the exercise of jurisdiction’ of the Rome Statute is relevant in this context. As per Article 12(2) (a) of the Rome Statute, the court’s exercise of jurisdiction as contained in Article 13 is limited to those states that are party to the statute or have accepted the state’s jurisdiction in accordance with paragraph 3 of Article 12. As China is not a party to the Rome Statute, this provision safeguards it against being brought before the International Criminal Court. Apart from that, Article 13(2) provides that the ICC can exercise jurisdiction over the crimes if UNSC refers the same to Prosecutor under Chapter VII of the United Nations Charter. However, this seems unlikely as China is a permanent UNSC member that possesses veto power and therefore won’t allow a prosecution against itself. However, this does not mean that the ICC cannot exercise jurisdiction over the alleged crimes at all.

In order to investigate the Uighur genocide, the ICC will need to take an indirect approach and find a way to establish jurisdiction over the matter. In furtherance of the same, the International law community has proposed exploring the possibility of using the precedent set by the ICC in the Myanmar case over Rohingya genocide. In 2018, a request had been submitted by prosecutor Fatou Bensouda to the ICC to exercise its jurisdiction over the crimes committed against the Rohingya Muslims during the course of their deportation from Myanmar to Bangladesh. It was put forward by the prosecutor that even though the crimes against Rohingya Muslims occurred in Myanmar’s territory, a state that does not accept the jurisdiction of ICC, the fact that crimes were committed against Rohingya Muslims when they were forced to move across border into Bangladesh, a territory that accepts the jurisdiction of ICC is enough to justify ICC’s jurisdiction over the matter. Her arguments were accepted by the Pre-Trial Chamber I of the court and it was decided the case fell within the jurisdiction of the court. In other words, crimes with regards to the ethnic Muslim minority community were partly committed in a nation state that is bound by the Rome State and this allowed the ICC to exercise jurisdiction over the matter.

Subsequently, in 2019, a request was submitted by the OTP to the Pre-Trial Chamber III with regards to authorizing  an investigation into the Rohingya genocide. This request was accepted by the court as it was based on the grounds that there was a reasonable evidence to believe that alleged crimes took place against the Rohingya Muslim community .The chamber clarified that “the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party”.

The complaint against Beijing over Uighur Genocide has been filed on similar grounds. It has been put forward that since the deportation of Uighur Muslims to Xinjiang took place from Tajikistan and Cambodia, two nations that accept the jurisdiction of the ICC, an investigation into Uighur genocide is legally valid. According to Rodney Dixon, who is heading the legal team representing the Uighur Activist groups- “There is now a clear legal pathway to justice for the millions of Uighurs who are allegedly being persecuted on mass by the Chinese authorities”. Indeed, the ICC has been presented with the unique opportunity of putting China on trial by utilizing the precedent set by the Myanmar case.

Conclusion

Though the Office of prosecutor has accepted the petition seeking an end to China’s impunity over Uighur genocide, it remains to be seen whether it will green-light an investigation into the matter. As of now, prosecutor Fatou Bensouda is in the process of collecting and analysing evidence to launch a formal investigation into the alleged crimes.  

One thing has become clear- if the International Criminal Court decides to prosecute People’s Republic of China for its alleged crimes against the Uighur Muslims; it will prove to be a turning point for the Uighur justice movement. In the past, China has consistently showed its aversion to international adjudication and refused to abide by international law. Owing to its economic, political and diplomatic prowess, it has been able to garner the support of several countries across the world. As a result, these countries have refrained from raising their voice against the plight of Uighur Muslims. However, in the current political scenario, the international community has come forward and criticised the state sponsored persecution of Uighur Muslims.

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