Author: Vaishnavi Chaudhry

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

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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.

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

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Introduction

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.

State Sponsored Persecution of Uighur Muslims in China

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It is a well known fact that the People’s Republic of China is infamous for carrying out human rights violations on a large scale. Right now, an organized state sponsored reign of terror is being perpetuated by the authoritarian regime against the Uighur Muslims  of the country. The Uighur Muslims are an ethic Turkish minority group residing in the northwestern region of Xinjiang province of China. This region is known as Xinjiang Uighur Autonomous Region (XUAR). 

Ever since Chen Quanguo , the Chinese Communist party secretary, has been given the charge of XUAR, the crimes against the Uighur Muslims have considerably increased through their illegal detention in internment camps. Though there is little information about the treatment of detained Uighur Muslims in these camps, some credible sources have reported that detainees are forced to live in prison like conditions in these camps and are subjected to torture on a regular basis. Apart from these, the Uighur Muslims are also subjected to state surveillance so as to ensure that they are prevented from practicing Islam in any form or manner. Furthermore, the Chinese government has also adopted the policy of harvesting human organs from the Uighur Muslim community. 

Beijing has often responded to accusations about illegally detaining Uighur Muslims by terming the detention or internment camps as ‘re-education centres’ for the betterment of the Uighur Muslim Community. However, this is a poor attempt on Beijing’s part to thwart any criticism by the international community.

China’s Violation of International Law

The mass detention of Uighur Muslims, prevalence of torture against detainees, lack of information about the whereabouts of the detainees and the harvesting of their organs constitute crimes against humanity. Article 7 of the Rome statute of the International Criminal court lays down the criteria as to what specifically constitutes Crimes against Humanity and that criterion is being fulfilled by the Chinese government. Crimes against humanity take place when civilians are subjected to continuous human rights violations which are ignored or perpetuated by the governing authorities. According to Article 7(2) (a) of the Rome statute , crimes against humanity are committed in accordance with the state’s formal policy as in the case of China.  Additionally, according to the Rome statute, persecution of a community on the basis of religious or cultural ground also constitutes a crime against humanity.

Application of Human Rights Law

There are four major conventions on human rights and China is a party to all four of them. These are the International Convention on the Elimination of All Forms of Racial Discrimination , the International Covenant on Economic, social and Cultural Rights , Convention against cruel and other, Inhuman or Degrading Treatment or Punishment. Through the unjustified mass detention of the Uighur Muslims, China has been flouting the above mentioned conventions and has drawn widespread criticism from around the world. 

Crimes against Uighur Women 

China is also a signatory to the Convention on the Elimination of All Forms of Discrimination against Women. It is arguably the most widely violated convention by China when it comes to Uighur Muslims. Reports have emerged that Uighur Women are subjected to rape, medical experiments, forced sterilization and their menstrual cycles are often disrupted so as to prevent them from procreating. Apart from that, China is also implementing a ‘ Pair Up and Become a Family’ program under which Uighur women are forced to live in the same household as communist party officials so as to acquaint them with the ethnic Han Chinese culture. All these are indicative of the fact that China has been violating the CEDAW. 

Conclusion

Under the garb of combating religious extremism, China has adopted policies against the Uighur Muslim Community which have resulted in the creating of genocide like situation in the Xinjiang province. The cultural genocide that is being committed by China deserves much more attention from the world. Owing to the country’s global influence, it hasn’t received the kind of backlash that it deserves from the world community.