Can China finally be prosecuted for Uyghur atrocities?

1. Introduction

In August 2020, a group of Uighur exiles represented by London-based lawyers lodged a complaint against China for alleged crimes against humanity and genocide against the Uighur and other Turkic peoples of East Turkistan. The complaint, filed before the International Criminal Court (‘ICC’), details numerous discriminatory actions into which investigation is urged, including forced birth control and sterilization, torture, and unlawful imprisonment. A list annexed to the complaint names specific high-ranking members of the Chinese government, law enforcement, armed forces, and the military as those responsible for the crimes.[1] Included in the list is President Xi Jinping himself.


Ethnic violence against the Uighur has been a protracted phenomenon. Although accounts vary, it is generally accepted that the atrocities were triggered by China's aggressive response against student-led protests in mid-2009. What had initially been a peaceful uprising against injustices experienced by ethnic Uighur soon became a “massive campaign of unlawful arrests” and a series of enforced disappearances.[2] This marked a historical watershed in China's already infamous treatment of the group. Aside from sporadic media coverage and the occasional talks at the United Nations (‘UN’), however, the world has been largely divided – if not at all silent – about the situation.[3] As such, the ICC complaint is arguably the first significant step ever taken in pursuit of a resolution. Could China then be finally held accountable for its actions this time around?


Unfortunately, the answer is not so simple. As a preliminary matter, the case will not advance unless and until the current ICC Prosecutor, Fatou Bensouda, finds a reasonable basis to proceed based on the evidence she has received.[4] This would entail an intricate process of gathering all the relevant information which supports the opening of an investigation pursuant to Article 15 of the Rome Statute, the court's constituent instrument. The prosecutor will have to round up hundreds of victims and witnesses to obtain testimonies, as well as engage with sources such as intergovernmental organizations, NGOs, and other countries. In the case of Myanmar/Bangladesh, where proceedings were initiated proprio motu, it took the prosecution more than a full year to complete its preliminary examination and ultimately secure a green light to proceed to the investigation phase.[5] Seeing that the case against China was set in motion by an external complaint, it is reasonably expected that the road to an investigation will be even longer.

Another hurdle that the complainants will face in the long legal battle ahead, supposing prosecutor Bensouda wishes to open an investigation, is to convince the ICC that it has jurisdiction to hear the case. The parameters of the court's jurisdiction are strictly defined under Articles 5, 11, and 12(2) of the Rome Statute. Indeed, jurisdictional impediment is the primary reason for the dismissal of many submissions filed at the court. Out of the 579 external complaints and formal communications received by the ICC between November 2013 and October 2014, 462 were determined to fall manifestly outside of the court's jurisdiction.[6] That is almost 80% of the overall figure. The subject matter, temporal, and geographical limitations on the court's powers serve as a procedural filter to the copious number of cases referred to it on the regular, oftentimes erroneously so. Therefore issues such as China's failure to contain COVID-19 or Indonesia's 2019 general election debacle cannot be entertained by the Hague-based court.[7]


2. Jurisdiction

In arguing that the ICC can exercise jurisdiction over the situation, lawyers representing the Uighur cited decisions in the above-mentioned Myanmar/Bangladesh probe which enabled the prosecutor to take the case on despite Myanmar's non-membership to the Rome Statute. We should note, however, that these decisions allowed investigation insofar as the crimes in question had been committed within the territory of Rome Statute State party Bangladesh.[8] For the Rohingya people, this is certainly good news, given that mass displacement to Bangladesh has been the predominant consequence of the ill-treatment against them. The same cannot be said about the Uighur. Circumscribing the ICC's jurisdiction only to those crimes of a cross-border nature, in this case implicating Cambodia and Tajikistan who have both accepted the court's jurisdiction, will inevitably neglect the multitude of other crimes which have all been allegedly committed within China's own borders. Crimes which are, in terms of nature and gravity, relatively direr in comparison to the sole displacement of Uighurs.


It is also noteworthy that unlike the expulsion of Rohingya, China's oppression of the Uighur operates on the basis of forced assimilation, thus the term “cultural genocide”. Ethnic Uighur and the rest of minority Turkic peoples in China are under constant pressure to give up their cultural practices, traditional and religious values in the view of subjugating them to the mainstream Chinese population. There is also evidence that Uighurs in exile have been forced to return without any justifiable basis or semblance of due process. Bringing this case to trial, therefore, comes with a distinct set of legal and policy challenges. The ICC prosecutor carries the hefty burden of ensuring that the ostensibly narrow scope of the investigation does not distort the aim of imposing retribution and deterrence upon the perpetrators.


3. Justice

The prospect of justice for Uighurs is only less optimistic from the political standpoint. The ICC – albeit conceived in the vision of creating a one-stop judicial forum to adjudicate the most heinous crimes affecting the international community as a whole – has been under heavy scrutiny for its inability to weather political maneuvers pulled by its ardent opponents. As particularly evident in recent years, it has proven difficult to try and act on behalf of victims without ruffling the feathers of global powerhouses. In June 2020, the ICC was pejoratively dubbed “a kangaroo court” by the US, who is now launching economic and administrative attacks against court employees in a desperate attempt to curb ongoing investigations into war crimes committed by American soldiers.[9] The court's functions are very much contingent on the cooperation of States in all respects, such as to execute arrest warrants or, as previously mentioned, to supply evidence. It is not impossible to surmise that China's sweeping influence on the global stage renders its top officials virtually untouchable by the short arm of international criminal justice.


In the event all aspects of the probe went smoothly, it would still take years for the court to reach a final judgement on the case. Until then, anything can happen; charges can get withdrawn or vacated, depending on political climate surrounding the case and the sufficiency of evidence. This is exactly what happened in the prosecution of Kenya’s former Prime Minister Uhuru Kenyatta. After multiple delays to the start of his trial, all five counts of crimes against humanity against him were dropped in 2014 due to Kenya’s withholding of key evidence.[10] Likewise, proceedings against Kenyan politician William Ruto and broadcaster Joshua Sang had to be terminated following Kenya’s repeated efforts to challenge the ICC’s independence through political and diplomatic channels.[11]


But not all is doom and gloom for the Uighur. The allegations levelled against China all seem to fit squarely within the ICC’s temporal jurisdiction, thanks to Cambodia’s and Tajikistan’s early ratification of the Rome Statute.[12] If approved, investigation into this situation will cover all cross-border crimes against ethnic Uighur and other relevant minority groups committed from 2009 until today as sought in the complaint. The ICC also appears to be showing its teeth, having finally authorized an inquiry into alleged war crimes committed by US troops in Afghanistan after its initial rejection last year over threats of non-cooperation.[13] In response to the US’ denunciation, prosecutor Bensouda has positively vowed to continue her fight “without fear or favor”.[14] The court has also made progress in examining Israel’s alleged crimes in the occupied Palestinian territories, and is due to decide on its jurisdiction over the matter in a few months’ time.[15]


The crackdown on China’s systematic, ethnically charged oppression of the Uighur may very well set another precedent for the future of criminal culpability on the international plane. At its best, the complaint of 6 July will put an end to the decade-long human rights abuses once and for all. At its worst, it will send a clear enough message that every wrong, even by the most giant of powers, cannot be met with silence.

[1] Marlise Simons, ‘Uighur Exiles Push for Court Case Accusing China of Genocide’ (New York Times, 6 July 2020) <https://www.nytimes.com/2020/07/06/world/asia/china-xinjiang-uighur-court.html> accessed 12 July 2020. [2] Aysha Khan, ‘Uighurs reflect on 2009 violence that set off Chinese crackdown’ (Washington Post, 11 July 2020) <https://www.washingtonpost.com/religion/uighurs-reflect-on-2009-violence-that-set-off-chinese-crackdown/2020/07/10/03ce53ae-c246-11ea-9fdd-b7ac6b051dc8_story.html> accessed 12 July 2020. [3] See e.g. the UK joint statement on behalf of 23 countries before the UN General Assembly human rights committee, calling for China’s compliance with its national laws and international obligations to respect human rights. ‘UN members divided over China’s treatment of Uighur minority’ (Deutsche Welle, 30 October 2019) <https://www.dw.com/en/un-members-divided-over-chinas-treatment-of-uighur-minority/a-51046710> accessed 10 August 2020; Zamira Rahim, ‘UK joins 22 other UN nations in condemning China’s detention of Uighur Muslims’ (The Independent, 30 October 2019) <https://www.independent.co.uk/news/world/asia/uighur-muslim-china-xinjiang-united-nations-human-rights-uk-religious-freedom-a9177191.html> accessed 10 August 2020. Belarus, with the support of at least 37 other States, responded by stating that countries are making “baseless accusations against China” and that it supports government programs at Xinjiang. Ben Westcott and Richard Roth, ‘UN members issue dueling statements over China’s treatment of Uyghurs in Xinjiang’ (CNN, 30 October 2019) <https://edition.cnn.com/2019/10/29/asia/china-xinjiang-united-nations-intl-hnk/index.html> accessed 10 August 2020. [4] Rome Statute of the International Criminal Court, Article 15(3): If the Prosecutor concludes that there is a reasonable basis to proceed with an investigation, he or she shall submit to the Pre-Trial Chamber a request for authorization of an investigation, together with any supporting material collected […]. [5] See generally Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People’s Republic of Bangladesh/Republic Union of Myanmar, ICC-01/19-27 (14 November 2019) [“Myanmar/Bangladesh PTC Decision”] [6] ICC, Report on Preliminary Examination Activities 2014, 2 December 2014 [18] <https://www.icc-cpi.int/iccdocs/otp/OTP-Pre-Exam-2014.pdf> accessed 12 July 2020. [7] See Colin Kalmbacher, ‘Larry Klayman Wants Int’l Criminal Court to Investigate China Over Alleged Coronavirus ‘Bioweapon’’ (Law & Crime, 4 April 2020) <https://lawandcrime.com/covid-19-pandemic/larry-klayman-wants-international-criminal-court-to-investigate-china-over-alleged-coronavirus-bioweapon/> accessed 13 July 2020; ‘Mahkamah Internasional: Bisakah sengketa pilpres di Indonesia dibawa ke sana?’ (BBC Indonesia, 28 June 2019) <https://www.bbc.com/indonesia/indonesia-48799945> accessed 12 July 2020. [8] Myanmar/Bangladesh PTC Decision [62] (“[t]he alleged deportation of civilians across the Myanmar-Bangladesh border, which involved victims crossing that border, clearly establishes a territorial link on the basis of the actus reus of this crime (i.e. the crossing into Bangladesh by the victims). This is the case under the objective territoriality principle, the ubiquity principle, as well as the constitutive elements approach.”) [9] ‘Afghan conflict: US sanctions ‘kangaroo’ ICC over war crimes probe’ (BBC, 12 June 2020) <https://www.bbc.com/news/world-us-canada-53012783> accessed 13 July 2020. [10] Coalition for the International Criminal Court, ‘Uhuru Kenyatta’ <http://www.coalitionfortheicc.org/cases/uhuru-kenyatta> accessed 13 July 2020. [11] ICC, ‘Ruto and Sang case: ICC Trial Chamber V(A) terminates the case without prejudice to re-prosecution in future’ (5 April 2016) <https://www.icc-cpi.int/pages/item.aspx?name=pr1205> accessed 13 July 2020; Coalition for the International Criminal Court, ‘William Ruto and Joshua Sang’ <http://www.coalitionfortheicc.org/cases/william-ruto-and-joshua-sang> accessed 13 July 2020. [12] Cambodia and Tajikistan ratified the Rome Statute on 11 April 2002 and 2 May 2000 respectively. [13] ICC, ‘Afghanistan: ICC Appeals Chamber authorises the opening of an investigation’ (5 March 2020) < https://www.icc-cpi.int/Pages/item.aspx?name=pr1516> accessed 12 July 2020. [14] Salem Solomon, ‘Facing US Sanctions, ICC Prosecutor Pledges to Continue ‘Without Fear or Favor’’ (VOA, 17 June 2020) <https://www.voanews.com/europe/facing-us-sanctions-icc-prosecutor-pledges-continue-without-fear-or-favor> accessed 13 July 2020. [15] ICC, ‘Statement of ICC Prosecutor, Fatou Bensouda, on the conclusion of the preliminary examination of the Situation in Palestine, and seeking a ruling on the scope of the Court’s territorial jurisdiction’ (20 December 2019) <https://www.icc-cpi.int/Pages/item.aspx?name=20191220-otp-statement-palestine> accessed 12 July 2020.

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