INTRODUCTION

After China reportedly constructed a public toilet over a mosque that was razed in the Atush region of Xinjiang province, almost a month later on 7 July 2020, a group of Uyghur exiles urged the International Criminal Court (ICC) to investigate China for crimes against humanity and genocide. The demolition of the mosque is among the numerous instances of blatant suppression of religious freedom of the Uyghur minority with reports stating that around 70% mosques have already been destroyed by the Chinese government in the Xinjiang region. The complaint before the ICC is the first of its kind that aims to hold China accountable before an international court for its actions with respect to Uyghurs and other Muslim minorities.

This article seeks to examine whether China can be prosecuted for its atrocities against the Uyghurs. The article will also suggest the possible legal mechanisms that are available to the international community in making sure that China is held accountable for its crimes.

THE UYGHUR MINORITY

The Chinese Communist Party (CCP) suspects the Uyghurs of harboring ‘terrorist and extremist views’ and thus has undertaken the task of squeezing out all such feelings in them. In the process, the government is actually carrying out mass scale reformation of the cultural, ideological and religious practices of the ethnic minority groups in the region.

In 2018, the region specific Anti-Extremism regulation for the Xinjiang was amended to form “education, skills training and psychological institutions for people who have been affected by extremist thoughts”. A variety of reasons have been forwarded by the Chinese government to justify the establishment and the need to detain Uyghurs in these re-education centres. The CCP argues that the unchecked extreme Islamic ideology will eventually lead to an actual terror threat if not reformed. The Chinese government claims that a systematic re-education in these centres will help the Uyghurs to assimilate into mainstream Chinese culture and that the programs should be seen as poverty alleviation measures.

The reality of these detention centres tells a different story. The detainees have been forced to learn Mandarin and denounce their own language, belief, religion and identity. Alleged violations also include mass surveillance, torture, forced sterlisation, abortion, and implantation of contraceptive devices in Uyghur women, forced labour, forced organ harvesting, disappearances and killings in detention.

The CCP has specifically targeted intellectuals, academicians as well as university professors and scholars of Uyghur history, culture and language. The atrocities are not just limited to the adult population. The CCP has also established state run boarding schools and has placed Uyghur children in those special shelters.

OBLIGATIONS UNDER INTERNATIONAL TREATIES AND ITS VIOLATION BY CHINA

It is very clear that the atrocities against the Uyghurs by China amounts to violation of its obligations under several treaties to which China is a state party. Some of these international law treaties are Convention on the Elimination of All Forms of Racial Discrimination (CERD), Convention on the Elimination of All Forms of Discrimination against Women, Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention), Convention on the Rights of the Child, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment (UNCAT), Slavery Convention. Hence, China is under an obligation to prevent crimes and violation of rights against minority groups and it also has a duty to punish the perpetrators. The alleged atrocities on Uyghurs are not merely an attack on human rights but also make a case of genocide.

There are legal mechanisms available that the states may use to hold China responsible. Firstly, the states may bring China before the ICC. The problem is that China is not a party to the Rome Statute citing its reservations over the definitions of core crimes, namely crime against humanity, war crimes, crime of aggression and genocide and thus has opposed to ICC’s jurisdiction over prosecuting states on such crimes. China has also expressed its reservation towards Article IX of the Genocide Convention which states that the disputes between the state parties related to Genocide and other related acts mentioned under Article III of the Convention shall be submitted before the ICJ at the request of a state party.

But the court in its 2018 and 2019 rulings in Pre Trials Chambers I and III (decisions related to Bangladesh and Myanmar in reference to Rohingya people) has clarified that “it may exercise jurisdiction when part of the criminal conduct takes place on the territory of a signatory”. In the petition, it is alleged that China has illegally deported Uyghurs from Tajikistan and Cambodia (both state parties to the Rome Statute) into Xinjiang. This avoids the problem of China not being party to the statute as the court can exercise jurisdiction as part of the criminal conduct has occurred within the territory of two signatories to the Rome Statute – Tajikistan and Cambodia. Thus the alleged crimes by China must be investigated by the ICC.

Secondly, China has not expressed any reservation with respect to Article 11 of CERD and “it has accepted the competence of the Committee on the Elimination of Racial Discrimination to examine and adjudicate inter-State disputes concerning alleged failures to give effect to the Convention”. State Parties to CERD may, therefore, request the Committee examine alleged breaches of the Convention by China.

Apart from the above, crimes against humanity and genocide are jus cogens norms. The ICJ has reiterated time and again that it does not matter whether the states have ratified the Genocide Convention or not, jus cogens norms cannot be violated in any way.

RESPONSIBILITY OF THE INTERNATIONAL COMMUNITY

It is the duty of the international community to ensure that China gives due regard to the rights guaranteed to the Uyghurs by the domestic laws of China and the international treaties to which China is a state party.

The Constitution of China under Article 4 provides for the protection of the minority rights and interests and prohibits all forms of discrimination against the minority nationalities. However, in practice domestic laws and the legal system do not cater to the needs of the minority community. The absence of a strong and independent domestic legal framework to help the Uyghur minority community all the more highlights the need for the international community to step in at the earliest.

Under CERD, UNCAT, the Genocide Convention and the Slavery Convention, the state parties have committed to punish the perpetrators who are found to have committed forbidden acts of racial discrimination, slavery and genocide. The responsibility of other states also arises from such commitment if there isn’t already a moral duty to intervene.

Secondly, the duty of the international community to intervene also emanates from the doctrine of Responsibility to Protect (R2P). The year 2020 also marks the fifteenth anniversary of the adoption of Responsibility to Protect. R2P advocates three pillars of responsibility:

1. “Every state has the Responsibility to Protect its populations from four mass atrocity crimes: genocide, war crimes, crimes against humanity and ethnic cleansing.
2. The wider international community has the responsibility to encourage and assist individual states in meeting that responsibility.
3. If a state is manifestly failing to protect its populations, the international community must be prepared to take appropriate collective action, in a timely and decisive manner and in accordance with the UN Charter.”

Although invoking the third pillar would require the authorisation of the UN Security Council which ultimately China will veto, the fact that it will have to answer questions on the allegations related to Uyghurs will make its position uncomfortable at the international stage.

In what can be termed as one of the first attempts to hold China accountable for its crimes, the United States on 17 July, 2020 passed the Uyghur Human Rights Policy Act of 2020. The Act condemns gross human rights violations of ethnic Turkic Muslims in Xinjiang and imposes sanctions on foreign individuals and entities responsible for human rights abuses in China’s XUAR (Xinjiang Uyghur Autonomous Region). Although the law only has domestic application, it nevertheless marks the beginning of any country publicly going against China on the international stage for it wrongs committed against the Uyghurs.

CONCLUSION

The petition filed before the ICC by the Uyghur exile group has ushered the legal battle against China. An investigation by the ICC should be initiated as a result of the petition. And once that happens, the international community needs to join hands and warn China of several economic and geo-political sanctions if it does not uphold its obligations. The United States is all set to ban cotton and tomato imports from Xinjiang arguing that they are produced using forced labour. Other states can come up with similar economic sanctions. It is also for China to understand that its power and influence in the international community will suffer a blow unless it fulfills the promise it has made to humanity and becomes a responsible member of the international community.

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ABOUT THE AUTHOR

Saket Rao

Saket is a fourth-year student at National Law Institute University, Bhopal.  He has a keen interest in International Law, Human Rights Law and International Humanitarian Law.