Could China Be Charged for the Xinjiang Conflict? Exploring the Applicability of International Genocide Law
“Concentration camps”, “conversion therapy”, “de-extremification”—these are all terms which have been used persistently to describe the conflict in Xinjiang, China. While several member states of the United Nations have fiercely rebuked China’s “crackdown” on the Uyghur minorities, the Chinese government has continually countered these claims. [1] In fact, Chinese officials have recently rejected satellite-based findings which allege that approximately 65% of the total number of mosques in Xinjiang had been destroyed due to government-led initiatives. [2]
The Uyghurs, also known as the indigenous people of Tarim Basin in Northwest China, are currently the predominant ethnic group in the Xinjiang Uyghur Autonomous Region. [3] The Uyghurs practice a form of Sunni Islam and speak the Turkic language, which they consider to be an integral part of their culture. [4] However, the cultural and religious customs practiced by the Uyghurs have been alleged to be inimical to the unity of the Chinese state. This has led to measures including the alleged detainment of more than a million Uyghurs in “re-education camps” by the government, as well as state-led campaigns such as the 2014 “Strike Hard Campaign against Violent Terrorism” which, as the Human Rights Watch found, had resulted in the imprisonment of several Uyghurs without a proper trial. [5]
These occurrences highlight the incongruity between the rights guaranteed to religious and ethnic minorities in the constitution of China and the treatment of these groups in reality. As Article 4 of the Constitution of the People’s Republic of China unambiguously states: “All nationalities in the People’s Republic of China are equal. The State protects the lawful rights and interests of the minority nationalities and upholds and develops a relationship of equality, unity and mutual assistance among all of China’s nationalities.” [6]
The principle of equality of treatment and its opposition towards marginalization on the basis of ethnicity or religiosity thus appears to be enshrined in the legal text of the Chinese constitution. This idea is supported by academic Kunal Mukherjee, who asserts that Article 4 ensures that ethnic groups “have the freedom to use and develop their spoken and written languages” and the right “to preserve or reform their own folkways and customs.” [7] However, Mukherjee also contended that the Chinese Communist Party (CCP) has regarded religious and ethnic minorities “with considerable suspicion”; according to Mukherjee, these groups are perceived by the CCP as being “politically recalcitrant elements of society... capable of subverting the existing state system and resisting its authority.” [8] Thus, while the CCP’s treatment towards the Uyghur minorities could be deemed unconstitutional from a purely textual lens, the reality is that the CCP, with its intrinsic distrust of ethnic and religious minorities, remains the sole source capable of approving constitutional amendments and interpretations.
Given these reported violations of both legal protections and international human rights values, several political leaders and human rights activist groups have called for China to be held accountable. Could China in fact be charged for its human rights abuses in Xinjiang under international genocide law? Based on a recent submission to the Office of the Prosecutor (OTP) at the International Criminal Court (ICC), it appears that there may be a legal basis on which Chinese officials could be charged for forced deportation of Uyghurs from Tajikistan and Cambodia back to China. However, this submission to the ICC would charge China’s state officials rather than the Chinese state itself.
To determine what exactly China could be charged for, it is important to establish whether the case involving the Uyghur minorities constitutes “cultural genocide.” 20th century lawyer Raphael Lemkin, who coined the term “genocide”, defined cultural genocide as the “forcible transfer of children to another human group; forced and systematic exile of individuals representing the culture of a group; the prohibition of the use of the national language even in private intercourse; the systematic destruction of books printed in the national language or of religious works or prohibition of new publications; [and the] systematic destruction of historical or religious monuments.” [9] The reported acts conducted by the Chinese state towards the Uyghurs would have thus fallen under this original definition by Lemkin.
However, it was eventually decided that this broad definition of cultural genocide would not be included in the 1948 Genocide Convention, which continues to serve as a legal guideline today. Instead, the only act of cultural genocide that was included in the Convention was the “forcibl[e] transferring [of] children of the group to another group.” [10] This definition of genocide, which was more limited in scope, was similarly adopted in Article 6 of the Rome Statute, the treaty which established the ICC. Given that the ICC’s defintion of “genocide” does not stray far from the arguably narrow definition enshrined in Article 2 of the Genocide Convention, it is unlikely that the ICC may adjudicate this matter differently since the type of acts that both the Rome Statute and the Genocide Convention consider as “crimes” are defined similarly. Thus, while the Uyghur case may display the hallmarks of cultural genocide initially outlined by Lemkin, its attributes do not fall within the scope of “genocide” recognized by the international community. This ultimately means that the acts committed in Xinjiang do not constitute an international crime both under the Genocide Convention and the ICC’s Rome Charter. In fact, since China is not currently a party to the ICC, the ICC may not be able to exercise jurisdiction over state actions regardless. [11] Therefore, there is a clear lack of means to prosecute the Chinese state for alleged crimes committed against the Uyghur minorities in Xinjiang under international law.
Given these limitations, are there any other means through which China could potentially be held accountable for the Uyghur case? A recent submission to the OTP at the ICC in July 2020 appeared to provide a possible answer to this question. In this complaint filed on behalf of the East Turkistan Government in Exile and the East Turkistan National Awakening Movement, the ICC was requested to open an investigation against senior Chinese officials include President Xi Jinping for crimes “allegedly committed against the Uyghur and other Turkic peoples.” [12] The complaint claimed that some Uyghurs had been “unlawfully deported” into occupied East Turkistan (Xinjiang) from Tajikistan and Cambodia even though they sought refuge in the latter two countries, and, upon their return to China, were subject to crimes including “murder, unlawful imprisonment, torture, forced birth control and sterilization, and forced marriages.” [13] If the submission had been approved by the OTP, it could have charged Chinese officials for criminal conduct—such as human rights abuses—within the territories of Tajikistan and Cambodia which are both signatories to the Rome Statute, even though China is not a signatory. [14] By shifting the focus onto territories which are signatories to international treaties, this submission highlights a unique legal circumvention of existing limitations that would normally have left the Chinese state and its officials relatively insulated against charges related to China’s treatment of the Uyghurs.
In fact, this inventive approach arguably stems from the ICC’s involvement in the crisis involving the Rohingya ethnic group in Myanmar, which set a solid precedent for the case involving the Uyghurs. In the Rohingya case, the decisions of ICC Pre-Trial Chamber clarified that the Court may indeed “exercise jurisdiction over international crimes under Article 12(2)(a) of the Statute when part of the criminal conduct takes place on the territory of a signatory.” [15] President of the American Turkic Lawyers Association Rayhan Asat pointed out the similarities between the Rohingya and Uyghur cases by asserting that, while the Court would likely have been prevented from ruling on the matter due to the fact that both China and Myanmar are not parties to the ICC, the Rohingya case broadened the Court’s jurisdictional reach through “a novel legal strategy” that charged Myanmar for crimes committed towards the same group on a different territory. [16] This meant that while Myanmar might not be held accountable for any crimes against the Rohingya occurring on its territory, it could be charged for crimes committed against individual Rohingya who were victims of forced deportation from Bangladesh, which is a member state of the ICC. [17] Similarly, the 2020 submission to the OTP at the ICC regarding the Xinjiang conflict aimed to redress alleged violations towards the Uyghurs who have been victims of forced deportation from Tajikistan and Cambodia, states which are both parties to the ICC. Given these parallels, the legal approach taken in the Rohingya case could serve as precedent and be similarly applied to the Uyghur case.
However, while there may appear to be sufficient legal precedence for the ICC to rule on the matter, the ICC’s Office of the Prosecutor recently rejected the submission filed by the East Turkistan Government in Exile and the East Turkistan National Awakening Movement. The ICC report stated that the “alleged crimes appears to have been committed solely by nationals of China within the territory of China, a State which is not a party to the Statute.” [18] It also emphasized that while the Office of the Prosecutor observed that “the transfers of persons from Cambodia and Tajikistan to China appear to raise concerns with respect to their conformity with national and international law,” it ultimately “does not appear that such conduct would amount to the crime against humanity of deportation under article 7(1)(d) of the Statute within the jurisdiction of the Court.” [19] Article 7(1)(d) refers to the clause on “deportation or forcible transfer of population.” [20]
What does this mean for the situation of the Uyghurs moving forward? According to Rodney Dixon, the lead human rights lawyer on the case, his legal team will need to provide more “concrete evidence from Cambodia and Tajikistan to establish jurisdiction” to the Office of the Prosecutor in the coming months, though this process is likely to be delayed due to issues related to the ongoing COVID-19 pandemic. [21] Nevertheless, the provision of further evidence may give the ICC greater grounds to open an investigation on the Xinjiang conflict.
Moreover, in order for concrete steps to be taken by the ICC, there may be a need for greater support from the international community. Indeed, such efforts have recently been initiated by 60 parliamentarians from countries including the UK, Australia, and Germany, all of whom have signed the recent submission. [22] However, China’s strong international influence and its continued rejection of accusations regarding its treatment of the Uyghurs is likely to engender pushback against any further submission to the OTP, regardless of its legal merit. Thus, while the evidence has thus far demonstrated that there is a clear mechanism for which issues similar to the situation in Xinjiang have been adjudicated by the ICC, it is another question altogether whether a review of the treatment of the Uyghurs will realistically occur at all.
[1] Lily Kuo, China Says UN Criticism Of Human Rights Record Is 'Politically Driven', The Guardian (2018), online at https://www.theguardian.com/world/2018/nov/06/china-un-criticism-human-rights-record (visited December 10, 2020).
[2] Jan van der Made, China Denies Alleged Mass Destruction Of Mosques In Xinjiang Region, RFI (2020), online at https://www.rfi.fr/en/international/20200928-china-denies-alleged-mass-destruction-of-mosques-in-xinjiang-region (visited December 10, 2020).
[3] Thomas Lum and Michael A. Weber, Uyghurs In China, Congressional Research Service (2020), online at https://fas.org/sgp/crs/row/IF10281.pdf (visited December 10, 2020).
[4] id
[5] Yordan Gunawan, "Responsibility Of People’s Republic Of China For Minority Based On ICERD: Uyghur Case," 15 Varia Justicia 2, 65-73 (2019).
[6] Constitution Of The People's Republic Of China. 1982. Beijing.
[7] Kunal Mukherjee, "The Uyghur Question In Contemporary China," 34 Strategic Analysis 3, 420-435 (2010).
[8] id
[9] William A. Schabas, Genocide In International Law: The Crimes Of Crimes (Cambridge University Press 2009).
[10] General Assembly resolution 260 A (III), Convention on the Prevention and Punishment of the Crime of Genocide, A/RES/67/97. December 9, 1948.
[11] The States Parties to the Rome Statute, International Criminal Court (2020), online at https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (visited December 20, 2020).
[12] East Turkistan Government in Exile, Uyghur Genocide And Crimes Against Humanity: Credible Evidence Submitted To ICC For The First Time Asking For Investigation Of Chinese Officials, East Turkistan National Awakening Movement (2020), online at https://nationalawakening.org/press-release-uyghur-genocide-and-crimes-against-humanity-credible-evidence-submitted-to-icc-for-the-first-time-asking-for-investigation-of-chinese-officials/ (visited December 10, 2020).
[13] id
[14] id
[15] id
[16] Rayhan Asat, The World Shrugged As Uighurs And Rohingya Were Brutalized. So They're Fighting Back, NBC News (2020), online at https://www.nbcnews.com/think/opinion/china-myanmar-face-uighurs-rohingya-are-fighting-back-after-years-ncna1240259 (visited December 10, 2020).
[17] id
[18] Report on Preliminary Examination Activities 2020, International Criminal Court: The Office of the Prosecutor (2020), online at https://www.icc-cpi.int/itemsDocuments/2020-PE/2020-pe-report-eng.pdf (visited December 20, 2020).
[19] id
[20] Rome Statute of the International Criminal Court. 1998. Rome
[21] Javier C. Hernández, I.C.C. Won’t Investigate China’s Detention of Muslims, The New York Times (2020), online at https://www.nytimes.com/2020/12/15/world/asia/icc-china-uighur-muslim.html (visited December 20, 2020).
[22] Patrick Wintour, ICC Uighur Genocide Complaint Backed By Parliamentarians Around World, The Guardian (2020), online at https://www.theguardian.com/world/2020/nov/09/icc-uighur-genocide-complaint-parliamentarians-world-chinese-government (visited December 10, 2020).