Jurisdiction of the International Criminal Court over China’s Detention of Uighurs
China’s detention of as many as one million ethnic Uighur Muslims has faced increasing moral condemnation from international communities and human rights organizations. Reportedly, China has been arbitrarily detaining Uighurs, a predominantly Muslim population in ‘re-education centres’/ internment camps in the Xinjiang region of China. Although there is no evidence of mass killings of Uighurs in Xinjiang, there are credible reports of extrajudicial detentions, torture, sterilisations, forced labour and other horrors that could constitute crimes against humanity.
Considering a legal perspective, lawyers have been urging the International Criminal Court (ICC) to pursue a case to probe the alleged crimes against Uighurs. In December 2020, the ICC refused to pursue the case after preliminary examinations due to a lack of jurisdiction in China (which is not a member of the Court) and a lack of conclusive evidence on the occurrence of alleged acts.
Recently, the situation has escalated with new evidence that Uighurs are being deported from Tajikistan into China’s detention camps. This has the possibility of giving the Court territorial jurisdiction over crimes committed in Tajikistan (which is a member of the Court). This case allows us to address a central question: “What options does the ICC have available to it to resolve the issue of China’s alleged detention of Uighurs?” This article will present some potential courses of action that may be taken by the ICC and will also explore a legal perspective on how the recent deportations of Uighurs from Tajikistan to China can increase the likelihood of the case being brought to court.
SITUATION OF UIGHUR MUSLIMS & CHINA’S RESPONSE
China’s harsh treatment of Uighurs, including the construction of vast indoctrination camps in the western region of Xinjiang, has been met with President-elect Joe Biden describing China’s actions as genocide, a position also taken by other Western leaders.
In addition to reports of arbitrary mass detention, the government of China is perpetrating human rights abuses on a massive scale by pursuing an expansive and troubling campaign of forced sterilization and abortions to drastically reduce the birthrate among minority groups in Xinjiang, according to an investigation by The Associated Press and Adrian Zenz, a German researcher.
“The [ICC] prosecutor needs to investigate genocide,” said Rodney Dixon, a British lawyer leading the case, “If you capture people, and you have a campaign to suppress them and sterilize them, it is a campaign which intends to dilute and destroy their identity as a group.”
The Chinese government has consistently rejected allegations of widespread repression in such camps and have condemned international news organizations reporting on the matter. Claiming that “Xinjiang fully implements the policy of freedom of religious belief”, China denied the abusive and oppressive nature of the camps, presenting them instead as “job training centres” intended to combat religious extremism and terrorism.
ICC’S CAPABILITIES AND LIMITATIONS
The International Criminal Court (ICC) currently has the jurisdiction to prosecute four international crimes: genocide, crimes against humanity, war crimes, and (since 2018) aggression. In this case, the consensus of lawyers researching this case is that China should be trialled for either genocide or crimes against humanity.
So why did the ICC refuse to pursue the case in 2020? The Court’s institutional design has features of a consensual system, as it is not binding on all UN member states. According to Article 12 of the ICC statute, the Court is bound by the territoriality principle which affirms that it can only prosecute crimes committed on the territory of states that are a party to the Rome Statute―the Court’s founding treaty―China is not.
The abuses described “have been committed solely by nationals of China within the territory of China,” said a report of preliminary examinations by the Court’s chief prosecutor, Fatou Bensouda of Gambia in December 2020. It presented that the ICC simply does not have the jurisdiction to use the force of international criminal law to hold Chinese officials accountable for their repressive policies against Muslim minorities.
How is the situation any different now than it was in 2020? According to new evidence submitted to the ICC on June 10th 2021, the Chinese Public Security Bureau has been working with Tajikistan police to identify Uighurs, and then “directly intervening” to deport them back to China since at least 2016. Moreover, there have been reports of Uighurs being detained in Tajikistan―at China’s behest―for at least a decade.
The lawyers for the Uighur groups are asking the ICC prosecutor to open an investigation into the deportations. They allege that through threats, intimidation and physical force, nearly 3,000 Uighurs—85-90% of the total Uighur population in Tajikistan—have been repatriated or deported to China, where they are likely to end up in detention camps. The complaint argues that “these arrests, enforced disappearances, and deportations” form the first step of a continuum of alleged criminal conduct amounting to genocide and crimes against humanity.
The issue of the lack of ICC jurisdiction over China can be circumvented by focusing solely on claims of unlawful acts by China in Tajikistan and Cambodia, two countries that are parties to the Rome Statute.
The lawyers leading the case say that they have gathered enough evidence of crimes in Tajikistan to merit commencing an investigation. Under the Rome Statute, Tajikistan is obliged to cooperate with any legal investigation. Legal processes alone are not the full answer to China’s abuses but an ICC investigation―if it happens―could strengthen the case for further diplomatic responses, as well as giving victims the opportunity to express their struggles in court.
POSSIBLE COURSES OF ACTION
If the ICC gets jurisdiction to handle the issue through prosecuting the crimes committed on Tajikistan’s land, there are three trigger mechanisms found in Article 13 of the ICC statute that can then be used to bring the case to court.
The first and most unlikely mechanism is state referral, where China would refer the case to the ICC by themselves. The second is a referral by the United Nations Security Council―if the Council determines that there is a threat to peace that can best be addressed through ICC prosecutions, the case can be brought to court. The Council can even refer crimes committed in states that are not a party to the Rome Statute, like China. The third and most likely mechanism is proprio motu action by the ICC prosecutor―in this case, the Court’s prosecutor decides to initiate an investigation on their own motion without a state or the Security Council prompting to do so. However, the statute incorporates a certain restraining element to proprio motu action; it stipulates that the office of the ICC prosecutor can only open investigations into situations if it has received authorization by the ‘Pre-Trial Chamber’ (according to Article 15(3) of the ICC statute). Thus, there is an additional requirement of judicial authorization which is not found with other trigger mechanisms. This can slow down the process of the case being presented at court, if or when the ICC gets jurisdiction.
The first time the case was brought to the ICC, the ICC prosecutor refused to pursue the case as China was not a party to the Rome Statute. The report presented that the “precondition for the exercise of the court’s territorial jurisdiction did not appear to be met with respect to the majority of the crimes alleged” in December 2020. The second and most recent time the case was officially presented to the ICC was in June 2021, on the basis that Uighurs were being repatriated or identified then deported to China from countries like Tajikistan and Cambodia, both of which are parties to the Rome Statute. This provides an element of territorial jurisdiction for the ICC and improves the chances that it will be discussed in a court, albeit not confirmed nor any time soon. Should the Uighur case ever reach a courtroom, the ICC will not try people in absentia; 13 people subject to its arrest warrants are still at large.
In the words of the ICC Prosecutor, Fatou Bensouda, “The facts remain: The Chinese government is committing grave violations on a massive scale in Xinjiang, and those responsible should be held to account.”