The Uyghur Muslim Crisis: A Lost Opportunity at the ICC?
Article by Stuti Srivastava,
The Office of the Prosecutor (“OTP”) of the International Criminal Court (“ICC”) recently decided not to proceed with an investigation into complaints of crimes allegedly committed against the Uyghur Muslims in China. This decision has left many disappointed as the ICC was established with the aim of ending impunity for the most serious crimes of concern to the international community as a whole.
Two Uyghhur Muslim groups, the East Turkistan Government in Exile andd the East Turkistan National Awakening Movement, alleged the commission of acts of genocide and crimes against humanity to the ICC in July 2020. In November 2020, an international alliance of parliamentarians also wrote to the prosecutor to express their support for this complaint against the Chinese government. The basis of the claim for investigation and jurisdiction lies in the ICC’s Pre-Trial Chamber (“PTC”) 2018 ruling in the Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar (hereafter “Situation in Bangladesh/Myanmar”). There, the court upheld the possibility of investigating crimes that have occurred partially in the territory of a state that is not a party to the Rome Statute.
The facts of the two situations are similar, involving crimes within the jurisdiction of the court and the deportation of the victims between two states, one a party state and the other a non-party state. This article seeks to analyze the Uyghur Muslim situation in light of ICC rulings in the Situation in Bangladesh/Myanmar.
Jurisdiction in the Situation in Bangladesh/Myanmar
In September, 2018, the PTC-I heard the Prosecution’s Request for Ruling on Jurisdiction based on the alleged deportation of Rohingya Muslims from Myanmar to Bangladesh. The facts, as recounted in the United Nations Report of the independent international fact-finding mission on Myanmar, were that hundreds of thousands of Rohingya Muslims fled from Myanmar to Bangladesh after “clearance operations.” These operations, conducted by the Tatmadaw and other security forces, involved the destruction and torching of homes, crops and entire villages, as well as killings and sexual violence.
The primary question posed to the prosecutor was whether the ICC could exercise jurisdiction under Article 12(2)(a) of the Rome Statute, even though Myanmar was not a party to the statute. The prosecution based its case on the fact that Bangladesh, the state which Rohingyas fled to, was a party to the Rome Statute. The interpretation proposed by the prosecution was that for the court to establish its jurisdiction, at least one legal element of the alleged crime must occur in the territory of the party state.
In keeping with Public International Law, the court undertook a contextual interpretation of Article 12(2)(a) to conclude that criminal jurisdiction may be exercised in such a manner which the prosecution proposed. The court relied on the Permanent Court of International Justice’s opinion in France v. Turkey (the Lotus case) and highlighted state practice via legislations and international instruments that allow them to exercise jurisdiction over crimes that have partly occurred on their territory. Additionally, the court emphasised its duty to hear the “most serious crimes of concern to the international community” and stated that a restrictive reading of the provision–not allowing the court to exercise jurisdiction over the crime in question–would defeat the very purpose of the ICC and the Rome Statute.
Thus, the court accepted this interpretation on the basis of relevant rules of international law and the object and purpose of the Rome Statute. This jurisdictional ruling was subsequently given effect in 2019 when PTC-III authorised investigation into the Situation in Bangladesh/Myanmar.
The exercise of jurisdiction in the Situation in Bangladesh/Myanmar was dependent, to a major extent, on the involvement of the crime of deportation. Therefore, the PTCs discussed this crime in detail. Under the Rome Statute, deportation and forcible transfer is a crime against humanity, criminalised by way of Article 7(1)(d) and defined under Article 7(2)(d). The elements of the crime are: deportation or forcible transfer of persons lawfully present in an area, without grounds permitted under international law, to another location, by expulsion or other coercive acts, as a part of a widespread or systematic attack against a civilian population. In the aforementioned 2018 ruling, PTC-I discussed that deportation and forcible transfer are two distinct crimes under Article 7(1)(d). The essential difference between the two was the destination of the forced displacement. The court concluded that in case of forcible transfer, the destination would be another location within the same state, whereas in cases of deportation, the destination is outside of the state.
The transboundary nature of the crime of deportation allowed the court to exercise its jurisdiction in the Situation in Bangladesh/Myanmar. The alleged border crossings into a state that is a party to the Rome Statute ensured that at least a part of the alleged crime took place on the territory of a party state. Thus, in the 2019 ruling, the court authorised investigations into crimes committed at least in part on the territory of Bangladesh or any other party state.
How is the case of Uyghur Muslims different?
The OTP observed that the allegations of genocide, torture, perscution, and other crimes made against Chinese officials lie primarily outside the territorial jurisdiction of the court, as the actus reus and mens rea of these crimes have occurred in China, a non-party state. It is, however, pertinent to note that in the 2018 jurisdictional ruling, the PTC highlighted that persecution and other inhumane acts under Article 7(1)(h) and Article 7(1)(k) respectively, are crimes that may be transboundary in nature. Thus, the court may exercise jurisdiction over such crimes, even in cases involving a non-party state. The court has previously noted that the definition of the crime of persecution implies that it must be committed in connection with other crimes under the court’s jurisdiction. Therefore, if the persecution against the Uyghur Muslims includes the act of deportation from a party state, the court may exercise jurisdiction over this crime as well.
Similarly, jurists note that the unlawful consequences of deportation may endure beyond the actual act of deportation. For example, the deportation of the Uyghurs is axiomatically linked to the other inhumane acts committed against them in the internment camps to which they are deported. This is in accordance with the PTC’s observation in the 2018 jurisdictional ruling and the 2019 authorization of investigation into deportation and persecution in the Situation in Bangladesh/Myanmar. Given this linkage, the OTP should have considered this crucial precedent before dismissing all of the crimes committed, except deportation, as falling outside the territorial jurisdiction of the court.
With respect to the alleged acts of deportation, the OTP ruled that the act of transfer from Cambodia and Tajikistan to China does not seem to amount to a crime against humanity. It notes that not all acts of forcible removal amount to deportation, relying on the Naletilic case of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) which found that, when civilians are removed from their homes to be detained, it is not an unlawful transfer. Here, the court concluded that the intention was to detain, not to transfer.
However, the fact of the matter is that Uyghur Muslims have been deported from Cambodia and Tajikistan to China, where they have been placed in internment camps. The contention that transfer for the purposes of detention does not amount to deportation seems absurd. Jurisprudence on this crime notes that the intent need not be to displace permanently or for a prolonged period of time. The fact remains that civilians have been unwillingly deported to another country, in violation of principles like non-refoulement, and placed in detention camps. This exercise was part of a mass detention of up to one million Uyghur Muslims. The multiplicity of the targeted persons and the huge geographical area of not just Xinjiang, but also Cambodia and Tajikistan, necessarily prove the widespread nature of the offense. The systematic nature of this exercise is evident from the Chinese administration’s leaked files which illustrate their strategy and methodology. The ICC must not rely on the Naletilic precedent, and should instead interpret the provision in a different manner in order to keep with the principle of good faith interpretation.
In this case, the ICTY treated unlawful transfer as a grave breach of the 1949 Geneva Conventions and not as a crime against humanity, even though the ICTY Statute had specific provisions suggesting otherwise. The ICTY was handling a case of unlawful transfer, while the charge before the ICC is that of deportation. The definition in the Rome Statute of deportation and forcible transfer differs from the one in the ICTY Statute. Due to this, elements of each crime differ greatly from the other. In Naletilic, the court found no intent to transfer. However, under the Rome Statute, unlawful transfer has a lower standard for mens rea: the perpetrator may be held liable if he had knowledge of or intended the conduct to be a part of the widespread attack on a civilian population, provided that the other elements have been fulfilled. Thus, the ICC should abandon the Naletilic precedent and interpret the provision afresh.
The state of the Uyghur Muslim crisis demonstrates violations of human rights obligations and the commission of severe crimes. The grave situation has led international bodies to make several calls for probes. At a time when ICC officials are facing sanctions, judicial action on such crimes is urgent. The court ought to reiterate its commitment to ending impunity for perpetrators of serious crimes. The global community necessarily rests on the ICC to rise to the occasion by determining culpability and to punishing the offenders.
Stuti Srivastava is a student at Rajiv Gandhi National University of Law, Punjab. She has a keen interest in human rights and criminal law. She can be reached at firstname.lastname@example.org