*Ellen Pruitt
I. The Developing Situation in Xinjiang and the ICC’s Involvement
The northwesternmost region of Xinjiang, China is home to a distinct Turkish-speaking ethnic Muslim group, the Uighurs.[1] In April 2017, reports detailing the systematic state-sponsored persecution of Uighurs became public.[2] While it is unclear when the persecution first began, some experts and government officials estimate that between eight hundred thousand and two million Uighurs have been detained in Chinese “reeducation camps.”[3] As human rights organizations and media reports investigated the situation in Xinjiang, the international community began to respond.[4]
Most recently, on July 6, 2020, two exiled Uighur activist groups filed a petition with the International Criminal Court (ICC) calling for investigation of thirty Chinese officials based on their roles in the systematic persecution of Uighurs.[5] The ICC’s main charge is to prosecute individuals responsible for genocide, crimes against humanity, and war crimes.[6] The two filing groups—the East Turkistan Government in Exile (ETGE) and the East Turkistan National Awakening Movement (ETNAM)—alleged that the Chinese officials committed genocide and crimes against humanity when they instituted mass sterilizations and arbitrary detainment of Uighurs.[7] On December 15, 2020, Chief Prosecutor Fatou Bensouda of the ICC filed a report stating the initial ETGE and ETNAM petition was insufficient to warrant further investigation.[8] While the ICC filing called greater attention to the ongoing human rights abuses in the Xinjiang region, it failed to overcome multiple hurdles and was therefore unsuccessful.[9]
II. The ICC and the Challenge of Exercising Jurisdiction Over China
The first, and possibly most challenging of these hurdles is that the ICC cannot currently exercise jurisdiction over China or its citizens.[10] Article 12 of the Rome Statute identifies the ICC’s preconditions to exercising jurisdiction over states.[11] Under this provision, the ICC may only exercise jurisdiction over states that are parties to the Statute (member-states), or states that consent to the jurisdiction of the court for a particular crime.[12] Because China has not joined the Rome Statute or consented to the ICC’s jurisdiction, the ICC will not be able to prosecute Chinese officials under Article 12.[13] The Rome Statute only outlines one situation which allows a non-member-state to fall under its jurisdiction—when the UN Security Council refers a situation regarding a UN member to the ICC Office of the Prosecutor.[14] Underlying these jurisdictional questions is a fundamental principle of international law: preserving state sovereignty.[15] The international legal authority on treaties, the Vienna Convention on the Law of Treaties (VCLT), states, “[a] treaty does not create either obligations or rights for a third State without its consent.”[16] Thus, there is strong international legal precedent for respecting state sovereignty and the inability of international laws to bind states that do not consent to their adoption and enforcement.[17]
The lawyers representing the Uighur group before the ICC hoped to circumvent these barriers by relying on 2018 precedent in which the ICC extended its jurisdiction over crimes committed by Myanmar.[18] The issue before the ICC was whether the court could claim jurisdiction over Myanmar regarding alleged deportation of ethnic Rohingya into Bangladesh.[19] Myanmar, like China, has not ratified the Rome Statute or consented to the ICC’s jurisdiction.[20] However, Bangladesh is a member-state of the ICC.[21] The relevant holdings of the Court are three-fold: (1) according to established international law and custom, an international tribunal can decide and interpret its own jurisdiction; (2) under Rome Statute Article 7(1)(d), the crime of deportation encompasses both a crime of removal and forcible transfer; and (3) under Article 19(3), the court has jurisdiction over a crime if at least one legal element of the crime occurred in a member-state.[22] In the case of the Uighur groups, the petition specifically alleged China’s systematic deportations and arrests on foreign soil in Cambodia and Tajikistan, which are both ICC member-states.[23] The lawyers representing these two groups argued that the court should apply the Bangladesh/Myanmar case interpretation of Rome Statute Article 19(3) and find at least one of the essential elements of deportation occurred in the member-states.[24]
III. The Potential and Limits of the ETGE and ETNAM Petition
Chief Prosecutor Bensouda’s report distinguished the ETGE and ETNAM petition from the Bangladesh/Myanmar situation, holding the petition lacked sufficient evidence to establish deportation under Article 7(1)(d).[25] Bensouda’s report is not a dead-end for Uighur activists.[26] Spokespeople from the ETGE and ETNAM responded positively, stating their intention to gather more evidence and re-submit the petition to the court.[27] However, even if the groups eventually succeed in bringing their case before the ICC, it is still unlikely to lead to a successful investigation, prosecution of Chinese officials, or remedy for Uighur groups.[28] Likely roadblocks that would render this petition unsuccessful in providing justice are: (1) the ICC’s lack of an enforcement mechanism; (2) China’s lack of cooperation with international tribunals; and (3) China’s international economic might.[29] As a tribunal, the ICC has no individual enforcement power, instead it relies on states and intergovernmental actors to enforce its decisions.[30] The ICC would also have to rely on Chinese cooperation, which is unlikely given China’s apparent derision of international tribunals.[31] And it is also unlikely that other countries will attempt to extradite the Chinese officials named by the Uighur groups, for fear of disturbing their economic relationship with China.[32]
However, while an amended petition is unlikely to grant a remedy, it is still an important step to hold Chinese officials accountable for the ongoing atrocities in Xinjiang.[33] Increased international attention has already led to a rise in individual accounts of the systematic persecution of Uighurs in Xinjiang.[34] It is only recently that the international community began publicly calling for China’s cessation of detention camps.[35] Unfortunately, the information available on what actually happens in the detention camps is still limited.[36] This lack of clarity has caused many nations to accept China’s official narrative about educating the Uighur population and attempting to prevent insurrection.[37] Prosecutor Bensouda’s report on the petition further emphasizes the need for increased international cooperation to investigate China’s conduct.[38] If the ETGE and ETNAM continue to pursue the petition and succeed in detailing the experience of exiled Uighur groups, the resulting information could become difficult for nations and international organizations to ignore.[39] Therefore, while this petition process will likely fail to provide direct justice, it may be a pivotal step in lifting the veil obscuring China’s crimes against the Uighurs.[40] Once the international arena can no longer ignore the ongoing atrocities in Xinjiang, prosecution of perpetrators and intervention may be possible.[41]
*Ellen Pruitt is a second-year day student at the University of Baltimore School of Law where she is a Staff Editor for Law Review. Ellen is a student fellow with the Center for International and Comparative Law, law scholar for Professor William Hubbard’s Civil Procedure I course, teaching assistant and law scholar for Professor Don Stone’s Criminal Law course, and Career Development Officer for the International Law Society. This summer, Ellen interned for the Hon. Douglas R. M. Nazarian in the Maryland Court of Special Appeals. Ellen is currently organizing an international symposium on neo-roman-republicanism to be hosted in Baltimore, Summer 2021.
[1] See Lindsay Maizland, China’s Repression of Uighurs in Xinjiang, Council On Foreign Rels., https://www.cfr.org/backgrounder/chinas-repression-uighurs-xinjiang (June 30, 2020).
[2] See id.; Nikita Aggarwal, Filing of a Petition with ICC: Beginning of Uighur’s Legal Battle Against China, Mod. Dipl. (Aug. 10, 2020), https://moderndiplomacy.eu/2020/08/10/filing-of-a-petition-with-icc-beginning-of-uighurs-legal-battle-against-china/.
[3] See Maizland, supra note 1.
[4] See Aggarwal, supra note 2; see also Ben Westcott & Jo Shelley, 22 Countries Sign Letter Calling on China to Close Xinjiang Uyghur Camps, CNN World, https://edition.cnn.com/2019/07/11/asia/xinjiang-uyghur-un-letter-intl-hnk/index.html (July 11, 2019) (reporting twenty-two countries, primarily in the EU, signed a letter calling for China to close Xinjiang detention camps); see also China Forcing Birth Control on Uighurs to Suppress Population, Report Says, BBC (June 29, 2020), https://www.bbc.com/news/world-asia-china-53220713 (discussing report on the sterilization of Uighurs which prompted the Interparliamentary Alliance on China (IPAC) to call for UN investigation).
[5] See Ewelina U. Ochab, Could the International Criminal Court Investigate Atrocities Against the Uighur Muslims in China?, Forbes (July 7, 2020, 9:14 AM), https://www.forbes.com/sites/ewelinaochab/2020/07/07/could-the-international-criminal-court-investigate-atrocities-against-the-uighur-muslims-in-china/#44a132462cbe; Alanah Lockwood, Uighur Activists File ICC Complaint Against China for Genocide, Crimes Against Humanity, Jurist (July 9, 2020, 8:10 AM), https://www.jurist.org/news/2020/07/uighur-activists-file-icc-complaint-against-china-for-genocide-crimes-against-humanity/.
[6] See Andrew Henderson, Six Countries That Aren’t Part of the ICC, Nomad Capitalist (Dec. 26, 2019, 1:36 PM), https://nomadcapitalist.com/2018/08/29/countries-arent-part-of-icc/.
[7] See Ochab, supra note 5 (detailing the Uighur activists’ allegations include forced sterilization of Uighur women, torture, separation of families, and arbitrary criminal convictions).
[8] Rupa Shenoy, Undeterred by ICC Decision, Uighurs Hail EU, UK Steps Toward Holding China Accountable, The World (Dec. 21, 2020, 4:45 PM), https://www.pri.org/stories/2020-12-21/undeterred-icc-decision-uighurs-hail-eu-uk-steps-toward-holding-china-accountable.
[9] See Lockwood, supra note 5; Ewelina U. Ochab, International Criminal Court Will Not Take Further the Case of the Uygurs, Forbes (Dec. 15, 2020, 3:52 AM), https://www.forbes.com/sites/ewelinaochab/2020/12/15/international-criminal-court-will-not-take-further-the-case-of-the-uyghurs/?sh=312f89d02fe3.
[10] Marlise Simons, Uighur Exiles Push for Court Case Accusing China of Genocide, N.Y. Times (July 6, 2020), https://www.nytimes.com/2020/07/06/world/asia/china-xinjiang-uighur-court.html.
[11] Rome Statute of the International Criminal Court art. 12, 2187 U.N.T.S. 90, open for signature Oct. 7, 1998, (entered into force July 1, 2002) (this article uses the term “states” in the international context to refer to sovereign countries).
[12] Id.
[13] See Aggarwal, supra note 2.
[14] Id.
[15] See U.N. Charter art. 2, ¶¶ 1, 7 (affirming organization based on sovereign equality of all nations and preventing interference in domestic affairs).
[16] Vienna Convention on the Law of Treaties art. 34, May 23, 1969, 1155 U.N.T.S. 331; Lori Fisler Damrosch & Sean D. Murphy, International Law: Cases and Materials 114–15 (7th ed. 2019).
[17] See id.
[18] See Simons, supra note 10.
[19] Prosecution’s Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute, ICC-RoC46(3)- 01/18-1, Application Under Regulation 46(3), ¶¶ 1–24 (April 9, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_02057.PDF.
[20] Toby Sterling, International Criminal Court Says It Has Jurisdiction Over Alleged Crimes Against Rohingya, Reuters (Sept. 6, 2018, 10:38 AM), https://www.reuters.com/article/us-myanmar-rohingya-icc/international-criminal-court-says-it-has-jurisdiction-over-alleged-crimes-against-rohingya-idUSKCN1LM23H.
[21] Id.
[22] Decision on “Prosecution’s Request for a Ruling on Jurisdiction Under Article 19(3) of the Statute, ICC-RoC46(3)-01/18, Request Under Regulation 46(3) of the Regulations of the Court, ¶¶ 26–33, 52–79 (Sept. 6, 2018), https://www.icc-cpi.int/CourtRecords/CR2018_04203.PDF.
[23] See Simons, supra note 10.
[24] See id.
[25] See Ochab, supra note 9.
[26] Javier C. Hernández, I.C.C. Won’t Investigate China’s Detention of Muslims, N.Y. Times (Dec. 15, 2020), https://www.nytimes.com/2020/12/15/world/asia/icc-china-uighur-muslim.html.
[27] Shenoy, supra note 8.
[28] See Aggarwal, supra note 2.
[29] See Maizland, supra note 1.
[30] See Aggarwal, supra note 2.
[31] See id. (quoting Chinese diplomat’s response to losing in the South China Sea, who stated, “this judgment was ‘nothing more than a piece of paper.’”).
[32] See Maizland, supra note 1 (arguing Muslim-majority countries fail to condemn oppression of Uighur groups due to deep economic dependency on China).
[33] See Aggarwal, supra note 2.
[34] See Maizland, supra note 1.
[35] See Westcott & Shelley, supra note 4.
[36] Maizland, supra note 1.
[37] See Jerome A. Cohen, What Can Be Done Regarding Xinjiang’s Mass Detentions?, Jerome A. Cohen: Jerry’s Blog (July 25, 2018), https://www.jeromecohen.net/jerrys-blog/2018/7/25/what-can-be-done-regarding-xinjiangs-mass-detentions.
[38] See Shenoy, supra note 8.
[39] Id.
[40] See Aggarwal, supra note 2.
[41] See id.
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