When the world is in the grip of a pandemic, it is perhaps inevitable that certain news stories fail to attract the same degree of public attention that they would in simpler times. This cannot be said for the apparent silence regarding the treatment of the Uyghur Muslim community in Xinjiang, Northwestern China. [Ed: The province name Xinjiang means “new territory” in Mandarin Chinese, and is rejected as colonialist by many Uyghurs, in favour of East Turkmenistan.] 

Stories of forced sterilisation, rape and ethnic cleansing have been circulating long before Covid-19 was part of our vocabulary. Even more fundamentally, numerous human rights bodies have declared that events in Xinjiang constitute genocide, and genocide should always demand our attention. It is therefore deeply concerning that reports regarding the plight of the Uyghur minority have only in recent weeks started gaining any meaningful momentum among the general public. The lack of traction in terms of public awareness has been disappointing. The real tragedy, however, has been the lack of response from the international community.

The extent of China’s subjugation of the Uyghur minority has increased significantly over the past few years. Satellite images have revealed nearly four hundred internment camps being built, with up to a thousand more believed to be located throughout the region. An estimated two million Chinese Muslims have been detained for purposes of “re-education”. Alongside the forced sterilisation and systemic rape of Uyghur women, there are accounts of torture and forced labour within the camps. Equally disturbing are the claims of widespread organ harvesting. Reports such as these stretch back years and have been accumulating exponentially. 

INTERNATIONAL LEGAL INFRASTRUCTURE AND FAILURE TO RESPOND

The obvious question is why international bodies such as the United Nations (UN) have not intervened. The answer highlights the tragic failures of the international legal infrastructure. The UN is made of up six principal organs. Among these, the Security Council is responsible for enacting international sanctions and authorising military intervention. It has the power to issue binding resolutions. Any tangible recourse for the Uyghur community through the UN would therefore have to come via this route. The problem, however, is that China is a permanent member of the Security Council. This means that it can veto any proposed resolution and prevent it from taking effect. Consequently, any attempt at curbing China’s behaviour this way is a dead end. As United Kingdom Labour MP Shabana Mahmood stated for precisely this reason, the UN is a “busted flush”.

An alternative approach would be to seek intervention from the International Criminal Court (ICC). When it comes to China, however, this option is also problematic. Created by the Rome Statute in 1998, the ICC is the product of a treaty. This means that it only has jurisdiction over specific crimes committed by nationals of its state signatories, or alternatively, crimes which occur within the territory of its state signatories. China is not a signatory. If the ICC wishes to prosecute a crime in relation to a non-signatory, in other words, outside of its jurisdiction, a resolution by the Security Council is required. This creates a redundant cycle. Poignantly, when the Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention) was signed on 9 December 1948, and the Universal Declaration of Human Rights followed a day later, nations pledged to end genocide under a mantra of “never again”. Over seventy years later, we continue to face this horror. 

JURISDICTION AND THE MYANMAR PRECEDENT 

Despite the challenges posed by the international legal regime, there is perhaps a glimmer of hope. A group of sixty parliamentarians from across the world, the Inter-Parliamentary Alliance on China (IPAC), in November 2020 sent a letter to the chief prosecutor of the ICC. The letter pointed to evidence that there is in fact precedent for the court to assert its jurisdiction in this case despite China not being a signatory. IPAC expressed their support for legal submissions in a 2020 case involving crimes against the Rohingya Muslims in Myanmar. Although Myanmar is not a signatory to the ICC, it was accused of forcibly displacing Rohingya villagers into neighbouring Bangladesh. Bangladesh is a signatory, and therefore, due to the fact that part of the crime took place within its borders, the ICC decided that it therefore had jurisdiction. Similarly, many deportations of Uyghur Muslims were to Cambodia and Tajikistan, which are both ICC signatories. In a letter to the Court, IPAC expressed its hope that this recent precedent would provide adequate legal grounds for ICC intervention.

Much to the dismay of human rights lobbyists, the Chief Prosecutor of the ICC responded before Christmas 2020 and refused to open an investigation. The Office of the Prosecutor cited insufficient evidence with regard to the alleged crimes in Cambodia and Tajikistan. It emphasised that it only has jurisdiction over specific crimes as outlined in the Rome Statute. The reports coming out of Xinjiang mostly concern actions by Chinese officials solely within Chinese territory, and therefore do not fall under the remit of the Court. 

The crime of forcible transfer and deportation, as referred to in the Myanmar case and as also relevant in the Uyghur situation, is a specific crime against humanity under Article 7 of the Rome Statute. It has its own criteria and is conceptually different from other illegal acts of deportation. It therefore has a relatively high threshold of evidence. More evidence is required to show, for example, that the deportations of the Uyghurs took place in order to deprive them of their property or to initiate the “wholesale destruction of their community”. The Prosecutor stated that it would be insufficient to show that individuals have simply been moved from one location to another against their will, even if it breaks other international laws, and even if it facilitates separate crimes in the future within a different territory. On this basis, the ICC would not intervene. 

NOT THE END OF THE ROAD

Although undoubtedly a setback, it would be a mistake to regard this as the end of the road. The ICC has indicated that it would be willing to reconsider if further evidence is submitted. Rodney Dixon QC, the barrister who led the claim, stated that this will be provided in early 2021. Essentially, the court left open the possibility of opening an investigation in the future. However, as the wait goes on for international intervention, so does the torment of the Uyghurs. 

In the meantime, there is a potential card for nation states to play. UK MP Ian Duncan-Smith, along with other members of IPAC have called for Magnitsky-style sanctions to be issued against officials from the People’s Republic of China. Magnitsky sanctions allow for targeted financial restrictions against individuals as opposed to entire states. Sanctions are implemented while business between states can continue as normal, preventing any damaging economic recoil. So far, however, only the United States administration under President Donal Trump has issued these sanctions. Astoundingly, Trump has done more through his sanctions to challenge China’s treatment of the Uyghur community than any other world leader at present. But this should not be viewed as a glowing endorsement of Trump. Instead, it should be viewed as an embarrassing reflection of British and European paralysis in the face of gross human rights abuses. 

Undoubtedly, Magnitsky sanctions combined with possible intervention from the ICC represent positive developments. There is hope that they would significantly restrict Chinese President Xi Jinping’s ability to continue with his persecution of the Uyghur minority. Yet, the situation forces us to ask difficult questions. Why has there been relative silence from the media on this issue? Why have so many countries failed to act? Are the UN and ICC fit for purpose? 

During a UK parliamentary debate, Shabana Mahmood MP highlighted the need for “innovative legal approaches” to facilitate the intervention of the ICC. Why, in 2021, are we relying on “innovative legal approaches” to stop a genocide, as opposed to rigid and enforceable structural safeguards? For those of us monitoring the Uyghur situation, recent developments may offer some light at the end of the tunnel. For the Uyghur people and their families, however, it is too little, too late. 

Sam is currently studying the Bar Course at the Inns of Court College of Advocacy. He graduated with a law degree from the University of Leeds in 2020. He is an aspiring barrister hoping to develop a mixed practice.

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