The global community must stand up for the Uighurs in China
Two Uighur activist groups have submitted a request to the Office of the Prosecutor at the International Criminal Court (ICC) in The Hague. Will it make a difference?
How to serve justice to the Uighur community in China?
Two Turkic-Uighur activist groups have submitted a request to the Office of the Prosecutor at the International Criminal Court (ICC), asking the Prosecutor to look into China’s campaign against the Uighurs. Will this deter China? What can the international community do? Let us take a historical tour first before diving into the legal specifics and responsibilities of other international actors.
History
The Chinese Uighur minority lives in the northeastern province of Xinjiang, known as East Turkestan. The Uighurs belong to the Turkic population living in Central Asia. Xinjiang holds a population of about 11 million Uighurs. Smaller Uighur communities live in Kazakhstan, Turkey and Uzbekistan. They primarily identify as Muslims and have a distinct identity. Uighurs are loyal to their own traditions, language and history. The latter has become a stumbling block for the Chinese government in their attempts to assimilate smaller ethnic or social groups. Other minorities such as the Tibetan and Mongolian people have also been exposed to Beijing’s interference when it comes to expressing their cultural identity and distinct practices such as speaking one’s own language instead of Mandarin.
In 1759, the Uighur territories were annexed by the Qing (1644-1911): China’s last imperial dynasty. Some argue that the 2009 Urumqi riots signalled a turning point in China’s stance towards the Uighurs. From a historical perspective, it is however clear that the relationship between China and the Uighurs has been strained since the very beginning.
In the mid 18th century when the Qing Dynasty expanded its influence into Central Asia, the Chinese were met with resistance from various native Muslim inhabitants. China’s scepticism towards Islam had caused some moderate Muslims to radicalise which was subsequently used as an excuse by the Qing Dynasty to designate the Muslim Uighurs as a threat to the Empire. Eventually, the province of Xinjiang (meaning “new frontier”) became an official part of the Chinese Empire in 1884, after a bloody war between the local population and the Qing army.
After the downfall of the Qing dynasty in 1911, Xinjiang remained relatively autonomous. Two independent Eastern Turkestan republics were created: The Islamic Republic of East Turkestan (1933) and The Second East Turkestan Republic (1944). This changed when Mao founded the People’s Republic of China (PRC) in 1949. Xinjiang became an integrated province of China. In the years following the creation of the PRC, tensions increased as the Han Chinese were sponsored by the government to move into Xinjiang’s territory to preserve cultural and ethnic homogeneity. The Han Chinese form a majority group in China, making up 91% of the population. In 2014, 61% of Xinjiang’s population consisted of Muslim minorities including Uighurs. The rest of the population is made up by the Han Chinese. Research has, however, argued that China’s attempt to manage the region through mass immigration was only partly successful. Nonetheless, the BBC reports that Uighurs experienced discrimination, claiming that the best jobs were allocated to the Han Chinese. Other forms of discrimination include the loss of religious freedoms.
In the years after 1949, tensions between the Han Chinese and Uighurs increased. In 1955, Xinjiang was declared an autonomous region, as well as Guangxi, Inner Mongolia, Ningxia and Tibet. The 1949 ethnic minority act states the following:
“All ethnic groups within the boundaries of the People’s Republic of China are equal. They establish unity and mutual aid among themselves, and shall oppose imperialism and public enemies in their midst so that the People’s Republic of China will become a big fraternal and cooperative family comprising all its ethnic groups. ‘Greater nationalism’ and ‘local nationalism’ should be opposed. Acts of discrimination, oppression and dividing the various nationalities should be prohibited.“
During the Cultural Revolution (1966), Mao showed the regime’s true colours while cultural artefacts and historical buildings such as mosques and books were destroyed. The supposed equality of all ethnic groups turned out to be a mere facade. Though the Cultural Revolution was not exclusively targeted at the Uighur population, it further strained the relationship between Beijing and the Uighurs. Recently, The Guardian revealed new evidence regarding the destruction of religious property as this is an ongoing process, not limited to Mao’s cultural cleansing in the ’60s.
In the 1990s, after a period of relative peace, the Chinese government turned its gaze towards Xinjiang once more. A renewed sense of identity and nationalism was breeding amongst the Uighurs. However, local forms of nationalism were prohibited according to the 1949 ethnic minority act. The built-up frustration led some Uighurs to collaborate with violent rebel groups. Historical research argues that the socio-economic model promoted by these rebel groups was preferred over the Chinese imperialist one that impinged on the cultural freedoms of the Uighurs. Simultaneously, the government was still processing the impact of the Tianmen Square protests, leaving them vulnerable in the wake of recent events. These dual developments initiated the Strike Hard program: a zero-tolerance policy that was put in place in 1996. The Strike Hard program targeted separatist groups and illegal religious movements.
After 1996, various incidents occurred between the government, peaceful protesters and radical Islamic movements. The violent incidents led by certain Islamic factions were used by the Chinese government as justification for the repressive actions towards the Uighurs. Furthermore, the 9/11 attacks and the subsequent war on terror gave the Chinese government the perfect pretext to oppress the Muslim community in Xinjiang.
Recent tensions
The last few years under Xi Jinping’s rule, Uighurs were arrested without a valid reason and passports were taken away. Children were forced to learn Mandarin and Muslims had to shave off their beards. Additionally, the regime had been monitoring the Uighur population via surveillance methods.
In 2018, the UN published a report claiming that over a million Uighurs were detained in ‘re-education’ camps. High-ranking officials like the Chinese ambassador to the UK, denied these accusations, despite witness accounts and family testimonies about the treatment of Xinjiang’s Uighurs. China has stated that the purpose of the ‘re-education’ camps was to target radicalisation.
Those detained in the camps were allegedly subject to gross human rights violations such as sexual abuse, forced labour and even sterilisation. In line with the Chinese government’s assimilationist policies, the Uighurs had to renounce their faith and language. China’s statements, claiming that the detention centres had been closed were debunked by a group of Australian researchers from The Australian Strategic Policy Institute. They have identified 380 existing detention facilities. At least 61 of them have been expanded or newly built. Many of the camps appear to be high-security locations.
The Uighur issue also received global attention outside of academia and the political sphere. Illustrations, slide stories and pictures started to circulate on social media, calling attention to the perilous position of the Uighurs. The popular video app TikTok, was for example used by family members to share images of their missing loved ones, hoping that somebody would have more information. The social media surge created a sense of mainstream awareness about what was going on in Xinjiang. Another spark of anger was caused by Disney’s Mulan remake for which filming had taken place in Xinjiang. The movie credits dedicated a special message to the CPC Xinjiang Uighur Autonomous Region Committee, a move that was heavily criticised by the general public. Although various newspapers have reported on the issue in the past, it was only in recent years that China’s repression of the Uighurs became widely known.
The world’s response
In July 2019, 22 states condemned China’s behaviour, by sending a letter to the President of the UN Human Rights Council and the UN High Commissioner for Human Rights, urging China to close its detention centres. A few days later, a counter-response in support of China was sent out by 37 other states. Interestingly, many of the signatories were from Muslim-majority states like Bahrein, Egypt, Qatar, Kuwait, Turkmenistan, Pakistan and Tajikistan.
In October 2020, a German-led coalition of 39 countries, spoke out against the Uighur detention centres while also expressing their concerns with Beijing’s Hong Kong approach. Cuba on the other hand, backed by 45 other countries, drafted a letter criticizing the foreign interference of other states in Chinese internal affairs. Overall, the scales seem to be positively skewed towards China, given the number of allies that are backing Beijing.
Despite the various states that showed their solidarity with China, Mike Pompeo announced a set of US diplomatic and economic sanctions, targeting Chinese officials involved with the Uighurs’ detainment and oppression. Earlier, in October 2019, the US blacklisted various Chinese companies that were thought to be involved in the surveillance of the Uighurs. Visa restrictions were also put in place.
“The United States will not stand idly by as the Chinese Communist party carries out human rights abuses targeting Uighurs, ethnic Kazakhs and members of other minority groups in Xinjiang to include forced labor, arbitrary mass detention, and forced population control, and attempts to erase their culture and Muslim faith.” – Mike Pompeo
Why are so many Muslim states silent?
Two explanations can be given. A possible answer is that global Muslim unity and solidarity is weak or non-existing. Out of sight out of mind perhaps? Nick Cohen mockingly said: “Iran, Egypt, Syria and dozens of other countries that could not tolerate a magical realist novel can live with the mass sterilisation of Muslim women.”
A more likely explanation is probably found in the economic realm. Many of those countries benefit from their relationship with China. The economic costs of reprimanding China are simply too high. Pakistan has, for example, attracted 60 billion dollars in Chinese investments to fund the China-Pakistan Economic Corridor, while Saudia Arabia has also shown interest in partnering up with China. The Chinese ambassador in Saudi Arabia, Chen Weiqing has said that “The Belt and Road Initiative and Saudi Vision 2030 are highly compatible.” Other Central Asian states like Turkmenistan are relatively poor and therefore depend on Chinese trade. Figures show that 80% of Turkmenistan’s exports are bought by China.
Although economic interests may explain some of the allegiances, it is also important to see this phenomenon from a broader global perspective. What will a future human rights regime look like when the influence of the US is decreasing in favour of China? Even though the US has put sanctions in place, it is highly unpredictable if and when the US will take back its place as the defender of universal human rights. Recently, the US has been preoccupied with managing the COVID-19 pandemic, the racism debate and the upcoming elections. China could in turn see this as an opportunity to expand its global influence since the US seems unwilling to retaliate at the moment, despite Trump’s proclaimed hard-line stance against China.
What now?
The question that remains is: how should the global community approach the Uighur situation? The truth is that letters to the United Nations or pointing fingers at China alone are not going to change the Chinese government’s behaviour. Furthermore, a large number of states, at least on paper, has supported China’s policies by defending China’s right to deal with internal affairs in a way they see fit.
The International Criminal Court
Some seek a solution by taking the legal route. As a response to the atrocities committed against the Uighurs, some interest groups, the East Turkistan Government in Exile (ETGE) and the East Turkistan National Awakening Movement (ETNAM) have petitioned the International Criminal Court (ICC) to look into the case.
After submitting such a request, the prosecutor of the ICC, Fatou Bensouda, will review the submission and decide whether there is a legal basis on which the ICC can build a case. These preliminary examinations can take years. Look at the Guinea situation for example, which is currently in phase 3 (admissibility) of preliminary investigations even though the examination was announced in October 2009. Another cold case is the UK-Iraq situation, which has been under review since 2006 and was, in light of new information, reopened in 2014.
Rome Statute
Besides a temporal dimension, there is another major obstacle: China has never signed nor ratified the Rome Statute, on which the ICC is based. However, the Rohingya case has set a precedent regarding the jurisdiction of the Court. A press release in 2019 states that “the Chamber concluded that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party.” Even though Myanmar is not a State Party, Bangladesh on the other hand did sign the Rome Statute. Therefore, the ICC was able to take up the Rohingya case.
The crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court.
Based on the precedent set by the Rohingya case, the legal team behind the ETGE and ETNAM have decided to request an investigation into China’s oppression of the Uighurs. The argument cited by the two activist groups is that Uighur victims from Tajikistan and Cambodia were illegally transported to Xinjiang. Both Tajikistan and Cambodia are Rome Statute signatories, which means that they can be held accountable under ICC jurisdiction. The complaint is written on behalf of the Uighurs as well as other Turkic people that have suffered from China’s policies.
- Massacres;
- Mass internment camps;
- Torture;
- Disappearances;
- Forced birth control and sterilisation;
- Forcible transfer of children from their families to Chinese state orphanages and boarding schools;
- Measures aimed at eliminating the use of the Uighur and other Turkic language in schools;
- Enhanced surveillance of Uighurs and other Turkic peoples significantly beyond that experienced by Han Chinese;
- Repressive measures against Islam; and,
- Organ harvesting
The ETNAM press release claims that “as the Court held in the Rohingya case, continuing crimes that commence on the territory of an ICC State Party come within the jurisdiction of the Court and can be investigated. These crimes include Genocide and Crimes Against Humanity.”
How to determine whether China’s repressive policies classify as a genocide?
Genocide
Although genocide is essentially a contested concept, interest groups and experts have argued that China’s repressive policies toward the Uighurs can be considered a genocide. The United Nations Human Rights Council (UNHRC) was urged by a group of NGOs to investigate the case.
Article 2(2) of the 1948 UN Convention on Genocide lists the following:
- Killing members of the group
- Causing serious bodily or mental harm to members of the group
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
- Imposing measures intended to prevent births within the group
- Forcibly transferring children of the group to another group
The clause ‘in part’ raises a lot of uncertainty. What is the threshold before something is labelled a genocide? The International Criminal Tribunal for the Former Yugoslavia (ICTY) illustrates this debate around numbers. The ICTY dismissed the claim of genocide when General Radislav Krstic was accused of killing over 7.000 Bosnian Muslims. This helped set a legal precedent about the number of people that have to be involved.
Another conceptualisation of genocide, states that one of the acts listed in Article 2(2) of the Genocide Convention must have taken place with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group. These requirements were established in the Musema case (Rwanda Tribunal) Yet, each of these clauses is debatable. What constitutes intention and when does a number of people become an ethnic, racial or religious group?
In 2018, 80 percent of all IUD placements in China were performed on women in the Uyghur Region, despite the region making up only about 1.8 percent of China’s total population. The forced separation of an unknown number of Uyghur children from their parents has also been documented by human rights groups since 2018. These measures meet the threshold of acts constitutive of genocide, core international crimes under the Genocide Convention, which prohibits “imposing measures intended to prevent births” among an ethnic or religious group. – Adrian Zenz
Others like Adrian Zenz, a German researcher, take a broader understanding of genocide. He classified the Uighur example as a “demographic campaign of genocide”. In a podcast, he admits that the Uighurs case illustrates a “cultural genocide” and not a “literal genocide”. His research was based on “official regional data, policy documents and interviews with ethnic minority women in Xinjiang.” China’s aim is to integrate, subjugate, dominate and assimilate the Uighurs. China has very clearly violated Article 2C: birth suppression, by imposing forced sterilisation and abortion on Uighur women, according to Zenz. He considers this as irrefutable proof of genocide.
In a letter to CNN, the Chinese government denied any forced sterilisation policies but did admit that birth rates in the region had dropped by nearly one-third. They attributed this to family planning, but this would not make sense as China loosened its one-child policy in 2016, allowing families to have more than one baby. Additionally, the statement by ETGE and ETNAM claims that China has separated 500.000 Uighur children from their families. Though Zenz does not mention this in the podcast, it could very well be considered a violation of Article 2D: forcibly transferring children of the group to another group.
China’s response
The research by Zenz was met with a lot of resistance. Several propaganda attempts have tried to discredit the results as well as Zenz’s reputation. A quick Google search for his report immediately shows several articles posted by Chinese media such as the Global Times which is part of the Party’s People’s Daily Newspaper, headed by the Communist Party. The 4.000 words long exposé accuses him of “corrupting pictures to attract attention” and fabricating data sources. Another article posted by the Global Times, featured a group of Chinese researchers who refuted the ‘birth control’ lies spewed by Zenz.
An “independent Report” like Adrian Zenz’s is actually a new trend and new tool of international human rights public opinion concerning Xinjiang. It is a means for Western anti-China forces to interfere in China’s internal affairs by making false statements in the name of so-called experts.
The emotional reaction from China’s side seems to be in line with its aggressive and biased media strategy. Reports from the UN, individual researcher and NGOs like Amnesty and Human Rights Watch have spent years gathering evidence. Witness reports, sightseeing, aerial video footage, policy documents and interviews, have allowed experts to map the situation. An Australian project launched a data project, claiming that “there is now more evidence than ever that China is imprisoning Uighurs”. The website carefully illustrates the damaged historical and religious sites over the years. Nathan Ruser used satellite images and video material to support his case. While there seems to be plenty of evidence, no initiative has proven successful in helping the Uighurs.
Is there hope for the Uighurs in China?
Forced labour, mysterious disappearances, torture, sexual abuse, organ harvesting, loss of religious freedoms. The list goes on and the situation looks grim. Several obstacles will have to be overcome while the Uighurs are in dire need of speedy political action to improve their situation.
Will China bow down to Rome?
The recent case submission by the ETGE and ETNAM is the first step towards legal accountability. However, the admissibility of the case is debatable and there is little chance that China will accept the Court’s authority. The United States, another non-ICC member and so-called superpower, has for example aggressively rejected the ICC’s attempt to prosecute the US for war crimes in Afghanistan, by imposing economic sanctions and visa restrictions. The ICC has expressed its disapproval but the US seemed unbothered by it.
There is no reason to believe that China will accept the ICC’s jurisdiction given their consistent denial of the repressive campaign, targeting the Uighur population. China’s propaganda machine with regards to any defamatory claim aimed at the regime is illustrative of China’s attitude toward any individual or state that seeks to address the human rights scandals. Activists fighting for the Uighur cause from abroad are also no longer safe. China has started to reach into neighbouring countries like Kazakhstan, by arresting an activist named Serikzhan Bilash
Additionally, the ICC is known for taking a long time before deciding to pursue a specific case. Various ongoing situations (petitions that have not been classified as an official case) are currently up for review. Given China’s global position and the sensitivity of the matter, it can be assumed that the ICC will be extremely careful before opening an investigation against China. It is up to the Prosecutor to determine if the requirements for initiating an investigation, are met.
Furthermore, this year the process of electing a new Prosecutor has begun. He or she will carry huge responsibilities while overseeing all the cases and situations that the ICC is currently working on. Will the new prosecutor take a pro-active stance or will a more conservative approach be adopted? How will the new prosecutor deal with the states in question since the ICC’s enforcement mechanism is dependent on sovereign states that are generally reluctant to submit? These answer to these fundamental issues can be shaped by the new Prosecutor.
Enforcement
The submitted claim “identifies the roles played by senior Chinese officials (including President Xi Jinping), requesting the Prosecutor to investigate them for planning and directing the campaign in which these widespread crimes are being perpetrated.” The odds of Xi and his associates in the ICC Courtroom seems highly unlikely. China has shown little compliance with the procedures and norms set by influential international institutions. Even if the ICC decides to move beyond the preliminary stage, it will take years before a judge will present the verdict. After that, there is no plan or clear method on how to enforce the ICC ruling on a superpower like China.
“The U.N. General Assembly once again elected countries with abhorrent human rights records,” U.S. Secretary of State Mike Pompeo said on Tuesday. “These elections only further validate the U.S. decision to withdraw and use other venues and opportunities to protect and promote universal human rights.” – Mike Pompeo
China in the UNHRC
On October 13th, China became a member of the United Nations Human Rights Council despite its handling of the Hong Kong protests, the Uighur scandal and its previous human rights track record. China’s appointment to the UN Human Rights Council and general role in the UN signals the far-reaching influence of China in international governmental bodies. Calls for a UN investigation to “convene a special session at the UNHRC to appoint a Commission of Inquiry to investigate human rights violations taking place in the Uighur Region and develop strategies to end these violations” are slightly painful since it concerns a newly elected UNHRC member. Though China cannot veto any decisions by the UNHRC as the voting procedure requires a majority, it would not be unlikely to think that China convinces other states to vote in favour. Similar practices have occurred in the past when China attempted to rig the vote in the UN. China’s ascension to the UNHRC begs the question of whether political scheming has officially overtaken the UNHRC’s structure. How can the UNHRC represent a global human rights regime if states that are notorious for their human rights violations, are now able to join the Council? Another important detail is that China’s permanent position in the UN Security Council will make it virtually impossible to sanction China’s repressive campaign against the Uighurs.
Waiting for the ICC or the UN to set a plan in motion is simply not an option. The urgency of the Uighur case requires immediate action. Admittedly, international organisations and courts can play a meaningful role. For now, it is however clear that states unilaterally have to take a stance against China by imposing targeted sanctions on the industries that China values most, such as the cotton industry and the tech business. Given China’s standing as an important political ally and lauded investment partner for many, it will be difficult to trigger a global response. A joint effort is necessary to call China to action.
A conventional state-based approach should be supplemented by support from major industries like the fashion and tech community. Global brands like Apple, Nike and H&M have the ability to signal to the Chinese government that its behaviour does not go unnoticed or without punishment. Furthermore, they can show their customer base what their brand stands for. As major companies have become more political by supporting a certain presidential candidate or endorsing Black Lives Matter, why not do the same for the Uighurs? A concerted effort between states, businesses and activist groups may be the best shot at incentivising China to change its behaviour.
Even if the label genocide does not fit China’s repressive policies, why is the world standing by when 1 million Uighurs are incarcerated and tortured by an autocratic regime? Is it fear, economic interest, unwillingness or all three?
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