Justice for Uighurs: A distant dream or an unreachable one?

The Uighurs are Turkic ethnic minority Muslims who live in the Xinjiang province, an autonomous region in the Northwest part of China. Having close cultural ties with Central Asia, these people have been living in Xinjiang for several hundred years. With a present population of 25 million, Xinjiang is a habitat to approximately 12 million Uighurs. Uighurs came under the control of communist China after the Chinese Civil War in 1949. 

Despite living in Xinjiang for centuries, China has a deep-rooted history of discord with the Uighurs predominantly based on ethnoreligious, social, and political differences. Although termed as an autonomous region due to deference from the Chinese population, this status has been greatly curtailed by the recently intensified tension between the government and the Uighurs. In 2014, the Chinese government launched the "Strike Hard Campaign against Violent Terrorism" in Xinjiang to implement repressive policies and persecute the Uighurs under the pretence of education and training on laws and regulations of China.  

At present, there is credible evidence that about a million Uighur Muslims are being interned forcefully in crowded 're-education' camps and detention centres built in the deserts with footages of hundreds of blindfolded and shackled people being marched in Xinjiang city.  During detention, the Uighurs are regularly subjected to severe physical and mental torture by the soldiers and members of the Chinese Communist Party which include inhumane accounts of beatings, food, and sleep deprivation, electrocuting, waterboarding, etc.

There are widespread reports of China applying multiple methods to invade privacy, collect unethical data and breach human rights. The government is curbing freedom of religion and preventing the Uighurs from visiting mosques, performing religious rituals like fasting during Ramadan, keeping beards, wearing Hijab, as well as coercively made to renounce their faith. There are complaints of forceful consumption of pork, alcohol, and other non-permissible food for Muslims. Methods of surveillance include iris scanners, DNA sampling, voice and face recognition, and 3D identification images of Uighurs.

In 2018, the government has further promulgated another reprehensible program named "Pair up and become a family" whereby CCP members stay with Uighur families, breaching their right to family life and privacy. In a quest to 'educate' the Uighurs to lead a prescribed lifestyle, the government is making a concerted effort of assimilating the Han population into the Uighurs. Often the CCP members stay in the same room with the women and children whilst the men of the house are detained. 

The Uighur children are captured in thousands and forcefully dispersed in Han Chinese schools, away from their own culture and social background. The Uighur women are also regularly subjected to abhorrent abuse like rape, sexual humiliation, forceful insertion of intrauterine devices and undergoing sterilization and abortions. 

Mass graves have been found in Xinjiang providing a glimpse of the unaccountable extermination and murders of Uighurs. The Chinese Government has always denied the allegations claiming that these are nothing more than "transformation-through-education      centres" imparting "vocational training" for individuals who have been exposed to "ideas of extremism and terrorism". 

Such persistent denial and failure to address the atrocities towards the Uighurs will never accord any domestic legal remedies. China's actions have blatantly breached international law giving rise to grave violations of human rights and international crimes of considerable gravity like genocide and crimes against humanity. 

Hence the only possible hope is to resort to remedies under international law. China is ironically the signatory of multiple international human rights conventions and treaties such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In absence of a dedicated human rights court, the international crimes committed by China could be tried at the International Criminal Court at Hague to intervene when national authorities cannot or will not prosecute. ICC has the jurisdiction to investigate and then prosecute individuals committing international crimes of the gravest nature. The ICC does not have universal territorial jurisdiction and thus may only investigate and prosecute crimes committed inside State Parties, by its nationals, or if referred by the UN Security Council. 

Accordingly, complaints against Chinese officials were submitted to the ICC in July 2020 but were ruled out for two reasons: the first involves China not being a State Party and secondly, there was insufficient evidence to try the perpetrators of the crimes against Uighurs. Such approach by the ICC has not only tarnished the acceptance of international law but also significantly compromised the position of the acclaimed tribunal. ICC itself has set a precedent by accepting jurisdiction to try Myanmar officials for Rohingya persecution despite Myanmar being a non-State Party. 

ICC acknowledged that there is a reasonable basis to believe that deportation being a crime against humanity, has been committed across the Myanmar-Bangladesh border and therefore ICC has jurisdiction over crimes where at least part of the criminal conduct occurred on the territory of a State Party. The same nexus could be used in the case of Uighurs by establishing that millions have deported to Tajikistan and Cambodia both of which are signatories to the Rome Statute to escape the horrific atrocities.

Alternatively, the UN Security Council could also refer  the Uighur case to ICC. However, the chances are slim since China is a member, and has the veto power to not entertain such a claim. Even if the precedent set in the case of Myanmar is adopted, the trial of Chinese officials and subsequent enforcement shall be an issue. International Criminal Law, however lucrative it may sound, will, after all, be difficult to enforce as ICC does not have any enforcement mechanism of its own. It is only through collective international cooperation and effort that such enforcement actions can be taken against China. The reality is far from the truth.      Due to China's diplomatic and economic ties with the rest of the world, such cooperation may take time to see light at the end of the tunnel, making International Criminal Law 'a toothless tiger' yet once again.

Tasmiah Zaman Priyanti is a Barrister-at-Law and specialist in International Law.
Marzia Sultana is a final year student at the University of London.
Arafat Reza is an LLB graduate from BPP University, UK.

Disclaimer: The views and opinions expressed in this article are those of the authors and do not necessarily reflect the opinions and views of The Business Standard.