After the chief prosecutor of the International Criminal Court (ICC) in The Hague, Netherlands, decided not to investigate allegations of genocide in China’s mass detention of Muslims in Xinjiang on the grounds that he has no jurisdiction over non-member China, British lawyers representing Uighur groups who have filed charges with the ICC told the Voice of America that they have been gathering more evidence of persecution of Uighurs forcibly returned to China from Tajikistan and are preparing to bring it back to the court early next year.
Fatou Bensouda, the chief prosecutor of the International Criminal Court (ICC) and a Gambian, said Dec. 14 that he could not open an investigation into the allegations against Uighur groups because the abuses described in the allegations took place in China, which is not a signatory to the Rome Statute that established the ICC.
Prosecutor Bensouda’s office said in its annual report that for most of the alleged crimes, the prerequisites for exercising the court’s territorial jurisdiction have not been met. The report said the basis for legal action by the court does not yet exist for other allegations of forcible return of Uighurs from Tajikistan and Cambodia to China.
However, the report mentions that the Uighur group’s lawyer argued that the deportations did not take place in China, but on the territory of Tajikistan and Cambodia, member states of the ICC, so the ICC could act. The lawyer asked the court to reconsider “in light of new facts or evidence.
Analysis suggests that such a statement in the report indicates that the ICC chief prosecutor has not closed the door on allegations of repatriation in the case, meaning that the ICC could still investigate if more evidence is presented.
Exiled Uyghur Groups Express Disappointment
This is the first time that exiled Uighur groups and activists have attempted to use international law to hold Chinese officials accountable for what they allege is a brutal crackdown on minority Muslims in Xinjiang.
Zubaira Shamshiuddin, China affairs coordinator for the Washington-based Uighur Human Rights Project, told Voice of America that she was disappointed by the decision of the chief prosecutor of the International Criminal Court.
She said, “I think they should investigate because the genocide that happened in East Turkestan (Xinjiang) is real because so much evidence now proves that what happened in East Turkestan was genocide. No one can erase it, this is a fact. Disappointed, very disappointed! Because as an international criminal organization, they should go and take a stand, they have done nothing, they refuse, they don’t want to investigate, that’s not what international criminal organizations should do. As an international criminal organization, they should investigate first and then make a conclusion.”
Collecting evidence of crimes in ICC member countries
Rodney Dixon, a British lawyer representing the Uyghur group that filed charges with the ICC, told Voice of America on Friday that his legal team is further collecting evidence of unlawful persecution against Uyghurs in ICC member countries outside of China, even though the new coronavirus pandemic has made gathering evidence on the ground very difficult.
The prosecutor told us that she needed more evidence on the jurisdictional issue,” Dixon said. We’ve been gathering more evidence, we told her that, and we’re still continuing. However, it was difficult to send people to Kyrgyzstan to take evidence on the ground because of the new crown virus, and it was not a country that was already very painful to be able to take evidence, as was the case in Tajikistan. However, we are specifically addressing the jurisdictional issues raised by the Prosecutor by collecting evidence in Kyrgyzstan for relevant instances.”
In an online press conference held during the annual meeting of ICC member states, Dixon explained that if a Uighur is persecuted in Tajikistan after being illegally captured by Chinese agents and forcibly brought back to China, the first act of capture occurs in an ICC member state. This gives the ICC jurisdiction over all subsequent acts in China as well.
Lawyers in the case are hopeful about starting an investigation
Dixon said they will meet with the prosecutor and present evidence once they have new evidence. He is hopeful that the ICC will eventually open an investigation on the evidence they have provided.
We are hopeful that she (ICC chief prosecutor) will launch an investigation based on the new evidence presented to her,” Dixon said. She says she needs more evidence and we will give it to her so she can take the critical step of launching an investigation. The allegation we made is important, it started in Kyrgyzstan, an ICC member state, and continued into the territory of (non-member) China. Because this is a crime that is still ongoing, the ICC has jurisdiction over a crime that began in a member state, even though it continues into a non-member state.”
Two Uighur exile groups, the East Turkistan Government in Exile (EGTE) and the East In July, the Turkistan National Awakening Movement (ENAM), through Dixon’s team of lawyers, submitted evidence to the International Criminal Court (ICC) accusing the Chinese Communist authorities of imprisoning more than one million Muslim minorities, including Uighurs, in “re-education camps” and subjecting Muslims to torture, forced sterilization, and mass surveillance. The two organizations have not only asked the ICC to consider the evidence, but also to consider the evidence.
In addition to asking the ICC to investigate abuses against Muslims in Xinjiang, the two organizations also want the court to investigate China’s practice of forcing thousands of Uighurs to return to their countries of origin and persecution through illegal arrests or deportations in other countries such as Cambodia and Tajikistan.
International Litigation Lawyer: Procedural Issues Not Vetoed Facts
Uyghur American Raihan Aiseti works as an international litigator at a Washington, D.C. law firm specializing in anti-graft and international investigation cases. Speaking to the Voice of America on Wednesday, Raihan Ayseti said the ICC chief prosecutor based his decision on a procedural issue – that China is not a signatory to the ICC’s Rome Statute and does not have direct jurisdiction over China – rather than on a veto of the charges brought by the Uighur group itself.
The law has a procedural issue and a practical issue,” she said. It (the ICC decision) is not a rejection of the actual law of genocide per se, and a crime against humanity. It’s just a procedural, they say China is not a member of the ICC.”
Rai Khan also explained that the Uighur group that filed a complaint with the ICC requesting an investigation also relied on the precedent set by the ICC’s 2019 approval to launch investigations into crimes suffered by Rohingya Muslims in Myanmar and Bangladesh. Although Myanmar is not a signatory to the Rome Statute and is not a member of the ICC, the ICC has found jurisdiction to open investigations because some of the alleged crimes occurred in Bangladesh, a member state.
Exercising Extended Jurisdiction over China Following Precedent
According to Rai Khan, the ICC could exercise expanded jurisdiction over China in light of the crimes suffered by Uighurs who were returned to China from Tajikistan and Cambodia.
They (Uyghurs) are urging the ICC (International Criminal Court) to exercise an expanded jurisdiction over the genocide committed by the Chinese government through the legal doctrines of Myanmar and Bangladesh,” she said. China is a non-ICC member, but since you have a precedent to do so for Myanmar, you should do the same for China. Since their (VHP) lawyers have also said they will provide more evidence to get the ICC to reconsider, I think they should be able to expand the jurisdiction to explain.”
Raihan’s brother, Ekbar Aiseti, was invited to the U.S. in 2016 to participate in the International Visitor Leadership Program (IVLP) organized by the U.S. State Department, but was arrested shortly after his return, and only learned earlier this year that he had been sentenced to 15 years in prison for “inciting inter-ethnic hatred” after several U.S. senators wrote to the Chinese ambassador to the U.S. He was sentenced to 15 years in prison for “inciting inter-ethnic hatred. The incident drew the close attention of the U.S. State Department, Congress, international organizations, as well as Harvard alumni and many people involved in State Department programs around the world.
What puzzles Raihan Ayseti is that her family is considered by the Chinese government to be a “model Uighur citizen,” with both parents being members of the Communist Party and her brother being repeatedly described by the official media as an entrepreneur who acts as a bridge between the Han and Uighur communities. Raihan has been campaigning for several years for her brother’s fate, demanding that the Chinese authorities immediately release him.
The Chinese Communist regime has ruled Xinjiang with an iron fist for years
In recent years, the Communist authorities have imposed an iron fist on Xinjiang, cracking down on what the authorities call “separatists,” conducting full-scale electronic surveillance, including facial recognition technology, and setting up checkpoints throughout the region.
UN experts, human rights groups and activists have accused China of holding at least 1 million Uighurs and other minority Muslims in “re-education camps” for brainwashing propaganda. Communist authorities initially denied the existence of the camps, but later argued that they were “vocational training centers” for locals to counter extremist tendencies and learn language and vocational skills.
However, many reports indicate that former “re-education camp” detainees have confirmed that they were subjected to political brainwashing and psychological torture, including being forced to renounce their Muslim faith and swear allegiance to the CCP and Xi Jinping. A large number of overseas members of the Xinjiang minority also reported that their family members or friends in Xinjiang had been forcibly detained, or that many had disappeared and their whereabouts were unknown.
China has faced increasing international condemnation for its harsh treatment of Uighurs and other minority Muslims in Xinjiang. President Trump (June 17) officially signed the Uighur Human Rights Policy Act, which allows the U.S. executive branch to impose sanctions on Chinese officials who persecute Uighurs. According to the bill, the U.S. president has 180 days from the effective date of the bill, and annually in the future, to name and sanction Chinese officials for their prolonged inhumane treatment or imprisonment of Uighurs. The Secretary of State would also be required to submit future reports to Congress detailing human rights abuses in Xinjiang.
The sanctions available to the United States include freezing the assets of targeted individuals in the United States, denying them entry into the United States, and denying or revoking their visas. The bill also calls on the U.S. president to condemn China’s crackdown on Uighurs and calls on China to close all re-education camps in Xinjiang.
The Chinese Foreign Ministry responded on June 18 that the Uyghur Human Rights Policy Act deliberately denigrates the human rights situation in Xinjiang, viciously attacks China’s policy of governing the border, and crudely interferes in China’s internal affairs.
Subsequently, on July 9, the U.S. Treasury Department imposed sanctions on four current or former government officials in Xinjiang, China, for “serious violations of the rights and interests of ethnic minorities in Xinjiang. The sanctioned officials include Chen Guanguo, Secretary of the Party Committee of the Xinjiang Uyghur Autonomous Region; Zhu Hailun, former Secretary of the Political and Legal Committee; Wang Mingshan, Vice Chairman of the Xinjiang Government and Secretary of the Party Committee and Director of the Public Security Department; and Huo Liujun, former Secretary of the Party Committee of the Public Security Department. The Xinjiang Regional Public Security Bureau is also on the sanctions list.
The Center for Global Policy, a U.S. think tank, released a new report on Dec. 14 revealing that at least 570,000 ethnic minorities in Xinjiang have been forced to perform inefficient, high-intensity hand-picking of cotton as a result of the government’s forced labor transfer and poverty alleviation programs. The Chinese Foreign Ministry immediately denied the allegations.
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