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Filing of a petition with ICC: Beginning of Uighurs’ legal battle against China

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Uighur Muslims, a minority community in Xinjiang province of the People’s Republic of China (hereinafter China), has been subjected to state sponsored persecution by China for over past six years (It first began in 2014). Since 2017, when the reports of Chinese crackdown on Uighurs first became public; China has been attracting widespread global denunciation for subjecting this minority group to ‘arbitrary detentions, sexual abuse, forced abortions and sterilizations’. In July 2019, a group of 22 countries wrote a letter to the United Nations Human Rights  Council (UNHRC) condemning the persecution of Uighurs. In June 2020, USA imposed various sanctions on Chinese officials over Uighur abuses by enacting the Uighur Human Rights Policy Act, 2020.

The most recent attempt to hold China accountable for human rights violations entailed filing of a petition against China with the International Criminal Court (hereinafter ICC). In July 2020, Uighur exile groups ‘The East Turkistan Government in-exile’ and the ‘East Turkistan National Awakening Movement’ filed a petition against China seeking an investigation against around 30 Chinese officials for alleged repression of Uighurs. The country has been accused of committing the crimes of ‘genocide’ and ‘crimes against humanity’. The filing of petition is a first step towards tangible justice for Uighurs. At the same time however, it opens up a pandora’s box of questions: How will ICC assume jurisdiction over China, which is not a member to its Statute? Will China cooperate in the investigation?  Why wasn’t the International Court of Justice (hereinafter ICJ) approached?

Building a case for the International Criminal Court to take Jurisdiction:

China is not a signatory to the Rome Statute which governs the functioning of ICC. ICC therefore, does not have a direct Jurisdiction over China and its nationals. However, as alleged by the petitioners, China has been deporting these Muslims from Tajikistan and Cambodia – State parties to the Statute. The petitioners have thus argued that since a part of the crime has been committed on the territory of member states of ICC, it can assume jurisdiction over the case.

Interestingly, a similar set of facts and arguments have faced ICC earlier as well. In 2018, the court was approached to rule upon its jurisdiction over alleged mistreatment of Rohingya Muslims by Myanmar – a non-member state. In the said case too, it was claimed that the Court has Jurisdiction over those who committed crimes against the Rohingyas under article 12(2)(a) of the Statute “because an essential legal element of the crime- crossing an international border- occurred on the territory of a State which is a party to the Rome Statute (Bangladesh)”. ICC’s pre-trial Chamber I ruled that it “has jurisdiction over the alleged deportation of members of the Rohingya people from Myanmar to Bangladesh”. It further added that “If it were established that at least an element of another crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party, the Court might assert jurisdiction pursuant to article 12(2)(a) of the Statute”. Expecting a similar ruling in the Uighurs’ case is thus not an unrealistic dream.

In fact, from the juxtaposition of the facts, crimes and parties involved in the two cases, itcan be safely deduced that there exists a high probability of ICC assuming jurisdiction and initiating investigations into alleged criminal acts concerning Uighurs. On humanitarian grounds, it perhaps will be a step in the right direction. Indubitably, grave crimes like these cannot be avoided or deferred based on mere technicalities. However, it certainly would go against certain long-established principles of International Law.

Roadblocks

ICC’s assumption of jurisdiction would, at the very least, be in circumvention of the very spirit of Article 34 of Vienna Convention on the Law of Treaties which states that “A treaty does not create either obligations or rights for a third state without its consent.” Since China is not a signatory to the Rome Statute, it must not be obligatory for it to submit to the jurisdiction of ICC. Another principle of law, which ICC would be going against is ‘Ubilexvoluit, dicit; ubinoluit, tacit’. It means ‘if the law means something, it says; if it does not mean something, it does not say it’. Now, under the Rome Statute, ICC can exercise jurisdiction only under three circumstances– where the alleged perpetrator is a national of a State Party or where the crime was committed in the territory of a State Part (1) , or a State not party to the  may decide to accept the jurisdiction of the ICC(2), or the Security Council, acting under Chapter VII of the United Nations Charter, can refer a situation to the Office of the Prosecutor (3). The intention of the draftsmen with regards to Jurisdiction of ICC is thus very clear – ICC shall not exercise jurisdiction over non-member states. The written law does not provide for a jurisdiction over non-member states except by a referral from the UNSC.

It not only would reinforce wrongful persuasion but might also turn out be completely ineffective because International Tribunals do not succeed when the necessary state parties do not submit to their jurisdiction itself. In this regard, ICC itself has noted that, “as a judicial institution, the ICC does not have its own police force or enforcement body; thus, it relies on cooperation with countries worldwide for support.”Non-States parties are not obligated to cooperate with ICC for making arrests, freezing suspects’ assets etc.

It is very unlikely that China will even appear before the International Court. If it does, it surely will contest ICC’s jurisdiction. ICC would thus have to negate each of the above arguments. Given the low probability of China cooperating in an investigation initiated by ICC, Justice to Uighurs will not come easily even after the jurisdiction is taken by ICC.

A Case at the ICJ in the alternative

Chinese atrocities against Uighurs in Xinjiang are also in violation of various provisions of the Convention on the Prevention and Punishment of the Crime of Genocide (“the Genocide Convention”), to which China is a party. ‘Genocide’, under Article II of the Convention, among others includes ‘Causing serious bodily or mental harm to members of the group’ and ‘imposing measures intended to prevent births within the group’.A study undertaken by Human Rights Watch on Chinese repression of Uighurs has reported ‘political indoctrination’, ‘deaths in custody’, ‘torture’ and ‘mistreatment’ of Uighurs. Another report gives a detailed account of forced sterilization and employment of other birth control techniques on Uighur Women to supress Uighur birth rates in the Country. These fiendish acts fall under the crime of ‘Genocide’, punishable under Article IX of the Convention.Article IX prescribes that the disputes “relating to the responsibility of a State for genocide or for any of the other acts enumerated in article III, shall be submitted to the International Court of Justice at the request of any of the parties to the dispute.”

Now, for a dispute to be adjudicated by ICJ, any of three conditions under Article 36 have to be satisfied: (1) If the state has made a declaration under Article 36, paragraph 2 of the ICJ’s statute granting the court compulsory jurisdiction over disputes under international law; or, (2) where a particular treaty provides the ICJ as its dispute resolution mechanism; or, (3) by entering into a special agreement to submit the dispute to the Court. Since China had withdrawn its declaration under Article 36(2) of the ICJ Statute, it is not under compulsory jurisdiction of the ICJ. But China has ratified the Genocide Convention which prescribes ICJ as the dispute resolution body. Therefore, any Contracting Party to the Convention may bring a case against China. It thus follows that ICJ’s jurisdiction in the matter at hand can be founded under Article 36, Paragraph 1 of the ICJ Statute read with Article IX of the Genocide Convention.

Bringing China under the radar of ICJ would have been easier yet less effective. ICJ, under its statute, is not empowered to prosecute individuals. It could, at the most, order China to cease ongoing genocide and to prevent genocide from occurring in the future. Additionally, it can also order equitable remedies like ordering China to enact legislation to criminalize genocide in line with the requirements of the Genocide Convention. On the other hand, ICC’s purpose of establishment itself was prosecution of individuals. It can impose lengthy terms of imprisonment of up to 30 years, order a fine, forfeiture of proceeds, property or assets derived from the committed crime. ICC’s mechanism thus suits the best in the current scenario.

Concluding thoughts

Past precedent on China’s response to international adjudication is not very encouraging. Traditionally it has shunned all international adjudication, preferring to settle all disputes through direct negotiation. The past experiences of Chinese response to international adjudication invited remarks like “Putting ‘China’ and ‘international law’ in the same sentence is an oxymoron.”  When China lost to Philippines in the South China Sea Case, a former Chinese diplomat openly said that this judgment was “nothing more than a piece of paper”.

Even if China accede to international adjudication of any sorts, neither ICC nor ICJ has the mandate to enforce their judgments. Adding onto the misery, China being a permanent member of UNSC can veto any resolution pertaining to enforcement of a ruling against itself. Nevertheless, filing of a petition at ICC is itself a step towards justice. It sends an indication to China’s government that the international community will no longer condone its actions. In the long run, attaining justice for Uighurs might take filing of cases at multiple judicial institutions as in the case of ‘mistreatment of Rohingyas’. There is even a possibility that a parallel case may be filed at the ICJ. This is only a first step in the Uighurs’ battle against China.

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East Asia

Pro-Communism warping Hong Kong

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The latest turmoil in the Covid-ridden strata of mainland China is not servile to any pandemic, however, the issue has been one of the most queer and rare kinds, enough to be classified as one of the endemic issues in the global affairs. The tension at helm is the chaos following the announcement of a “New Security Law” by the Chinese regime which is being eyed as one of the monumental events of this decade; slicing off a sliver of attention from the deadly Corona virus that continues to exponentiate around the world in its second wave and sporadic variants.

The law that set out by the Chinese lawmakers back on 22nd May 2020, threatens the liberties of subversion and sedition enjoyed by the citizens of Hong Kong under a constitution. Simplistically named “Basic Law”, it aims to tame the country scaffolded by the “One country, Two systems” framework since the power handover by the former colony to China back in 1997. This act came around amidst strained economic relations between the two superpowers of the world; China and USA, each passing the baton in the blame game of who sustains the blood-crown of the catastrophe impending on the world courtesy of the lethal virus that engulfs every periphery in each continent on the globe. The matters seem complex at sight and a glimpse to the historical timeline of how riddled the relations were could hint at how strained they could reach.

The colony, known as ‘Hong Kong’ today, had been the battle ground, figuratively, to the major competitors of the 20th century: The Great Britain and China. The British dominated the colony for more than 150 years, tracing back to the late 19th century; leasing the territory for the span to morph it into the modernised metropolis marking it as the hub we know today. In 1997, an agreement was reached via an accord, ‘The Sino-British Joint Declaration‘ between the two sides. The treaty allowed Hong Kong a semi-autonomous status, that is, relaying self-sufficiency in all the national domains except in defence and foreign affairs. The allotted autonomy arches under the sovereignty of China until year 2047, henceforward melding into the mainland China as harkened by the Chinese hegemony over decades.

Despite of the granted protection of Hong Kong’s own legislation, borders and freedom of speech, the liberties have been trampled on by the Chinese government over the last couple of decades. A similar law abolishing the right to sedition was initiated in 2003 yet mass protests calling out up and about 50,000 citizens impeded the efforts that went futile and drastically ended up being shunned for good. The Communist party under the wings of Chinese president Xi Jinping have expounded further in tightening their talons on the city since 2012 as efforts were made to corrode the educational system of the country via meddling with the curriculum, biasing the foundation to hail Chinese communism. These acts were proactive reactions to the advances of the United States forging relations with the city. China even tried to manipulate the elections in 2014, tampering with the selection their Chief Executive leading to a 3-month long protest known as the ‘Umbrella movement’ and ultimate downfall of Hong Kong’s autonomous political system.

The security law falls in tandem to the events of 2019; the legislation allowing the convicts from Hong Kong to be extradited in China causing a rave of fear of a massive tactical crackdown of the Anti-communist activists of Hong Kong, sighting it just as ruse to underwhelm the right of sedition of the people of Hong Kong. The Law passed by the parliament notions to only one thing; The ultimate end to Hong Kong. The lawmakers in China, hailing from the National People’s Congress (NPC), sight this move as extricating a threat to the national security and stability of the country while many of the pro-activists in Hong Kong deem the law as betrayal, accusing China of walking back on its promise of high-degree autonomy and freedom of speech, marking it as the final straw, the last struggle before the country could override the laws in the city and indirectly, transition from the entity holding the right to veto the laws to now gripping the law altogether.

Despite of the speculated protests to spark like the history dictates, many of the sage minds predict either a relatively dormant demonstrations or none at all, having a tint of finality in the statement shote the protests are “high stake in risk and repression”. The recent arrest of the leading activists of Hong Kong standing up to voice their disdain to the separatist efforts of China further solidify the notion. Despite of a global condemnation to the new law, the efforts of China resume to subdue any opposition in Honk Kong no matter how sparse. Foreseeing no way out for Hong Kong this time; the Covid-19 paralysis the United States in its own crisis and the legislature inclining towards the Chinese pressure, a complete erasure of Hong Kong is sighted and could not be restrained- for better or for worse.

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The Belligerent Chinese Diplomacy and Its Failure

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The Chinese media has recently reported of Xi Jinping writing a letter to George Schultz the former chairman of Starbucks, the US coffee giant. In the letter, he has requested Schultz to play a positive role in advancing the US-China relations. While head of a major state writing letter to big corporate heads is not a common but not an unusual development either, this letter from Jinping should be seen in a relevant context. It indicates a certain amount of desperation and difficulty of China in its dealings with the US.

It suggests that after months of aggressive posturing and verbal duels against Trump, the State Department and Pentagon, China is now cosying up to the new Joe Biden administration. Further, it also means the recent Chinese aggressive posturing, wolf diplomacy has failed to bring in the desired results and that the Xi Jinping-led CCP is under more pressure now to soft-pedal the recent acrimonious ties between the two.

The year 2020 had been a very disappointing and calamitous year for the world. And Corona pandemic could well be cited as the most important reason. While the world as a whole has struggled to fight this unknown enemy individually as well as collectively, one country that has been in the limelight, for all the wrong reasons, been China.

Foreign policy and diplomacy is all about protecting and promoting the perceived national interests of a country. While achieving its objectives, the country tries to create and maintain a favourable image in the international community. The Chinese diplomatic endeavour since the ascension of Xi Jinping has been starkly opposite. From the most likely origin of Corona virus, to rebuking leaders, diplomats and media of other countries, China has been trying to create a new diplomatic norm, a new normal where none of the countries would dare criticising China, through political discourse, media or any other way while silently acceding to its territorial expansionary designs.

There  have  been  unusually  vitriolic  reactions  by  Chinese  diplomats against seemingly innocuous comments or actions by governments, politicians, diplomats  or  media  in  various  countries.  A  very  rational  request  by  the Australian government to initiate investigations by the international community into the genesis of Corona virus, made China so furious that apart from making crude undiplomatic comments, it even created a virtual political, diplomatic and trade war against the country. Critical comment by certain politicians in Brazil and Japan, led Chinese diplomats to publicly issue personalised attacks against them.

The Chinese ambassador to Sweden has went on to lambast the country’s media in most rustic manner. No wonder, in the last two years, he has been summoned to the Swedish foreign ministry an unprecedented 40 times and there have been demands from native politicians for his expulsion. In India, a country that is being seen as the closest political and military rival by China but is scared of admitting it publicly, the diplomats have kept on reminding the government and media not to play the so-called Tibet card or must adhere to One-China policy by not getting close to Taiwan, have repeatedly been ignored by the government as well as the media.

No wonder, a recent Pew Research study has revealed that globally China has lost a huge amount of goodwill. A significantly very high majority of natives in nine of the advanced economies like the US, UK, Germany, Australia, South Korea, Sweden, Netherlands think negatively of  China. Australia (81%), UK (74%), Sweden (85%), Netherlands (73%) show a very high increase in the negative perception against China, very recently and that has affected their politico-commercial relations too.

With the US, the Trump administration acting aggressively in the backdrop of the November Presidential elections, the Chinese actions of challenging the lone superpower has not helped the country anyway. On the contrary, US has become more supportive of Taiwan, politically as well as militarily, making it even more difficult or virtually impossible to China to even think  of  occupying  the  territory  forcibly  in  near  future.  India  that  had maintained a cautious approach towards Taiwan till recently, have started enhancing political and commercial relations with the country.

In Asia, its aggressive military designs against India’s northern borders has had a very rude awakening for China. Used to a timid Indian approach since 1950s under Nehru, it never expected the aggressive Indian response that even put its own military positions in Moldo and other strategic positions vulnerable. To further undermine political and military calculations, its adversaries in South China seas like Vietnam, Indonesia and Philippines today are in advance negotiations with India to secure sophisticated missiles and armaments.

A very significant strategic development in the form of QUAD has taken the preliminary shape and that whenever gets in a concrete form, could well portend an ominous future for China, politically and militarily. The belligerent Chinese behaviour, especially since the onset of Corona virus has brought India, Australia, the US and Japan very close. With talks of Vietnam, Philippines and others in south-east Asia joining it later, the future of a QUAD could well be a security nightmare for China.

In the economic realm, India has reacted sharply too. Being a huge market for Chinese cheap goods and scores of apps till recently, India has not only banished  hundreds  of  apps  but  has  also  been  working  on  a  mechanism  to regulate, control and even stop imports in a number of segments from China. A big share of enormous infrastructural contracts in telecommunications, roads, ports, airports and railways in India too, have become difficult for Chinese companies. And taking a leaf out of India, the US and other countries too, are making it difficult for Chinese organisations to secure big contracts in their respective countries.

Over the next few years, China is going to lose a huge chunk of its popular and big market in India while territorially too, it has failed to make any significant gains.  Strategically what China  wished to see was  countries like Japan, India, Australia, Vietnam, US all having disputes with it dealing individually  rather  than  getting  together  and  forming  a  coordinated  and collective political, economic and strategic response against it.  And the very opposite has happened. There have been greater and collective political, military and economic coordination amongst all these countries today and most of the strategies are aimed against one country, China.

All these developments including Xi’s letter to Schultz, indicate one point very  certainly  that  Chinese  belligerence  has  backfired  hugely.  It  needs  to reorient its diplomacy and political behaviour significantly and if it fails to do so, its position in the emerging post-Covid geopolitical order could be anything but that of an emerging superpower.

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The Problem of Uncontrolled Nationalism: The Case of Japan before the WWII

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Authors: Chan Kung and Yu(Tony) Pan*

Throughout the modern history of the world, Japan is undoubtedly an interesting country: it went from the edge of becoming a colony to one of few independent countries in Asia before World War II, and after the Great War, Japan even became a great power. From a broader level, Japan’s success at that time showed that Asians were not inherently inferior to Westerners. Unfortunately, Japan which was supposed to be the leader of Asia to a bright future, chose the path fascism and imperialism. Eventually, Japan became the source of the Pacific War.

It is undeniable that from the Meiji Restoration until the early Showa period (the end of World War II), Japan adapted an expansionary policy, which brought deep suffering to its neighboring countries and ultimately dragged itself into the abyss of destruction. When World War II ended, nearly 70 years of development achievements were utterly wiped out by the war.

In this context, an important question we need to ponder is: What led Japan to embark on an expansionary and self-destructive path? At what point in time did Japan’s policymakers start to lose its mind? What can future generations of nations learn from Japan’s tragic experience to prevent the same fate from happening again? As a country that has been entangled with Japan for generations and has a complicated relationship with Japan, these issues are of even greater relevance to Chinese researchers today.

Fortunately, there is actually a fair amount of scholarly research on the subject, and there exist four main explanations. The first is the “international structure theory” most commonly used by IR scholars (especially the realists), and the second, more common among Western scholars, is the “weak democratic government theory. The third is the “Pan-Asianism,” which focuses on the constructivist perspective. Finally, there is the political economy explanation of expansionary policies.

At the first glance, it seems that each of these explanations has its own rationale. Of the four, the view that the navy and the military were increasingly extreme in their struggle for policy dominance is the most possible explanation. However, it seems that each of the four existing explanations can, in fact, be incorporated into a new one, namely, that Japan’s self-destructive expansionary policies prior to World War II were the material manifestation of an uncontrolled nationalism. More specifically, these four explanations answer why the Showa government was unable to control the nationalist forces in the country. On the other hand, however, the question of whether nationalism would necessarily expand without outside interference and lead to expansionist policies was left unexplained.

Because of the natural characteristics of nationalism, it seems to us that there is a natural tendency for nationalism to expand in the course of its development. The main reasons for this phenomenon are not complicated. First of all, nationalism is a group ideology, which means that nationalists have a common goal at the macro level, but the boundaries of national interest are not consistently defined by different individuals. On this basis, because of the unreliability of group rationality, nationalism as a groupthink is prone to overstretch in the course of its development. Moreover, when such currents are not rationally controlled and end up holding state policy hostage, the state tends to follow a self-destructive path of expansionism. Pre-World War II Japan is a classic case in point.

It should be noted that the positive effects of nationalism is not being denied here, but it is crucial that a country’s policymaking process should not be ultimately being a hostage to nationalist forces. The question then, is how to prevent nationalism from spiraling out of control. From an empirical point of view, there are two different directions to prevent nationalism from getting out of control at the macro level: first, to eliminate “group irrationality” in nationalism; Second, to establish a corresponding gatekeeper between nationalism and state policymaking.

The first direction is essential to improve the thinking capacity and cultural literacy of society as a whole. This is a radical way to solve the above problems, and the improvement of the education system is the most crucial part of it. However, for reasons that are easy to understand, this approach often takes too long to implement, and the process is not really controllable. As a result, this approach, while very important, is often insufficient for policymakers.

The second approach, on the other hand, is a short-term solution (relatively speaking). To use the common metaphor of treating a bodily disease, a gatekeeper-kind-of-approach is not to eradicate the disease but rather to prevent it from damaging health amid acceptance of its existence. There are two other ways to establish gatekeepers: one is to establish a mature political system that uses institutional factors to insulate people from the negative effects of nationalism. This is also the more popular approach in developed Western countries. It should be noted that this approach has proven itself to be effective, most notably in the case of the United States, which also has two populist leaders, as opposed to Brazil, where institutional constraints and the resulting establishment have been significantly more effective in containing the negative effects of nationalism on the policy.

The alternative is to rely on a small number of political authorities within society to isolate the scourge of nationalism through the elite’s prestige and quality. Again, this is also an approach that has worked before. The best example is the significant role played by Chinese leader Deng Xiaoping in the “reform and opening-up” process.

So, which is more effective, institutions or authority? This is not a question that can be easily answered. There are advantages and disadvantages to both approaches, and because every country and society is different, and there is no one-size-fits-all solution.

First of all, the main advantage of institutional gatekeepers is that once established, the containment is apparent and fairly solid; however, the disadvantage is that institutions may take a long time to develop and may come at a cost (e.g., the French Revolution). An authoritative gatekeeper’s advantage is its high degree of operability, while the disadvantage is the unsustainability and instability of the individual factor. On this basis, the realization of either approach needs to be linked to local realities; in other words, neither is necessarily successful. However, despite the different possibilities of approaches and paths, one issue is certain: in this day and age, uncontrolled nationalism is still a problem that threatens national interests, and this issue must be given sufficient attention and focus by policymakers.

Lastly, for contemporary China, the case of Showa Japan has another area of critical research value: how to deal with the current international order? History has shown that almost every attempt to challenge the existing international order independently has often ended in self-destruction. Successful transformations of the international structure tend to be incremental. In the case of pre-World War II Japan, the immediate effect of nationalism was to push the Japanese government to place itself on the opposite side of the prevailing international order. Today’s China has certainly not come that far. In fact, as Professor Wang Jisi says: “In those days, Japan was an ‘institution’ in the international order, while China was rejected and discriminated against by the West as an ‘other.’ Today, Japan is still ‘within the system’ of the international order, while China has risen to become the world’s second-largest economy and its military power is not what it used to be, but there is still the question of how China views the existing international order and how to deal with its relationship with the existing international order. ” In dealing with this problem, preventing the negative effects of nationalism on state policy is undoubtedly an important aspect.

*Mr. Yu(Tony) Pan serves as the associate research fellow and the research assistant of Mr. Chan Kung, Founder, Chairman, and the Chief Researcher of ANBOUND. He obtained his master’s degree at George Washington University, the Elliott School of International Affairs; and his bachelor’s degree in University of International Business and Economics in Beijing. Mr. Pan has published pieces in various platform domestically and internationally. He currently focuses on Asian Security, geopolitics in Indo-Pacific region and the U.S.-Sino Relations.

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