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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

Importance of peace in Afghanistan is vital for China

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image source: chinamission.be

There are multiple passages from Afghanistan to China, like Wakhan Corridor that is 92 km long, stretching to Xinjiang in China. It was formed in 1893 as a result of an agreement between the British Empire and Afghanistan. Another is Chalachigu valley that shares the border with Tajikistan to the north, Pakistan to the south, and Afghanistan to the west. It is referred to as the Chinese part of the Wakhan Corridor. However, the Chinese side of the valley is closed to the public and only local shepherds are allowed. Then there is Wakhjir Pass on the eastern side of the Wakhan corridor but is not accessible to the general public. The terrain is rough on the Afghan side. There are no roads along the Wakhjir Pass, most of the terrain is a dirt track. Like other passages, it can only be accessed via either animals or SUVs, and also due to extreme weather it is open for only seven months throughout the year. North Wakhjir Pass, also called Tegermansu Pass, is mountainous on the border of China and Afghanistan. It stretches from Tegermansu valley on the east and Chalachigu Valley in Xinjiang. All of these passages are extremely uncertain and rough which makes them too risky to be used for trade purposes. For example, the Chalagigu valley and Wakhjir Pass are an engineering nightmare to develop, let alone make them viable.

Similarly, the Pamir mountain range is also unstable and prone to landslides. Both of these routes also experience extreme weather conditions. Alternatives: Since most of the passages are risky for travel, alternatively, trade activities can be routed via Pakistan. For example, there is an access road at the North Wakhjir that connects to Karakoram Highway.

By expanding the road network from Taxkorgan in Xinjiang to Gilgit, using the Karakoram Highway is a probable option. Land routes in Pakistan are already being developed for better connectivity between Islamabad and Beijing as part of CPEC. These routes stretch from Gwadar up to the North.

The Motorway M-1, which runs from Islamabad to Peshawar can be used to link Afghanistan via Landi Kotal. Although the Karakoram highway also suffers from extreme weather and landslides, it is easier for engineers to handle as compared to those in Afghanistan.

China is the first door neighbor of Afghanistan having a common border. If anything happens in Afghanistan will have a direct impact on China. China has a declared policy of peaceful developments and has abandoned all disputes and adversaries for the time being and focused only on economic developments. For economic developments, social stability and security is a pre-requisite. So China emphasizes peace and stability in Afghanistan. It is China’s requirement that its border with Afghanistan should be secured, and restrict movements of any unwanted individuals or groups. China is compelled by any government in Afghanistan to ensure the safety of its borders in the region.

Taliban has ensured china that, its territory will not use against China and will never support any insurgency in China. Based on this confidence, China is cooperating with the Taliban in all possible manners. On the other hand, China is a responsible nation and obliged to extend humanitarian assistance to starving Afghans. While, the US is coercing and exerting pressures on the Taliban Government to collapse, by freezing their assets, and cutting all economic assistance, and lobbying with its Western allies, for exerting economic pressures on the Taliban, irrespective of human catastrophe in Afghanistan. China is generously assisting in saving human lives in Afghanistan. Whereas, the US is preferring politics over human lives in Afghanistan.

The US has destroyed Afghanistan during the last two decades, infrastructure was damaged completely, Agriculture was destroyed, Industry was destroyed, and the economy was a total disaster. While, China is assisting Afghanistan to rebuild its infrastructure, revive agriculture, industrialization is on its way. Chinese mega initiative, Belt and Road (BRI) is hope for Afghanistan.

A peaceful Afghanistan is a guarantee for peace and stability in China, especially in the bordering areas. The importance of Afghan peace is well conceived by China and practically, China is supporting peace and stability in Afghanistan. In fact, all the neighboring countries, and regional countries, are agreed upon by consensus that peace and stability in Afghanistan is a must and prerequisite for whole regions’ development and prosperity.

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Shared Territorial Concern, Opposition to US Intervention Prompt Russia’s Support to China on Taiwan Question

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image credit: kremlin.ru

The situation around the island of Taiwan is raising concerns not only in Chinese mainland, Taiwan island or in the US, but also in the whole world. Nobody would like to see a large-scale military clash between China and the US in the East Pacific. Potential repercussions of such a clash, even if it does not escalate to the nuclear level, might be catastrophic for the global economy and strategic stability, not to mention huge losses in blood and treasure for both sides in this conflict.

Earlier this week, Russian Foreign Minister Sergey Lavrov stated that Moscow continued to firmly support Beijing’s position on Taiwan as an integral part of China. Moreover, he also underlined that Moscow would support Beijing in its legitimate efforts to reunite the breakaway province with the rest of the country. A number of foreign media outlets paid particular attention not to what Lavrov actually said, but omitted his other remarks: the Russian official did not add that Moscow expects reunification to be peaceful and gradual in a way that is similar to China’s repossession of Hong Kong. Many observers of the new Taiwan Straits crisis unfolding concluded that Lavrov’s statement was a clear signal to all parties of the crisis: Russia would likely back even Beijing’s military takeover of the island.

Of course, diplomacy is an art of ambiguity. Lavrov clearly did not call for a military solution to the Taiwan problem. Still, his remarks were more blunt and more supportive of Beijing than the standard Russia’s rhetoric on the issue. Why? One possible explanation is that the Russian official simply wanted to sound nice to China as Russia’s major strategic partner. As they say, “a friend in need is a friend indeed.” Another explanation is that Lavrov recalled the Russian experience with Chechnya some time ago, when Moscow had to fight two bloody wars to suppress secessionism in the North Caucasus. Territorial integrity means a lot for the Russian leadership. This is something that is worth spilling blood for.

However, one can also imagine that in Russia they simply do not believe that if things go really bad for Taiwan island, the US would dare to come to its rescue and that in the end of the day Taipei would have to yield to Beijing without a single shot fired. Therefore, the risks of a large-scale military conflict in the East Pacific are perceived as relatively low, no matter what apocalyptic scenarios various military experts might come up with.

Indeed, over last 10 or 15 years the US has developed a pretty nasty habit of inciting its friends and partners to take risky and even reckless decisions and of letting these friends and partners down, when the latter had to foot the bill for these decisions. In 2008, the Bush administration explicitly or implicitly encouraged Georgian leader Mikheil Saakashvili to launch a military operation against South Ossetia including killing some Russian peacekeepers stationed there. But when Russia interfered to stop and to roll back the Georgian offensive, unfortunate Saakashvili was de-facto abandoned by Washington.

During the Ukrainian conflicts of 2013-14, the Obama administration enthusiastically supported the overthrow of the legitimate president in Kiev. However, it later preferred to delegate the management of the crisis to Berlin and to Paris, abstaining from taking part in the Normandy process and from signing the Minsk Agreements. In 2019, President Donald Trump promised his full support to Juan Guaidó, Head of the National Assembly in Venezuela, in his crusade against President Nicolas when the government of Maduro demonstrated its spectacular resilience. Juan Guaido very soon almost completely disappeared from Washington’s political radar screens.

Earlier this year the Biden administration stated its firm commitment to shouldering President Ashraf Ghani in Afghanistan in his resistance to Taliban advancements. But when push came to shove, the US easily abandoned its local allies, evacuated its military personal in a rush and left President Ghani to seek political asylum in the United Arab Emirates.

Again and again, Washington gives reasons to conclude that its partners, clients and even allies can no longer consider it as a credible security provider. Would the US make an exception for the Taiwan island? Of course, one can argue that the Taiwan island is more important for the US than Afghanistan, Venezuela, Ukraine and Georgia taken together. But the price for supporting the Taiwan island could also be much higher for the US than the price it would have paid in many other crisis situations. The chances of the US losing to China over Taiwan island, even if Washington mobilizes all of its available military power against Beijing, are also very high. Still, we do not see such a mobilization taking place now. It appears that the Biden administration is not ready for a real showdown with Beijing over the Taiwan question.

If the US does not put its whole weight behind the Taiwan island, the latter will have to seek some kind of accommodation with the mainland on terms abandoning its pipe-dreams of self-determination and independence. This is clear to politicians not only in East Asia, but all over the place, including Moscow. Therefore, Sergey Lavrov has reasons to firmly align himself with the Chinese position. The assumption in the Kremlin is that Uncle Sam will not dare to challenge militarily the Middle Kingdom. Not this time.

From our partner RIAC

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Russia-Japan Relations: Were Abe’s Efforts In Vain?

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Expanding the modest elements of trust in the Japan-Russia relationship, talking through reciprocal concerns before they lead to conflict, avoiding bilateral incidents, and engaging in mutually beneficial economic cooperation is the way forward.

One year after the end of Shinzo Abe’s long period of leadership, Japan has a new prime minister once again. The greatest foreign policy challenge the new Japanese government led by Fumio Kishida is facing is the intensifying confrontation between its large neighbor China and its main ally America. In addition to moves to energize the Quad group to which Japan belongs alongside Australia, India, and the United States, U.S. President Joe Biden’s administration has concluded a deal with Canberra and London to provide Australia with nuclear-powered submarines which in future could patrol the Western Pacific close to Chinese shores. The geopolitical fault lines in the Indo-Pacific region are fast turning into frontlines.

In this context, does anything remain of the eight-year-long effort by former prime minister Abe to improve relations with Russia on the basis of greater economic engagement tailored to Moscow’s needs? Russia’s relations with China continue to develop, including in the military domain; Russia’s constitutional amendments passed last year prohibit the handover of Russian territory, which doesn’t bode well for the long-running territorial dispute with Japan over the South Kuril Islands; and Russian officials and state-run media have been remembering and condemning the Japanese military’s conduct during World War II, something they chose to play down in the past. True, Moscow has invited Tokyo to participate in economic projects on the South Kuril Islands, but on Russian terms and without an exclusive status.

To many, the answer to the above question is clear, and it is negative. Yet that attitude amounts to de facto resignation, a questionable approach. Despite the oft-cited but erroneous Cold War analogy, the present Sino-American confrontation has created two poles in the global system, but not—at least, not yet—two blocs. Again, despite the popular and equally incorrect interpretation, Moscow is not Beijing’s follower or vassal. As a power that is particularly sensitive about its own sovereignty, Russia seeks to maintain an equilibrium—which is not the same as equidistance—between its prime partner and its main adversary. Tokyo would do well to understand that and take it into account as it structures its foreign relations.

The territorial dispute with Russia is considered to be very important for the Japanese people, but it is more symbolic than substantive. In practical terms, the biggest achievement of the Abe era in Japan-Russia relations was the founding of a format for high-level security and foreign policy consultations between the two countries. With security issues topping the agenda in the Indo-Pacific, maintaining the channel for private direct exchanges with a neighboring great power that the “2+2” formula offers is of high value. Such a format is a trademark of Abe’s foreign policy which, while being loyal to Japan’s American ally, prided itself on pursuing Japanese national interests rather than solely relying on others to take them into account.

Kishida, who for five years served as Abe’s foreign minister, will now have a chance to put his own stamp on the country’s foreign policy. Yet it makes sense for him to build on the accomplishments of his predecessor, such as using the unique consultation mechanism mentioned above to address geopolitical and security issues in the Indo-Pacific region, from North Korea to Afghanistan. Even under Abe, Japan’s economic engagement with Russia was by no means charity. The Russian leadership’s recent initiatives to shift more resources to eastern Siberia offer new opportunities to Japanese companies, just like Russia’s early plans for energy transition in response to climate change, and the ongoing development projects in the Arctic. In September 2021, the annual Eastern Economic Forum in Vladivostok did not feature top-level Japanese participation, but that should be an exception, not the rule.

Japan will remain a trusted ally of the United States for the foreseeable future. It is also safe to predict that at least in the medium term, and possibly longer, the Russo-Chinese partnership will continue to grow. That is no reason for Moscow and Tokyo to regard each other as adversaries, however. Moreover, since an armed conflict between America and China would spell a global calamity and have a high chance of turning nuclear, other major powers, including Russia and Japan, have a vital interest in preventing such a collision. Expanding the still very modest elements of trust in the Japan-Russia relationship, talking through reciprocal concerns before they lead to conflict, avoiding bilateral incidents, and engaging in mutually beneficial economic cooperation is the way forward. The absence of a peace treaty between the two countries more than seventy-five years after the end of the war is abnormal, yet that same unfinished business should serve as a stimulus to persevere. Giving up is an option, but not a good one.

From our partner RIAC

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