China and Burma have not ratified the Rome Statute establishing the International Criminal Court. However, crimes committed against these minorities can be prosecuted if part of the facts concerns signatory countries.
Extremely serious crimes on a very large scale. While the abuses against the Syrians are finally starting to be investigated and condemned, those committed against Uyghurs in China and Rohingyas in Burma have not yet arrived at this stage. The judicial calendar is rarely in tune with the media, but this does not prevent the recent months, justice has scored points in the prosecution of the perpetrators of recent crimes against humanity, even genocide.
On July 6, a group of attorneys from Temple Garden Chambers filed an 80-page dossier with the International Criminal Court’s (ICC) prosecutor’s office ordering Fatou Bensouda to open an investigation into crimes perpetrated by the regime. of Xi Jinping against the Uyghurs and other Muslim minorities in Xinjiang, notably in concentration camps, renamed “vocational training centres” in Beijing Newspeak. This complaint is the first of its kind to question this repression by Beijing. It targets around 30 Chinese officials, starting with Xi Jinping.
“We are in possession of overwhelming and very serious evidence that can support charges of crimes against humanity and genocide against Chinese officials,” says Anne Coulon, a lawyer at the New York bar. Temple Garden Chambers had been contacted by the government-in-exile of East Turkestan (another name for Xinjiang) and the National Awakening Movement of East Turkestan. Murders, deportations, torture, sterilisations and forced marriages, disappearances, family separations, etc. The group of lawyers drew up a list of detailed facts on the basis of investigations by NGOs and journalists, interviews with refugees and exiles, and expert opinions. “The seriousness of the alleged acts is such that the prosecutor should open an investigation”, continues Anne Coulon.
Of course, China is not a signatory to the Rome Statute establishing the ICC. But as soon as part of the criminal acts takes place in the territory of a State Party, the court has jurisdiction to hear all the crimes according to article 12 of the Statute. In this case, “there are cases of forced deportation of Uyghurs from China to Cambodia and Tajikistan [who recognize the ICC, editor’s note], a direct consequence of the systematic violations committed on Chinese territory. We also have forced repatriations from these countries to China, ” says Anne Coulon. “Upon returning, the Uighur victims were subjected to crimes in violation of international law”, complements East Turkestan government-in-exile in a statement.
Technically, nothing, therefore, prevents the prosecutor from opening an investigation. Already last year, on the same legal basis for locating crimes, Fatou Bensouda had taken up the issue of Rohingya Muslims in Burma. In 2016, and on a much larger scale from August 2017, this “most persecuted minority in the world”, according to the admission of the secretary-general of the United Nations, António Guterres, was the victim of ethnic cleansing and mass abuses potentially comparable to genocide in the words of heads of state, NGOs and the United Nations. At least 24,000 people were killed, and 750,000 others had to flee to neighbouring Bangladesh.
On November 14, 2019, Fatou Bensouda obtained from the ICC judges the opening of an investigation for “crimes against humanity against the Rohingya people of Burma”. And specified the cases of “deportation, other inhumane acts and acts of persecution committed partly on Burmese territory and partly on the territory of Bangladesh”, a signatory state of the Rome Statute, unlike Burma.
The road, therefore, opens for an investigation. But it is fraught with pitfalls. In addition to a lack of resources and results, the ICC, which started its activities in 2002, still has the image of a groping and African-centered tribunal. Above all, what will happen to the ongoing proceedings when the current prosecutor is due to step down in June and the ICC is struggling to find a successor for her?
But other initiatives are launched. In the case of the Rohingyas, supporters of this community welcome a recent decision by the Argentinian justice. In the name of universal jurisdiction – which allows a State to prosecute the perpetrators of crimes even in the absence of any link with the State in question – the Argentine Federal Criminal Chamber annulled, on June 2, the previous decision of an Argentine court not to prosecute the chief of the Burmese army, Min Aung Hlaing, and the state counsellor Aung San Suu Kyi for genocide. The group of Rohingya and Argentinian associations advised by Tomas Ojea Quintana, the former UN special rapporteur for human rights in Burma, obtained on the contrary the right to continue the steps started in November and to bring closer to the ICC.
The revelations on the fate of the Uyghurs have finally raised awareness of the growing threat of the Chinese regime and its opaque, repressive and authoritarian governance. States call for an independent investigation into the camps in Xinjiang. The Inter on China Alliance, which brings together more than 150 elected representatives of twenty countries, has alarmed recent revelations about forced sterilisation evokes a “genocidal process” and said think about an “International procedure”. Which might take a long time.