The Legality of State Department Report on China and Uyghur Tribunal
The Legality of State Department Report on China and Uyghur Tribunal

The Legality of State Department Report on China and Uyghur Tribunal

The Legality of State Department Report on China and Uyghur Tribunal

Agbakwuru Moghalu C E

The annual United States Country Reports on Human Rights Practices cover internationally recognized individual, civil, political, and worker rights, as set forth in the Universal Declaration of Human Rights and other international agreements.[1] The 45th Annual Country Reports on Human Rights Practice accused the government of People’s Republic of China (PRC) of committing genocide against the Uyghur’s who are predominantly Muslims, and crimes against humanity including imprisonment, torture, enforced sterilization, and persecution against Uyghur’s and members of other religious and ethnic minority groups.[2]

An independent tribunal has been formed in London to investigate the Chinese government’s alleged rights abuses against Uyghur’s Muslims and decide if the allegations of abuses constitute the crime of genocide. This article gives a background on the crime of genocide. The article discusses the dictionary and convention’s definitions of genocide. What abuses constitute the crime of genocide? The article gives a brief discussion on Rwandan genocide. The article further defines a tribunal and who constitutes a tribunal. The article discusses the legality of the allegations of the crime of genocide against China and determines if the Uyghur tribunal is duly constituted. The article concludes with possible recommendations on the legality of the term ‘genocide’ to China.

Introduction

There are about 12 million Uyghur’s, mostly Muslim, living in north-western China in the region of Xinjiang, officially known as the Xinjiang Uyghur Autonomous Region (XUAR).[3] The Uyghur’s speak their own language, similar to Turkish, and see themselves as culturally and ethnically close to Central Asian nations.[4] The Uyghur’s make up less than half of the Xinjiang population. Recent decades saw a mass migration of Han Chinese (China’s ethnic majority) to Xinjiang, and the Uyghur’s feel their culture and livelihoods are under threat. Human rights groups believe China has detained more than a million Uyghur’s over the past few years in what the state defines as ‘re-education camps’.[5] The United States in its 2020 State Department Report accused China of committing genocide and crimes against humanity through its repression of the Uyghur’s.

The alleged genocide and crimes against humanity occurred against the predominantly Muslim Uyghur’s and other ethnic and religious minority groups in Xinjiang. These crimes were continuing and include: the arbitrary imprisonment or other severe deprivation of physical liberty of more than one million civilians; forced sterilization, coerced abortions, and more restrictive application of China’s birth control policies; rape; torture of a large number of those arbitrarily detained; forced labor; and the imposition of draconian restrictions on freedom of religion or belief, freedom of expression, and freedom of movement.[6]

The significant human rights issues against China included: arbitrary or unlawful killings by the government; forced disappearances by the government; torture by the government; harsh and life-threatening prison and detention conditions; arbitrary detention by the government, including the mass detention of more than one million Uyghur’s and other members of predominantly Muslim minority groups in extrajudicial internment camps and an additional two million subjected to daytime-only ‘re-education’ training; political prisoners; politically motivated reprisal against individuals outside the country; the lack of an independent judiciary and Communist Party control over the judicial and legal system; arbitrary interference with privacy; pervasive and intrusive technical surveillance and monitoring; serious restrictions on free expression, the press, and the internet, including physical attacks on and criminal prosecution of journalists, lawyers, writers, bloggers, dissidents, petitioners, and others as well as their family members, and censorship and site blocking; interference with the rights of peaceful assembly and freedom of association, including overly restrictive laws that apply to foreign and domestic nongovernmental organizations; severe restrictions and suppression of religious freedom; substantial restrictions on freedom of movement; refoulement of asylum seekers to North Korea, where they have a well-founded fear of persecution; the inability of citizens to choose their government; restrictions on political participation; serious acts of corruption; forced sterilization and coerced abortions; forced labor and trafficking in persons; severe restrictions on labor rights, including a ban on workers organizing or joining unions of their own choosing; and child labor.[7]

In September 2020 the Uyghur Tribunal was launched. The Tribunal, which is chaired by Sir Geoffrey Nice QC in London, is considering allegations that the People’s Republic of China (PRC) is perpetrating genocide and serious crimes against the Uyghur’s Muslim.[8] This article discusses the legality of the allegation of genocide against China and the Tribunal.

The background of the term ‘genocide’

The word ‘genocide’ was first coined by Polish lawyer Raphäel Lemkin in 1944 in his book Axis Rule in Occupied Europe. It consists of the Greek prefix genos, meaning race or tribe, and the Latin suffix cide, meaning killing. Lemkin developed the term partly in response to the Nazi policies of systematic murder of Jewish people during the Holocaust, but also in response to previous instances in history of targeted actions aimed at the destruction of particular groups of people. Later on, Raphäel Lemkin led the campaign to have genocide recognized and codified as an international crime.[9]

Genocide was first recognized as a crime under international law in 1946 by the United Nations General Assembly (A/RES/96-I). It was codified as an independent crime in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). The Convention has been ratified by 149 States (as of January 2018). The International Court of Justice (ICJ) has repeatedly stated that the Convention embodies principles that are part of general customary international law. This means that whether or not States have ratified the Genocide Convention, they are all bound as a matter of law by the principle that genocide is a crime prohibited under international law. The ICJ has also stated that the prohibition of genocide is a preemptory norm of international law (or ius cogens) and consequently, no derogation from it is allowed.[10]

The definitions of term ‘genocide’

The definition of the term ‘genocide’ has been contested since the term was coined. Definitional boundaries determine which acts are covered and excluded and thus to a great extent which cases will benefit from international attention, intervention, prosecution, and reparation.[11] The term ‘genocide’ has been defined by many dictionaries, conventions, statues, academics and scholars. The definitions of the term genocide in this article will be centered on some dictionaries’ definitions, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide definition, and the Rome Statute of the International Criminal Court definition.

  1. Dictionaries definitions of ‘genocide’

Merriam Webster Dictionary defined the term ‘genocide’ as the deliberate and systematic destruction of a racial, political, or cultural group.[12] Genocide in the Cambridge English Dictionary is defined as the murder of a whole group of people, especially a whole nation, race, or religious group.[13] Oxford English Dictionary defined genocide as the deliberate killing of a large number of people from a particular nation or ethnic group with the aim of destroying that nation or group.[14]

  • Definition of the term ‘genocide’ by the Convention on the Prevention and Punishment of the Crime of Genocide

The definition of the crime of genocide as contained in Article II of the Genocide Convention was the result of a negotiating process and reflects the compromise reached among United Nations Member States in 1948 at the time of drafting the Convention.[15] Article 11 of the Genocide Convention states that:

‘In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.’[16]
  • Definition of the term ‘genocide’ by the Rome Statute of the International Criminal Court

Genocide is defined in the same terms as in the Genocide Convention in the Rome Statute of the International Criminal Court (Article 6), as well as in the statutes of other international and hybrid jurisdictions. Many States have criminalized genocide in their domestic law; others have yet to do so.[17]

Article 6 of the Rome Statute of the International Criminal Court states that:

‘For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

  1. Killing members of the group;
  2. Causing serious bodily or mental harm to members of the group;
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group;
  5. Forcibly transferring children of the group to another group.’[18]

The 1994 Rwandan Genocide

By the early 1990s, Rwanda, a small country with an overwhelmingly agricultural economy, had one of the highest population densities in Africa. About 85 percent of its population was Hutu; the rest were Tutsi, along with a small number of Twa, a Pygmy group who were the original inhabitants of Rwanda. Rwanda’s colonial period, during which the ruling Belgians favored the minority Tutsis over the Hutus, exacerbated the tendency of the few to oppress the many, creating a legacy of tension that exploded into violence even before Rwanda gained its independence. A Hutu revolution in 1959 forced as many as 330,000 Tutsis to flee the country, making them an even smaller minority. By early 1961, victorious Hutus had forced Rwanda’s Tutsi monarch into exile and declared the country a republic. After a United Nations referendum that same year, Belgium officially granted independence to Rwanda in July 1962.[19]

Ethnically motivated violence continued in the years following independence. In 1973, a military group installed Major General Juvenal Habyarimana, a moderate Hutu, in power. The sole leader of Rwandan government for the next two decades, Habyarimana founded a new political party, the National Revolutionary Movement for Development (NRMD). He was elected president under a new constitution ratified in 1978 and reelected in 1983 and 1988, when he was the sole candidate. In 1990, forces of the Rwandese Patriotic Front (RPF), consisting mostly of Tutsi refugees, invaded Rwanda from Uganda. Habyarimana accused Tutsi residents of being RPF accomplices and arrested hundreds of them. Between 1990 and 1993, government officials directed massacres of the Tutsi, killing hundreds. A ceasefire in these hostilities led to negotiations between the government and the RPF in 1992. In August 1993, Habyarimana signed an agreement at Arusha, Tanzania, calling for the creation of a transition government that would include the RPF. This power-sharing agreement angered Hutu extremists.[20]

On April 6, 1994, a plane carrying Habyarimana and Burundi’s president Cyprien Ntaryamira was shot down over the capital city of Kigali, leaving no survivors. (It has never been conclusively determined who the culprits were. Some have blamed Hutu extremists, while others blamed leaders of the RPF). Within an hour of the plane crash, the Presidential Guard, together with members of the Rwandan armed forces (FAR) and Hutu militia groups known as the Interahamwe (Those Who Attack Together) and Impuzamugambi (Those Who Have the Same Goal), set up roadblocks and barricades and began slaughtering Tutsis and moderate Hutus with impunity. Among the first victims of the genocide were the moderate Hutu Prime Minister Agathe Uwilingiyimana and 10 Belgian peacekeepers, killed on April 7. This violence created a political vacuum, into which an interim government of extremist Hutu Power leaders from the military high command stepped on April 9. The killing of the Belgium peacekeepers, meanwhile, provoked the withdrawal of Belgium troops. And the U.N. directed that peacekeepers only defend themselves thereafter.[21]

The mass killings in Kigali quickly spread from that city to the rest of Rwanda. In the first two weeks, local administrators in central and southern Rwanda, where most Tutsi lived, resisted the genocide. After April 18, national officials removed the resisters and killed several of them. Other opponents then fell silent or actively led the killing. Officials rewarded killers with food, drink, drugs and money. Government-sponsored radio stations started calling on ordinary Rwandan civilians to murder their neighbors. Within three months, some 800,000 people had been slaughtered.[22]

Meanwhile, the RPF resumed fighting, and civil war raged alongside the genocide. By early July, RPF forces had gained control over most of country, including Kigali. In response, more than 2 million people, nearly all Hutus, fled Rwanda, crowding into refugee camps in the Congo (then called Zaire) and other neighboring countries. After its victory, the RPF established a coalition government similar to that agreed upon at Arusha, with Pasteur Bizimungu, a Hutu, as president and Paul Kagame, a Tutsi, as vice president and defense minister. Habyarimana’s NRMD party, which had played a key role in organizing the genocide, was outlawed, and a new constitution adopted in 2003 eliminated reference to ethnicity. The new constitution was followed by Kagame’s election to a 10-year term as Rwanda’s president and the country’s first-ever legislative elections.[23] The 1994 killings in Rwanda is an example of Genocide, crimes against humanity.

The definition of the term ‘tribunal’

A tribunal is a kind of court or forum of justice that has authority in a specific area.[24] A tribunal is also a committee or board appointed to adjudicate on a particular matter.[25] A tribunal in the general sense is any person or institution with the authority to judge, adjudicates on, or determine claims or disputes, whether or not it is called a tribunal in its title. For example, an advocate appearing before a court on which a single judge was sitting could describe that judge as ‘their tribunal’. Many governmental bodies that are titled ‘tribunals’ are so described to emphasize the fact that they are not courts of normal jurisdiction. For example, the International Criminal Tribunal for Rwanda is a body specially constituted under international law; in Great Britain, Employment Tribunals are bodies set up to hear specific employment disputes. Private judicial bodies are also often styled ‘tribunals’. The word ‘tribunal’ is not conclusive of a body’s function. For example, in Great Britain, the Employment Appeal Tribunal is a superior court of record. The term is originally derived from the tribunes, magistrates of the Classical Roman Republic. ‘Tribunal’ originally referred to the office of the tribunes, and the term is still sometimes used in this sense in historical writings.[26]

The legality of the allegation of crime of genocide and Uyghur tribunal

The annual US Department of State Country Reports on Human Rights Practices accused China of committing crime of genocide against the Uyghur Muslim group. The Uyghur tribunal has been launched to consider the allegation that China is perpetrating serious crimes against the Uyghur’s including rape, torture etc.  If proved, these allegations could lead to the conclusion that these crimes constitute crimes against humanity and/or genocide. The notion of crimes against humanity has evolved under international customary law and through the jurisdictions of international courts such as the International Criminal Court, the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. Many States have also criminalized crimes against humanity in their domestic law; others have yet to do so.[27]

Crimes against humanity have not yet been codified in a dedicated treaty of international law, unlike genocide and war crimes, although there are efforts to do so. Despite this, the prohibition of crimes against humanity, similar to the prohibition of genocide, has been considered a peremptory norm of international law, from which no derogation is permitted and which is applicable to all States.[28] Genocide is often referred to as a crime against humanity. The preamble to the Convention on the Prevention and Punishment of the Crime of Genocide recognized that in all periods of history genocide has inflicted great loses on humanity.[29] While on the other hand, the preamble to the Rome Statute of International Criminal Court is mindful of the fact that during the past century, millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity.[30] Both international treaties recognize the importance of abolishing crimes against humanity.

The 1998 Rome Statute establishing the International Criminal Court (Rome Statute) is the document that reflects the latest consensus among the international community on crimes against humanity. The Statue is also the treaty that offers the most extensive list of specific acts that may constitute the crime.[31] Article 7 of the Statue states that:

‘For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

  1. Murder;
  2. Extermination;
  3. Enslavement;
  4. Deportation or forcible transfer of population;
  5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
  6. Torture;
  7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
  8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
  9. Enforced disappearance of persons;
  10. The crime of apartheid;
  11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.[32]

The provision of article 7 of the Statue contains the following main element:

  1. A physical element which includes:
  2. ‘Attack directed against any civilian population’. This means a course of conduct involving the multiple commissions of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
  3. ‘Extermination’ includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
  4. ‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
  5. ‘Forced pregnancy’ means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
  6. ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
  7. ‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
  8. ‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.[33]
  9. contextual element: ‘when committed as part of a widespread or systematic attack directed against any civilian population’. The contextual element determines that crimes against humanity involve either large-scale violence in relation to the number of victims or its extension over a broad geographic area (widespread), or a methodical type of violence (systematic). This excludes random, accidental or isolated acts of violence.[34] In addition, article 7(2)(a) of the Rome Statute determines that crimes against humanity must be committed in furtherance of a State or organizational policy to commit an attack.[35]
  10. mental element: ‘with knowledge of the attack’.

Again, article II of the Genocide Convention contains a narrow definition of the crime of genocide, which includes two main elements:

  1. A mental element: the ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’; and
  2. A physical element: which includes the following:
  3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. Imposing measures intended to prevent births within the group.

There are two active components of proving that a crime has been committed. The components are:

  1. The legal maxim ‘Affirmanti Non Neganti Incumbit Probatio’. The maxim literally means that the burden of proof lies on the person that asserts that a crime has been committed. The onus of proof is on the person who affirms that a crime has been committed and not on the person that denies it.
  2. The second element of proving a crime is that the criminal elements the ‘Actus Reus’ and ‘Mens Rea’ must be proved beyond reasonable doubt. The Actus Reus literally means ‘guilty act’ while the Mens Rea means ‘a guilty mind’.

Therefore, to constitute criminal behavior, the element actus reus and mens rea must occur simultaneously. The actus reus involves the ‘actual intent’ to commit a crime and must be proved beyond reasonable doubt that there was an intent on the part of the criminal to commit the act. It should be noted that different crimes requires different degrees of intent. For example, to prove larceny, the prosecution must establish that the defendant intentionally took property to which he knows he is not entitled, intending to deprive the owner of possession permanently. Negligent homicide, on the other hand, involves thoughtlessness, inadvertence, or inattention in a person’s duty to exercise due care toward others. A drunk driver who kills another is often charged with criminal negligent homicide.

The intent is the most difficult element to determine. To constitute genocide, there must be a proven intent on the part of perpetrators to physically destroy a national, ethnical, racial or religious group. Cultural destruction does not suffice, nor does an intention to simply disperse a group. It is this special intent, or dolus specialis, that makes the crime of genocide so unique. In addition, case law has associated intent with the existence of a State or organizational plan or policy, even if the definition of genocide in international law does not include that element. Importantly, the victims of genocide are deliberately targeted – not randomly – because of their real or perceived membership of one of the four groups protected under the Convention (which excludes political groups, for example). This means that the target of destruction must be the group, as such, and not its members as individuals. Genocide can also be committed against only a part of the group, as long as that part is identifiable (including within a geographically limited area) and ‘substantial’.

Based on the foregoing, the onus lies on the Uyghur tribunal to prove intent on the part of China to commit the alleged crime of genocide.  The tribunal has the duty to prove beyond reasonable doubt the element of ‘intent’ in the following:

  1. On the issue of committing crime against humanity, the tribunal has to prove that:
  2. The crime against humanity was committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

The tribunal has to prove that it is in the systemic nature or is the method of China to attack the Uyghur Muslim group. Secondly, the tribunal has to prove that China has knowledge of the attack, and that the alleged crime against humanity was well planned, calculated and executed. ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.[36] The tribunal has to establish the fact that there is a policy, rule or law in China to lodge attacks on the Uyghur Muslim group.

  • The intentional infliction of conditions of life, example the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population which is ‘Extermination’ must be proved.
  • The intentional infliction of severe pain or suffering, whether physical or mental, which is torture upon any Uyghur Muslim in the custody or under the control of the Chinese government must be proved.
  • ‘Forced pregnancy’ which is the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.

In the case of alleged genocide against Uyghur women, the reverse is the case that the women were prevented from conceiving to hinder the population of the group. Whichever allegation that is levied against China, the tribunal has the onus of proving the element of ‘intent’ to commit the crime beyond any reasonable doubt.

  • The tribunal has to prove the act of ‘Persecution’ which is the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.
  • The crime of ‘Apartheid’ which is  inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime has to be proved.

In South Africa, enforced apartheid was a policy of racial segregation, on its citizens.[37] Apartheid was based on ‘racial discrimination’,[38] and included rigid and increasingly sophisticated controls over all black South Africans.[39] Apartheid is a crime against humanity. For the tribunal to prove that crime against the Uyghur Muslims is a crime against humanity that leads to enforced apartheid, the tribunal has to prove that there is racial discrimination or segregation on Uyghur Muslims who are members of the Chinese country.

  • Finally on the issue of crime against humanity, the tribunal has to prove ‘Enforced disappearance of persons which is the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

The intent to commit the above listed elements of crime against humanity must be proved by the tribunal if they are asserting allegations of crime against humanity on China. The two basic elements of criminal behavior, which are the actus reus and the mens rea, must simultaneously be present in the allegation of crime against humanity and must be proved by the party that asserts, in this case, the Uyghur tribunal against China.

  • On the issue of committing the crime of genocide, the tribunal has to prove the following:
  • That the alleged acts were committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group. In this case the Uyghur population. The deliberate target on Uyghur Muslims has to be proved.
  • The tribunal has to prove that there is deliberate infliction on the group conditions of life calculated to bring about its physical destruction in whole or in part.
  • Finally on the allegation of genocide, the tribunal has to prove that China is imposing measures intended to prevent births within the Uyghur Muslim group.

The onus is on the tribunal to prove the allegation of genocide against China. Again, the elements of actus reus and mens rea must simultaneously be present.

The legality of the Uyghur tribunal

As earlier stated, a tribunal is a kind of court or forum of justice that has authority in a specific area. Furthermore, article VI of the Genocide Convention states that:

‘Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction’.[40]

In the case of the Uyghur tribunal, a UK tribunal was formed to investigate China’s alleged genocide against Uyghur Muslim population; the tribunal is not duly constituted. For any tribunal to be duly constituted, it must be comprised of experts in a particular field. In the present case of allegation of genocide, the tribunal should be composed of experts in international human rights law. The Uyghur tribunal is chaired by Sir Geoffrey Nice, who is the only human rights expert as a member of the tribunal. This alone makes the Uyghur tribunal not competent to assert the allegation of genocide against China.

Secondly, according to article VI of the Genocide Convention, the tribunal not only should be competent and duly formed, but also should be in the territory of which the act was committed. In this instance, the tribunal should be composed in China. However, the tribunal can also be formed by an international penal tribunal as may have jurisdiction with respect to those contracting parties which shall have accepted its jurisdiction. In this present circumstance, the contracting party which is China must accept the jurisdiction of Uyghur tribunal that is based in the UK. The international tribunal, which in this case is the Uyghur tribunal that is based in UK, may have jurisdiction with respect to the contracting state, in this case China, which shall accept its jurisdiction to assert the allegation of genocide.

 In summary, for the allegation of genocide against China to succeed, the tribunal first should be duly constituted with experts in international human rights law. Secondly, the tribunal must have the jurisdiction to handle the allegation. Where the tribunal does not have jurisdiction by virtue of the fact that it is not formed where the alleged crime was committed, the parties involved must accept its jurisdiction, that is the jurisdiction where the tribunal is formed. In this case, China must agree and accept the jurisdiction where the tribunal is based, which is in the UK . Thirdly, the basic element of any criminal behavior, which is ‘intent’, must be proved beyond reasonable doubt.

The author believes that for the allegation of genocide against China to be successful, the following must be implemented:

  1. The tribunal should be duly constituted with experts in international human rights law;
  2. The jurisdiction for the tribunal should be based in China and if otherwise, both parties must agree and accept where the jurisdiction is, which in this case is internationally based;
  3. The allegations of genocide must be proved beyond reasonable doubt. The onus is on the Uyghur tribunal to prove this fact. ‘It goes without saying that he who asserts, must prove it’; and
  4. The actus reus and mens rea ,which are active elements of any criminal behavior, must be available simultaneously in any allegation and must be proved also beyond reasonable doubt.

So far, it seems that these conditions cannot be satisfied.

Citation

Monteath TL A History of South Africa Revised Edition (Yale University Press 1995)

United Nations Educational, Scientific and Cultural Organisation Apartheid: Its effects on Education, Science, Culture and Information (United Nations Educational, Scientific and Cultural Organisation France 1967)

Theriault H C ‘Genocidal Mutation and the Challenge of Definition’ 2010 (41) (4) Metaphilosophy 481

Convention on the Prevention and Punishment of the Crime of Genocide approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (111) of 9 December 1948. Entered into force 12 January 1951, in accordance with article X111

Rome Statute of the International Criminal Court United Nations General Assembly, United Nations Treaty Series, vol 2187, No.38544 17 July 1998. Entered into force 1 July 2002

Merriam-Webster Dictionary

Cambridge English Dictionary

Oxford English Dictionary


[1] United States of America Department of State 2020 Country Reports on Human Rights Practices: China (includes Hong Kong, Macau and Tibet) available at https://www.state.gov>reports>2020-country-reports (accessed 12/04/2021).

[2] Ibid.

[3] Who are the Uyghur’s and why is China being accused of genocide? Available at https://www.bbc.com>world-asia-china-22278037 (accessed 12/04/2021).

[4] Ibid.

[5] Ibid.

[6] China 2020 Human Rights Report. 2020 Country Reports on Human Rights Practices: China (includes Hong Kong, Macau and Tibet) available at https://www.state.gov>reports>2020-country-reports (accessed 12/04/2021).

[7] Ibid.

[8] Uyghur Tribunal available at uyghurtibunal.com (accessed 12/04/2021).

[9] United Nations Office on Genocide Prevention and the Responsibility to the Project available at https://www.un.org>genocideprevention>genocide (accessed 13/04/2021).

[10] Ibid.

[11] Theriault H C ‘Genocidal Mutation and the Challenge of Definition’ 2010 (41) (4) Metaphilosophy p481.

[12] Merriam Webster dictionary available at https://www.merriam-webster.com>dictionary>genocide (accessed 13/04/2021).

[13]Cambridge English dictionary available at https://dictionary.cambridge.org>dictionary>genocide (accessed 13/04/2021).

[14] Oxford English dictionary available at https://www.lexico.com>definition>genocide (accessed 13/04/2021).

[15] United Nations Office on Genocide Prevention and the Responsibility to the Project available at https://www.un.org>genocideprevention>genocide (accessed 13/04/2021).

[16] Article 11 of the Convention on the Prevention and Punishment of the Crime of Genocide approved and proposed for signature and ratification or accession by General Assembly resolution 260 A (111) of 9 December 1948. Entered into force 12 January 1951, in accordance with article X111.

[17] United Nations Office on Genocide Prevention and the Responsibility to the Project available at https://www.un.org>genocideprevention>genocide (accessed 14/04/2021).

[18] Article 6 of the Rome Statute of the International Criminal Court United Nations General Assembly, United Nations Treaty Series, vol 2187, No.38544 17 July 1998. Entered into force 1 July 2002.

[19] Rwandan Genocide.  History.com available at https://www.history.com/topics/africa/rwandan-genocide (accessed 14/04/2021).

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Merriam-Webster dictionary available at https://www.merriam-webster.com>dictionary>tribunal  (accessed 13/04/2021).

[25] Tribunal meaning available at https://www.yourdictionary.com>tribunal (accessed 14/04/2021).

[26] What does tribunal mean? Definitions .net available at https://www.definitions.net>definition>tribunal (accessed 14/04/2021).

[27] United Nations Office on Genocide Prevention and the Responsibility to the Project available at https://www.un.org>genocideprevention>genocide (accessed 14/04/2021).

[28] Ibid.

[29] Preamble to the Convention on the Prevention and Punishment of the Crime of Genocide.

[30] Preamble to the Rome Statue of the International Criminal Court.

[31] United Nations Office on Genocide Prevention and the Responsibility to the Project available at https://www.un.org>genocideprevention>genocide (accessed 14/04/2021).

[32] Article 7 para 1 (a-k) Rome Statue of the International Criminal Court.

[33] Article 7 para 2 (a, b, e, f-i) of the Rome Statute of the International Criminal Court.

[34] United Nations Office on Genocide Prevention and the Responsibility to the Project available at https://www.un.org>genocideprevention>genocide (accessed 15/04/2021).

[35] Article 7 para 2 (a) of the Rome Statute of the International Criminal Court.

[36] United Nations Office on Genocide Prevention and the Responsibility to the Project available at https://www.un.org>genocideprevention>genocide (accessed 15/04/2021).

[37] United Nations Educational, Scientific and Cultural Organization Apartheid (1967) preface.

[38] Ibid.

[39] Monteath TL A History of South Africa (1995) p193.

[40] Article VI of the Genocide Convention.

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