China, and to a lesser degree Myanmar, have ways to evade international reckoning.
Holding perpetrators of genocide in hina, Myanmar, and elsewhere accountable for atrocities is a worldwide goal but there are many obstacles to seeking justice through courts, panelists told a Washington hearing this week.
The Tom Lantos Human Rights Commission, together with the US Commission on International Religious Freedom (USCIRF), hosted a hearing Wednesday on how to “hold perpetrators of mass atrocities accountable and ensure justice for victims.”
Nury Turkel, USCIRF’s vice chair, said the Uyghurs of China and the Rohingya in Myanmar – Muslim groups whose treatment has been described as genocide, present particular challenges following Myanmar’s Feb. 1 military coup and with China’s international status and clout.
“In the wake of Burma’s military coup, which brought many of the perpetrators of the violence against the Rohingya community into power, accountability is urgently needed. In other contexts, the pathways to justice for genocide victims are less clear. This is the case for Uyghurs and other Turkic Muslims in China who are victims of genocide and crimes against humanity,” he told the panel.
In the case of Myanmar and the 2017 violent mass expulsion of 740,000 Rohingya to Bangladesh, the international legal system is a key tool that the United States can utilize to hold the government accountable, Turkel said.
But that approach will be harder to apply to Beijing’s mass incarceration of Uyghurs in camps and other widespread abuses in the Xinjiang Uyghur Autonomous Region, because China is a veto-wielding member of the United Nations Security Council, he said.
“The International Criminal Court [ICC] will not initiate an investigation into the crimes committed against the Uyghurs because China is not a party to the court, and China would veto any attempt by the Security Council to refer the situation to the ICC or create an ad hoc tribunal. The ICJ [International Court of Justice] is also not an option, as China has submitted a reservation to the Genocide Convention’s jurisdiction,” said Turkel.
U.S. State Department in January determined that the Chinese government’s actions against Uyghurs and other predominantly Muslim minorities in the Xinjiang Uyghur Autonomous Region (XUAR) constituted genocide and crimes against humanity.
Turkel said that it was important to document genocide even if legal options were not accessible, and pointed to last month’s Uyghur Tribunal in London
“While the tribunal’s efforts are not state sanctioned, it is work that is providing a voice for survivors and creating a collection of evidence that might someday contribute to a criminal process,” he said.
“Other efforts to document the ongoing genocide, such as the work of journalists who are reporting on the horrors in China, are also important for strengthening the legal argument for and international accountability mechanism to hold those Chinese officials to account,” Turkel said.
Arsalan Suleman, the State Department’s former acting special envoy to the Organization of Islamic Cooperation, said Myanmar also has ways to avoid accountability in The Hague, the Dutch city where the ICC and ICJ are located.
“Myanmar is not a state party to the statute of the International Criminal Court. So absent a referral to the ICC by the United Nations Security Council, there’s no basis for ICC jurisdiction over crimes committed entirely within the territory of Myanmar,” Suleman said.
The international bodies that are tasked with preventing genocide are often ineffective, according to Stephen Rapp, the State Department’s former ambassador to the Office of Global Criminal Justice.
“We must recognize that an international court is sometimes necessary and given that the U.N. Security Council is often blocked by Russian or Chinese vetoes and the worst crimes are being committed outside the territories of ICC member states, a new group must be developed,” said Rapp.
“The answer is a coalition of nations like our own to consider pooling their jurisdiction and personnel as well as their power of influence into an agreement-based court as permitted. International law in situations where there is no other path, independent justice, in order to investigate prosecute and try the perpetrators of the worst crimes known to humankind,” he said.
Carmen Cheung, the executive director of the California-based Center for Justice and Accountability, credited civil society groups for documenting atrocities in places where “immediate access may be difficult for professional investigators and international organizations like ours.”
“This necessary work is often conducted at serious personal risk during Internet shutdowns and communication blackouts. We’ve seen this over the past several months with activists in Burma documenting the extrajudicial killings of protesters,” Cheung said.
Much of what we know about the Rohingya genocide is due to civil society organizations, Cheung said.
“It has been Burmese civil society that has led the collection of evidence that ultimately fed into the UN’s international fact finding mission. And that is feeding into the IIMM [Independent Investigative Mechanism for Myanmar] today,” she said. The IIMM was established by the UN Human Rights Council in 2018 to keep track of atrocities against Rohingya.
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