Washington’s empty talk on justice for Uyghurs
U.S. policymakers undermine the international mechanisms that could provide Uyghurs the justice they seek for atrocity crimes
Last week I attended a panel entitled “Crime and Consequence: Pursuing Legal Action on the Xinjiang Atrocity Through International Mechanisms” at the China Forum convened by the Victims of Communism Memorial Foundation.
The first speaker, Muetter Iliqud, a researcher at the Foundation, presented a dossier that her team had assembled on a Chinese government official that could be submitted as a case for prosecution to an international court of justice.
The next two speakers, however, proceeded to explain why the U.S. government won’t support the prosecution that Ms. Iliqud wants on behalf of her fellow Uyghurs.
Both were former Ambassadors-At-Large for Global Criminal Justice, so they knew what they were talking about. Which made the story even more regrettable and pathetic.
The first, Stephen Rapp, who served under President Obama, at least provided a ray of hope. He spoke of ways that the U.S. could help Uyghurs seek justice though international mechanisms (see below). But he was also pragmatic enough to observe that domestic politics will continue to be a barrier.
The second, Morse Tam, appointed by President Trump, embodied the ugliness of U.S. foreign policy double standards and demonstrated how myopic politics continue to deny an American leadership role on international justice. As long as the views of people like Tam hold sway in Washington, Uyghurs will not be able to rely on the U.S. government to help them get justice.
Uyghurs are seeking justice for heinous crimes including genocide committed against their people by the Chinese government. The problem is that China exempts itself from prosecution. It does not accept compulsory jurisdiction under the International Court of Justice (ICJ). Its ratification of the Genocide Convention came with a reservation giving itself immunity from prosecution under the convention. China refuses to ratify the Rome Statute or submit itself to the jurisdiction of the International Criminal Court (ICC).
Sadly, the United States acts just like Communist-led China. While the U.S. accepted compulsory jurisdiction under the ICJ as a founding member of the UN, President Reagan revoked that in 1985. It also gives itself the reservation of immunity from the Genocide Convention. And while the Clinton Administration signed the Rome Statute, President Bush repudiated it and signed a bill to exempt U.S. servicemembers from being held accountably under the ICC. The Trump Administration issued sanctions against the ICC in response its investigation into possible war crimes by U.S. troops in Afghanistan.
Ambassador Tam’s presentation was rife with hypocrisy. His argument against the ICC was that it was “politicized” for looking into U.S. and Israeli behavior. Yet he defended it not with a policy reason but with a political one: the ICC’s actions were “unacceptable” to his bosses Mike Pompeo and Donald Trump.
To be fair, hypocrisy is bipartisan. The Biden Administration applies a self-serving political standard to international justice mechanisms. While it has cooperated with the ICC by providing evidence for its war crimes arrest warrant for Vladimir Putin, it has denounced the Court’s efforts to do the same for Israel’s leaders and the ICJ’s proceedings to order Israel to comply with international law.
So here we are. The U.S. supports international justice for others but not for itself or its “friends.” That’s a political not a legal approach. It is certainly contrary to the ‘rules-based international order’ the Biden Administration claims to uphold.
The problem is not that an international court could investigate U.S. (or Israeli) servicemembers for war crimes. The problem is the war crimes that any U.S. (or Israeli) servicemembers may have committed. We lost the plot.
The domestic equivalent would be a state governor vetoing a criminal statue because his friends might be prosecuted for such crimes under the law.
Or a chief executive expecting his appointees to a court to shield him from criminal liability (and then they do) and calling for the prosecution of his political enemies and for the jailing of critics of the court. Oh, wait, this is what Trump has actually done. At least Republican presidents are consistent in their disregard for rule of law both at home and abroad.
So what are Uyghurs to do in this situation? For one, they can ask the U.S. government to stop acting like the Chinese government. Stop treating international law as a mere extension of its political interests. Start supporting international justice mechanisms as inherent and important elements of international law.
And all of us who believe in genuine rule of law must demand that the U.S. government stop exempting itself from the rules we expect others to live by. That’s why this blog is named Unexemptional and why its core mission is to argue that we lose moral authority when we exempt ourselves. We make it harder to create a more peaceful world grounded in human rights and rule of law. In fact, my first-ever post was entitled: “How to prosecute Xi Jinping as a war criminal: To help the Xi case, the U.S. must regain its moral authority by joining the ICC.”
Rapp said we want a better Court than what is there now. I agree. That means accepting the concept of an international criminal court and actually working for reform. Instead, what you get from the Trumps, Pompeos and Tans is political posturing and grievance. The Uyghurs deserve better than that.
But apart from this big-picture solution, there is an immediate and practical step that the U.S. government can take to help our Uyghur friends get the justice they deserve, as Ambassador Rapp discussed in his presentation. A Uyghur group led by a British lawyer has made several submissions to the ICC Office of the Prosecutor arguing that the ICC can claim jurisdiction over crimes committed by the Chinese government against Uyghurs and other Turkic Muslim peoples. While China is not a party to the ICC, the case argues that the crimes have occurred in part on a territory of an ICC state party, namely Tajikistan. It’s a creative approach.
And it’s one that that United States can support. The U.S. government can provide evidence and technical support for the Uyghur case to the ICC, just as it has to the Ukraine case against Russia.
Doing so would mean the U.S. was giving actual material assistance to the case against China for atrocities against Uyghurs, rather than just rhetoric. There’s an interesting footnote deep inside the Judgment of the Uyghur Tribunal, a panel of independent jurists set up in 2021 to take evidence in face of inaction by national governments and international institutions:
Why hasn’t the State Department provided evidence of its genocide determination, as the Tribunal requested? Is such evidence lacking? If so, does this suggest the genocide determination was a political decision? At the event, Ambassador Tan said that “to politicize atrocity crimes is obscene.” Was Tan, as Pompeo’s lead advisor on the determination, an accomplice to an obscenity?
The U.S. government can assuage doubts that its determination was political by providing such evidence to the ICC Office of the Prosecutor, as part of an effort to help the active Uyghur group submissions. It should in any case. And while doing this, it can also submit the dossier assembled by Ms. Iliqur and put real substance behind the rhetoric that has thus far characterized the United States’ scope on Uyghur genocide.