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
On March 17, 2023, the International Criminal Court (ICC) issued an arrest warrant for Russian President Vladimir Putin, citing his role in the decision to forcibly deport Ukrainian children to Russia, a war crime under international law. It was notable for being the first time that the leader of a permanent member of the United Nations Security Council had been subject to such an arrest.
In response, many asked: why not Xi Jinping too? The question is particularly poignant coming from Uyghur voices, given the scale of suffering by their people, and relevant, given the nature of the abuse. The U.S. government, the UN Human Rights High Commissioner, Human Rights Watch and the U.S. Holocaust Memorial Museum have found that the Chinese government’s actions in Xinjiang do or likely amount to genocide or crimes against humanity. This is precisely within the ICC’s investigatory and prosecutorial mandate under the Rome Statute.
The prima facie answer to this question is no. China is not a party to the Rome Statute, and thus the ICC lacks jurisdiction over crimes committed inside the PRC. But dig a little deeper and we see a potential path. Like China, Russia has not ratified Rome. But the ICC had legal grounding for its Putin arrest warrant because the crimes took place inside Ukraine, which is a signatory and has affirmatively accepted ICC jurisdiction.
Uyghur advocates are using this basis to argue that the ICC can act. They cite a 2018 precedent where the Court launched an investigation of crimes by the Myanmar government against Rohingya who fled to Bangladesh, because Bangladesh is a state party to Rome. They note that Chinese agents have worked in Tajikistan (state party) and Kyrgyzstan (signatory) to forcibly return Uyghurs to the PRC, where they would face relevant crimes.[1]
To help advance their case, the Uyghurs will need powerful allies. Could Uyghur-Americans get the U.S. government to argue on their behalf? The problem is that the United States is not a party to the Rome Statute and thus not a member of the ICC. On war crimes justice, the United States has neutered itself.
This is a classic case of the United States exempting itself from the rules it expects the rest of the world to follow. In passing a 2002 law prohibiting U.S. armed forces personnel from being subject to the ICC, Congress sent the world a message that American troops should be afforded impunity for war crimes. Tragically, U.S. soldiers were soon to commit war crimes in Afghanistan and Iraq. The U.S.-ICC history is truly a story of the Ugly American.
The Biden Administration is helping the Putin case despite the restrictions imposed by Congress and previous Administrations (and self-serving resistance by the Pentagon). Its top war crimes expert, Ambassador-at-Large for Global Criminal Justice Beth Van Schaack, has detailed the Administration’s support for the ICC arrest warrant of Putin, which the President hailed as “justified.”
But Biden has never pushed to ratify Rome. Moreover, the Biden Administration kneecaps the ICC’s authority by opposing its investigation into violations of international law by Israeli forces in occupied Palestinian territories, which one human rights lawyer rightly called an abdication of the President’s “moral leadership.” To be fair, exempting Israel (as with the United States) is a bipartisan fixation.
And we must expect cooperation with the ICC to evaporate under the next Republican Administration given the track record. President GW Bush revoked the U.S. signature from the Rome Statute in 2002 (a move later copied by Putin). President Trump issued sanctions against the Court for investigating U.S. personnel actions in Afghanistan, with Secretary of State Mike Pompeo calling it a “kangaroo court.”
Bringing war criminals to justice is difficult enough; for heads of government the bar is even higher. For P5 leaders, the bar is higher still. Those who want Xi Jinping to be held accountable for crimes against humanity are morally correct. But it is sad that they cannot rely on the United States to champion their cause, because its government has tied its hands tied behind its back for selfish and political reasons. By staying out of the ICC, the United States has abdicated the moral authority it once held in the field of war crimes justice.
What to do? I would ask those – Uyghur-Americans, allies, Members of Congress -- who want PRC leaders to pay for the crimes of their state to think hard about how to restore American credibility on crimes against humanity. In my view, this must include a path to ratifying the Rome Statute and overcoming the surmountable objections that have stood in the way.
There is one small but achievable step that Congress can take toward this objective, and the Putin case provides the template. The massive year-end government funding bill enacted last December included a tiny provision[2] creating an exemption from the (dumb) law that prohibits U.S. cooperation with the ICC, in order to allow assistance for investigations “within the jurisdiction of the International Criminal Court related to the Situation in Ukraine.” Congress could add an exemption to allow the United States to help a prospective investigation into genocide and crimes against humanity in Xinjiang. And they could do it this year.
[1] On the other hand, 2020 the ICC rejected a similar request based on the 2009 refoulement of 22 Uyghurs from Cambodia, although it’s worth noting that that act happened long before the reports of Chinese government actions in Xinjiang that are cited as reaching the threshold of genocide and crimes against humanity.
[2] Section 7073 of Title VII of Division K of the Consolidated Appropriations Act of Fiscal Year 2023 (P.L. 117-328, 22 U.S. Code § 7423(h)).