WHEN SALIH HUDAYAR visited Tajikistan in 2014, he remembers there being “thousands” of fellow Uyghurs in Dushanbe, the capital. Many of them came from the same city as him, Artush, in western Xinjiang. But since then the number of Uyghurs in the country has dwindled.
Mr Hudayar is now an American citizen and the head of a group called the East Turkistan Government in Exile (ETGE), founded in Washington in 2004, claiming to represent the interests of Uyghurs in Xinjiang (or East Turkistan, as some Uyghurs call the region). According to evidence submitted on June 10th to the International Criminal Court (ICC), on behalf of the ETGE and the East Turkistan National Awakening Movement, another Washington-based group, China has been working with Tajikistan to round up and deport Uyghurs since at least 2016.
The Chinese Public Security Bureau worked with the Tajikistan police to identify any Uyghurs, and then “directly intervened” to deport them back to China. “I knew central Asia wasn’t safe,” Mr Hudayar remembers. “No matter where you go, you have to be careful.”
The lawyers for the two Uyghur groups are asking the ICC’s prosecutor to open an investigation into Chinese officials. They allege that through threats, intimidation and physical force, nearly 3,000 Uyghurs—85-90% of the total population in Tajikistan—have been compelled to return to China, where they are likely to end up in detention camps.
The complaint argues that “these arrests, enforced disappearances, abductions and deportations form the first step of a continuum of alleged criminal conduct amounting to genocide and crimes against humanity”. There is no evidence of mass killings of Uyghurs in Xinjiang, but there are credible reports of extrajudicial detentions, torture, sterilisations, forced labour and many other horrors that could constitute crimes against humanity.
Uyghur activists will see benefit if the complaint simply serves to discomfit China and draw international attention to its abuses in Xinjiang. But they are hoping for more. If the ICC’s prosecutor, Fatou Bensouda, agrees that there is enough evidence of abuses happening in Tajikistan, rather than China, she may then apply to the court’s judges to open an investigation. But even that step would be a long way from actually convicting any officials in China.
The problem for those trying to bring China to book for its abuses of Uyghurs and other minorities is that China, like America and Russia, is not a member of the ICC. Last year the court declined to open an investigation into China’s alleged crimes because it does not have jurisdiction over non-members.
Now the lawyers say that they have gathered enough evidence of crimes in Tajikistan, which is an ICC member, to merit opening an investigation. The approach is a fairly novel one. The precedent was established only in 2019, when the ICC agreed to open an investigation into Myanmar, which is not a member, over allegations of crimes against humanity, because some of the effects of the atrocities were felt by Rohingyas in Bangladesh. As well as Tajikistan, the lawyers for the Uyghurs are gathering evidence of deportations from Cambodia and other ICC members to try and strengthen their case.
Chinese officials involved in repressing Uyghurs will not be losing any sleep over the complaint, but the government will be displeased. Even the opening of an investigation would be significant, although the prosecutor will probably take months to come to a decision (last year’s request to investigate China was filed in July, and rejected in December).
Since the court was founded in 2002, it has opened a mere 14 investigations, and secured only eight convictions, all of them of Africans. It is inconceivable that China would ever hand over its citizens to the ICC, although the court can issue arrest warrants that would in theory entrap suspects should they step foot in an ICC member state.
But the government does not like to be criticised in international forums. When a tribunal in the Hague ruled in 2016 that China had “no legal basis” to claim disputed areas of the South China Sea, the government was furious. It has dismissed the ruling, but continues to argue that its claim on the waters is legitimate. “They don’t give a fuck, except that they do give a fuck, which is what’s interesting,” says Philippe Sands QC, who represented the Philippines in the South China Sea case.
China is not alone in being hard to prosecute at the ICC. Some argue that the court infringes countries’ sovereignty, and America is loth to support an investigation into war crimes in Afghanistan, which the ICC launched last year. Ms Bensouda’s original request to open an investigation in Afghanistan was rejected in 2019 on the grounds “the relevant national authorities”, ie, America and Afghanistan, were unco-operative—a problem that would also apply to the China and Tajikistan case.
But the ICC’s top judges overturned that decision in March 2020, setting a precedent that the court may be willing to proceed without the co-operation of the relevant countries. Should the Uyghur case ever reach a courtroom, the ICC will not try people in absentia; 13 people subject to its arrest warrants are still at large.
But China’s influence in Tajikistan will make this a hard case to pursue. It is Tajikistan’s biggest creditor, and has taken control of much of the country’s border with Afghanistan. The importance of keeping that border secure means that Western aid is also likely to keep flowing to Tajikistan, notes Niva Yau of the Foreign Policy Research Institute, a think-tank. Between 2005 and 2019 America invested more than $100m in strengthening Tajikistan’s border security, and is increasingly concerned about the border ahead of the withdrawal of American troops from Afghanistan.
The last thing that America wants is jihadists or Taliban loyalists spilling over from northern Afghanistan into Tajikistan and then into the rest of the world. Tajikistan knows this, and won’t fear consequences from the West if it doesn’t co-operate with the ICC.
Under the Rome Statute, the ICC’s founding treaty, Tajikistan is obliged to co-operate with any investigation. But there have been reports of Uyghurs being detained there at China’s behest for at least a decade. It is unlikely to turn on its big brother, and as a Persian country, feels less solidarity with Uyghurs than other central Asian countries with Turkic populations, such as Kyrgyzstan, adds Ms Yau. Other countries in which the lawyers allege that Uyghurs were abused, such as Cambodia, have similarly cosy relationships with China.
Uyghurs are well aware of the scale of the challenge. No one thinks that legal processes alone are the answer to China’s abuses. But an ICC investigation, if it happens, could strengthen the case for further economic and diplomatic responses, as well as giving victims their day in court. Some Chinese officials have already been hit with Western sanctions, and foreign companies are going to greater lengths to distance themselves from Xinjiang.
For its part, the ICC has been irritating some powerful countries. Since its founding it has been accused of anti-African bias. But in recent years, it has been setting its sights elsewhere. In March this year, it opened an investigation into the situation in Palestine, much to the chagrin of Israel. The investigation in Afghanistan has annoyed the Americans. Going after China would give it another powerful enemy.