adminPhoto: Uyghur Muslim, source: Nir Elias/Reuters
By : Chandra Purna Irawan,S.H.,M.H.*)
Stramed, The article I publish is a note from a letter which I sent to the United Nations (UN), International Criminal Court (ICC), ASEAN and the OIC. I express the opinion that what happened in Uyghur is that it can be judged as a Crime Against Humanity.
Pursuant to Article 7 paragraph (1) of the Rome Statute of the International Criminal Court “Crimes against humanity” means one of the following acts if carried out as part of a widespread or systematic attack directed at a group of civilians, knowing the following actions exist: deportation or forced removal residents; Imprisonment or heavy seizure of physical freedom by violating the basic rules of international law; Torture; Rape, sexual slavery, prostitution coercion, forced pregnancy, forced sterilization or another form of sexual violence which is quite severe; Persecution of an identifiable group or collectivity on the basis of politics, race, national, ethnicity, culture, religion, gender as defined in paragraph 3, or on other grounds universally recognized as not permitted under international law, relating to any act referred to in this paragraph or any crime that falls within the jurisdiction of the Court; Forced disappearance, apartheid crime, other inhumane acts of the same nature that intentionally cause severe suffering, or serious injury to bdy or mental or physical health.
The provisions are further explained in Article 7 paragraph (2) of the Rome Statute (The Rome Statute of the International Criminal Court);
a. An attack consisting of the actions referred to in paragraph (1) against a civilian population relating to or constituting a follow-up to the state policy or organization to carry out the attack;
b. Destruction is defined as actions that include the application of certain conditions that threaten life intentionally, including inhibiting access to food and medicine, which is expected to destroy a portion of the population;
c. Slavery is defined as any form of exercise of property rights on objects in the form of people, including the act of transporting the object, especially women and children;
d. Forcible eviction or resettlement of residents is defined as an act of relocating residents through eviction or other means of violence from the place where the population is legally located, without a justifiable basis under international law;
e. Torture means intentional action to provide pain or suffering, both physical and mental, people who are detained under the authority of the perpetrator. Apart from that, that torture does not include pain or suffering which only arises inherently or incidentally from the imposition of legal sanctions;
f. Forced pregnancy means the illegal confinement of a woman who is made forcibly pregnant, with the intention of influencing the ethnic composition of a population or constituting other grave violations of international law. This definition cannot be interpreted as affecting national laws regarding pregnancy;
g. Bullying means hard and deliberate denial of basic rights in a way that is contrary to international law on the grounds of the identity of a group or collective;
h. The crime of apartheid is defined as inhumane acts with a character similar to the actions mentioned in paragraph (1), carried out in the context of systematic oppression carried out by a regime and the dominance of one particular racial group from another racial group with a view to maintaining that regime;
i. Enforced disappearance is defined as the arrest, detention or kidnapping of a person on the basis of the authority, support or approval of a country or political organization, which is then followed by the refusal of the recognition of freedom or the provision of information about the existence of these people, with a view to eliminating legal protection in long time.
WIDESPREAD AND SYSTEMATIC ATTACK
Based on Article 7 paragraph (1) of the Rome Statute, one of the important elements in Humanity Crimes is a widespread or systematic attack aimed at civilians. ‘Widespread attacks’ can be seen from the number of victims and the scale of the attacks, which has a serious and unlimited effect. Then ‘systematic’ is reflected by a certain pattern or method which is organized thoroughly and uses a fixed pattern.
The notion of “broad or systematic” is a fundamental requirement that distinguishes crimes against humanity from other common crimes that are not classified as crimes by international law. The definition of “broad” refers to the number of victims.
This concept encompasses massive, repetitive, large-scale crime, carried out collectively with a high level of seriousness.
The definition of “systematic” shows the existence of a neatly organized pattern or plan that distinguishes it from actions or incidents that are standalone or random. The Akayesu Decision states that the concept of “systematic” can be defined as a neatly organized pattern and follows a pattern that is based on a general policy involving resources, both from the state and the private sector.
There is no provision that states that the policy adopted must be formally a state policy. But there must be a plan or policy that has been well prepared beforehand The elements of widespread (systematic) or systematic (systematic) do not have to be proven both. This means that the crime could have been committed as part of a widespread or systematic attack.
Humanitarian crimes do not always have to occur within a war zone, but humanitarian crimes are imprisonment or severe deprivation of physical freedom by violating the basic rules of international law.
Persecution of an identifiable group or collectivity on the basis of politics, race, national, ethnicity, culture, religion, or on other grounds universally recognized as not permitted under international law, relating to any acts referred to in this paragraph or any crimes within the jurisdiction of the Court and other inhumane acts of the same nature that intentionally cause serious suffering, or serious injury to body or mental or physical health. Activities like this have a very broad and systematic impact.
Based on the news there is a strong suspicion that the Chinese Government since last year, hundreds of thousands and possibly millions of innocent Uighurs and other ethnic minorities in the Xinjiang region in northwestern China have been unjustly arrested and jailed by the Chinese government called “school / place political reeducation. “
There are credible reports about torture and death among prisoners. The Chinese government says it is fighting “terrorism” and “religious extremism.” On behalf of the fight against terrorists, the Chinese government can not be justified, if you want to crush the terrorist perpetrators, do it by enforcing the law against terrorists instead of committing widespread and widespread human rights violations. The Chinese government is expanding its network of internment camps and systematic human rights violations designed to eradicate their religion and culture.
Based on the Rome Statute and article 6 letter c of the law / charter of an international military tribunal;
Murder, extermination, slavery, forcible transfer and other inhumane acts aimed at civil society, before or during the war, or oppression based on politics, race or religion in practice or within the scope of this court, whether the act is either violating or not the law under which the act was committed.
I did an analysis of the actions of ethnic Uighurs in China, including crimes against humanity or not. I use 2 (two) methods, namely actus reaus (actions) and Mens Rea (evil intentions).
FIRST, ACTUS REUS. Pursuant to Article 7 paragraph (1) of the Rome Statute of the “Crimes against Humanity” means one of the following acts if carried out as part of a widespread or systematic attack directed at a group of civilians, knowing the following actions : struggle or heavy seizure of physical freedom by violating the basic rules of international law; Torture; Rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or some other form of sexual violence that is quite severe; Persecution of an identifiable group or collectivity on the basis of politics, race, national, ethnicity, culture, religion, gender as defined in paragraph 3, or on other grounds universally recognized as not permitted under international law, relating to every act referred to in this paragraph or every crime that falls within the jurisdiction of the Court; Forced disappearance; Apartheid crime; Other inhumane acts of the same nature that intentionally cause severe suffering, or serious injury to body or mental or physical health.
To assess actions against ethnic Uighurs included in the category of crimes against humanity, this must be adjusted to the ACTUS REUAS criteria (actions or actions) contained in article 7 paragraph (1) of the Rome Statute. To answer this criterion, I will present events that occur based on international media and reports from international institutions, namely;
1. Human rights groups including Amnesty International and Human Rights Watch (HRW) have sent reports to the UN committee that have documented the claims of mass detention in camps, where they were asked to swear allegiance to Chinese President Xi Jinping. The World Uighur Congress said in its report that detainees were detained without charge and were forced to shout Communist Party slogans.
2. The Chinese government implements a policy that prohibits citizens from maintaining long beards and wearing headscarves in public. The Chinese government alleges that violence or riots have been perpetrated by Islamic militants and separatists, but human rights groups say the riots occurred as a reaction to the Chinese government’s repressive policies and say that China’s new policies in the region will instead encourage some Uighurs to become extremists . They arrested people suspected of being involved in “illegal religious activities,” religious activities that did not get permission were called illegal religious activities, and silenced ‘ulemas’ in Kashgar who were accused of voicing extremist messages, so they did not hesitate to close the mosque in Karakash (China ‘s Failed War on Terror: Fanning the Flames of Uighur Separatist Violence” (2009, PDF) published in Berkeley Journal of Middle Eastern & Islamic Law).
Second, MENS REA. To prove that the action being carried out against Uighurs is an act of crime against humans. I use the following criminal elements;
1. The intention already exists before the action is carried out. “Mens rea must have existed before the crime was committed. However, individual actions do not require preparation; the only consideration is that the action is indeed directed to continue the goals that are characteristic of mens rea. This specific objective distinguishes crimes against humanity from ordinary murder crimes.
2. Tips can be obtained based on conclusions. The intention, which is proven on a case-by-case basis, can be obtained on the basis of material evidence presented to the Assembly including evidence that shows the pattern of actions carried out consistently by the defendant. Evidence of alleged acts could help the Assembly to determine the intentions of the accused, especially when the words and actions of the accused did not clearly describe the purpose of his actions. However the court noted that the determination of the defendant’s intention must be balanced with actions that prove what he had done.
The court is of the opinion that the defendant’s intention must be determined based on his words and actions, and must be proven from the pattern of the intended action.
Intention can be deduced from the following factors; The existence of a general context crime committed by the same or different actors that are systematically directed against the same group; The scale of the action taken; The general form of cruelty or crime that occurred in the region; An action is carried out deliberately and systematically with targeted victims based on membership of certain groups and not targeting other groups; Political policies that underlie these actions; There is a repetition of destructive and discriminatory actions
Do Uyghurs belong to a group that must be protected under international law? I emphasize that Uyghur Muslims are a group that must be protected. There are 4 (four) groups that are possible to become targets of international crime, namely national, ethnic, racial and religious groups.
A nation group is a group of people who collectively accept a legal attachment in the same citizenship, with trade-offs between rights and obligations. (ICTR – International Criminal Tribunal for Rwanda, Akayesu Decision)
Ethnic group is a group that has similarities in language or culture (ICTR – International Criminal Tribunal for Rwanda, Akayesu Decision); or groups that differentiate themselves, or groups that are identified by other groups, including perpetrators of crime (identified by other groups). (ICTR – International Criminal Tribunal for Rwanda, Kayishema and Ruzindana Decisions.
Race groups are groups based on hereditary physical characteristics that are often identified with geographical areas, in addition to language, culture, citizenship and religion. (ICTR – International Criminal Tribunal for Rwanda, Akayesu Decision). A religious group is a group in which its members have the same religion and form of worship. (ICTR – International Criminal Tribunal for Rwanda, Akayesu Decision). Based on my explanation above, I think that what happened in the Uyghur is a crime of humanity.
I call on all people who still have a conscience to act to stop the crime of humanity. And I also call on the UN, ICC, ASEAN and the OIC to get involved actively, seriously to stop the Chinese Government from having a more serious impact.
With the existence of OTP authority (can be paired as a prosecutor or prosecutor) from the ICC does not have to be passive and wait for a report. In the context of the Rome Statute of the International Criminal Court (“Rome Statute”), proprio motu is the authority granted by the Rome Statute to the Office of the Prosecutor (“OTP”) at the International Criminal Court (“ICC”), to begin investigations of crimes international jurisdiction of the ICC, namely genocide, crimes against humanity, war crimes, and crimes of aggression (see Article 5 of the Rome Statute).
According to Siebert Fohr in his paper titled The Relevance of the Rome Statute of the International Criminal Court for Amnesties and Truth Commissions, this authority was given to the OTP to overcome the reluctance of the party of the Rome Statute or the UN Security Council to report on international crime, for political reasons.
Of course, this authority cannot be directly exercised without the stages and considerations. Based on Article 15 paragraph 2 of the Rome Statute, before carrying out an investigation of proprio motu, the OTP must collect as much information as possible from the country of interest, UN agencies, international organizations (government and non-government), and other reliable sources.
After the information has been collected, the OTP then submit an investigation request to the ICC pre-trial chamber (the panel of judges whose task is to determine the investigation, arrest warrant, and other matters needed for the running of the ICC trial). In its report, the OTP must clearly indicate information and related aspects to the pre-trial chamber (see Article 15 paragraph 3 of the Rome Statute).
There are five aspects that must be emphasized by the OTP, namely:
1. The degree of crime (scale of the crimes);
2. The severity of the crimes;
3. The systematic nature of evil (the systematic nature of the crimes);
4. How the crime was committed (the manner in which they were committed); and
5. The impact of crime on the victim (the impact on victims).
These five aspects are commonly referred to as Iggity threshold or gravity requirements. Once approved, the prosecutor can carry out an investigation into international crimes that have occurred. the provisions of proprio motu in the Rome Statute are what distinguishes the ICC from other international courts such as the International Criminal Tribunal for Rwanda or the International Criminal Tribunal for the Former Yugoslavia.
Wallahualambishawab.
*) The writer is the Chief Executive of BHP KSHUMI and Secretary General of Pelita Umat Legal Aid.
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