The de facto annulment of Tibetans’ rights in arrest and detention from the viewpoint of international law
Author: Alexandros Anthis
The situation of human rights in Tibet has been consistently deteriorating. The Chinese State is coming down hard on Tibetans by systematically curtailing their fundamental rights. The oppressive tactics are multifaceted and affect every aspect of their life. Incidents of abuse are abundant and concern diverse categories of rights. They threaten the Tibetans’ cultural and religious rights as well as their fundamental rights to life and to be protected from torture. For instance, a relatively recent operation held by the Chinese authorities, the demolition of Tibetan religious symbols, initially targeted the Tibetans’ right to freedom of religion. Yet, it escalated to a situation where the rights of detained Tibetans were blatantly violated. The main aim of this article is to address the abuse of the imprisoned Tibetans from the perspective of international human rights law. The article will address the prohibition of arbitrary and incommunicado detentions which can, under circumstances, amount to enforced disappearances. Thus, the matter will be scrutinised from the prism of international criminal law under the premise that enforced disappearances can constitute international crimes.
Several Tibetans faced repressive tactics while being detained by the Chinese authorities. The time of arrest in each case varies; one dates back to 2018, another in 2020 and the last in late 2021. Each event is significant in and of itself, yet forms part of a wider, alarming pattern of arbitrary arrests, undisclosed locations of detention, and sequestered trials with unknown charges or verdicts targeting the Tibetan religious minority in the PRC, with some instances demonstrating characteristics of enforced disappearances. This enumeration of abusive incidents aims to reveal an orchestrated policy accentuating the need for a response from the international community.
The oldest case concerns the arrest of Geshe Tsewang Namgyal, a former Tibetan monk who spent six years in prison where he was severely beaten and permanently impaired (Radio Free Asia, 2018). Despite his infirmity caused by the torturous methods inflicted upon him by the authorities, Namgyal’s case came recently to light due to reports that the monk is still under surveillance four years after his release. As the same sources allege, the former prisoner is monitored to prevent him from re-engaging in human rights activism (Kunchok, 2022). The second case relates to the arrest of Gendun Lhundrub, a popular Tibetan writer and poet who was apprehended in December 2022 and has since been held in custody without any information about his case, his location, his state of health, the charges against him, the location of the court, or the progress of the trial (Lhamo, 2022b). The third instance pertains to the arrest of several Tibetans after the demolition of a giant statue of Buddha in the Sichuan province at the beginning of 2022. The detainees were severely beaten and denied food in custody, while one of them suffered a serious eye injury (Lhamo, 2022a).
These incidents form a pattern of abuse which should be thoroughly examined by stakeholders in the international community. The present article will assess this abuse in line with international human rights law standards for the rights of prisoners and detained persons. For this purpose, the analysis will be grounded on international instruments that are either binding for the PRC, such as the Convention against Torture or instruments that do not possess binding force, yet are of utmost significance for international law, such as the Universal Declaration of Human Rights. The analysis will conclude with an evaluation by international criminal law to produce a more accurate picture of the situation’s gravity.
- The Universal Declaration of Human Rights (UDHR)
The UDHR is not a treaty, and as such, it is not legally binding. Nevertheless, it expresses ideas that are shared by all members of the international community. The Declaration is a principal source of international human rights standards and the fact that it is widely recognized by States, differentiates it from other instruments with similar conventional obligations (Hannum, 1995). Its normative impact on international human rights law is profound. It has been supported that the frequent recourse to its text, both within and without the United Nations’ context, has rendered it part of customary law carrying binding force (Humphrey, 1976). Others even claim that some provisions of the Declaration are jus cogens (Ramcharan, 1986). However, the UDHR’s status remains a contested matter, and many disagree with its recognition as custom (Kamminga, 1992).
China has recognized the UDHR as an important international instrument which is constantly evolving and gaining influence (Hannum, 1995). Yet, it is evident that the Chinese State’s recognition is not reflected in reality. The plethora of abusive incidents against the Tibetans clearly contravene the UDHR’s text. The narrated events herein demonstrate that conflict. Article 5 of the UDHR refers to the right to be protected from torture, while Article 9 stipulates protection from arbitrary detention. Articles 10 and 11 grant the right to a fair trial. The recurrent incidents of torture, the arbitrary and incommunicado arrests, and the voiding of Tibetans’ fair trial rights showcase the de facto deviation from the instrument’s purview.
- The Convention Against Torture (CAT)
Another instrument relevant to the present exercise is the Convention Against Torture (CAT) ratified in 1988 by China. It is a treaty characterised by medium to high levels of obligation and delegation (Abbott et al, 2000). These two elements pertain to an instrument’s legalisation status. The ratification or the accession of the treaty are two functionally similar terms and denote a higher degree of commitment (Goodliffe, Hawkins, 2006). After ratification or accession, States are fully and legally bound by the treaties’ mandate.
The CAT endorses the enforcement of universal jurisdiction for violations of the treaty (Goodliffe, Hawkins, 2006). The Convention establishes the prohibition of torture to its full extent. Indicatively, Article 2 stipulates that every ratifying State must take effective legal measures to prevent, investigate and punish instances of torture, while Article 14 contains the torture victim’s right to seek redress domestically.
The systematic application of torturous methods on Tibetans is a clear violation of the Convention, thus it should bring the appropriate legal consequences to China. The right to be protected from torture is fundamental with no possibility of derogation. It forms part of customary international law (Cassese, 2003) and is legally binding for every State of the international community, regardless of the ratification of relevant treaties. The matter deserves particular attention as the widespread or systematic exercise of torture can reach the threshold of crimes against humanity (Cryer, 2020).
- International Criminal Law
The gravity and the frequency of the events examined in the present article prompt an analysis from the viewpoint of international criminal law. The circumstances and the context of these human rights abuses fulfil the criteria for their classification as international crimes.
The practice of enforced disappearance has been defined as the apprehension of an individual with the direct or indirect involvement of state agents, albeit without official recognition of the event (Kumskova, 2016). Despite the growing international trend to prohibit enforced disappearances in any form and not leave room for justifications, the Chinese State has consistently employed this tactic to suppress dissent and criticism (Tibetan Centre for Human Rights & Democracy, 2012). As a result, enforced disappearances have become routine in Tibet. The systematicity and the widespread context of occurrence in the region should attract the attention of the international community and specifically of international criminal justice.
Further, as described earlier, the prohibition of torture is a peremptory norm. Therefore, it is regulated by various international legal instruments that illustrate the international community’s willingness to forbid every form of torture (Gaeta, 2008). The legal concept of torture has been defined by the jurisprudence of the ad hoc tribunals and the International Criminal Court, albeit with slight differentiations. Under the definition of the ICC, which is the flagship court of international criminal justice, torture committed as part of a widespread or systematic attack on a civilian population can constitute either a war crime or a crime against humanity (Asser Institute, n.d.).
China’s policies consistently threaten the Tibetans’ rights, which relate to their very existence, their activities, to their culture. The present article focused on the rights of the detained and the PRC authorities’ use of enforced disappearances and torture. Arbitrary and incommunicado arrests amounting to enforced disappearances and several instances of torture are indicative of the wider policy China pursues in Tibet. International legal instruments should inform the examination of the Chinese state’s current practices. The abuse of the Tibetans should be inspected closely by the international community. After all, these cases may concern the most egregious international crimes.
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Chapters in books
Cryer, R. (2020). International Law, Crime and Torture. in Malcolm D. Evans and Jens Modvig (Eds.), Research Handbook on Torture (pp 288–313). Edward Elgar Publishing.