Global Human Rights Defence

The de facto annulment of Tibetans’ rights in arrest and detention from the viewpoint of international law
Me in the window! Source: Ye-Jinghan/Unsplash, 2018.

Author: Alexandros Anthis

INTRODUCTION

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.

Factual background

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.).

CONCLUSION

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.

Bibliography

Web content

Asser Institute (n.d.). Torture. Retrieved February 14, 2022 from https://www.asser.nl/nexus/international-criminal-law/international-crimes-introduction/torture/#_ftn10

Dolma C. (2021, December 27). China destroys a giant Buddha statue in Draggo County, eastern Tibet. The Tibet Post International. https://www.thetibetpost.com/en/news/132-tibet/7189-chinese-authorities-destroyed-giant-buddha-statue-in-drago,-tibet

Kumskova, M. (2016, January 3) The Crime of Enforced Disappearance. E-international relations. Retrieved February 14, 2022 from https://www.e-ir.info/2016/01/03/the-crime-of-enforced-disappearance/

Kunchok, S. (2022, January 1). Tibetan former political prisoner in failing health still watched by police. Retrieved February 1, 2022 from https://www.rfa.org/english/news/tibet/watched-01312022161153.html 

Lhamo, C. (2022, January 10). Another giant Buddha statue demolished in Tibet’s Kham region. Phayul. https://www.phayul.com/2022/01/10/46638/

Lhamo, C. (2022, January 27). Tibetan writer still missing for questioning officials on ‘sinicization of Buddhism’. https://www.phayul.com/2022/01/27/46707/

Radio Free Asia (2018, February 8). Tibetan Monk Released From Prison, Disabled From Beatings. Retrieved February 1, 2022 from https://www.rfa.org/english/news/tibet/beatings-02082018153910.html

Tibetan Centre for Human Rights & Democracy (2012). Into Thin Air: An Introduction to Enforced Disappearances in Tibet. Retrieved February 14, 2022 from https://www.ecoi.net/en/file/local/1321497/1226_1368442172_tchrd-20111030-report-into-thin-air-an-introduction-to-enforced-disappearances-in-tibet.pdf

Journal Articles

Abbott, K. W. et al (2000). The Concept of Legalization. International organization 54(3) ,401–419.

Gaeta, P. (2008). When Is the Involvement of State Officials a Requirement for the Crime of Torture? Journal of international criminal justice 6(2), 183–193.

Goodliffe, J. and Hawkins, D. G. (2006). Explaining Commitment: States and the Convention Against Torture. The Journal of politics 68(2), 358–371.

Hannum, H. (1995). The Status of the Universal Declaration of Human Rights in National and International Law. The Georgia journal of international and comparative law 25(1-2), 287–.

Humphrey, J. P. (1976). The International Bill of Rights: Scope and Implementation. William and Mary Law Review, 17(3), 527-542.

Ramcharan, B.G. (1986). The Legal Status of the International Bill of Human Rights. Nordic journal of international law = Acta scandinavica juris gentium 55(4), 366–383. William and Mary Law Review, 17(3), 527-542.

Books

Cassese, A. (2003). International Criminal Law. Oxford University Press.

Kamminga M. T. (1992). Inter-state accountability for violations of human rights. Philadelphia: University of Pennsylvania Press.

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.

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Kenza Mena
Team Coordinator -China

Kenza Mena has expertise in international criminal law since she is currently pursuing a last-year Master’s degree in International Criminal Justice at Paris II Panthéon-Assas and obtained with honors cum laude an LLM in International and Transnational Criminal Law from the University of Amsterdam. She also holds a Bachelor’s degree in French and Anglo-American law. 

Since September 2021, she has been the coordinator of Team China at GHRD, a country where violations of human rights, even international crimes, are frequently perpetrated by representatives of the State. Within Team China, awareness is also raised on discrimination that Chinese women and minorities in the country and, more generally, Chinese people around the world are facing.

Kenza believes that the primary key step to tackle atrocities perpetrated around the world is advocacy and promotion of human rights.

Aimilina Sarafi
Pakistan Coordinator

Aimilina Sarafi holds a Bachelor’s degree cum laude in International Relations and Organisations from Leiden University and is currently pursuing a Double Legal Master’s degree (LLM) in Public International Law and International Criminal Law at the University of Amsterdam.
She is an active advocate for the human rights of all peoples in her community and is passionate about creating a better world for future generations. Aimilina is the coordinator for the GHRD team of Pakistan, in which human rights violations of minority communities in Pakistan are investigated and legally evaluated based on international human rights legal standards.
Her team is working on raising awareness on the plight of minority communities such as women, children, religious and ethnic minorities within Pakistan.

Lukas Mitidieri
Coordinator & Head Researcher- Bangladesh

Lucas Mitidieri is currently pursuing his bachelor’s degree in International Relations at the Federal University of Rio de Janeiro (UFRJ). As the GHRD Bangladesh Team Coordinator, he advocates for human rights and monitors violations across all minorities and marginalized groups in Bangladesh. Lucas believes that the fight for International Human Rights is the key to a world with better social justice and greater equality.

Nicole Hutchinson
Editorial Team Lead

Nicole has an MSc in International Development Studies with a focus on migration. She is passionate about promoting human rights and fighting poverty through advocacy and empowering human choice. Nicole believes that even the simplest social justice efforts, when properly nurtured, can bring about radical and positive change worldwide.

Gabriela Johannen
Coordinator & Head Researcher – India

Gabriela Johannen is a lawyer admitted to the German bar and holds extensive knowledge in the fields of human rights, refugee law, and international law. After working for various courts and law firms in her home country, she decided to obtain an LL.M. degree from Utrecht University where she studied Public International Law with a special focus on Human Rights. Additionally, while working as a pro-bono legal advisor for refugees, she expanded her knowledge in the fields of refugee law and migration.

Gabriela is the coordinator and head researcher for GHRD India, a country, she has had a personal connection with since childhood. Her primary focus is to raise awareness for the severe human rights violations against minorities and marginalized groups that continue to occur on a daily basis in India. By emphasizing the happenings and educating the general public, she hopes to create a better world for future generations.

João Victor
Coordinator & Head Researcher – International Justice

João Victor is a young Brazilian lawyer who leads our team of International Justice and Human Rights. He holds a Bachelor’s degree in Law from the Federal University of Rio de Janeiro, Brazil and possesses over 5 years of experience in dealing with Human Rights and International Law issues both in Brazil and internationally, including the protection of refugees’ rights and the strengthening of accountability measures against torture crimes.

João has an extensive research engagement with subjects related to International Justice in general, and more specifically with the study of the jurisprudence of Human Rights Courts regarding the rise of populist and anti-terrorist measures taken by national governments. He is also interested in the different impacts that new technologies may provoke on the maintenance of Human Rights online, and how enforcing the due diligence rules among private technology companies might secure these rights against gross Human Rights violations.

Célinne Bodinger
Environment and Human Rights Coordinator

As the Environment and Human Rights Coordinator, Célinne is passionate about the health of our planet and every life on it.

Angela Roncetti
Team Coordinator and Head Researcher- South America

Angela holds a Bachelor of Laws (LL.B) from Vitória Law School (FDV) in Brazil. Her research combines more than five years of experience conducting debates and studies on the rights of homeless people, the elderly, children, and refugees. Besides that, she also volunteers in a social project called Sou Diferente (I am Different in English), where she coordinates and takes part in actions aimed at the assistance and the emancipation of vulnerable groups in the cities of the metropolitan area of Espírito Santo state (Brazil).

Lina Borchardt
Team Head (Promotions)
(Europe)

She is currently heading the Promotions Team and University Chapter of Global Human Rights Defence. Her background is the one of European and International Law, which I am studying in The Hague. She has previously gained experience at Women´s Rights organizations in Germany, the Netherlands and Turkey over the past years.
She has been working for Global Human Rights Defence in the Netherlands since 2020. Her focus now is concentrated on the Human Rights and Minorities Film Festival and the cooperation of GHRD with students across the country.

Pedro Ivo Oliveira
Team Coordinator and Researcher
(Africa)

Pedro holds an extensive background in Human Rights, especially in Global Health, LGBTQ+ issues, and HIV and AIDS. He is currently finishing his Bachelor’s Degree in International Relations and Affairs at the Pontifical Catholic University of Minas Gerais, Brazil. Moreover, he successfully attended the Bilingual Summer School in Human Rights Education promoted by the Federal University of Minas Gerais and the Association of Universities of the Montevideo Group. Besides, Pedro Ivo has a diversified professional background, collecting experiences in many NGOs and projects.

With outstanding leadership abilities, in 2021, Pedro Ivo was the Secretary-General of the 22nd edition of the biggest UN Model in Latin America: the MINIONU. Fluent in Portuguese, English, and Spanish, Pedro Ivo is the Team Coordinator and Head Researcher of the Team Africa at Global Human Rights Defence. Hence, his focus is to empower his team from many parts of the world about the Human Rights Situation in the African continent, meanwhile having a humanized approach.

Alessandro Cosmo
GHRD Youth Ambassador
(European Union)

Alessandro Cosmo obtained his B.A. with Honors from Leiden University College where he studied International Law with a minor in Social and Business Entrepreneurship. He is currently pursuing an LL.M. in Public International Law at Utrecht University with a specialization in Conflict and Security. 
As GHRD’s E.U. Youth Ambassador, Alessandro’s two main focuses are to broaden the Defence’s reach within E.U. institutions and political parties, as well as mediate relations between human rights organizations abroad seeking European funding. 
Alessandro believes that human rights advocacy requires grass-roots initiatives where victims’ voices are amplified and not paraphrased or spoken for. He will therefore act on this agenda when representing Global Human Rights Defence domestically and abroad

Veronica Delgado
Team Coordinator and Researcher- Japan, Sri Lanka & Tibet

Veronica is a Colombian lawyer who leads our team of Japan, Sri Lanka and Tibet. She holds a master’s degree in Public International Law from Utrecht University. She has experience in Colombian law firms. Here she represented clients before constitutional courts. She also outlined legal concepts to state entities such as the Ministry of Foreign Affairs and the Ombudsman’s Office on international law issues.

Veronica has an extensive research background with subjects related to public international law. She worked as an assistant researcher for more than two years for the Externado University of Colombia. Here she undertook in-depth research on constitutional, business, and human rights law issues. She was involved with consultancy services with the Colombian Army regarding transitional justice. 

Wiktoria Walczyk
Coordinator & Head Researcher (Nepal & Indonesia)

Wiktoria Walczyk has joined GHRD in June 2020 as a legal intern. She is currently coordinator and head researcher of Team Nepal and Indonesia. She has an extensive legal knowledge concerning international human rights and is passionate about children’s and minorities’ rights. Wiktoria has obtained her LL.B. in International & European Law and she specialised in Public International Law & Human Rights at The Hague University of Applied Sciences in the Netherlands. Moreover, she is pursuing her LL.M. in International & European Law and focusing on Modern Human Rights Law specialisation at the University of Wroclaw in Poland. In order to gain an essential legal experience, Wiktoria has also joined Credit Suisse’s 2021 General Counsel Graduate First Program where she is conducting her legal training and discovering the banking world. She would like to make a significant impact when it comes to the protection of fundamental human rights around the world, especially with regard to child labour. 

Fairuz Sewbaks
Coordinator and Head Researcher
(Africa)​

Fairuz Sewbaks holds extensive legal knowledge regarding international human rights, with a specific focus on human rights dealings taking place in continental Africa. She holds a bachelor’s degree from The Hague University in public international law and international human rights and successfully followed advanced human rights courses at the Centre for Human Rights, University of Pretoria. She furthermore participated in the Istanbul Summer School where she was educated about the role of epidemics and pandemics in light of human rights.

 

Fairuz is the coordinator and head researcher for GHRD Africa. Her primary focus is to establish and coordinate long-term research projects regarding the differentiating human rights dealings of vulnerable and marginalized groups in continental Africa, as well as conducting individual research projects.

Priya Lachmansingh
Coordinator and Head Researcher, Political Advisor
(Asia & America)

Priya Lachmansingh is currently pursuing her bachelor’s degree in International & European
Law at the Hague University of Applied Science.
As GHRD’s Asia & America human rights coordinator and GHRD Political Advisor, Priya’s
prominent focus is to highlight human rights violations targeted against minority and
marginalized groups in Asia and America and to broaden GHRD reach within Dutch political
parties and as well seek domestic funding.

Jasmann Chatwal
Team Coordinator & Head Coordinator: North America

Jasmann is a political science student at Leiden University who joined GHRD in May 2021 as an intern in team Pakistan. Now, she is the team coordinator for North America and is responsible for coordinating the documentation of human rights violations in USA, Canada, and America.