60 Years of Occupation – Guess Where

by Eugene Kontorovich

In 1949, a land that had for hundreds of years been home to Muslim peoples was forcibly seized by outsiders. They implemented a policy of ethnic dislocation and colonization. While some of the Muslims, chafing under the occupation, turned to terrorism,  the recalcitrant state refused to budge even until today.

And the occupied country is — the Second East Turkestan Republic, home of the Uighurs.

The extensive media coverage of and diplomatic reaction to the recent and perhaps ongoing ethnic violence between Han and Uighurs in Xinjiang seems to have missed an important detail.

The Uighurs are not simply a minority group in China that may not be getting the fairest deal. Rather, they are arguably an occupied people – and the massive Han Chinese population in the area almost entirely settlers.

China conquered the independent Second East Turkestan Republic in 1949, in an open land grab. This was news to me — the illegal conquest of Tibet the subsequent year is well known, but apparently without a Dalai Lama, the Uighurs’ national aspirations are paid even less lip service than Tibetans’.

How could there be such silence about an ongoing illegal occupation? I briefly looked at the media coverage and reports of international human rights organizations (Amensty, HRW), and I can find none that discussed the situation as an occupation or the Han as illegally “transferred” people under the Fourth Geneva Convention. Nor does this appear to be the position of any nation, though again I don’t claim to have done meticulous inquiry and would be happy to be corrected.

What can explain this silence? There are some possible technical reasons. China ran tanks into the young country just days before signing the Geneva conventions, though it seems it did not conquer the whole thing until after signing. Nonetheless it only acceded to Geneva in 1956, by which time the last Uighur holdouts had been overtaken. Moreover, I believe it was the Nationalist Chinese who signed the treaties. So the easiest explanation for why this is not treated as a violation of international law of occupation is that China had not yet accepted the Geneva conventions requirements. Is that what is said about Tibet?

Nonetheless, this would not change the fact that the conquest itself violated international law. It would be hard to square this avoidance of the Fourth Geneva convention with how it is interpreted in other contexts. After all, when China did the seed to the Geneva conventions it was already an occupier. One would have to say that the conventions do not apply to preexisting occupations. This seems consistent with Art. 2 — and of course, East Turkestan was not a contracting power. Yet it would be inconsistent with the view that given the humanitarian purposes of the provisions regarding occupation, their applicability should be interpreted broadly to avoid gaps in coverage.  It would seem the conventions would apply during the period when China imported a vast number of Han into the area, demographically overwhelming the Uighurs. Moreover, Tibet is treated as occupied territory by the U.S. and perhaps some other countries, and it is very hard to distinguish the cases.

Is there some reason this issue is not on the international law radar? Or have I missed something? Naturally I don’t expect anyone to rush to liberate East Turkestan – I’m a realist. But what about “soft power”? And the role of NGOs? If this is an occupation, it is probably one of the worst ongoing ones — something like 10 million people occupied, which I think is more than West Bank, Western Sahara, Northern Cyrus, Tibet, Abkazia/Ossetia, etc. combined.

http://opiniojuris.org/2009/07/21/60-years-of-occupation-guess-where/

6 Responses

  1. You need not be so facetious. I don’t think anyone denies that if Israel had simply crushed any resistance in the territories with Russian or Chinese efficiency, we would not now (40 years later) care much at all.

    That is not, of course, to say that such would have been the best course of action.

  2. Yes, you did miss something: In nearly all of the other cases mentioned, the state in question has annexed the territory, claiming sovereignty over it and integrating its inhabitants as citizens.  For better or for worse, the international community accordingly treats there areas as part of the sovereign territory of those states.  Therefore the law of occupation — Geneva Conventions and the anti-colonization rule in art. 49(6) — does not apply, though similar policies of demographic engineering may violate international human rights law.

    Israel is in a very different situation because it has never annexed the OPT or claimed full sovereignty over them.  That is in fact the LAST thing Israel wants, because to do so would only increase pressure to grant citizenship to Palestinians living there, thus exacerbating what many Zionists refer to as a “demographic threat” – the prospect of a non-Jewish majority.

    Israel has two basic choices: It can follow the path of China and annex the territories.  If it prevails on this claim (which would be difficult given the modern rule against acquiring territory through force), however, it will endanger Zionism.  Or it can continue to treat the territories as occupied, but therefore be bound by the GCs, including art. 49(6).  This is a no-brainer: the latter path is clearly the less costly one.

    In this respect, people who complain about the application of IHL and law of occupation to Israel are at best missing the point, at worst being disingenuous: for treating Israel like China/Russia/Turkey etc. and the OPT like Tibet/Xinjiang/etc. would lead straight to the accusation of apartheid. If there is a double standard at work, it is one that cuts in Israel’s favor.

  3. David R – Israel has annexed part of the territory (Jerusalem), and the international community treats the annexation itself as illegal. Indeed, annexation is one of the things IHT itself prohibits, as well as the rule against territorial conquest, so it is hard to argue that the way OUT of IHT is annexation. Also, see my next post, about Russia, which has not annexed the occupied Georgian territories, and is also free of international opposition.  That also rather disproves your point.

    Also, you seem to assume that if Israel is annexing things, it has to annex the whole WB or none of it.

  4. Sorry, I should have amended my previous comment: States avoid occupation either through annexation OR through setting up nominally independent states (as in the case of Russia-Abkhazia or Turkey-TRNC), creating a legal dispute as to whether the foreign military presence is an occupation (governed by the GCs) or merely at the “invitation” of the local state.

    One can easily dispute claims by Russia or Turkey and argue that they should be held to the GCs.  In which case they should be criticized just as Israel is.  But the Israel case is still different: Israel has made no such attempts to set up a nominally independent state because it does not want to renounce sovereignty over any specific part of the OPT, so as to preserve maximum flexibility.

    It’s also necessary to clear up the confusion re the relationship between annexation and IHL: IHL does not prohibit annexations per se.  True, Art. 47 of GC4 prohibits stripping protected persons of rights as a result of annexation or other changes in the government to a territory.  But to the extent the international community rejects the annexation of Jerusalem, it is not on IHL grounds, but rather SC Res 242 or some other customary norm about territorial acquisition.  In any event, my point was not that annexation is a way to “get out of” IHL, it was merely to question your argument that Israel is being subjected to an unfair double standard regarding the application of international law.

    As for Jerusalem , it proves my point exactly: by annexing east Jerusalem but not the whole West Bank, Israel fulfilled various ideological and policy goals.  As a price for this, it incurred some international criticism (and a restive population of several hundred thousand natives) but not nearly as much as if it had annexed all of the WB without giving Palestinians citizenship.  This is exactly the point: Israel views the West Bank in demographic terms: how much land can it settle with Jews without appearing to take on responsibility for too many Arabs?  Complaining about application of the Geneva Convention misses the point.

  5. There’s a reason people get so confused when it comes to IHL (international humanitarian law) and the Geneva Conventions… where they can be applied, what happens when someone thinks a country has violated them, etc. I think a lot of the confusion surrounding this issue stems from the fact that people just haven’t learned about the Conventions, and really don’t know how/when they should be applied.

    One of the most frustrating things about situations in which someone (or a country) has potentially violated IHL is that people don’t really know what they can do to change things.

    There is an opportunity here: TEACH people about IHL in the first place. Maybe then people wouldn’t be so confused about where, when, and how the conventions can be applied. The American Red Cross just launched a petition calling for action– Protect the Vulnerable in War: Teach the Geneva Conventions found at http://bit.ly/RCpetition .

    Sign the petition to teach the Geneva Conventions and IHL to youth. Can you expect people to respect the Conventions if they don’t understand what they are? Educate future leaders. Help prevent violations of IHL from happening in the first place. Teach the Geneva Conventions in schools. Start now– sign the petition!

  6. If I recall the 1949 Armistice agreements correctly, Israel never ceded claim to the conquered West Bank and Gaza, they merely transferred administration as part of the cease fire.  Later treaties didn’t seem to elaborate on that point either, although Egypt did later state specifically that it was not their territory.

    But to the extent the international community rejects the annexation of Jerusalem, it is not on IHL grounds, but rather SC Res 242 or some other customary norm about territorial acquisition.

    The 1948 war and the armistice from that predated Israel joining the UN (The charter of which prohibits gaining territory by conquest.)  The Geneva Conventions came after the 1948 war as well, so I’m really not sure what would prohibit them from acquiring land by conquest.

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