Decision of The Court of the Citizens of World on the Proposed Indictment of Xi Jinping – The Opinion of Judge Bhavani Fonseka

[Bhavani Fonseka is a constitutional law and transitional justice expert from Sri Lanka]

‘The Court of the Citizens of the World’ – a people’s tribunal – was organized by the Cinema for Peace Foundation, relating to alleged crimes committed by Xi Jinping, President of the People’s Republic of China.  The tribunal considered confirmation of an indictment for the crime of aggression, the crime of genocide, and crimes against humanity as proposed by a Prosecution team, and challenged by a Defence team, and heard witnesses and received documentary evidence during 8 – 12 July 2024 in public hearings in The Hague. The three judges at this tribunal – Z. M. Yacoob, Stephen Rapp and Bhavani Fonseka – came to a decision regarding confirmation of the charges, and these posts are their individual opinions, in which all concurred, pronounced at the last hearing of the tribunal on 12 July 2024.

12 July 2024

Thank you, Judge Rapp.

At this stage of the confirmation of the charges I will be examining whether there are substantial grounds to indict the accused of the charge of- 

Count 2: the Crime against Humanity of Forcible Transfer of children, between at least 14 March 2013 and 24 May 2024, contrary to Article 7(1)(d) of the Rome Statute 

Count 3: the Crime against Humanity of Imprisonment or other severe deprivation of physical liberty, between at least 14 March 2013 and 24 May 2024, contrary to Article 7(1)(e) of the Rome Statute 

Count 4: the Crime against Humanity of Persecution, between at least 14 March 2013 and 24 May 2024, contrary to Article 7(1)(h) of the Rome Statute 

Article 7 of the Rome Statute sets out the acts that falls within Crimes against Humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. 

Thus, there are two elements to the crime- 

A contextual element that entails “when committed as part of a widespread or systematic attack directed against any civilian population” and 

A mental element that requires “with knowledge of the attack”

It must also be noted that acts should not be random, accidental or isolated but evidence must demonstrate that the acts are committed in furtherance of a State or organizational policy to commit an attack

In addition to the Rome Statute, attention is also on whether violations fall under Customary International Law.  

Evidence Presented 

As the evidence provided to the court indicates, the accused is the general secretary of the Chinese Communist Party (CCP) and is the president of the People’s Republic of China (PRC). The court heard of how the accused has had effective authority over the PRC since 2013. It has also been submitted that the system of governance in the PRC is centralized and the accused is intrinsically involved in the planning and preparation of policies in the PRC. 

As the court heard this week, the civilian people of Tibet have experienced widespread and systematic attacks including attempts to erase their cultural, linguistic and religious practices and identity, restrictions on the free expression of opinion and belief, on their movement, of torture and a large number of Tibetan children being forcibly moved to Chinese run boarding schools. The testimony and evidence presented to court highlighted the systematic and organised nature of these practices. The court also heard of evidence that shows the involvement of the accused in the planning of these policies.  

The court heard of specific instances that require attention- 

Firstly, 

We heard from victims and expert testimony on the implementation of the colonial boarding schools and its impact on Tibetan children and their families, the psychological and emotional trauma and the long term impact on Tibetan identity. Previously, subjects taught in the Tibetan language saw a change of policy under the leadership of the accused with education presently being solely in the Chinese language. 

The court heard evidence indicating to at least a million Tibetan children affected by this policy that further estrange young Tibetans from their heritage and is aimed at assimilating Tibetan people culturally, religiously and linguistically. Children of the Tibetan minority are forced to complete what can be considered ‘compulsory education’ curriculum in Mandarin Chinese. 

This has resulted in Tibetan children losing their ability to communicate with their parents and grandparents in the Tibetan language, further contributing to the assimilation of the Tibetan identity. 

Secondly, 

We heard evidence that speaks to the targeting of Tibetan monasteries including- 

• the destruction of several monasteries and violence targeting Tibetan monks and nuns
• restrictions placed on Tibetans access to religious sites and religious gatherings
• changing the practice of Tibetan Buddhism to Chinese Buddhism 
• persecution of Tibetans for religious activities honoring the Dalai Lama or possessing his image.

Such practices can be viewed as a deliberate policy aimed at dismantling Tibetan religious and cultural identity. 

Thirdly,

We heard evidence that speaks to multiple forms of restrictions on free expression of opinion and belief, on movement, assembly and association. 

Further, evidence indicated to other serious violations including the use of torture that includes the denial of basic services to prisoners and reports of enforced disappearances with families unaware of the whereabouts of political prisoners. 

The court also heard of state policies with questions raised as to whether ‘unity’ is to create uniformity and with it eradicate other cultures, religions and languages. In addition, the court heard of narratives such as ‘lasting stability’ ‘national security’ that seek to provide legitimacy to the policies of the PRC and the accused. 

The court heard that the tenure of the accused has marked a period of increased institutionalization of repressive measures against Tibetans, with a clear focus on eroding Tibetan cultural identity. Despite the official narratives that include economic development, unity in the motherland, the renovation of cultural sites, the preservation of language and culture, and the eradication of extreme poverty, evidence before the court indicates to a concerted attempt to eradicating the Tibetan identity and culture and to integrate Tibetan identity into the dominant Chinese identity. 

Moreover, the dire conditions in the Tibetan areas have witnessed several reported instances of self-immolation and as indicated to the court is indicative of the desperation and oppression faced by Tibetans. 

Considering the vast evidence before the court, we believe there are substantial grounds to infer a widespread and systematic attack directed against the civilian population, with knowledge of such attack. 

Thus, the court confirms Count 2, 3 and 4 of the proposed indictment, which following the non-confirmation of proposed Court 1, will be renumbered Counts 1, 2, and 3.

Finally, the testimony of victims reflects the lived experiences of violence and immense suffering, with several speaking to ongoing forms of violence. The courage of those who shared their experiences despite the multiple challenges speaks to the resilience of victims who want to see an end to the violence and seek accountability. We commend them for their courage, resilience and determination. 

We thank all those who shared their experiences, submitted evidence and supported the court in this confirmation hearing.