(ANALYSIS) LONDON— Last week, the Office of the Prosecutor (OTP) to the International Criminal Court (ICC) confirmed that it could not take further the case of the Uyghurs.

In its report, OTP stated that there was no basis to proceed at this time. The statement comes after on July 6, 2020, lawyers for the East Turkistan Government in Exile (ETGE) and the East Turkistan National Awakening Movement (ETNAM), have submitted a communication to the OTP asking for an investigation to be opened against senior Chinese leaders for genocide and crimes against humanity allegedly committed against the Uyghur and other communities.

As China is not a party to the Rome Statute, and hence, the ICC does not have the territorial jurisdiction over the crimes allegedly perpetrated there, the communication advances the argument, earlier used in the case of Myanmar/Bangladesh, that part of the criminal conduct occurred within the territory of a state party to the Rome Statute. In that case Pre-Trial Chamber I of the ICC held that “the Court may assert jurisdiction pursuant to article 12(2)(a) of the Statute if at least one element of a crime within the jurisdiction of the Court or part of such a crime is committed on the territory of a State Party to the Statute.” In the case of Myanmar/Bangladesh, the argument enabled the ICC to engage and investigate the atrocities.

In the case of the Uyghurs, the communication argued that part of the criminal conduct occurred in Tajikistan and Cambodia what could open the door for the ICC to engage on the situation. The communication incorporates evidence of “brutal torture through electrocution, humiliation in the form of being forced to eat pork and drink alcohol, mandatory insertion of IUD birth control for Uyghur women of child-bearing age–of which there is recent evidence of a major increase, and an estimated 500,000 Uyghur children being separated from their families and sent to “orphanage camps” where there have been credible reports of attempted suicide by the children.”

The OTP distinguished the cases and stated that the precondition for the exercise of the ICC’s territorial jurisdiction did not appear to be met with respect to the majority of the crimes alleged, including genocide, crimes against humanity of murder, imprisonment or other severe deprivation of liberty, torture, enforced sterilisation and other inhumane acts).

The OTP further assessed the alleged crimes perpetrated in Cambodia and Tajikistan,and observed that “while the transfers of persons from Cambodia and Tajikistan to China appear to raise concerns with respect to their conformity with national and international law, including international human rights law and international refugee law, it does not appear that such conduct would amount to the crime against humanity of deportation under article 7(1)(d) of the Statute.”

The OTP concluded that: “In the present situation, from the information available, it does not appear that the Chinese officials involved in these forcible repatriation fulfilled the required elements described above. While the conduct of such officials may have served as a precursor to the subsequent alleged commission of crimes on the territory of China, over which the Court lacks jurisdiction, the conduct occurring on the territory of States Parties does not appear, on the information available, to fulfill material elements of the crime of deportation under article 7(1)(d) of the Statute.”

The OTP confirmed that it has received a request for reconsideration pursuant article 15(6) on the basis of new facts or evidence. The OTP is yet to consider and make a determination on these new facts or evidence.

Ewelina U. Ochab is a legal researcher and human rights advocate, Ph.D. candidate and author of the book “Never Again: Legal Responses to a Broken Promise in the Middle East” and more than 30 UN reports. She works on the topic of persecution of minorities around the world. This piece was republished from Forbes with permission.