Governmental and NGOs
ICJ Report on the Question of Tibet and the Rule of Law (excerpt) (1959) [p.342]
INTERNATIONAL COMMISSION OF JURISTS
REPORT ON:
THE QUESTION OF TIBET
THE RULE OF LAW
GENEVA, 1959
(EXCERPT)
Introduction to the evidence on Chinese activities in Tibet
The allegations against the People's Republic of China can be fitted into three broad legal categories:
1) Systematic disregard for the obligations under the Seventeen-Point Agreement of 1951;
2) Systematic violation of the fundamental rights and freedoms of the people of Tibet;
3) Wanton killing of Tibetans and other acts capable of leading to the extinction of the Tibetans as a national and religious group, to the extent that it becomes necessary to consider the question of Genocide.
There is some inevitable overlap between these categories, for example, in the case of respect for religious belief, where there is this obligation under the Seventeen-Point Agreement [p.Article 7] and in the Universal Declaration of Human Rights [p.Article 18].
The significance of these three legal categories may be briefly explained. Violation of the 1951 Agreement by China can be regarded as a release of the Tibetan Government from its obligations, with the result that Tibet regained the sovereignty which she surrendered under the Agreement. This question is discussed in the part of this report entitled "The Position of Tibet in International Law." For this reason the violations of the Agreement by China amount to more than a matter of domestic concern between Tibet and China. What is at stake is the very existence of Tibet as a member of the family of nations, and this matter concerns the whole family of nations. Evidence showing the systematic violation by China of the obligations under the Agreement is therefore printed in extenso.
Any systematic violation of human rights in any part of the world should, it is submitted, be a matter for discussion by the United Nations. For this reason the evidence which indicates violation on a systematic scale of the rights of the Tibetan people as human beings is printed in extenso. Most people will agree that in the sphere of human rights, some rights are fundamental. The rights of the Tibetans which appear to have been ruthlessly violated are of the most fundamental - even that of life itself. With violations of this gravity it is not a question of human rights being modified to meet the requirements of local conditions. It is a question of conduct which shocks the civilized world and does not even need to be fitted into a legal category. The evidence points to a systematic design to eradicate the separate national, cultural and religious life of Tibet.
Genocide is the gravest crime known to the law of nations. No allegation of Genocide should be made without the most careful consideration of evidence that killings, or other acts prohibited by the Genocide Convention, however extensive, are directed towards the destruction in whole or in part of a particular group which constitutes a race, a nation or a religion. The facts, as far as they are known are set out in extenso. It is submitted, with a full appreciation of the gravity of this accusation, that the evidence points at least to a prima facie case of Genocide against the People's Republic of China. This case merits full investigation by the United Nations.
The evidence submitted against China is printed verbatim in this report. Statements made by the official press and radio of the Chinese People's Republic are reproduced at perhaps inordinate length, and even so amount to no more than specimens of the Chinese account of the recent history of Tibet. Space does not permit a fuller inclusion, but it is considered that the selection is at least typical of the official Chinese accounts. The accounts given by Tibetan leaders in exile and refugees on the one hand, and Chinese spokesmen and Tibetan collaborators on the other are reproduced with a minimum of editing and running commentary. By and large the accounts given by Tibetans are self-evidently linked to the specific legal category under which they are cited; accounts from Chinese sources are by and large self-evidently inconsistent, though in this case there is a certain amount of running commentary.
At the beginning of each section of evidence presented is a summary of contents, an assessment of the effect of the evidence and, in some cases, a critical discussion of the Chinese accounts. Finally, a summary of conclusions is offered. A note on the leading personalities involved precedes the general body of evidence, together with a list of abbreviations used in the extracts and in the commentary.
From the whole tangled mass of propaganda, allegation and counter-allegations made by the principal protagonists in the Tibetan situation, one statement stands out. The Dalai Lama in his statement at Mussoorie, India, on June 20th, 1959 said:
"I wish to make it clear that I have made these assertions against Chinese officials in Tibet in full knowledge of their gravity because I know them to be true. Perhaps the Beijing Government are not fully aware of the facts of the situation but if they are not prepared to accept these statements let them agree to an investigation on the point by an international commission. On our part I and my Government will readily agree to abide by the verdict of such an impartial body."
The issue on the evidence submitted in this report is to a large extent who is telling the truth. On this issue this proposal by the Dalai Lama is of the utmost importance. The International Commission of Jurists is setting up its Legal Inquiry Committee, but it is not known whether this Committee will be allowed to enter Tibet. Nor is it certain that a United Nations Commission, if one is formed, will be able to make on the spot inquiries in Tibet. But if entry is refused it will be by the Government of the People's Republic of China. That Government has not so far accepted the Dalai Lama's proposal. On the question of credibility the obvious inference is there to be drawn.
The Question of Genocide
Genocide is defined in the Convention for the Prevention and Punishment of Genocide, 9th December 1948, which was agreed in pursuance of the resolution by the General Assembly of the United Nations that Genocide is a crime against the law of nations. The contracting parties undertook to prevent and punish Genocide. There is therefore an obligations upon each and every one of the States who were party to the Convention to take action if a case of Genocide comes to light.
The Convention defines both the mens rea and the actus reus of Genocide in specific terms. The actus reus is committed in one or more of several ways as defined in Article 2:
a) killing;
b) causing serious bodily or mental harm;
c) subjection to living conditions leading to the total or partial destruction of the group;
d) measures intended to prevent the birth of children within the group;
e) forcible transfer of children of the group to another.
Conspiracy to commit Genocide, incitement to commit Genocide, attempted Genocide and aiding and abetting Genocide are all declared punishable by Article 3. The mens rea of Genocide is defined as the intention to destroy in whole or in part a national, ethnic, racial or religious group as such.
It cannot be overemphasized that one must deliberate carefully before making an allegation of Genocide. It is probably the gravest crime known to the law of nations. For this reason, the evidence must be very carefully considered, and all inferences from the evidence must be logically supportable.
Evidence of the actus reus of Genocide:
(i) Religious groups: The evidence that there has been widespread killing of Buddhist monks and lamas in Tibet is clear and explicit. One need only refer to the evidence in this category under Section A (II). If this evidence is to be believed, there has been a destruction by killing of a part of a religious group. The International Commission of Jurists believes that this evidence raises at the very least a case which requires thorough and careful investigation.
(ii) National groups: The account of wanton killings in Tibet points to killings on a wider scale than that of religious groups. Particular attention should be paid to the evidence of indiscriminate air attacks, and of deliberate shooting of Tibetans who were in no way engaged in hostilities. Evidence of such killings is given in Section B. It should also be stressed that the alleged deportation of 20,000 Tibetan children is directly contrary to Article 2 (e). It is of the utmost importance that this report be fully investigated.
The Memorandum contains important evidence on the forcible removal of children to China:
"Above all they have made thousands of homes unhappy by forcing young boys and girls to go to China for de-nationalization, thus getting them indoctrinated to revolt against our own culture, traditions and religion. To this end they have sent more than five thousand boys and girls up to now to China proper."
Here is clear prima facie evidence of a violation of Article 2(e) of the Genocide Convention.
Evidence of the mens rea of Genocide:
It is very rarely in criminal trials that direct evidence of mens rea is available. The fact that there is no official Chinese policy statement directed towards the destruction of the Tibetans is no ground for withholding an accusation of Genocide if an inference of the requisite intention can properly be drawn. For this purpose it is permissible to take into account acts which point to the extinction of a national or religious group whether or not such acts are in themselves acts of Genocide. For if a systematic intention to destroy a nation or religion can be shown by acts which are not declared criminal by the Genocide Convention, the acts on which these inferences are based can properly be adduced as evidence of general intention. If in addition there are acts which are capable in law of amounting to Genocide, and such acts are part of a consistent pattern of destroying a nation or religion, the inference of intent in non-genocidal acts is equally valid in respect of acts which are within those prohibited by the Genocide Convention.
For this reason, the overall assessment of the evidence in Sections A and B is relevant and important. If such evidence points to an intention to destroy religion in Tibet, and to assimilate the Tibetan way of life to the Chinese, there is evidence of the required intent to destroy, in whole or in part, a national or religious group. It has been argued that the activities of the Chinese in Tibet point to the conclusion that this was the intention behind the Chinese acts in the fields described in Sections A and B. The ruthless efficiency is otherwise difficult to explain. The evidence in these two sections should be carefully studied.
This interference has been drawn from these and other facts by Tibetans from the Dalai Lama downwards. The Tibetan opinions on the Chinese intentions are as follows:
Statement of the Dalai Lama in Mussoorie, June 20, 1959:
In the course of his press conference the Dalai Lama stated:
"The ultimate Chinese aim with regard to Tibet, as far as I can make out, seems to attempt the extermination of religion and culture and even the absorption of the Tibetan race .�.�.�Besides the civilian and military personnel already in Tibet, five million Chinese settlers have arrived in eastern and north-eastern Tso, in addition to which four million Chinese settlers are planned to be sent to U and Sung provinces of Central Tibet. Many Tibetans have been deported, thereby resulting in the complete absorption of these Tibetans as a race, which is being undertaken by the Chinese."
Memorandum:
The statement already quoted from the Memorandum on the actus reus of Genocide also contains the inference by the authors of the document that the aim was to get the children to "revolt against their own culture, traditions and religion."
Statement of Chaghoe Namgyal Dorje:
"... My experience of four years' work with the Chinese convinced me that their propaganda was false and that their real intention was to exterminate us as a race and destroy our religion and culture."
"Communists are enemies not only to Buddhism but to all religion. It has been told to me that more than 2,000 Lamas had been killed by the Chinese. I have personal knowledge of such attacks on 17 Lamas."
"Even if no help is coming we shall fight to death. We fight not because we hope to win but that we cannot live under Communism. We prefer death."
"We are fighting not for a class or sect. We are fighting for our religion, our country, our race. If these cannot be preserved we will die a thousand deaths than surrender these to the Chinese."
These inferences were drawn by people who know as no one outside Tibet can know the full extent of Chinese brutality in Tibet. They are in a better position than any outsider to assess the motives behind the Chinese oppression, including the slaughter, the deportations and the less crude methods, of all of which there is abundant evidence.
It is therefore the considered view of the International Commission of Jurists that the evidence points to:
(a) a prima facie case of acts contrary to Article 2(a) and (e) of the Genocide Convention of 1948.
(b) a prima facie case of a systematic intention by such acts and other acts to destroy in whole or in part the Tibetans as a separate nation and the Buddhist religion in Tibet.
Accordingly, the Commission will recommend to its Legal Inquiry Committee that existing evidence of Genocide be fully checked, that further evidence, if available, be investigated, that unconfirmed be investigated and checked. But the final responsibility for this task rests with the formal organ of world authority and opinion. The Commission therefore earnestly hopes that this matter will be taken up by the United Nations. For what at the moment appears to be attempted Genocide may become the full act of Genocide unless prompt and adequate action is taken. The life of Tibet and the lives of Tibetans may be at stake, and somewhere there must be sufficient moral strength left in the world to seek the truth through the world's highest international organ.