Escalation in Tibet
NOTE: This fact pattern is completely fictional and solely for academic discussion, and any similarity to people or places, real or imagined, is purely coincidental.
The year is 2020 and there is a schism in Tibetan Buddhism. An aggressive faction led by a secular political leader has publicly declared Tibetan independence from China, and has exerted control over areas of rural Tibet. A rebel militia has been formed, and the rebels are beginning to provide basic services to the people in controlled territory. There are also a growing number of incidents of sabotage and ambush perpetrated against Chinese police and military targets, believed to be the acts of these Tibetan rebels. The Chinese government has labeled the Tibetan rebels “religious terrorists” while a sympathetic American administration has even issued the following statement:
“While the United States prays for a peaceful resolution to the dire situation in Tibet, we stand with the Tibetan people who desire autonomy and self-determination.”
In response to the Tibetan rebellion, the Chinese authorities pass a new national law, called the “One China Stability and Harmony Law” which, among other things, outlaws the use of any language other than Mandarin Chinese and generally criminalizes expressions of traditional Buddhist religion and culture in a manner that is “destabilizing to national security and unity.”
Using the “Stability and Harmony” law, the Chinese authorities begin to crack down on the Tibetan rebellion. Unmanned drone strikes have killed several of the rebellion’s top military commanders. During a televised press conference, Chinese officials provide evidence of criminal acts (under domestic Chinese law) committed by the Tibetan rebels, and announce criminal charges against most of its leaders. Tibetan villages are told to “give up” the rebels, and the people in villages who do not cooperate are subject to permanent relocation to remote areas outside of Tibet while their villages are burned to the ground. During these raids, however, Chinese troops capture numerous rebels and recover homemade weapons and explosives, proving that the villagers are in fact aiding and sheltering the rebels.
Captured rebels are imprisoned without trial and held indefinitely. There are rumors of torture and even execution, but aid workers and humanitarian groups are generally unable to access the captured rebels to confirm these rumors. An NGO claiming to represent the Tibetan victims files a lawsuit against China in United States federal court in New York City, seeking $100 million in damages from China as a result of China’s violations of international law. China publicly denies that a U.S. Court has any jurisdiction over China’s internal affairs and urges the American President to “control the reckless and dangerous activism of the American judiciary.”
On several occasions, the United States proposes Security Council resolutions condemning the Chinese military crack-down, but each time the measures are vetoed by China and Russia. The United States then issues this statement:
“The United States deplores the use of military force on innocent civilians and Tibetans seeking an independent and prosperous future. Effective immediately, any attack on the people of Tibet will be viewed as an attack on the people of the United States and the United States intends to exercise the right of collective self-defense in response.”
Immediately thereafter, the United States moves a large Naval carrier battle group to a location that is just 10 nautical miles off the coast of China and begins conducting military training exercises over Chinese air space. In addition, there are rumors that United States special operations forces are on the ground in China, training the Tibetan rebels and supplying them with weapons, although this is never proven. China is furious. It accuses the United States of meddling in the internal, domestic affairs of another nation, and claims that US military activity in the regions constitutes an armed attack. The Chinese foreign minister even asserts that based on American aggression, China “would be justified in retaliating in self-defense with all available force, including nuclear weapons.”
Emboldened by the United States support, the Tibetan protests escalate and sadly, end in a violent military confrontation between Tibetan rebels and the Chinese military. Knowing that they cannot defeat the Chinese military in a direct confrontation, the rebels carry their weapons concealed and dress to blend in with the population. The rebels sometimes hide in Buddhist temples or other crowded public locations, springing deadly ambushes on the Chinese, who then respond with overwhelming force. Many on both sides are injured or killed, as well as many civilians, including one American tourist who happens to be a New York City police officer and Army reservist who was injured and captured during the fighting. Labeled an unlawful enemy combatant, a Chinese criminal court hastily convicts the American of espionage without a trial and condemns him to die.
Recognizing that the situation has spiraled out of control and international peace and security are threatened, the United States and China agree to meet in Geneva to try to resolve their disputes.
Question: You are the legal advisor to either the United States or China (you pick). Write a brief legal position paper describing the conflict between the parties in legal terms favorable to your state. Identify the most important international legal issues involved (including those that have been violated by the other side as well as your defense to allegations likely to be made against you). If you had to make a settlement proposal to the other side that would resolve the dispute in a manner favorable to your state but which had a reasonable chance of being accepted by the other state, what would that proposal be? In addition, assuming that your state desires to avoid an escalation of hostilities into full scale war, what legal course of action would you advise your leaders to take next if the negotiations between the parties are not successful?
Instructions: This is a test of your ability to identify and analyze legal issues within a complex fact pattern. When you write your answer, make persuasive legal arguments and support them with quotes and citations from the text and your supplemental readings. Apply the concepts that we have been discussing all semester. Assert your opinion. There are more issues in this hypothetical than you have time to address, so focus on what is important to your state’s position. Most importantly, think carefully, a diplomatic failure could plunge the world into a catastrophic global war!
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