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The genocide amendment marries law with principle and is in the best of Conservative traditions

The genocide amendment marries law with principle and is in the best of Conservative traditions

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Aarif Abraham

Aarif Abraham

4 min read

A formal determination by the High Court will reinforce our international obligations by ensuring that the government does something to respond to genocide.

The genocide amendment to the Trade Bill allows survivors of genocide to ask the High Court to make a preliminary determination on whether a UK trading partner is committing or has committed genocide. 

This week, the amendment – after having been rejected by 11 votes in the House of Commons – returned to the House of Lords in its revised form. It received overwhelming cross-party support and passed with a majority of 171, gaining 45 additional supporters mainly from rebel Conservatives. It now faces an existential battle in the Commons on Tuesday next week, where the government remains staunchly opposed.

On 2 February, Sir Bob Neill MP wrote about the Amendment, in The House Live.

Sir Bob unequivocally accepted three things: the “admirable” principle behind the Amendment; that courts ordinarily determine genocide; and that the UK is bound by international obligations to prohibit, prevent and punish genocide (wherever it occurs). His concerns related to the apparent “serious adverse constitutional and legal consequences.” Those concerns are completely misplaced.

Sir Bob wrote that courts should not have a say on trade. He is right on this. But he is wrong on what the Amendment does. The Amendment gives a power to the High Court to make a preliminary determination on genocide. The government retains full discretion on how, if at all, trade is impacted once a determination is made.

This amendment formalises the government’s long stated position and can break 70 years of inaction

Sir Bob suggests, confusingly, that the government should start proceedings against China at the International Court of Justice (ICJ). Cases at the ICJ are based on consent. If a State, such as China, has a reservation to the Genocide Convention, then action at the ICJ is impossible. But this does not absolve countries with reservations, or the UK, of their obligations to prohibit, prevent or punish genocide.

Surprisingly, Sir Bob suggests we risk undermining "the ICJ system”. He misses the point. A formal determination by the High Court will reinforce our international obligations by ensuring that the government does something to respond to genocide. This in no way precludes other international legal options (where available).

Currently, no formal processes exist, and the government’s official policy is that genocide determination is for a court. Which court? The UK has never applied to the ICJ for such a determination in any situation where the ICJ has jurisdiction. In response to the very thing Sir Bob suggests the government should do (even though it cannot), the government does nothing but repeats the mantra that a court needs to determine genocide first.

It is worth noting that the government’s 11th hour proposal for the Foreign Affairs Committee to deal with the issue is misguided, or worse. The FAC already has a power to assess and make recommendations on alleged genocide; it did so with the Yazidis in 2016, the Rohingyas in 2017 and the Uyghurs in 2020. The government did nothing. Government advice to Ministers, leaked on 3 February, suggests that even after FAC assessments in the future the government could ignore them on the grounds that genocide determination is for courts! This amendment formalises the government’s long stated position and can break 70 years of inaction.

There is little doubt about the principle marrying with the law. Note the list of supporting lawyers: former Supreme Court Justices, Lords Hope and Brown; former Director of Public Prosecutions, Lord Macdonald; former Lord Chief Justice, Lord Woolf; Baroness Kennedy QC; Lord Pannick QC; Lord Anderson QC; Sir Geoffrey Nice QC among others.

Churchill, Macmillan and Maxwell-Fyfe, were at the forefront in developing international legal instruments to ensure that the horrors of WWII were not repeated. After Rwanda, Bosnia, Iraq and Syria (Yazidis) and Myanmar, delivering on the promise of ‘never again’ falls on this generation. This amendment allows the UK to lead the world in upholding our principles and laws and being a beacon for others to follow.

 

Aarif Abraham is a Barrister specialising in public international law and international criminal law. He has advised on the Genocide Amendment.

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