29 January 2021

A revised Genocide Amendment may offer a way forward

By Gray Sergeant

Boris Johnson’s stonking majority is not as unassailable as first thought, as the closeness of the recent vote on a Genocide Amendment to the Trade Bill made clear.

There is growing unrest amongst Tory backbenchers about relations with Beijing. Indeed, some partly credit behind-the-scenes from those MPs for the reversal in the UK’s approach to Huawei.  Last week, however, they very nearly scored an altogether more public victory.

The Genocide Amendment, proposed by crossbencher Lord Alton, was backed by all opposition parties and a sizeable number of Tory rebels. In the end it was defeated by a mere 11 votes (with no vote recorded for eight Conservative MPs).

The amendment ostensibly aimed to prevent the UK from signing a trade deal with a country found to be committing genocide. While that is a noble aim in itself, the amendment also proposed another significant change which would have allowed the High Court of England and Wales to seek a “preliminary determination” on genocide.

This is significant because although the UK government has stated, reasonably enough, that only a court can rule on acts of genocide, it insists this must be an international court, rather than a domestic one. That is a particularly problematic position when it comes to the People’s Republic of China – and it’s no secret that Beijing’s appalling treatment of the Uighurs is what animates many supporters of the Genocide Amendment.

Reports of mass surveillance and repression in the Xinjiang region are now familiar to Western audiences, as is the footage of the disgustingly misnamed “re-education” camps and widespread reports of forced labour. The specific charge of genocide, however, rests on Uighur women’s harrowing testimonies of forced sterilisation, coupled with statistics showing a declining birth-rate among China’s Uighur population.

In the face of such barbarity, hauling China in front of the International Court of Justice, or having the International Criminal Court convict communist party cadres sounds like a sensible solution. However, as Benedict Rogers wrote on CapX last week, given Beijing’s non-compliance with or control over such bodies, it is vanishingly unlikely that such hearings would ever take place.

The Government and its supporters have little response to this crucial point. While the trade minister, Greg Hands, admitted that he was “very interested” in the argument about judicial inertia, he swiftly moved on to say, rather unconvincingly, that it was not a matter for his department.

Likewise, the Government’s insistence that the amendment was unnecessary as they had “no plans for a bilateral trade agreement with China” felt like a decidedly half-hearted justification. There was, however, one rather more convincing argument against the amendment: that it is unconstitutional.

How so? Because, the Government argues, by stipulating that a trade deal could be revoked on the basis of a court’s determination on genocide, the amendment effectively puts government policy in the hands of judges, rather than elected politicians. Indeed, even supporters of the genocide amendment have acknowledged this point. Even I, with a background in human rights, have to grudgingly admit that it was a good point, well made.

Another way?

Fortunately there does appear to be a way out of this dilemma which addresses the constitutional point while also seeking justice for victims of genocide.

Next week Lord Alton will put forward a new draft of his amendment, one which will no longer automatically require the termination of trade agreements with countries found to be carrying out genocide. Instead, the revised amendment says that if the High Court makes such a ruling, the Government must face the scrutiny of Parliament by setting out their course of action, which could include withdrawal or termination of a trade deal.

The fact ministers insist they would not sign such agreements with genocidal regimes should make this new amendment uncontroversial, but do not be surprised if they push back again, or offer only meagre concessions to frustrated backbenchers.

This new and improved genocide amendment is not guaranteed to pass if returned to the Commons. Yet by dealing with the constitutional question it ought to attract the support of Tory abstainers, and maybe even some of those who backed the Government last time round. If successful, however, we will be one step closer to ensuring that the victims of human rights abuses in Xinjiang get some justice. That, as campaigners for the amendment put it, they get their day in court – and about time too.

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Gray Sergeant is a Research Fellow at the Henry Jackson Society’s Asia Studies Centre.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.