18 January 2021

MPs must vote with their conscience and back the Genocide Amendment


Tomorrow, Tory MPs have to decide which is more important to them: their conscience, or career advancement. They have a chance to vote for an historic amendment that will end decades of dither over action to stop genocide, and in so doing to be on the right side of history.

The Genocide Amendment to the Trade Bill has been brought by Sir Iain Duncan Smith and former minister Nusrat Ghani, with strong support from opposition parties, including Shadow Foreign Secretary Lisa Nandy. It already passed the House of Lords last month with a thumping majority of 287 to 161, and has the backing of the former Lord Chief Justice, former Supreme Court judges, the former heads of the RAF and MI5, former Conservative and Labour Cabinet ministers, bishops and all of the opposition parties. The amendment also has the backing of the Board of Deputies of British Jews, the Muslim Council of Britain, Humanists UK and the International Bar Association, so it can hardly be dismissed as a crank or fringe initiative. For all that, the Government strongly opposes the amendment and is putting pressure on its MPs to vote against.

What does the amendment seek to do?

Quite simply, to end the circular argument about genocide determination and remove any excuse for inaction or, worse, appeasement. 

For decades, governments of both parties have argued that it is not for politicians to determine genocide, as it is a legal question – and therefore for the courts. Foreign Secretary Dominic Raab has been making this very argument in recent days, including yesterday on The Andrew Marr Show when he said of the persecution of the Uyghurs by the Chinese Communist Party (CCP) regime: “Whether or not it amounts to genocide … is a matter for the courts.” I agree.

The problem, however, is that the international justice system ain’t fit for purpose, especially where China is involved. China is not a party to the Rome Statute, so a referral to the International Criminal Court (ICC) can only be made by the UN Security Council – and remember who has a veto there? Given that China would veto referrals of other potential genocidal states, it is naïve in the extreme to think that it would ever allow a case against itself to be referred. The ICC has been emasculated by the CCP and is a non-starter. 

And while a case against Myanmar has been brought to the International Court of Justice (ICJ), it took The Gambia to bring it. That’s because the ICJ requires state-to-state litigation, and given that more influential powers were unwilling to pursue the case against Myanmar, it is far harder to imagine any filing a case against China, or another significant power suspected of genocide.

And in any case, China has a reservation on the jurisdiction clause at the ICJ, so a case could not be brought by a state party – and would never be referred by the Security Council. No UK court is currently empowered to make a determination. Dominic Raab needs to tell us how he intends to enable the courts to make the decision which he repeatedly says should be left to them. The principle that a UK court might lead the world should instinctively appeal to him. 

This amendment offers a way forward, a chance to break the logjam. Any victim, survivor or affected party from an alleged genocide could – if the amendment is passed – bring a case to the High Court of England and Wales, to seek a “preliminary determination”. The Foreign Secretary yesterday queried whether our courts would be equipped to conduct an investigation, but that’s not what they would be asked to do. The amendment would not mandate our courts to conduct criminal proceedings – but simply to give a legal judgment, based on the evidence presented to them, as to whether or not any given situation constitutes genocide.

Much misinformation has been spread about this amendment. For example, welcome though it might be to finally admit that the killing of 1.3 Armenians was a genocide, ministers are talking humbug when they say that this amendment would reopen such questions. It is specifically limited to the here and now. Unless he wants to be known as Dom Quixote, the Foreign Secretary should stop tilting at imaginary windmills.  And MPs should carefully study the fine print of the amendment and the briefing material circulated, rather than taking ministers and whips at their word.

If the High Court reaches a conclusion of genocide then, under this amendment, Britain would be obliged not to engage in a trade agreement with the state responsible. It doesn’t affect trade with the vast majority of countries, because the bar is high. It doesn’t affect multilateral trade agreements, because it applies only to bilateral deals. But as British barrister Sir Geoffrey Nice QC, who led the prosecution of Slobodan Milosevic, rightly argues, “this is manifestly proportionate. No well-ordered state would want to be trading with a genocidal state”.

I have walked through the refugee camps in Bangladesh where over a million Rohingyas now exist in crowded, unsanitary conditions having fled the campaign of terror unleashed by the Myanmar army in 2016 and 2017. I have talked with people like 16 year-old Khalida, who told me, lying prostrate and almost immobile on the floor of her bamboo hut, how she had been shot multiple times and left for dead, hidden among hundreds of corpses. At least 300 had been killed in her village alone, including her father, two sisters and a brother. Her surviving 18-year-old brother Mohammed found his sister amidst the corpses, still alive, and carried her across the border from Myanmar to Bangladesh. She was a victim of a genocidal campaign that left thousands dead, unknown numbers of women and girls raped, babies and children thrown into fires and villagers lined up and shot.

I have also sat with Uyghurs from China whose harrowing stories should stir the conscience of the world. One witness to the Conservative Party Human Rights Commission (CPHRC) China inquiry last year recounted that the Chinese Communist Party regime particularly aims to “wipe out” three categories of Uyghur: “intellectual Uyghurs, rich Uyghurs and religious Uyghurs”. The regime’s campaign of forced sterilisation, religious persecution and the incarceration of over a million Uyghurs in concentration camps underline that claim. “Fifteen members of my entire extended family were seized and are in concentration camps,” she said.

The CPHRC report ‘The Darkness Deepens: The Crackdown on Human Rights in China 2016-2020’ made headlines last week thanks to its vivid portrayal of a regime whose assault on human rights is not limited to the Uyghurs. China’s assault on freedom includes the dismantling of democracy in Hong Kong, intense repression in Tibet, the worst crackdown on Christians since the Cultural Revolution, the construction of an Orwellian surveillance state, the use of forced televised confessions, forced organ harvesting and forced labour. Human rights defenders, lawyers, civil society activists, citizen journalists, bloggers, whistleblowers and dissidents disappear, and foreign nationals are not safe either, as evidenced by the fact that two Canadians, Michael Kovrig and Michael Spavor, continue to be held hostage and Chinese-born Swedish national Gui Minhai was abducted from Thailand and is now serving a 10-year jail sentence in a Chinese prison.

The report calls for a complete re-think of Britain’s relations with the regime in Beijing, targeted sanctions and co-ordinated international action. 

Mr Raab was quite right to say yesterday that “frankly, we shouldn’t be engaged in free trade negotiations with countries abusing human rights well below the level of genocide”. And his robust statement on slave labour in Xinjiang last week, and the measures it contained, was very welcome.

But let’s dispense with the theory and be practical. If we’re not willing to create a mechanism to determine the ‘crime of crimes’, how can we have a hope of acting against other serious offences? If the Government says it’s for the courts, but the courts aren’t empowered to act, we will continue going around in circles while the perpetrators of atrocities continue their reign of terror with impunity.

As MPs vote tomorrow, the words “Never Again” – repeated ad nauseum after Rwanda, Srebrenica, Darfur, the Yazidis and Christians under Daesh, the Rohingyas and now the Uyghurs – should echo in their ears. In almost a week’s time, it will be Holocaust Memorial Day. Tomorrow is the day to take a stand, and to say, 75 years on, that we’re going to make the words “Never Again” actually mean something.

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Benedict Rogers is a human rights activist and writer. He is the co-founder and Deputy Chair of the UK Conservative Party Human Rights Commission.

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