Robert Wilcox
“Then they came for me – and there was no one left to speak for me”.
From Martin Niemöller’s poem, First They Came
Last week, MPs voted against a proposal intended to prevent the UK from entering into trade deals with countries that the High Court deems guilty of genocide. This proposal, introduced as an amendment to the government’s post-Brexit Trade Bill, received cross-party support in the House of Lords but was defeated in the House of Commons due to the overwhelming majority enjoyed by the government. Even a rebellion by 33 Tory backbenchers was not enough to swing the vote.
Genocide is one of the most despicable crimes known to humankind. The term was coined by Polish jurist, Raphael Lemkin, by combining geno (from the Greek word, genos, meaning race or kin) and cide (from the Latin verb, caedere, meaning to kill). In the aftermath of the Holocaust, when the Nazi regime systematically murdered an estimated six million Jews, the United Nations General Assembly unanimously adopted the Convention on the Prevention and Punishment of the Crime of Genocide (“the Convention”).
With the adoption of the Convention, the term genocide was finally recognised in international law. It is defined in Article 2 of the Convention as certain acts which are “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Together with war crimes, crimes against humanity and the crime of aggression, the crime of genocide underpins the body of law known as international criminal law. Whereas international law generally limits itself to regulating the conduct of states, it has long been recognised that there are some crimes so egregious, so utterly shocking to humanity as a whole, that the individual perpetrators can be held accountable by the international community.
As stated in the preamble to the Convention, “at all periods of history genocide has inflicted great losses on humanity”. One of the earliest recorded genocides is that of the near destruction of the Aboriginal Tasmanians by British colonists during the Black War, which raged from the mid-1820s to 1832. However, it would be a mistake to think that genocide is reserved to the history books. Today, China stands accused of committing genocide against its Uighur Muslim population. Amnesty International and other human rights groups have reported that at least one million ethnic Uighurs are being forcibly detained in detention camps in Xinjiang, a region in north west China.
The situation in Xinjiang was very much on the minds of MPs when the amendment was debated in the Commons. The government sought to defend its opposition to the amendment by arguing that trade policy is a matter for our government, not our courts. Yet, simultaneously, it has been suggested that the amendment was inappropriate because genocide should be left to the international courts. The government also, rather bizarrely, emphasised that the UK does not currently have a free trade deal with China and maintained that the amendment should not be enshrined in law for that reason. These arguments are contradictory, flawed and inimical to human rights.
Genocide is a legal concept, with the criteria for making such a ruling clearly set out in the Convention. Therefore, it is entirely appropriate for judges, who bear the constitutional responsibility of applying the law, to apply the criteria for genocide, having regard to all the evidence available to them. It would also ensure that such rulings are rendered in accordance with the law alone, not swayed by lobbying or the equivocations of foreign policy.
It is certainly not unprecedented for the courts to render judgments that impact on a government’s domestic and foreign policies. They do so regularly through the mechanism of judicial review. It is perhaps for this reason that our current government is so uneasy about giving judges more power to make findings that could generate political scandal. This government often finds itself on the wrong side of the law, whether it is in relation to its treatment of asylum seekers or its approach to arms sales. As discussed in a previous blog post, the Court of Appeal, in the case of R (on the application of Campaign Against the Arms Trade) v Secretary of State for International Trade [2019] EWCA Civ 1020, held that the government’s grant of export licences for arms sales to Saudi Arabia was illegal because the government had a policy of disregarding violations of international humanitarian law, the body of law concerned with the protection of civilians during conflict, when making these decisions.
Those who say that genocide should be left to the international courts fail to appreciate that, despite its achievements in promoting respect for human rights, the United Nations is hindered by a number of weaknesses (as shown by its track record when it comes to taking action). The Rome Statute of the International Criminal Court established a permanent, international court for the purpose of prosecuting individuals for violating international criminal law, and there have also been a number of international criminal tribunals set up to address some of the darkest periods in human history. Despite the progress made, however, there are two significant problems. Firstly, the five permanent members of the United Nations Security Council (China, France, Russia, the UK and the USA) each have the power to veto a resolution. If a resolution is unfavourable to itself or its allies, a P5 state can veto it, thereby preventing action from being taken. Secondly, states must consent to the jurisdiction of the international courts. Any state that fears an unfavourable ruling will simply withhold that consent.
It is worth stating that, in some ways, invoking the role of the international courts is nothing more than a distraction. It fails to address the real question here, which is should our courts be given the power to make a finding of genocide in order to prevent the government, and future governments, from entering into trade deals with genocidal states? The obvious answer to that question, if the UK’s claim to be a country which stands up for human rights is to be taken seriously, is yes. The government’s attempt to undermine the significance of the amendment to that claim, by noting the absence of a trade deal with China, is contemptible. It is obvious what this amendment is driving at; it is intended to give the government pause about any trade deals it has made and any trade deals it intends to make in the future. This is a valid concern given its apparent willingness to deal with foreign governments with extremely poor human rights records.
Work on a redrafted amendment has already begun. Please write to your MP, asking that they support the effort to stop the UK from trading with genocidal states. Though it may come as a shock to ministers, some things are more important than money.
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