The Genocide Amendment: Suitability of the High Court (Part II)

by | Jan 27, 2021

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About Ewelina U. Ochab

Ewelina U. Ochab is a legal researcher, human rights advocate and author. Ochab works on the topic of the persecution of minorities around the world, with main projects including Daesh genocide in Syria and Iraq, Boko Haram atrocities in West Africa, and the situation of religious minorities in South Asia. Ochab has written over 30 UN reports (including Universal Periodic Review reports) and has made oral and written submissions at the Human Rights Council sessions and the UN Forum on Minority Issues. Ochab is currently working on her PhD in international law, human rights and medical ethics. Ochab is a Contributor to Forbes. She has also published in HuffPost, the Providence Magazine, Oxford Human Rights Hub, UnHerd, and Washington Examiner.

In the previous post, I highlighted the UK Government’s reluctance to endorse the Genocide Amendment. A central objection raised by the Government was that the determination of genocide should be made by ‘international judicial bodies’ and not the High Court. In one of its responses, the UK Government argued that it would accept as a rightful determination an order made by an international court, such as the International Criminal Tribunal for the former Yugoslavia’s (ICTY) judgment in the case of Ratko Mladić, namely, the final judgment made by the ad-hoc tribunal. This response poses several problems.

First, the judgment in the case of Ratko Mladić refers to individual criminal responsibility for genocide in the case of the Bosnian genocide, and not the interim determination of genocide for the purposes of informing a state’s responses. Second, waiting for such a judicial determination for over a decade after the genocide has been perpetrated means that the UK would not be able to trigger the duty to prevent, under Article I of the UN Convention on the Prevention and Punishment of the Crime of Genocide(Genocide Convention) and as discussed by the International Court of Justice (ICJ) in the case of Bosnia and Herzegovina v Serbia and Montenegro.

Furthermore, if this determination, as according to the UK Government, is dependent on an ad-hoc tribunal, or even the International Criminal Court (ICC), such determination would not be made in many situations. For instance, the cases of the Uyghurs in Xinjiang and the Yazidis and Christians in Iraq could not be considered and determined by international judicial bodies, as currently there is no international tribunal with jurisdiction. Further, any attempt to refer these situations to the ICC by the UN Security Council could be vetoed by one of the permanent members. The same applies to establishing an ad-hoc tribunal, which can be done only by way of a UN Security Council resolution. The Government said little about the option of the ICJ dealing with the issue, and indeed, despite leaving the question of genocide determination to international judicial bodies, the UK does not engage with the ICJ, as discussed below. 

The Government’s response also misses the elephant in the room. The UK, and not international judicial bodies, are the duty bearers under the Genocide Convention. The UK has a questionable legacy of triggering the duty to prevent genocide when it learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. The underlying reason for this failure is that the UK does not conduct its own analysis of the risk factors of genocide, in order to determine the situation as posing a risk of genocide. The UK instead voluntarily delegates this to the ‘international judicial systems.’

However, ironically, despite relying on the argument, the UK does not engage with international judicial bodies to make such determination. For example, The Gambia initiated proceedings against Myanmar at the ICJ, alleging that the Government of Myanmar was involved in atrocities against the Rohingya Muslims, in violation of the Genocide Convention. A few months later, Canada and the Netherlands supported the initiative. The UK, however, continues to only monitor the situation. The underlying message is thus that while the UK wishes international judicial bodies to determine genocide, it will not do anything to initiate or support such action to ensure that an international judicial body indeed makes such a determination.

In this context, the Genocide Amendment has the potential of strengthening the UK’s responses to genocide. It would enable the High Court to make an interim determination of genocide that in turn could help the Government inform its responses. It would thus ensure that the UK is not complicit in genocide perpetrated by its trade partners. Of course, the Genocide Amendment does not change the fact that the individual criminal responsibility will need to be determined by domestic criminal courts or international criminal tribunals, or that state responsibility would need to be determined by the ICJ. The Genocide Amendment would however enable the UK to take back control over some aspects of its genocide response. About time. However, more work is needed there.

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