The Genocide Amendment: Why is the UK Government dragging its feet? (Part I)

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.

On 7 December 2020, the House of Lords debated the Trade Bill that defines the UK’s post-Brexit trade relationships and engaged with the question of what should happen if the trading partner stands accused of committing genocide. A few members tabled a cross-party amendment, the so-called Genocide Amendment (also known as the Alton Amendment) that aims to equip the High Court to make a determination of genocide, a determination that could then be subsequently used to revoke international bilateral trade agreements with the state standing accused of committing genocide.

 The Genocide Amendment received significant House of Lords’ support (287 to 161), affirming that the majority of the House of Lords did not want the UK to trade with states perpetrating genocide. On 19 January 2020, the Genocide Amendment proceeded to the House of Commons. After a vivid debate, where the Genocide Amendment appeared to be of significant focus, at division, it was defeated by 319 to 308. This included 34 Tory rebels. The Genocide Amendment will now return to the House of Lords to consider the amendments, which if agreed upon, will then go back to the House of Commons, in ping-pong.

The UK Government appears reluctant to support the Genocide Amendment. Despite the fact that the House of Lords’ movers of the amendment made it clear for weeks that they were willing to work with the Government on refining the amendment, the Government refused to consider it. Further, even though the Minister for Trade Policy had the refined version for a week in advance of the debate, he did not appear to be familiar with it, and refused to comment. Finally, despite agreeing that the Genocide Amendment would become relevant only in a very few cases (ultimately, genocide does not happen that often), the Government challenged it at both houses.

Among the claims it made were that this additional power to the High Court would affect the separation of powers, it would enable judicial activism and clog up courts, and that the Amendment being very limited in scope, would amount to virtue signaling alone. All these concerns were addressed in the debates at the House of Lords and the House of Commons. The refined amendment tabled by Lord Alton clarified that while it gave the power to the High Court to make a determination of genocide, such a determination would not automatically revoke the trade deal in question. Instead, once the determination of genocide was made, the Lord Chancellor would lay it before both Houses of Parliament and a Minister of the Crown would arrange for the motion to be debated in each House. The Government would then be required to set out its course of action, which might include a withdrawal or termination of the trade agreement. In other words, the Genocide Amendment respected the separation of powers. Further, the Genocide Amendment was limited in scope, and was much narrower than the earlier Genocide Determination Bill. It was also tailored to the Trade Bill, and only introduced a mechanism to ensure that the UK does not trade with states perpetrating genocide, and so become complicit in the genocide of other states. Its narrow scope meant that it would not necessarily clog up the judicial system with litigation. Despite these clarifications, the Government refused to endorse the amendment.

 What, then, is behind this reluctance? It appears that the UK Government does not want to be constrained in matters of trade, even in cases of genocide. During the House of Lords debate, the Government was called to rethink its trade relationship with China, which stands accused of committing genocide against the Uyghurs. Shortly before the vote, the Minister, in a last attempt to persuade members to vote against the Genocide Amendment, reminded the House of the value of UK’s trade with China: ‘UK/China trade is currently worth approximately £76 billion. China is our fourth-largest trading partner, the sixth-largest export market and the third-largest import market.’ This hints at a prioritisation of trade over the human rights of communities targeted for annihilation.

 In the next post, I specifically deal with the Government’s objections to the High Court as a venue for the determination of genocide.

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