Defeat of genocide amendment is not a cause for despair

Screenshot from Twitter of alleged Uyghur prisoners, blindfolded and cuffed being loaded on to trains. (Via Jewish News)
Screenshot from Twitter of alleged Uyghur prisoners, blindfolded and cuffed being loaded on to trains. (Via Jewish News)

Last Tuesday was a good day for progress on tackling the genocide of the Uyghurs. In one of his very last acts as United States Secretary of State, Mike Pompeo determined that the atrocities perpetrated by the Chinese Communist Party regime against the Uyghurs constitute genocide. His successor, Antony Blinken, immediately agreed, stating at his confirmation hearing in the US Senate that: “On the Uyghurs I think we’re very much in agreement. And the forcing of men, women and children into concentration camps, trying to, in effect, re-educate them to be adherents to the ideology of the Chinese Communist Party, all of that speaks to an effort to commit genocide.”

Within an hour of Secretary Pompeo’s announcement, the House of Commons came within just 11 votes from defeating the government and passing an amendment to the Trade Bill that would allow our courts to determine genocide.

That the government defeated the amendment is no cause for despair – instead, the fact that 33 Conservative MPs, including a former party leader, several former ministers and the chairs of the foreign affairs and defence committees, rebelled and voted for the amendment, alongside broad cross-party support, is a great encouragement. Far from being over, the fight to enable the Uyghurs to have their day in court has only just begun.

The genocide amendment started in the House of Lords and was passed by a thumping majority of 287 to 161. Backed by some of Britain’s most distinguished lawyers, including a former Lord Chief Justice and several former Supreme Court  judges, it also has the support of a former Conservative Party chairman, a former Conservative government chief whip and several former Cabinet ministers, as well as the former heads of the RAF and MI5, Church of England bishops and the Labour and Liberal Democrat benches.

In that debate, the Conservative peer Lord Polak quoted the late – and very great – former Chief Rabbi Lord Sacks’ reflections on the genocide in Rwanda. Lord Sacks recalled that there had been at least two warnings of potential genocide in Rwanda and, in his words, “Both times humanity hid its face”. Crossbench peer and prominent barrister Baroness Deech made a similar point, warning that “advance action is needed to prevent genocide. Once it is happening it is too late.”

The International Bar Association, the Bar Human Rights Committee of England and Wales, the Muslim Council of Britain, Humanists UK, the Catholic Bishop of Clifton, the Anglican Bishops of Truro and St Alban’s and of course, most especially, the Board of Deputies of British Jews are publicly supporting the amendment, as are two former Foreign Secretaries – Sir Malcolm Rifkind and Jeremy Hunt, and Bill Browder, the pioneer of Magnitsky sanctions. A Holocaust survivor recorded a powerful video message in support. It is hard to imagine a more impressive, credible coalition.

Lord Alton of Liverpool, who introduced the original amendment, is bringing a new, revised amendment when the Trade Bill comes back to the House of Lords on 2 February. This new amendment retains the most important element – enabling the High Court of England and Wales to make a preliminary determination of genocide following an application from any individual belonging to a national, ethnic, racial or religious group that believes it has a case of genocide, or an organisation on their behalf. This fulfils the principal objective of the amendment – to create a mechanism for genocide determination.

However, in response to the government’s objections, the new amendment replaces the original requirement that any ruling of genocide by the High Court would automatically require the termination of trade agreements with the states accused with, instead, a requirement that – in the event of a genocide determination – the government set out its response to both Houses of Parliament. That response could include, but is not limited to, termination of relevant trade agreements.

In other words, the new amendment does two key things. It answers the government’s policy that genocide is a matter for the courts, not Parliament, to decide. Unlike the US administration, the British government – in keeping with successive governments of both parties over many decades – insists that genocide is, as the Prime Minister put it on Wednesday, “a judicial matter”. And it addresses the current logjam where no court is able to consider genocide cases where China has an interest, because China has veto power over referrals to the International Criminal Court.

But it also answers the government’s concern about Parliamentary supremacy, allowing courts to make the genocide determination and Parliament to decide the policy response. It only applies to bilateral trade agreements, it establishes due process and it makes provision for rules of evidence and standard of proof.

The amendment does not – contrary to the government’s misleading argument – mandate our courts to conduct full investigations or criminal prosecution. It simply empowers the High Court to make a preliminary determination based on evidence presented to it. And who can doubt the capability of our High Court to do that?

The government has a valid point in arguing that genocide determination is for the courts. And it has a valid argument that it should be for Parliament, not the courts, to set policy. This amendment enables both. What the government cannot and must not be allowed to get away with any longer is the vicious circle of inaction in which it argues that genocide is for the courts to decide but opposes giving the courts the power to decide. Such a policy amounts to appeasement of – or worse, complicity with – genocide.

A few years ago, Boris Johnson described the then government’s refusal to recognize Daesh’s atrocities against the Yazidis as genocide as “baffling”. Now is his chance to end his bafflement and that of the rest of the country – baffled that the Government is not championing rather than resisting the amendment.

The Prime Minister was right to describe the plight of the Uyghurs as “utterly abhorrent”. Dominic Raab describes the Uyghurs suffering atrocities “on an industrial scale”. The Chief Rabbi is absolutely correct to speak out in the face of what he calls “an unfathomable mass atrocity”. And what was clear from the debate in the House of Commons this week is MPs on all sides now know the truly horrific scale of the atrocities perpetrated against the Uyghurs – and atrocity crimes that are being committed elsewhere in the world too, particularly against the Rohingyas. They have no excuse for inaction – the revised amendment in the House of Lords provides a way forward, around which Parliamentarians on all sides in both Houses should unite.

Readers should contact Peers before 2 February to urge them to support this new amendment, and should encourage their Members of Parliament to do so too when it returns to the House of Commons. Victims of the “crime of crimes” – including the Uyghurs – deserve their day in court, and that day is getting closer. As we remember the Holocaust this coming week, let’s make the words “Never again” finally mean something.


About the Author
Benedict Rogers is co-founder and deputy chair of the Conservative Party Human Rights Commission
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