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Amendment to UK Trade Bill could be an immense step toward genocide prevention

3 February 2021

The UK is poised to set an outstanding precedent for genocide prevention through a recently proposed ‘Genocide Amendment’ to the Trade Bill, although not all are in favour.

The amendment, drafted in response to alleged genocide by China against Uyghur Muslims in the Xinjiang province, would empower the High Courts of England and Wales to establish preliminary rulings on the occurrence of genocide in another state. The government would then be required to revoke any trade agreements with countries where potential genocide is found by domestic courts. If enacted, complaints to the High Court could be invoked over UK engagements with any state allegedly implicated in genocide. Given also Myanmar’s genocidal crackdown on the mostly Muslim Rohingya minority, the significance of such potential judicial decisions could be monumental.

The proposed Trade Bill amendment would be an important step in ensuring that the UK strengthens its obligations under the 1948 Genocide Convention in taking active measures toward genocide prevention. Any court ruling determined by way of this act would enhance human rights advocacy and strike a meaningful blow against impunity towards genocide. Such High Court decisions could be used to focus international pressure on states implicated in atrocities, stem violence and strengthen adherence to human rights standards. The enactment of such an Amendment would raise the bar for human rights and set a positive precedent for other countries to follow the UK’s example.

Yet controversy stirred at the UK House of Commons, where 33 Conservative MPs sided against their own party to support the amendment, along with opposition Labour and Liberal Democrats. Unfortunately, this was not enough to defeat Prime Minister Boris Johnson’s narrow majority to reject the proposed amendment to the Trade Bill.

At the heart of parliamentary objections to the proposed amendment is the notion of relinquishing parliamentary ‘sovereignty’ to the High Court, blurring the constitutional separation of powers. However, it is important to remember that any judicial authority over parliament established by the amendment would only be invoked in the event of court findings of the world’s most heinous crime; the determination of which entails significant legal and evidentiary complexity. Can we truly say that the UK government is equipped to make an impartial assessment of genocide on its own authority? Better yet, can we trust it to? If so, we would be asking persecuted minorities, be they Uyghurs in China or Yezidis in Iraq, to put their faith in majority political elites to defend them. Just two years ago, the Trump administration declined to label Myanmar’s campaign against the Rohingya a genocide, while in 2016 it was the UK parliament’s own position that genocide determination was a matter for courts, not politicians.

We often see domestic economic interests and diplomatic relations take priority over international human rights. Why else would the UK have engaged in arms deals with Saudi Arabia despite its atrocities in Yemen; trade which the UK court of appeal then deemed unlawful in 2019, and the severity of which is indicated by President Joe Biden’s recent suspension on arms sales to the country. In an ideal world, we might also seek to advocate for the expansion of the proposed extension of judicial powers over trade agreements to be applicable to war crimes and crimes against humanity as well. But such aspirations will likely be shut down in parliament as they would stand in the way of UK political or economic interests, such as its recently signed free trade arrangement with Turkey.

Similarly, proving genocide in international courts will not guarantee that consequential action will be taken in time for the UK to pre-empt further violence and atrocities, as is mandated to all parties of the Genocide Convention.  After all, the mere existence of international courts has not always made it possible to generate a system of accountability for genocide, especially while it is still taking place. China for example, is not a member of the International Criminal Court (ICC), therefore the ICC has no jurisdiction to determine whether genocide is taking place in the country. Current international legal measures and remedies are more punitive than preventative. The Genocide Amendment to the Trade Bill allows for UK courts to fill the gaps of international court jurisdiction and take significant steps toward the prevention of genocide and potential complicity through trade.

After the narrow defeat at the UK House of Commons, a refined amendment to the Trade Bill will be presented and voted on again in the UK House of Commons on 9th February. The UK has a chance to set a positive example to the world, and a chance to show that it truly believes in the necessity to uphold and respect human rights.

By Mays Al-Juboori

Photo: British Parliament. Credits: Rennett Stowe / Wikimedia Commons

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