The Genocide Amendment Explained
By Emily Fielder
China’s treatment of the Uyghurs in the Xinjiang region is finally receiving sufficient media and public scrutiny, especially following the BBC’s report last week which detailed harrowing accounts of systematic sexual abuse, slave labour and torture. It is thus fitting that, tomorrow, the second vote on the genocide amendment (otherwise known as the Alton amendment) to the Trade Bill will be taking place in the Commons. So, what is the genocide amendment and why has it received such extensive cross-party support?
Genocide Determination: The Judicial Context
It has long been government policy that genocide determination is a matter for judicial review, rather than for governments or non-judicial bodies. However, especially in the case of China, this is not always possible. Neither of the two main international criminal courts has the jurisdiction to hear the case against China. The International Criminal Court (ICC) is based upon the Rome Statute, to which China is not a signatory, whilst China also has a reservation to the articles of the International Court of Justice (the judicial organ to the UN), which means that it reserves to right to not bind itself to any of the court’s stipulated obligations. It has also publicly expressed that it will not permit any jurisdiction by this court with regards to its Uyghur ‘re-education’ policy. The only court which can therefore make a genocide determination against China is a domestic one, which proponents of the genocide amendment contend is, in any case, a far more proactive approach considering that international determinations and prosecutions of individuals typically occur years after genocide has occurred, and thus does not prevent it from taking place.
The First Amendment and its Principal Objections
The original amendment, tabled by Lord Alton, proposed that if the High Court found that a state with which the UK had a bilateral free trade agreement (FTA) on preferential terms was committing genocide, that any such deal would be immediately revoked to ensure that the UK is not complicit in any such crime by trading with the state on preferential terms. This amendment received significant support in the House of Lords (287 to 161) but was narrowly defeated in the House of Commons (319 to 308). However, despite its defeat, a notable number (33) of Conservative MPs, including former cabinet ministers David Davis and Damian Green, defied the whip and voted in favour of the amendment, with Sir Ian Duncan Smith as its most high-profile proponent.
The principal objection to the amendment was that to allow an abrogation of an FTA by a court is to undermine both the fundamental constitutional principle of the separation of powers, and parliamentary sovereignty, with Greg Hands, the Trade Minister, denouncing it as a ‘completely unprecedented and unacceptable erosion of the royal prerogative.’
The Revised Amendment
The revised amendment seeks to address this concern by proposing that, once a determination of genocide is made by a domestic UK court, the Lord Chancellor would lay it before both Houses of Parliament, and a Minister of the Crown would subsequently arrange for a motion to be debated in both Houses. The amendment thus retains the principle that genocide determinations should be made in a court of law, as if a political body made any such declaration it could be undermined by allegations of political bias, but the hope is now that continuing or signing FTAs with genocide-committing states will come under much greater scrutiny and will thus make doing so politically very difficult. This proposed change is not without precedent either; currently, under provisions of the Human Rights Act (2000), if a UK court rules that a primary piece of legislation does not comply with human rights stipulations, this must be debated in the Houses of Parliament, in order that it can come under proper parliamentary scrutiny and revoked if necessary.
Advocates of the amendment also believe that, if the UK does take economic action against such states, other liberal democracies will take similar measures, just as the UK and Canada jointly imposed travel bans and asset freezes on Belarus officials following concerns over election fraud and violence against protestors last year. This marks a noticeable shift away from united action from established international bodies such as the UN, with domestic courts and political bodies imposing measures of their own, either independently or in conjunction with one another.
Government Reaction
Despite this revision to the amendment, the government has continued with its objection and has ordered its MPs to vote against it. However, it is clearly wary of the possibility of losing the vote and have offered a ‘compromise,’ promising to grant a Foreign Affairs Select Committee powers to make genocide determinations and inform parliament. However, their use of the word ‘compromise’ is a misnomer and the idea has been condemned as a wrecking amendment. The select committee already has the power to produce reports on genocide and to make recommendations, but when it unanimously declared that the treatment of the Yazidis by IS was genocide in 2016, which later went to a Commons vote, the Foreign Office told ministers to abstain, declaring that it was wrong for Parliament to act as a jury in a case that may yet be referred to an international criminal court. The Government thus appears to be decidedly against any amendment that may jeopardise future trade agreements, especially this soon after Brexit. It’s worth pointing out here that, in 2019, imports and exports with China were worth £80 billion. Tuesday’s Commons debate and vote over this issue will surely be a fascinating watch.