Image: Malcsb via Creative Commons
In the 75 years since the end of the Holocaust, the UK has never officially recognised an ongoing genocide. Yet, every year on 27th January - Holocaust Memorial Day - politicians fall over themselves to look down a TV camera lens and say: ‘never again’.
According to the UK’s long-standing position on genocide determination, it is a matter for the international judicial system, not British courts nor politicians. But as the evidence of atrocities carried out against Uighur Muslims and other social, religious and ethnic minorities in China’s Xinjiang region grows, the inadequacies of this stance are once again becoming painfully apparent, igniting a bitter parliamentary row.
Under the United Nations Convention on Genocide, drawn up in 1948, genocide – actions “committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group” – may consist of five acts:
1. Killing members of the group
2. Causing serious bodily or mental harm to members of the group
3. Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part
4. Imposing measures intended to prevent births within the group
5. Forcibly transferring children of the group to another group
Around 2 million Uighurs and Muslim minorities are thought to have been held in “political camps for indoctrination”. In recent months satellite photos, witness statements and leaked Chinese state documents have substantiated reports of mass internment camps, forced sterilisations and abortions and the transportation of Uighur children out of their communities. Despite the rapidly accumulating evidence, very few states have taken a robust position on the question of genocide determination.
In the US, the outgoing Secretary of State, Mike Pompeo, referred to the crisis as an “ongoing” genocide and in Canada, despite President’s Trudeau’s decision to abstain, Parliament has voted in recognition of the Uighur genocide. Meanwhile in the UK, legal experts at Essex Court Chambers have expressed their professional opinion that there is a “very credible case” that the Chinese government’s actions amount to genocide.
In contrast, Boris Johnson’s administration has been chronically tentative in its condemnation of China. Foreign Secretary Dominic Raab has called for UN investigators to be given access to Uighur camps in Xinjiang and indicated his belief that human rights abuses are being carried out on an “industrial scale”.
But, Boris Johnson has repeatedly rebuffed calls to take stronger action against China. He recently dismissed the suggestion of a Team GB boycott of the Beijing Winter Olympics 2022, insisting instead that: “we're leading international action in the UN to hold China to account and will continue to work with the US friends and partners around the world to do just that”.
The British Government is waiting for an international court to determine whether a genocide is occurring in the Xinjiang region before it significantly ramps up its response to the Chinese Communist Party’s human rights offences. The problem is that these international courts are interminably slow and more concerningly, mired in complex diplomatic considerations.
"The UK government is limited in its ability and readiness to act punitively"
In December 2020 the International Criminal Court (ICC) declared it would not investigate allegations of genocide carried out by the Chinese state. The Chief Prosecutor, Fatou Bensouda, explained that as the alleged crimes occurred in China, a state which is not party to the Court as it has not ratified the Rome Statute, the Court is not able pursue charges.
The ICC can still prosecute crimes that occurred in states that are not party to the Court if the investigation is referred to the Chief Prosecutor via the UN Security Council. Given China and Russia’s veto powers as members of the Security Council, this route is also blocked.
And so, Uighur Muslims are stuck in legal limbo.
This is a situation that has played itself out again and again, the atrocities carried out against Rohingya Muslims in Myanmar serving as another recent example of the trend. Without an international court that is able to determine a genocide, the UK government is limited in its ability and readiness to act punitively.
The latest move to break this stalemate in the UK came in the form of an amendment to the UK Trade Bill, which is currently undergoing a protracted ‘ping-pong’ process between the Houses of Commons and Lords.
The so-called ‘genocide amendment’ was first introduced in the House of Lords late last year and quickly gained cross-party support, as well as the backing of several Holocaust survivors and leading human rights organisations including Amnesty International. It intended to give British courts the right to block attempts to establish trade deals with states they found to be carrying out genocide. In a roundabout way this would permit the British legal system to officially recognise a genocide without the need for a prior international court determination. In doing so it both adhered to the traditional stance that genocide determination is a matter for judges not politicians, whilst avoiding the problems presented by the international judiciary system.
"the whole affair represents a missed opportunity"
The amendment was backed by the Lords but overturned in the Commons due to the Johnson cabinet’s use of bill-bundling techniques designed to discourage a Tory rebellion. The move has been described as appalling “parliamentary games” by Conservative backbench MP, Nusrat Ghani, and “the worst piece of parliamentary jiggery pokery” Labour MP for Rhondda, Chris Bryant, claimed he had seen in 20 years.
Following the defeat, the government put forward its own watered-down version of the amendment, proposing that a select committee examine claims of genocide in place of a judicial body. This committee would have the power to trigger a Commons debate on upcoming trade deals if they found reports of genocide to be credible.
In a bid to restore the crucial element of robust legal analysis that the original amendment set out, Lord Alton tabled a new proposal which would first initiate a select committee report then refer the matter to a panel of five peers and MPs with experience in “high judicial office”.
On 22nd March this latest incarnation of the ‘genocide amendment’ went before the House of Commons. Despite several high-profile Tory rebellions, including from former foreign secretary Jeremy Hunt, the House voted against Lord Alton’s proposal 319 to 297, instead voting in the Government’s limp proposition.
Although the passing of any form of ‘genocide amendment’ is a step forward and has been welcomed by campaigners, the whole affair represents a missed opportunity to substantially reform the UK’s ineffective genocide determination stance.
Boris’ Brexit Britain
Whilst many onlookers have begun to lose interest in the issue amidst the convoluted parliamentary row, the debacle illustrates just how entrenched the current government is on the issue.
"The original ‘genocide amendment’ aimed to introduce a new form of moral compass"
The bill introduced by Lord Alton was by no means radical. The peer himself described it in a Lords debate as "a modest attempt to begin to address some of those failings". The judicial recognition of genocide would be non-binding; it would merely inform Parliament’s decision rather than dictate it. Yet Johnson resorted to extreme underhand tactics to prevent the Tory rebellion that was expected to usher in this change.
One needn’t be a conspiracy theorist to suggest that the current government’s great reluctance to pass any measure that could force it to take serious punitive action against China may be a result of the Communist state’s economic heavyweight status in combination with the UK’s chronically uncertain post-Brexit position.
For reference, in 2019 the UK exported a record £30.7 billion of goods and services to China, making it its sixth largest export market.
The original ‘genocide amendment’ aimed to introduce a new form of moral compass to navigate the UK through the economic waters of our post-EU age. Its demise serves as yet another grim indicator of the ethical sacrifices Johnson’s government is prepared to make in order to bring his Brexit vision to fruition.
The situation remains that without domestic or international legal genocide determination, the UK will continue to fail in its undertaking under the UN Genocide Convention, to prevent and punish mass atrocities.