The Proposed Genocide Amendment to the UK Trade Bill: Paper Tiger or Self-Inflicted Wound?

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Something is distinctly off with the UK’s engagement with public international law. Whether it be the Overseas Operations Bill, which last week passed its third reading in Parliament, in which the UK proposes to introduce a ‘triple lock’ designed to significantly curtail the circumstance in which members of the UK armed forces accused of committing war crimes will face prosecution, or it be the express intention of the government to violate international law, albeit in a limited and specific way, it seems that Parliament’s appetite for constructive engagement with the rules based international order appears to be at a low ebb. Against this backdrop, and alongside the news that the House of Lords has voted down (by a resounding 433-165) the much-criticised Internal Market Bill, it is worth taking a look at a widely overlooked amendment to the Trade Bill, currently before the House of Lords, which purports to express the UK’s commitment to accountability for genocide through the UK’s post-Brexit trade policy. However, as this post sets out, there is little to applaud in this proposal which, as a matter of international law and policy, is fundamentally flawed.

The purpose of the Trade Bill is to confer powers to adopt regulations to implement a) the Agreement on Government Procurement (section 1(1)), and b) international trade agreements (section 2(1)) upon appropriate national authorities.

The proposed amendment, tabled by Lords Alton, Forsythe and Adonis and Baroness Falkner proposes the following:

Insert the following new Clause—

“Agreements with states accused of committing genocide

Regulations made under section 1(1) or section 2(1) are revoked if the High Court of England and Wales makes a preliminary determination that they should be revoked on the ground that another signatory to the relevant agreement has committed genocide under Article II of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, following an application to revoke the regulations on this ground from a person or group of persons belonging to a national, ethnic, racial or religious group, or an organisation representing such a group, which has been the subject of that genocide.”

According to the Member’s explanatory statement, ‘[t]he purpose of this amendment is to nullify trade agreements made under this Bill if the High Court of England makes a preliminary ruling that they should be revoked on the ground that the proposed trade partner has perpetrated Genocide.’ For those well versed in (or, even, who have a passing familiarity with) international law, little more probably needs to be said. However it may be useful to highlight some of the headline issues to appreciate how the drafters of this amendment have managed to put forward a proposal that cuts across a plethora of general and specialised international law fields and issues and, when doing so, go so spectacularly wrong at every turn.

Firstly, and perhaps, most fatally, it would be ineffectual at achieving its stated purpose. By revoking the regulations for the implementation of the international trade agreements as a matter of national law, the proposed amendment does nothing to nullify the agreements themselves. As a matter of international law, the trade agreement – an international treaty – is still valid and fully enforceable by the foreign treaty partner. By revoking the regulations that enable the UK to comply with its international legal obligations accepted under the impugned trade agreement, the principal legal effect of the proposed amendment – if it were to be adopted and successfully invoked – would be to place the UK in breach of its obligations under international law, which in turn may attract international legal responsibility. The notion that the UK would aim to promote compliance with international law or responsibility for violations of international law where such violations have occurred, by other states, through measures that would only put itself in breach of international law does seem to be, shall we say, somewhat unfortunate. While alleged violations of an obligation erga omnes such as the prohibition of genocide may provide any state with standing to petition the Court of Justice (ICJ) to adjudicate the responsibility of the accused state for violation of that obligation (on this in the context of alleged violations of the Genocide Convention, see The Gambia v Myanmar, at para.41-42) violations of obligations erga omnes would not give rise to a right for non-injured states (such as the UK) to take unilateral counter-measures, such as a breach of a trade agreement.

Turning to the substantive legal and practical realities of litigating genocide. The difficulties encountered when seeking to establish the constitutive requirements of genocide, specifically the dolus specialis, are legion. Not only would it have to be established that a genocide has occurred (that the acts enumerated in Article II of the Genocide Convention were committed with ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’) but that the genocide could be attributed to the State in question. Even if a partner to a trade agreement has, in fact, committed genocide, the possibility that this may be established in law and in fact before any national court is simply inconceivable. We only need to look at the fate of the two Genocide Convention cases before the ICJ arising out of the conflict in the Former Yugoslavia (on the Croatia v Serbia case see here). One might argue that, because the amendment tasks the national court with making a ‘preliminary determination’ (for the purposes of invalidating domestic legislation, the standard of proof required for suh a determination may be lower than that observed by the ICJ in Bosnian Genocide and in Croatia v Serbia when determining state responsibility. However, the ICJ’s position that ‘claims against a State involving charges of exceptional gravity must be proved by evidence that is fully conclusive’ and that it ‘requires that it be fully convinced that allegations made in the proceedings, that the crime of genocide or the other acts enumerated in Article III have been committed, have been clearly established. The same standard applies to the proof of attribution for such acts.’ (Bosnian Genocide [2007] ICJ Rep 43, at para.209) must surely reflect the kind of standard that would be applied by any national court for it to be prepared to make a determination that a foreign state has ‘committed’ genocide. While this may offer a saving grace for a national court – in that it would never find itself in a position where it would make an adverse finding against a foreign state – when faced with the political and diplomatic firestorm that would accompany any such proceedings, such saving grace may seem cold comfort.

On this latter theme, let us turn to the idea that a national court could be asked to determine whether a foreign state has committed genocide, as defined by Genocide Convention. Immediately, this brings to mind questions of state immunity. While parties to the Genocide Convention, such as the UK, undertake to investigate and prosecute individuals who are responsible for genocide wherever it occurs, Article IX of the Genocide Convention confers competence to consider state responsibility under the Genocide Convention upon the International Court of Justice. In this regard, the reference to a ‘preliminary determination’ in the wording of the proposed amendment might be taken as emphasis that the purpose of the envisaged proceedings is not to determine a state’s civil or criminal liability or to make a determination of state responsibility, as such, and thus to establish that those proceedings would fall outside the scope of state immunity. However, even if the envisaged proceedings do not fall foul of state immunity, a determination of fact that a state ‘has committed’ genocide is not without legal nor political significance. We might wish to consider the normative question of whether a national court and national judges should be asked to involve themselves with determining whether a foreign state is responsible for genocide – the ‘crime of crimes’. We only need to pause briefly to begin to imagine the political and diplomatic fallout – both internationally and domestically – should proceedings such as those envisaged by the proposed amendment be even initiated. It would certainly be a bold political posture for a state hedging its future economic wellbeing upon concluding bilateral trade deals with economic superpowers, some of them whose treatment of minorities would bring them squarely within the cross-fires of this amendment, to take.

Maybe this is all being taken too seriously? Perhaps it is such a legal non-starter that it is nothing more than a convenient paper tiger, allowing a state in need of a gesture to rehabilitate its international law standing after a bruising (albeit self-inflicted) half decade. The concept of genocide resonates within the political and popular imagination, in a way that other core international crimes do not. However, precisely by constructing the proposal around a national court’s determination of that a trading partner has committed genocide the proposed amendment would allow the UK to herald its commitment to international justice and accountability, without ever having to put its money where its mouth is. Indeed, that aside, by limiting the trigger for this provision to genocide the proposed amendment would leave untouched – for example – the sale of arms to Saudi Arabia, despite widespread accounts of their use against civilian populations in Yemen in violation of international humanitarian law. It would also leave untouched regulations implementing trade deals with states accused of committing crimes against humanity (characterised under the Rome Statute as a ‘widespread or systematic attack directed against a civilian population’ (Article 7(1)) ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’ (Article 7(2)(a))). If the proposed amendment were instead constructed around crimes against humanity, which would include but would not be limited to, those atrocities that could equally be characterised as genocide, this would avoid the kind of legal difficulties and political and moral quandaries associated with genocide.

However, if the proposal was constructed around genocide precisely to limit the possibility of its successful invocation, here too the conceptual flaws to the proposed amendment are laid bare. The power to initiate proceedings before the High Court is placed in the hands of individuals or groups representing individuals who are victims of the alleged genocide, and that power is not subject to institutionalised political oversight. Contrast this against the requirement that criminal proceedings against individuals suspected of genocide ‘shall not be instituted except by or with the consent of the Attorney General’ (International Criminal Court Act 2001, Section 53(3)). To offer victims of grave atrocities the false promise of judicial recognition of their suffering as genocide and that the genocide was at the hands of a state cannot be in the interests of justice for anybody. However legally ill-conceived the proposal is, the right of individual petition would be enticing for individual victims, groups of representing victims seeking accountability, and advocacy groups seeking to leverage legal processes to raise the political profile of grave and systematic human rights abuses. It is inevitable that petitions on behalf of victims of atrocities would be made and they will fail, and the UK and its courts will be embroiled in a legal and diplomatic furore.

To close, it will be interesting to see what comes of this amendment. Perhaps – hopefully – it will be withdrawn or voted down. Yet, it is easy to see why Members may be reluctant to vote against this proposal and risk being cast (albeit unfairly) as in favour of trade with genocidal states. One suggestion may be to reformulate the proposal as a mechanism to trigger the UK’s submission of a dispute to the ICJ under Article IX of the Genocide Convention. In the absence a crimes against humanity convention (but see the ILC Draft Articles on Crimes Against Humanity), and the limited acceptance of the compulsory jurisdiction of the ICJ, the prospects of litigation of state responsibility for crimes against humanity as a matter of customary international law would be slim. However, for genocide at least, the institutionalisation of a process involving the submission of disputes under the Genocide Convention to the ICJ would serve the expressive function of demonstrating the UK’s commitment to the accountability for violations of fundamental norms of international law, would place the power to initiate such proceedings in government hands and thus ensure political oversight, and it would go some way to reinvigorating the UK’s engagement with the ICJ (see here on the Chagos Islands advisory opinion and here on the UK losing its seat on the Court). This alternative proposal would not resolve all the concerns highlighted in this post, and – in particular – some creativity would be required to establish how a finding of state responsibility by the ICJ for genocide would in turn provide the legal basis for the UK’s breach of a trade agreement with the responsible state (in the absence of the incorporation of provision for such in trade agreement itself). But, perhaps a resolution of this latter concern is unnecessary: by making the nullification, de facto or de jure, of a trade agreement contingent upon a determination of state responsibility for genocide by the ICJ – perhaps this would turn this amendment into the ultimate paper tiger.

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Aldo Zammit Borda says

November 19, 2020

Dear Hemi,

Thank you for this important post.

I hope that, given the gravity of the subject at hand, rather than this being a subject where “little more probably needs to be said” by those well-versed in international law, your post will serve to trigger further discussion.

Your post led me to read the debates in the House of Lords around this Amendment, available here: https://www.theyworkforyou.com/lords/?id=2020-10-13c.1025.2

As the Minister of State, Lord Grimstone of Boscobel, has stated, Amendment 68 relates to a Trade Bill that will enable the Government to ensure continuity in relation to specific agreements that the UK was party to through its membership of the EU. Lord Grimstone also noted that in such continuity agreements, “there are often suspensive clauses that allow us to suspend agreements in the event of human rights breaches.” However, historically, as far as I am aware, such suspensive clauses have not often been triggered.

And this is why Lord Alton’s proposed amendment is so important. It can raise the stakes for the triggering of such suspensive clauses, especially if the High Court of England and Wales makes a preliminary determination that a signatory to the relevant agreement has committed genocide.

It is true that this amendment is a piece of creative legislative drafting, designed to make, as Lord Stevenson has noted, “innovative use of the courts.” It is also true, as you argue that the revocation of national regulations “does nothing to nullify the agreements themselves.” However, such a preliminary finding by a competent domestic court could place considerable pressure on the government to trigger such suspensive clauses in the agreements.

Genocide is an area where, historically, unfortunately, states have been only to ready to look the other way, despite their duties to prevent and punish under the Genocide Convention. It is also a crime which, as you note, requires a very high threshold – and this in itself will serve to limit the scope of the amendment. Although, having said this, I would respectfully not agree with the statement that “[e]ven if a partner to a trade agreement has, in fact, committed genocide, the possibility that this may be established in law and in fact before any national court is simply inconceivable.” There is a difference between a very high threshold and an impossible threshold.

As I understand it, in the first part of the post, the argument is that this amendment goes too far in what it is hoping to achieve. In the second part, however, the argument is that it does not go far enough. You raise the issue of crimes against humanity, for instance, and the sale of arms to Saudi Arabia. These were issues addressed in the House of Lords debates. I think we would all agree that CAHs constitute grave international crimes – but they are legally, qualitatively different from the crime of genocide. In genocide, the UN Convention places a clear obligation on states to prevent and punish genocide. And one way of preventing genocide is by suspending trade with, and economic support for, perpetrator states.

I wish to thank you once again for drawing attention to this important subject through your incisive post. In conclusion, I would submit that, given how dismally states have failed, historically, in their duties to prevent or punish genocide, we need creative efforts to mainstream such duties. In this sense, Lord Alton of Liverpool’s amendment ought to be commended.