Genocide Determination Bill [HL]

Lord Browne of Ladyton Excerpts

2nd reading
Friday 28th October 2022 Lords Chamber

[Lord Browne of Ladyton (Lab)]

My Lords, I too support this Bill and, like the noble Baroness, Lady Sugg, was reminded in the Library briefing that the noble Lord, Lord Alton, has in this place spoken and raised questions about our approach to genocide upwards of 300 times. This is not only a testament to his extraordinary leadership and perseverance but, sadly, an indication that our Government are yet to respond adequately to the concerns that he has raised or the cross-party consensus that the UK’s genocide policy needs reform. I remind your Lordships that in 2017, the lack of a formal mechanism, whether grounded in law or policy, was criticised by the Foreign Affairs Select Committee.

Having acceded to the genocide convention, the UK has a duty to prevent and punish the crime of genocide. This is not an exhaustive list, but since our accession, genocide has been committed in Cambodia, Bosnia, Rwanda, Darfur, Libya, Myanmar, Syria and Iraq, and presently is being committed in Ethiopia and China. Evidence of Russia’s ongoing atrocities in Ukraine, too many to list, include the abduction and forced adoption of Ukrainian children. That is revealed in recently published legal analysis that suggests a serious risk of genocide. It is true that, in accordance with the convention, the UK introduced laws criminalising genocide, no matter where it is committed, and has this long-standing policy of leaving the question of genocide determination to the international judicial systems. Unfortunately, this effectively means a de facto absence of any formal mechanism that allows for the consideration and recognition of mass atrocities which meet the threshold of genocide.

It is a simple fact, and our experience, that impunity begets further crimes and that lack of action only empowers those seeking to commit them. Determination and recognition of mass atrocities for what they are is not only a matter of good practice. It derives from the state’s international law duties and is compelled by the duties to prevent and punish genocide. A preliminary determination of genocide or the serious risk of it is crucial to engage the duty to prevent genocide, in Article 1 of the convention. The ICJ judgment on Bosnia and Herzegovina versus Serbia and Montenegro in 2007 confirmed that under the duty to prevent, states must act

“the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed.”

Although there are international options, the UK Government do not have a strong history of engaging with these judicial systems. While recently the UK Government have led in some initiatives, such as on UN Security Council Resolution 2379, establishing an investigative mechanism into the Daesh atrocities in Iraq, all of these have fallen short of engaging the question of genocide itself.

The UK is, I regret, in good faith not meeting the requirements it signed up to under the convention and must do more. It must ensure it has all relevant mechanisms to implement its duty to prevent, including by ensuring it can make preliminary determinations of genocide and the serious risk of it, consistent with the ICJ determination. Genocide determination is the first step towards an effective and comprehensive response, including to prevent the risk of genocide from materialising. To prevent further atrocities, states should have effective monitoring and determination mechanisms in place. Domestically, as we have heard, there is no mechanism to enable UK courts to deal with this question. Not having such a mechanism or procedure means that the UK risks a de facto breach of its international law obligations under the convention.

This Bill creates a framework by which the UK can meet its ongoing commitments to prevent genocide by the introduction of two mechanisms for preliminary definition of genocide or a serious risk of it. They were explained comprehensively by the noble Lord, Lord Alton, and I do not intend to refer to them. I expect that the Government will argue that the procedure stipulated by the Bill does not currently exist in law. This is certainly true but, as the noble and learned Lord, Lord Hope of Craighead, pointed out, mechanisms such as those set out in the Bill will allow for a process for genocide hearings to follow due process in full accordance with the law.

I have relied heavily on the briefing from the Coalition for Genocide Response for my contribution today. It believes that other states will replicate this model once it passes into law. It is also convinced that, while the Genocide Determination Bill tabled cannot solve all the problems with the UK’s response to genocide, it implements the UK’s own long-standing policy that it is for the courts to deal with genocide determination. It implements recommendation seven of the Bishop of Truro’s review and rectifies the unenforceability of Section 3 of the Trade Act 2021. It addresses the international judicial systems not being engaged on the issue and the lack of political will. It bridges the gap between the duties under the genocide convention and their realisation. It implements the UK’s duty to prevent, by ensuring that the situation is assessed by a competent body, and the UK Government can then act in an informed way. For all these reasons, I commend the noble Lord, Lord Alton, and the Bill.