Lord Alton of Liverpool (CB)
My Lords, I begin by thanking all noble Lords taking part in this short debate on the way in which formal international declarations of genocide and crimes against humanity are made, and on how we might give greater effect to our obligations as a signatory to the 1948 genocide convention and our duty to protect, to prosecute and to punish genocide—the crime above all crimes. I also thank the Library for its helpful briefing note and Ewelina Ochab, a volunteer, for organising an excellent seminar that I chaired in your Lordships’ House and providing further background material for today’s debate.
After a visit in 2004 to the genocide sites of Rwanda, I visited Darfur, where more than 2 million people have been displaced and between 200,000 and 300,000 people killed. Since 22 May 2003 I have raised some 204 questions or interventions in your Lordships’ House about Darfur. Only yesterday, I was told by a former senior British official in Sudan that 2 million people remain displaced in Darfur, with 300,000 refugees living in desperate conditions across the border in Chad. Meanwhile, although indicted for genocide and crimes against humanity, Field Marshal Omar al-Bashir travels with impunity and seeks trade deals with the United Kingdom.
In a recent debate I highlighted the same pattern of events now unfolding in northern Nigeria, where the former head of the country’s army recently described atrocities by Boko Haram and Fulani militias as a genocide, with 1.8 million displaced persons, 5,000 widows, 15,000 orphans, and more than 200 desecrated churches and chapels. This is simply a repeat of what has happened to the Yazidis and Christians in northern Iraq—whose plight I have raised through questions and interventions on 65 occasions since 26 November 2008, when I specifically drew attention to,
“the Chaldeans, the Syriacs, the Yazidis and other minorities, whose lives are endangered on the Nineveh plains”.—[Official Report, 26/11/08; col. 1439.]
By 21 April 2016, following mass executions at Mount Sinjar in 2014, I was drawing attention to,
“accounts of crucifixions, beheadings, systematic rape and mass graves”.—[Official Report, 21/4/16; col. 765.]
Meanwhile, over the 12 years since I first raised the plight of the Rohingya Muslims in this House on 17 July 2006—and in 58 interventions of one kind or another since then—I have watched as the classic contours of genocide have unfolded. First, there is discrimination, scapegoating and targeting of a group because of its ethnicity, religion or some form of difference; then there is ostracism; then there is persecution; then come crimes against humanity; and then comes outright genocide. We have seen it again and again, from Armenia to the Holocaust, from Bosnia to Cambodia, from Burma to Darfur, with “never again” happening endlessly, all over again.
Against that backdrop it is impossible for me to understand why Governments utterly fail to make formal declarations of genocide and to take appropriate action. On 27 August 2018, the UN Independent International Fact-Finding Mission on Myanmar published its report stating that the Burmese military has committed genocide in Rakhine state, along with crimes against humanity and war crimes in Rakhine, Kachin and Shan states. The report indicated that the estimate of 10,000 people being killed in Rakhine state is conservative; more than 700,000 were forcibly displaced to Bangladesh, and the situation is nowhere near over.
Earlier today, a letter by Rushanara Ali MP, supported by more than 160 British parliamentarians from both our Houses, was sent to the Prime Minister calling upon Her Majesty’s Government to lead on seeking a referral of the Burmese military to the International Criminal Court. The letter repeated the concerns identified by the UN fact-finding mission that the new inquiry established by the Burmese Government will not be able to deliver on the promises to provide independent and transparent processes, and:
“Expecting justice and truth from any Myanmar domestic process is simply naive”.
I look forward to hearing from the Minister how the Government intend to respond to that letter.
The Daesh atrocities in Syria and Iraq and the Burmese military’s atrocities in Burma are two examples of genocide perpetrated within the last four years. None the less, Her Majesty’s Government’s response to the question of genocide determination over many years has been the same: that it is simply for the international judicial systems—which are either inadequate, non-existent or compromised by Security Council vetos—to make the determination and not for politicians, regardless of the evidence, to support such a determination.
It has to be emphasised that, as it stands, Her Majesty’s Government do not have any formal mechanism that allows for the consideration and recognition of mass atrocities that meet the threshold of genocide, as defined in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide—the genocide convention. As a result, Her Majesty’s Government are at a disadvantage when trying to fulfil their duties to protect, prevent and punish. The lack of a formal mechanism, whether grounded in law or policy, was recently criticised by the Foreign Affairs Select Committee in its December 2017 report on the situation in Rakhine. The report stated:
“We are seriously concerned to find that the FCO has not undertaken its own analysis of the situation, nor committed its own expert team to gather evidence. The Minister said that its effort was focused on addressing the humanitarian situation, but it is unclear why humanitarian support and legal analysis cannot go hand-in-hand”.
Her Majesty’s Government will argue that the genocide determination is not crucial but that actions to address mass atrocities are. Actions and words are strongly connected. Gregory H Stanton, research professor in genocide studies and prevention at George Mason University, conducted a study on the perception and effects of determining genocidal atrocities using the words “ethnic cleansing” or “genocide”. I have shared the details of Professor Stanton’s work with the Minister, the noble Lord, Lord Collins, and others. Significantly, the results of the studies revealed that:
“Choice of the term to be used is determined by willingness to take action to stop the killing. When the terms ‘ethnic cleansing’ or ‘crimes against humanity’ were used, it indicated unwillingness to take forceful action to stop the crimes”.
So we hesitate to name genocide for what it is.
Her Majesty’s Government’s reliance on international judicial systems is flawed because parties to the genocide convention are the duty bearers under the genocide convention, not the international judicial systems. Parties to the genocide convention, such as the United Kingdom, must act to ensure that the determination is made by a competent body in accordance with the law and policy in the state and decisive steps follow that fulfil the state’s obligations under the genocide convention to prevent and punish. Furthermore, in the case of the Daesh atrocities in Syria and Iraq and the Burmese military atrocities in Burma, there are no international judicial systems that would have the mandate to make the determination of genocide. Establishing such mechanisms would take years and even more years before a formal determination of genocide is actually made.
Other states have been less shy to make the determination of genocide, whether in relation to historical mass atrocities or to current and ongoing atrocities. For example, the recent Daesh genocide against religious minorities in Syria and Iraq has been formally recognised by a few Governments and several parliaments, including our own House of Commons, and major international institutions. None the less, the Government refuse to make this recognition, relying on their long-standing policy. Canada and the Netherlands previously took the same position as us, using the same argument that it was not for politicians to make such a determination. However, both countries have now reversed their position in relation to the Daesh genocide.
I hope that the Minister will take the trouble to look at what has happened in those two jurisdictions and that she will also carefully study the Genocide Determination Bill that I have introduced into your Lordships’ House. It seeks to address the lack of a formal mechanism to make the determination of genocide. It would invest the High Court of England and Wales—not politicians—with the power to make a preliminary finding on cases of alleged genocide and subsequently refer such findings to the International Criminal Court or a special tribunal, which would not necessarily be dependent on the Security Council. The proposal responds to the argument of the UK Government that the determination of genocide should be made by a competent court—the competent court here is the High Court, not an international court—and recognises that under the genocide convention it is the duty of the state, not international institutions, to act.
As the 70th anniversary of the genocide convention approaches, it is time for the Government to reconsider their long-standing policy on genocide determination and look at new approaches to ensure that they are fully equipped to fulfil their obligations under the convention to prevent and punish the crime of genocide and fill this gaping lacuna. I look forward to the debate and I thank all those who are participating in it.