28 January 2021

Deals and Genocide

A foolish idea.

By John Watson

Sometimes you wonder if MPs have lost their minds altogether and certainly there must be a fair case for calling in the shrinks to examine the 309 who voted to adopt the House of Lords amendment to the Trade Bill designed to prevent our doing trade deals with regimes involved in genocide, which ran as follows:

“International bilateral trade agreements 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 represents a state which 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 an international bilateral trade agreement 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.”

At first sight this may give you a warm feeling.  There must be few in the UK who do not regard genocide as an abhorrent crime.  Why then should we not legislate to mark our disapproval?  Why not indeed, but surely it is folly to do that by putting into the hands of judges decisions which in a democracy should be taken by the elected government.  Even more foolish is to change the law in a manner which would have paralysed the conduct of our foreign policy.

Let us start with a fundamental question.  Should we enter into trade or other deals with states involved in genocide rather than regarding them as beyond the pale and somehow unclean, sitting on the other side of a moral wall across which normal communication cannot be held?  “Yes” will say the cynical, “national interest must always come first”.  “No” will reply the high-minded, “we must never dirty our hand in that way”.

These are lazy responses, defaulting to wide political philosophy rather than grappling with the situation being considered.  In fact sometimes the answer will be “yes” and sometimes “no” but which depends upon the balance of a combination of a number of factors, some political, some moral and some practical.

The first of course is price.  Refusing to deal with people is a luxury and may be prohibitively expensive.  Suppose a genocidal state held the only reserves of a mineral required for vaccines against a new pandemic.  Would we deal with them then?  That would depend on how desperate we were for the vaccine, but there must be a level of infection rates and mortality at which we would swallow our scruples and just get on with it.  Desperate need can mean entering into alliances with some very unpleasant people, a fact acknowledged by Churchill when he entered into an alliance with Stalin in 1941, saying (though not, of course, to Stalin himself):

“If Hitler invaded hell I would make at least a favourable reference to the devil in the House of Commons.”

Another important factor must be the likely effect of treating the genocidal state as a pariah, the idea that sanctions force evil regimes to change their ways having rather an old fashioned sound to it nowadays.  Do we really believe that trade sanctions against China will improve their treatment of the Uighurs, or would a higher level of engagement be more likely to achieve this?  Perhaps neither, but the optimal mix of stick and carrot is by no means obvious and will differ from case to case.

There may be other factors too, the level of the genocide for example and the effectiveness of other levers which might be applied.  Is there a viable opposition?  Will a trade deal improve or damage the prospect of a change in regime?  And goodness knows what else besides.

A balance must be struck in each case, and in a democracy the job of striking it falls to the elected government.  What then is this stuff about the High Court?  There is no doubt that our judges are good at what they do, making findings of fact and deciding how the law applies in the light of them.  But their role is a limited one and, at least in theory, the identity of the actual judge should make little difference to a decision because they all apply the same legal rules.  To put it in modern speak, the law is the algorithm and the courts are merely responsible for its correct application.  So what would the amendment have done?  Left decisions of the greatest difficulty to an algorithm?  That can hardly be sensible.

It gets much worse when you turn to the practical implications.  The definition of the term genocide in the UN Convention runs as follows:

“any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”

That seems a sensible definition for an international convention but, like all definitions, it can be manipulated by those determined to do so and, if any religious cult could impede a trade deal by claiming that attempts had been made to bring about its destruction, we could expect every deal to be preceded by litigation on whether the other parties were OK to deal with brought by the local cult leaders and dissidents.  “Open for business”?  Well, not exactly!

What is odd about this amendment is that the mechanism should be so wholly inappropriate. Why is it that litigation has been chosen in preference to some form of democratic approval?  Is it because those supporting it did not understand what they were doing, or did they see an opportunity to wreck the prospect of new trade deals as a revenge for Brexit or as a way of destabilising the government?  It is hard to escape the latter conclusion but where does that leave Sir Keir Starmer’s recent promise that Labour would vote in the national interest?

I am sure that Sir Keir is an honest man and meant what he said, but in politics pressures can throw you off course.  This seems to be an example of that.  Luckily the amendment failed.