Helena Kennedy – 2021 Speech in the House of Lords on Genocide

The speech made by Helena Kennedy  in the House of Lords on 23 February 2021.

My Lords, of course it is rare for this House to resist the opinion of the other place, and to do so again is deeply unusual—but there is a very good reason for doing so on this occasion, and we know what that reason is.

Certainly, on the last occasion in the other place, we saw a regrettable piece of sharp practice, which has been described by others, where the powers that be knitted together two amendments from this House, thereby diminishing the Commons vote. I am sure there was a great deal of back-slapping about who invented that wheeze, but it was unworthy on a subject as serious as this.

It is clear that there was, and remains, a huge clamour of voices, up and down this country and around other parts of the world, calling for this amendment to be passed—because it concerns an issue of profound moral obligation. We are signatories of the genocide convention and people of our word, and we are proud of this. It is worth remembering that we said, “Never again”.

My father’s generation, which is probably that of the fathers of virtually everybody in this House, fought in the Second World War, and he came home from war battle-worn and haunted by what was revealed when the gates of Auschwitz and other camps opened, having seen the evidence of the barbarity that had been perpetrated. He and others like him of our parents’ generation asked themselves thereafter about the horrors and whether they could have been prevented if there had been greater activity, in the 1930s and the years of the war, around what was taking place. Was there a point at which the Nazis could have been stopped in their hellish determination to extinguish a whole people? I wonder what my father would say now.

The genocide convention is about preventing atrocities, not waiting to count the bodies in mass graves to see if the tally is great enough—or waiting until the multiple crimes against humanity reach a level where, somehow, a bell rings. All the evidence received directing us to this most grievous of crimes points to genocide. You only have to hear the testimony of Uighur women, as I have, to register really deep alarm about them having children removed from them or being deracinated and stripped of their language, their culture, their religion and the family they love, placed in institutions a bit like borstals to whip them into line. You would also register alarm about them watching their husbands being taken off to forced labour camps or to disappear forever—and them being sterilised, prostituted and raped themselves. Their personal testimonies are so moving, and there is also the external photographic evidence of destroyed mosques and burial grounds. I have rehearsed that again —you have heard it before—because we must not forget what we are talking about here. The Uighur people are experiencing human degradation, torture and ways in which the human identity is taken from them.

I listened as others spoke about the courts, and I want to clarify some things for the House. Of course, the International Court of Justice is the court for the determination of serious crimes of genocide. There are two international courts that can potentially deal with genocide: the International Court of Justice is where plaints are laid by one nation against another, which is different from the International Criminal Court. The problem with the former—which is the traditional court where matters of this gravity would be dealt with, when a nation is conducting itself in this way—is that, after World War II, a small group of nations were given special status on the Security Council, and they have special powers and can exercise a veto. China is one of those powers, and we know that it would veto any plaint laid against it at the International Court of Justice. I will make it clear: that route to justice is therefore blocked.

The International Criminal Court should not be confused with that; it is where individuals are tried for grievous crimes, but the nation to which those individuals belong has to be a signatory to the Rome statute. China is not a signatory, so that route to justice is also blocked in relation to genocide. This turns us all into bystanders, and that is the problem.

When asked to declare a genocide, our Government says, “This is not a matter for Parliament; we can have debates and committees about it, but it is a matter for a competent court.” Of course, that means that we do not act at all; it is a recipe for inaction, which is why today’s debate and those that have gone before—as the noble Lord, Lord Glenarthur, has said—will come back if we do not decide today because most Members of Parliament, and many of the people up and country, feel that inaction in the face of genocide is not a position this nation can take.

We have very competent courts, and there are few courts more competent than our higher courts. Creating a procedure which lets a court determine whether there is sufficient evidence is the line that I would be arguing for today, but we are forced to present an alternative because we are meeting such resistance from government.

So we are looking for a compromise. The compromise presented to the House by the noble Lord, Lord Alton, is a principled one. It would create a judicial committee made up of the great judges who sit in this House. Their expertise would be drawn on in examining evidence and seeing whether it met legal thresholds. There is huge skill which we in the common law build up over years of experience as practitioners and then in the judiciary. It involves a particular kind of independence of mind that is inculcated over many years.

Let me assure the House that it would not be a conviction if that committee made a determination. It would be making a determination of whether the evidence had reached the standard. It would not prevent a referral to the International Court of Justice, should a time come where that became possible—maybe my prayers will be answered, and the Security Council and the United Nations will be reformed, but I think that we will have to wait a while for that.

The amendment would mean that our elected Parliament could make a decision that steps had to be taken by our Government. We have a whole range of possibilities as to what those steps might be such as the expulsion of ambassadorial staff or targeted sanctions. We now have Magnitsky law, where we can go after individuals, refusing them access to the assets that many of them have in Britain or imposing visa bans on their coming here. Such measures could be taken against Chinese party leaders, the governor of Xinjiang province, the superintendents of labour camps or the Minister of Justice or his equivalent. That move by this country to create Magnitsky law has led many others to do the same, including the European Union, Canada and the United States. Japan is now thinking of introducing targeted sanctions. We were in the lead in taking those steps and creating legal change to give teeth to international law. That is what we should do today by not sitting passively and allowing a genocide to take place.

It has been suggested that the amendment interferes with our constitution. I remind this House of our many debates where we have discussed the constitutional arrangements in this country and delighted in the fact that, by having an unwritten constitution, we have the capacity to create change when change is needed and the flexibility that is not available to many who have entrenched constitutional arrangements. There is no inhibition on our making the changes that were suggested in the original amendment tabled by the noble Lord, Lord Alton.

We vote with frequency as Members of this House. It is an enormous privilege, as we always remind ourselves, to be in this House as people who are not elected. Our privilege should never be abused. However, some votes in Parliament have more meaning and weight than others because they say so much about our values and principles as a nation. They speak to the people that we are. I therefore urge noble Lords here and all those not in this House to vote for this amendment. It calls on courage, integrity and determination and will call upon them from Members of the Commons thereafter if we pass it. I strongly urge it, because this is one of those matters where we are being put to the test as to what we stand for. I urge noble Lords to vote for this amendment.