October 26, 2021

Genocide Should Be Bad For Business

Genocide should be bad for business. However, currently, it is not. States continue to do business  with those who stand accused of “the crime of crimes.”

There are two states which currently standing accused of playing a role in genocide against religious minority groups; Myanmar, where the military stands accused of perpetrating genocide against the Rohingya Muslims and China whose government is allegedly perpetrating genocide against the Uighur Muslims. In both cases, the allegations are disputed by their respective governments and it is correct to say that the allegations are yet to be proven. Such a (final) legal determination needs to be made by an independent tribunal. This may take years. Yet, in the meantime, the nature of the atrocities roam the grey space as states do little to make their interim determinations of genocide to inform their foreign policy.

The position is the same when you begin to look at trade between states and those that stand accused of playing a part in genocide. Government and business continue to give the benefit of the doubt to the alleged perpetrators. Business continues to flow despite the allegations. It is understandable that the mere allegation of wrongdoing should not dictate business relationships. However, the questions is whether states should have the ability to restrict trade relationships with states that stand accused of involvement in such mass atrocities.

The issue becomes even more glaring where the business relationship benefits from the atrocities themselves. Indeed, this is one allegation in the case of the atrocities committed against the Uighur Muslims. According to a recent report published by the Australian Strategic Policy Institute (ASPI), between 2017 and 2019, the Chinese Government facilitated the transfer of Uighur Muslims and other ethnic minorities from Xinjiang to factories in other regions of China. According to the ASPI report, there are strong indications that some 80,000 Uighurs have been forced to work in factories that form part of the supply chains for at least 83 global brands. As a result, these companies could find themselves in breach of laws which prohibit the importation of goods made with forced labor.

Should countries explore expanding sanctions for the import of such products where they are not only a product of forced labor, but also a product of genocidal targeting against a religious minority group? British politicians certainly think so and are pushing to ensure that the law is changed to reflect this. As the U.K. Parliament continues to work on the Trade Bill which is set to define its post-Brexit relations with other states, a group of cross-party British politicians, led by Lord Alton of Liverpool – a tireless defender of human rights, have tabled an amendment that places a duty of care upon the U.K. when engaging with states standing accused of having committed genocide. The amendment is backed by former Labor and Conservative Government Ministers and in the Commons by the former Leader of the Conservative Party, Iain Duncan Smith MP.

The idea behind the amendment is to ensure that the issue of genocide is considered when doing business with other countries. Currently, there is no mechanism to force such considerations. As such, the U.K. continues to do business with, for example, China, despite China facing allegations of genocide and crimes against humanity against the Uighur Muslims. The U.K. does not make such consideration and indeed the U.K. leaves it to international judicial bodies to determine when genocide has occurred. If international judicial bodies have not made the determination, the U.K. proceeds on the basis that genocide is not occurring. This is a position which is contrary to international law. The International Court of Justice confirmed that “a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harboring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit.”

If the amendment is successful, trade arrangements made under this Bill will be nullified if the High Court of England makes a preliminary determination that they should be revoked on the ground that the proposed trade partner has perpetrated genocide.

As the amendment proceeds, this model should be considered by other states too. The amendment sends a strong message that where a state is involved in genocide, business cannot continue as usual. Genocide should be bad for business.

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