On September 13, 2018, the UK House of Lords engaged with an important question about the country’s policy on genocide determination. The debate question, secured by Lord David Alton of Liverpool, concerned steps the UK government had taken to change the way formal international declarations of genocide or crimes against humanity are made and to further the expeditious prosecution of those responsible.

The short debate was timely, especially in light of the UN’s recently published Report of the Independent International Fact-Finding Mission on Myanmar, which found that the Burmese military has committed genocide in Rakhine State and crimes against humanity and war crimes in Rakhine, Kachin, and Shan States. This is a second UN report in only two years that makes a strong claim of an ongoing genocide. In 2016, the UN’s Independent International Commission of Inquiry on the Syrian Arab Republic published its report “They came to destroy,” which describes the Islamic State’s (ISIS) atrocities against the Yazidis. Despite the strong claims in both UN reports, the UK government refused to make the determination of genocide, relying on its long-standing policy to leave such questions to international judicial bodies.

Britain does 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 UN Convention on the Prevention and Punishment of the Crime of Genocide (the Genocide Convention). As a result, the UK, by default, cannot fulfill its duty to prevent and punish the crime of genocide, adequately or at all.

Despite its long-standing policy of leaving the question to international judicial bodies, the UK government does not appear to have any reasonable justification for this policy. In response to Lord Alton’s debate, Baroness Annabel Goldie quoted former Prime Minister David Cameron: “Not only are the courts best placed to judge criminal matters, but their impartiality also ensures the protection of the UK government from the politicization and controversies that often attach themselves to the question of genocide.”

However, this position errs on a fundamental issue because it fails to recognize that there is a difference between making the (interim) determination of genocide to respond to the atrocities—whether by preventing the atrocities from escalating to genocide or stopping ongoing genocide—and making the determination of genocide after a full trial.

While the Genocide Convention does not prescribe that a state must make a formal determination of genocide, in practice, a failure to do so makes all the difference in trying to fulfill the obligations to prevent and punish it. For example, if a state does not recognize that some mass atrocities amount to genocide, the government’s actions will likely be unable to prevent or stop the ongoing genocide. This is clear from the research undertaken by Gregory Stanton, a professor of genocide studies at George Mason University, who concluded that “choice of the term to be used is determined by the willingness to take action to stop the killing. When the terms ‘ethnic cleansing’ or ‘crimes against humanity’ were used, it indicated an unwillingness to take forceful action to stop the crimes.” Furthermore, if a state has to wait for an international judicial system to make a formal determination of genocide, the state will likely be unable to fulfill its duty to prevent the crime. Lastly, there will often be no international judicial bodies with the mandate to make such a determination.

Britain’s policy cannot be justified in light of recent genocides. In order to respond to genocide adequately and fulfill the state’s duty to prevent and punish, the UK government should introduce new policies on genocide determination that will accommodate early warning and risk assessment structures that are mandated to recognize these mass atrocities. Nonetheless, Baroness Goldie indicated that “there might be some scope for revisiting how the government adopt criteria to determine their approach. I have made clear what the government’s policy decision is. However, we are always open-minded and we are certainly prepared to continue to look at these matters.” There are many options for how to address the issue. Now it’s all up to the UK government’s will to change the policy.

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Ewelina U. Ochab is a human rights advocate and author of the book Never Again: Legal Responses to a Broken Promise in the Middle East. She works on the persecution of minorities around the world, with main projects including Daesh genocide in Syria and Iraq, Boko Haram atrocities in West Africa, and the situation of religious minorities in South Asia. She has written over 30 UN topical reports (including Universal Periodic Review reports) and has made oral and written submissions at the Human Rights Council sessions and the UN Forum on Minority Issues. Ochab is currently working on her Ph.D. in international law, human rights, and medical ethics. Follow her work on Twitter: @EwelinaUA.

Photo Credit: By Martin Hesketh, via Flickr.