The original centennial of the momentous government of Australia’s policy to the “Stolen Generations” in 2008 offers an essential impulsion to mirror on this crucial occurrence. The international laws regarding genocide have been challenging in defining genocide in context of the country’s specific genocide crimes. The recent allegations against the government of Australia by the Indigenous petitioners have claimed that existed crimes that amounted to genocide against the Aboriginal persons by the government of Australia. This matter has been claimed in a case that meant to have the associates of the Australian regime indicted with crime that amounted to genocide following the enactment of Native Title Amendment Act 1998 that was seen to additional act of removal (Nulyarimma v Thompson), as well as in the original “stolen generations” case to come for the Australian High Court (Kruger v The Commonwealth (1977)).
The paper will examine what constitutes genocide and the position of the ban on genocide under international law; international law practices based on Aboriginal Ordinance; Australia’s obligation under international on crime of genocide and finally the self-determination issues under the “Stolen Generation”.
“The Crime of Crimes”
Genocide in international law is referred to as the “the crimes of crimes”. Genocide as an international crime has two primary sources as provided in the international law: the 1948 Genocide Convection and the 1948 Rome Statute; the customary international law that originates from the state practices. The customary international law in many instances predates an appropriate treaty, whilst treaties regularly codify customary international law. Thus, this is apparent in the international law regarding the genocide, with the Rome Treaty, as well as Genocide Convention that codify customary international laws’ prohibition against genocide. The convention was approved by Australia in 1949. Thus, the Genocide Convention Act 1949 (Cth) received ratification from the parliament; however, during this time, there exist no real law implementing the convention that was operational in 1951. Nonetheless, no law particularly making genocide a criminal act in Queensland was approved till lately, with the approval of the ICC Act 2002 (Cth). This Act was effective in making genocide a crime in Australia as provided in the Criminal Code Act 1995 (Cth).
Consequently, Article 2 of the 1948 of the convention, genocide is described as actions that are obligated with the intention to obliterate, in entirety or part, a country, ethnic, cultural or spiritual group. Furthermore, Article 3 of the Genocide Convention considers genocide as a plot to commit genocide, direct, as well as agitation to commit genocide, as well as attempts to commit genocide. Specifically, Article 2(e) of the convention incorporates the compulsory relocation of kids towards the explanation of genocide. Thus, this concept is in line with the stress on personal rights as provided in the international law other than the rights of the group, which is a model that perceives the individual, not the group, but as an owner along with the recipient of rights.
Furthermore, the Rome Treaty or ICC was formed in 1998 and was operational in 2002 after the ratification of 6o states. In 2009, 139 nations had ratified the accord, as well as 108 countries, comprising Australia were parties to the ICC treaty. Article 5 of the Rome Treaty treats genocide plus crime acts against humanity as serious criminal acts of international concern. The ICC jurisdictional scope is relevant to two points. First, some approving reasons have expressively restricted when they refer an issue to the international criminal court.
Aboriginals Ordinance a Violation of the Prohibition of Genocide under International Law
The two latest cases disclose the manner where the courts of Australia endeavour to deal with the declaration that majestic practices, in addition to guidelines amount to genocide: Kruger v Commonwealth and Nulyarimma v Thompson . Consequently, the Kruger v Commonwealth was the original prospect for the high court in Australia to reflect the legal impacts emanating from the policy compulsorily transferring Aboriginal kids from their households. The petitioners in the case, five individuals that had been transferred their households as provided in the Aboriginals Ordinance 1918 (NT) sought the pronouncement that the Aboriginal Ordinance was illogical. The petitioners claimed that the Ordinance breached the Genocide Convention; particularly they argued that the Ordinance violated Article 2(d) of the convention through enforcing measures that were intended to stop births in a group and 2(e), where there was a forceful transfer of children of the group to a different group.
The original case to bring out the issue regarding whether the policy of elimination of Aboriginal kids from their parents resulted in a crime of genocide was Kruger v Commonwealth. As a result, the petitioners, in this case, were the Aboriginal people that came from the Northern Territory. This implies that the routine international law’ ban of genocide had a lawful impact in the local area though convention had not been integrated into the domestic law. In the Kruger v Commonwealth, it was apparent that the Genocide Convention was approved following the ratification of the 1918 Ordinance, which implies that it had not been legislatively integrated into the domestic law in Australia. Importantly, when the case was heard in the High Court, the government of Australia had not created a law to make the genocide a domestic crime. Thus, the court never addressed the concern that the custody of the Aboriginal kids, comprising plaintiffs carried out till 1960 when Australia ratified the convention.
Nonetheless, it appears the proposition that the Ordinance had violated the ban against genocide was rejected because the intent of committing genocide contrary to the reality of impacting suicide was vital concepts of the legitimacy of the law. Subsequently, there would be no violation of genocide ban because the Aboriginal Ordinance was not planned to harm or destroy the Aboriginal persons in Australia as a race. In addition, it may be asserted that the perspective during that period was that it was done to the finest concerns of the Aboriginal kids that they were transferred from their parents, plus thus Ordinance should not be perceived as an intention to sanction genocide.
Australia’s Obligations under International Law
Queensland has been among the slowest nations to make laws providing domestic influence to the convention. As provided in article 5 of the convention, countries that are party to the international law undertake to enact the law pertinent to award influence to the Genocide Convention, plus specifically to offer effectual penalties for people culpable of crimes of genocide. Article 6 of the convention needs that people found to have committed genocide should be charged by an experienced tribunal of a country in a region that the crime was carried out or through such international penal committee, which has the necessary jurisdiction. Therefore, through failing to put in place the domestic law that makes genocide a crime, Australia is questionable was in violation of duties it voluntary approved to through approving the Genocide Convention. Consequently, Australia failed it its obligation to ratify a domestic law that would safeguard the interests of children removed from their families under the Genocide Convention as an international law. In the lack of implementation of legislation, the crucial questions surface as to whether the common law in Australia acknowledges a crime of genocide.The latest legal deliberation of genocide in line with the stolen generations has reaffirmed the fact that genocide was not a crime as stipulated in the common law in Queensland. In the case of Kruger v Commonwealth, it was maintained that even if there was an applicable code of law banning genocide in the country, the behaviour under the Aboriginals Ordinance 1918 (NT) did not result in genocide.
Moreover, the Australian obligation under the international law to declare genocide as a crime was limited by its inability to enact common laws that consider genocide as a crime. The crimes that are deemed as genocide by international law went without punishment in Australia. Australia forgot to draft the pertinent laws, as may have been distracted by more demanding issues of building roads and collecting taxes. However, Australian has developed laws that will make genocide a crime through criminal provisions that adequately satisfy the prerequisite of the Genocide Convention. In 2000, the government ratified the Rome Statute of the ICC to criminalize genocide domestically, which has changed its obligation to international law on genocide.
Self-determination and Stolen Generation
Self-determination is an issue that has become a concern when it comes to the autonomy of the children that were removed from their families. This act went against the freedom of independence because it was not the will of the children to be transferred to other families. The question of the denied self-determination was evident when the Australian government apologized for the violation of the fundamental right of the children and their families that were removed. The children and their families face traumatic experiences that include harassment and rape, as well as unfavourable conditions that breached their self-determination element. Thus, following 12 years of a conservative Australian government that was noticeably hostile to the rights of indigenous persons towards their self-determination, the Prime Minister, Kevin Rudd, issues an apology during the opening session of parliament. The apology at the Stolen Generations targeted the 50,000 Aboriginal kids compulsorily detached from their families plus brought up by White parents in an endeavour to eradicate their culture. The apology was seen as an act by the Australian government to promote the self-determination of the Aboriginal people that were affected by the removal.
Conclusion
Whilst Australia lacks a crime of genocide, they are not only able to charge the perpetrators of genocide, but they cannot the responsibility of the international law. However, the recent ratification of the Roman Treaty of ICC has enabled it to charge the perpetrators of genocide on an international arena. The case of Kruger v Commonwealth could have been punishable if there was a common law on genocide under the international law. Therefore, Australia has been complacent regarding prohibiting genocide for more than five decades now, as well as has questionably committed genocide on Aboriginal citizens in that period. Providentially, the social atmosphere where past genocidal policies functioned has been appreciably restructured by an extensive novel consciousness of indigenous experience along with culture. The self-determination of the Aboriginals people during the stolen generations was violated by the Australian government.
Barta, Tony. ‘Sorry, and Not Sorry, in Australia: How the Apology to the Stolen Generations Buried a History of Genocide’ (2008) 10(2) Journal of Genocide Research, 201–14.
Behrendt, Larissa. ‘Genocide: the distance between law and life’, 25 (1) (2001). Aboriginal History, 134.
Cassidy Julie, The Domestic Enforcement of Human Rights: The Relationship between Customary International Law and Municipal Law (Paper presented at the Public Health and Human Rights Conference, Monash University Prato Centre, Italy, 9 June 2007).
Cassidy, Julie. Unhelpful and Inappropriate? The Question of Genocide and The StolenGenerations. (2009) 13(1) Australian Indigenous Law Review 114-139.
Geofiey Robertson, Crrmes Against Humanity – The Struggle for Global Juslzce (2000) 343.
Gigliotti, Simone. ‘Unspeakable Pasts as Limit Events: The Holocaust, Genocide, and the Stolen Generations’ (2003) 49 (2) Australian Journal of Politics & History 164–81.
Hennessy, Gail. ‘Genocide with Good Intentions, the Stolen Generation and My Place’ (2001) 20(3) Social Alternatives 45–49.
Kenny Bedford, Through Young Black Eyes: A Handbook to Protect Indigenous Children from the Impact of Family Violence and Child Abuse (Victoria: Secretariat of National Aboriginal and Islander Child Care, 2002), Vol. 2.
Robert van Krieken, ‘Cultural Genocide in Australia’ in Dan Stone (ed), (2008) The Historiography of Genocide Vol.8.
Robinson S, Paten J. The question of genocide and Indigenous child removal: the colonial Australian context. (2008) 10(4) Journal of Genocide Research. 501-518.
Rosemary Neill, White Out: How Politics is Killing Black Australia (New South Wales: Allen & Unwin, 2002), 127.
Schabas, William. Genocide in International Law: The Crime of Crimes (Cambridge, UK: Cambridge University Press, 2009) 37.
Schimmel, Jessica, ‘Killing Without Murder: Aboriginal Assimilation Policy as Genocide’ (2005) 13(1). Paper 7, 37.
Stuart Bradfield, ‘From Empire to Genocide Chic’: Coming to terms with the Stolen Generations in Australia,’ Genocide Perspectives II (Sydney: Australian Institute for Holocaust and Genocide Studies, 2003), 249.
Wolfe, Patrick. ‘Genocide and Settler Society: Frontier Violence and Stolen Indigenous Children in Australian History’ (2005) 16(4) Journal of World History 502–5.
Shelton, Dinah. International Law and Domestic Legal Systems: Incorporation, Transformation and Persuasion’. International Law and Domestic Legal Systems. (Oxford: Oxford Univ. Press, 2011) 47.
Macedo, Stephen. Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law. (Philadelphia, Pa: Univ. of Pennsylvania Press, 2006) 352.
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