Author Verena Sebinger
Submission Institute of Public International Law, Air Law and International Relations
THE CRIME OF Thesis Supervisor Assoz. Univ.-Prof.in Mag.a Dr.in Birgit Haslinger GENOCIDE OF LL.M. (LSE)
ABORIGINAL PEOPLE April 2021 IN AN AUSTRALIAN CONTEXT
Diploma Thesis to confer the academic degree of Magistra Iuris in the Diploma Degree Program
Law
SWORN DECLARATION
I hereby declare under oath that the submitted Diploma Thesis has been written solely by me without any third-party assistance, information other than provided sources or aids have not been used and those used have been fully documented. Sources for literal, paraphrased and cited quotes have been accurately credited.
The submitted document here present is identical to the electronically submitted text document.
Linz, 15th April 2021
Table of Contents
List of Abbreviations ...... IV Acknowledgements ...... V Preliminary Remarks ...... VI
1. Introduction and Relevance of the Topic ...... 1 2. Genocide As Crime under International Law ...... 4 2.1. History of Origin ...... 4 2.2. The UN Definition of Genocide ...... 6 2.2.1. Legal Nature ...... 6 2.2.2. Protected Groups ...... 7 2.2.3. The Matter of Conduct (actus reus) ...... 7 2.2.4. The Matter of Intent (mens rea) ...... 9 2.3. Procedure and Jurisdiction ...... 10 2.4. State Responsibility and Genocide ...... 13 2.5. Criticism ...... 16 3. Crimes of Genocide against Aboriginal People in Australia ...... 20 3.1. Historical Context ...... 20 3.2. Aboriginal People as a Protected Group within the Meaning of Article II of the Genocide Convention ...... 23 3.3. Selected Example Cases...... 27 3.3.1. Frontier Killings and Massacres ...... 27 3.3.1.1. Actus Reus ...... 27 3.3.1.2. Mens Rea ...... 29 3.3.2. The Stolen Generation: Australia’s Child Removal Practises ...... 31 3.3.2.1. Actus Reus ...... 31 3.3.2.2. Mens Rea ...... 37 3.4. Acknowledging the Happenings: Reconciliation Acts and Denialism ...... 39 4. Discussion and Findings ...... 44 5. Conclusion ...... 48
Bibliography ...... 49
III
List of Abbreviations
ABS ...... Australian Bureau of Statistics ACMAC ...... Aboriginal Communities Matter Advisory Group art ...... article CERD ...... Committee on the Elimination of Racial Discrimination DARIO ...... Draft Articles on the Responsibility of International Organisations DARS ...... Draft Articles on the Responsibility of States for Internationally Wrongful Acts Doc ...... Document edn ...... edition ibid ...... ibidem ICC ...... International Criminal Court ICJ ...... International Court of Justice ICTR ...... International Criminal Tribunal for Rwanda ICTY ...... International Criminal Tribunal of the former Yugoslavia ILC ...... International Law Commission NGO ...... Non Governmental Organisation para ...... paragraph Rep ...... Report Res ...... Resolution UDHR ...... Universal Declaration of Human Rights UN ...... United Nations UNGA ...... United Nations General Assembly UNTS ...... United Nations Treaty Series v ...... versus vol ...... volume
IV
Acknowledgements
First and foremost, I would like to express my deep and sincere gratitude to my dear friend Dr. Maxine Castillo, who has always inspired me to think outside the box and take different perspectives on such a complex topic. I greatly appreciate her encouragement and immense support in completing this thesis.
Additionally, my thanks go to Assoz. Univ.-Prof. Dr. Birgit Haslinger LL.M., the supervisor of this thesis. I greatly appreciate the approval of this topic and the opportunity to work on it as part of my thesis. My special thanks also go to Mag. Maria Pree, for her support and guidance over the years and to Dr. Maria Giannacopoulos from Flinders University in South Australia, who inspired me to choose this topic as part of her great teaching.
I would also like to express my appreciation to my valued friends and Beate Klösch and Klara Huber for their support and their insightful comments and motivating words during the writing process.
Finally, I would like to thank my family, whose support made my studies and overseas experience in Australia possible.
V
Preliminary Remarks
The following preliminary remarks should be made at this point. It should be noted that this thesis deliberately refrains from using the wording ‘Australia's Aboriginal people’. This is repeatedly criticised, especially by Aboriginal scholars, as the use of this language is possessive or denotes ownership of the Indigenous population.1 In addition, the use of the term 'Aborigines' is avoided as this is currently also considered as highly offensive.2
It should further be made clear that even though this thesis focuses mainly on the Aboriginal population, the Indigenous population in Australia also includes the Torres Strait Islander people, who eventually got their own voice in 1990.3 While Aboriginal communities inhabited mainland Australia and Tasmania prior to colonisation, Torres Strait Islanders lived on island groups north of Queensland, some of which have been attributed to Australia and others to Papa New Guinea. Since they have only been admitted to the mainland since 1947, they consequently have their own history and culture.
Finally, it should be noted that regardless of the outcome of the legal subsumption of this thesis, there are a multitude of other definitions of genocide and opinions differ widely in this regard.4 Genocide research is still in its infancy and more research on this topic can be expected in the coming years. However, as the focus of the research is on the legal relevance of the topic, especially with regard to the UN definition of genocide, this thesis will be limited to the officially defined term according to the Genocide Convention.
1 Aileen Moreton-Robinson, The White Possessive Property, Power and Indigenous Sovereignty (University of Minnesota Press 2015) xxi. 2 Flinders University, ‘Appropriate Terminology, Indigenous Australian Peoples’ (Flinders University)
1. Introduction and Relevance of the Topic
The horrible crime of genocide is unthinkable in Australia […] If we as a nation were dedicated to a form of genocide what would our signature [on the Genocide Convention] be worth? That we detest all forms of genocide and desire to remove them arises from the fact that we are a moral people. The fact that we have a clean record allows us to take such an attitude regarding genocide. Leslie C. Haylen, Member of the Australian Parliament, 19495
Genocide, also known as the ‘crime of all crimes’6, has received increasing attention in international criminal law after the Nuremberg Trials, especially when it was enshrined in the UN Convention on the Prevention and Punishment of the Crime of Genocide in 1948.7 Hence, the prohibition of genocide has since been considered a norm of a higher order because of the universal acceptance of the UN conventions. Many people mistakenly equate genocide with the Holocaust and attribute genocide as a consequence of World War II. However, subsequent examples of genocide including Rwanda or former Yugoslavia in the 1990s exemplify that genocide is not solely a phenomenon of World War II. Furthermore, the definition of genocide goes beyond the simple killing en masse. However, these new, hidden forms of genocide have not been generally adopted yet. Therefore, towards the end of the 20th century, genocide researchers have increasingly focused their attention on more hidden or subtle forms of the crime.
The contextualisation of colonial violence as a form of genocide has gained much attention within genocide studies in recent decades.8 The colonial powers, including America, France and Britain, all share a common history of dealing with Indigenous people in their respective colonised territories. Numerous border wars, massacres and assimilation policies were enacted in order to merge Indigenous populations with the colonisers. Despite the increased focus on genocide studies and the impact of these actions and policies on the respective Indigenous peoples, the Australian context has been under recognised. Although Aboriginal Australians had resided on the continent for thousands of years, they too were subject to frontier killings and massacres as soon as they encountered the European colonisers. Nevertheless, these events were concealed for decades by the Australian government and many researchers.
Although Australian Aboriginal history as a sub-discipline is still quite new in the context of chronicling events in the Western tradition, having only emerged since 1948, many Indigenous and non-Indigenous scholars have claimed that Aboriginal people were victims of genocide in recent decades.9 Attention has been drawn to both, physical killings at the frontier, and the forced removal of Aboriginal children from their families, now referred to as members of the Stolen
5 Commonwealth of Australia, Parliamentary Debates, House of Representatives, 30 June 1949, 1871 (Leslie C. Haylen)
Generation, in order to pursue the goal of a Western society.10 A research gap with regard to the genocidal nature of the frontier killings and the Stolen Generation has been identified by prominent genocide scholars, such as Adam Jones and Colin Tatz. They have researched this issue and have come to a common consensus: Australia's history with Indigenous people clearly needs more attention. Thus, the research question of this thesis is to examine, from a legal perspective, whether the killings of Aboriginal people for colonial purposes, as well as Australia's child removal policies, constitute genocide in the sense of the Genocide Convention.
This thesis will be divided into the following parts: firstly, a theoretical analysis of the legal basis of genocide as a crime under international law will be undertaken in section 2. Secondly, Australia's colonial history will be reviewed, particularly in relation to this crime in section 3. Finally, after a discussion of the findings in section 4, the conclusion will include a summarisation of the results of this research and an indication of the continuing importance of this issue.
In order to create an understanding of the relevant legal foundations, this thesis begins with outlining the process of the emergence of genocide and its establishment as a crime under international law. Since genocide, by its essence, involves a systematic interaction of various parameters, these will be defined and critically discussed. In the course of this discussion, the legal nature of genocide as well as the protected groups under the Convention will be elaborated. Furthermore, the two constitutive elements of the offence, namely the criminal conduct (actus reus) and the specific intent (mens rea) as the most important elements of genocide, will be explained in detail. Subsequently, the procedural provisions and the various ways of prosecuting genocide in international criminal law will be discussed. Especially in the case of colonial states, it can be observed that due to the gravity of the crime, there is a certain reluctance on the part of other member states to accuse other states of genocide.11 Thus, the reasons for the reluctance of other member states and why colonial history is often minimised or even denied by the states concerned will be examined more closely in relation to the concept of state responsibility. Finally, the most frequently discussed points of criticism surrounding the Genocide Convention and its application will be listed, whereby particular attention will be paid to those points of criticism that are also of special relevance to the question posed in this thesis.
Section 3 will then apply these legal findings to historical events in the context of colonisation in Australia. These findings will constitute the main focus of this thesis. In order to create a fundamental understanding of historical events, it is also necessary to provide a historical overview of Australia’s colonisation process. This will be followed by a legal assessment, the first step of which will be to examine the Aboriginal population in its status as a protected group under Article II of the Genocide Convention. Here, an attempt will be made to provide an adequate insight into the rich cultures of Aboriginal people in order to better demonstrate and comprehend the differences between the Western and Aboriginal understandings of law. This description will help to subsequently show how the colonial powers were able to take over their social and legal systems. Based on the research question, the focus of this thesis will be the legal subsumption of the physical killings at the beginning of the colonisation process under Article II (a) and the subsequent child removal practices for the assimilation of Indigenous Australians into Western
10 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 530. 11 Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015) 115.
2
society as an example of Article II (e) of the Genocide Convention. This will be followed by a detailed examination of criminal conduct and, in particular, the requirement of intent in relation to each of these two examples. The intent requirement will be critically analysed in order to identify whether the settlers or the state had the necessary intention to eliminate the Aboriginal population in Australia. After a detailed legal analysis, the state reactions to these accusations over time will be discussed. In this regard, the phenomenon of Denialism, particularly in relation to the physical killings and their qualification as genocide, will be highlighted. To illustrate this, various arguments of the Australian state, as summarised by selected statements by state representatives will be discussed. Moreover, an account of acts of reconciliation through the recognition of the Stolen Generation by the state and the wider Australian society since the last half of the 20th century will be presented.
3
2. Genocide As Crime under International Law
2.1. History of Origin
The term genocide (composed of the Greek 'genos' for race or tribe and the Latin 'cide' for kill12) was first coined in 1942 by Raphael Lemkin, a Jewish-polish lawyer, who was one of the most important key figures in genocide studies and humanitarian law of the 20th century. It first appeared in print in Lemkin’s Axis Rule in Occupied Europe, a report on the actions of the Nazis during the Holocaust.13 The reason his views were honoured by many genocide scholars at the time was the unique approach to the problem. He alleged that the mass killings of the Jews were only part of the Nazi’s procedure, whose aim was to reshape the fabric of a European society.14 In different words: The Holocaust should not be seen as a genocide sui generis, but merely as a variant of genocide. Due to his legal education, he had a focussed understanding on the institutions and laws, as well as on administration processes. He outlined that genocide could include the establishment of different layers of laws and overlapping administrative structures if they facilitated the practices of genocide. He further illustrated that genocide was extended beyond the boundaries of the declaration of war.15
The term genocide gained further international attention when it was officially introduced in connection with the Nuremberg Trials in 1945. After the happenings of World War II the world was still disturbed due to the inhumane events. Therefore, the main goal of these criminal trials was to prohibit aggressive warfare and the power of superior orders.16 The crime of genocide has been included in the indictments and the summation. However, it did not find its way into the final judgment, that was delivered on 30th September 1946. On 11th December 1946, the UN General Assembly officially recognised the Nuremberg Charter and Judgement as binding customary international law.17 This marked the starting point of an international criminal law, since genocide was now officially established as a crime under international law and therefore it was possible to enforce punishments to the responsible actors.18
Even though Lemkin’s success at the trials was limited, a movement had been created. The movement’s vision was to attract attention of the international institutions in order to delegitimise genocidal practises in the future and develop a more worldly vision of international law. Lemkin highlighted the importance of denouncing any attempts of destroying a nation and called for international protection of endangered ethnicity of national groups in the form of an international treaty.19 Lemkin as well as other scholars and numerous non-governmental organisations inspired the idea of outlawing genocide through tireless public engagement. The peak of this movement was reached in 1948, when the UN General Assembly universally defined and codified genocide as a crime under international law.20
12 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 10. 13 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 1. 14 Dan Stone, ‘Raphael Lemkin on the Holocaust’ (2005) vol 7.4, J. Genocide Res. 539, 548. 15 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 14. 16 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 290. 17 United Nations General Assembly ‘The Crime of Genocide’ (11 December 1946) UN Doc A/RES/96(I). 18 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 291. 19 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 135. 20 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 35. 4
The Convention on the Prevention and Punishment of the Crime of Genocide was adopted on 9th December 1948 as General Assembly Resolution 260 and came into force on the 12th January 1951.21 The (legally not binding) Universal Declaration of Human Rights was passed only one day later.22 This represented one of the most significant milestones in international humanitarian law, but still left room for further discussion. Some scholars argue, that this was a movement against the Nazis and their actions rather than for human rights themselves. This could explain why the Genocide Convention remained dead law for almost 50 years and there was a lot more bureaucracy, than actual success in punishing perpetrators.23
Around the 1990s, international humanitarian law began to be considered as a part of the human rights movement.24 In order to guarantee individual criminal responsibility, a draft statute for the International Criminal Court (ICC), based on Article VI of the Genocide Convention was adopted in 1994.25 However, since the ICC was only officially established in the framework of the Rome Conference in 1998 and much time passed between its enforcement, the Genocide Convention was first implemented in the framework of the ad hoc tribunals for the mass killings in the former Yugoslavia and Rwanda. The International Criminal Court of the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established in 1993 and 1994.26 These two tribunals played a crucial role with the interpretation of facts of the crime and significant case- law has been developed. In Prosecutor v Akayesu, one of the most prominent convictions for genocide, the ICTR applied the crime of genocide in practise for the first time. The ICTY’s first genocide conviction was in Prosecutor v Krstic on 2nd August 2001 and in 2017 it formally ceased to exist after the court passed its last verdict in Prosecutor v Mladić.27 The ICTR is still in force today, with 14 cases currently pending.28
The jurisdiction of the ICC eventually came into effect in July 2002, when the 60 states required ratified the Rome Statute on the International Criminal Court.29 To date, this court is responsible for 123 states (among them Australia30) and its competence extends to genocide, war crimes, crimes of aggression and crimes against humanity.31 The first person to be charged with the crime of genocide by the ICC in 2005 was President Al Bashir of Sudan.32
21 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 78 UNTS 277 (Genocide Convention). 22 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art 5. 23 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 37. 24 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 10. 25 International Law Commission ‘Draft Statute for an International Criminal Court’ (22 July 1994) A/CN.4/458 + Add.1- 8. 26 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 292. 27 United Nations International Residual Mechanism for Criminal Tribunals, ‘Timeline’ (Legacy website of the International Criminal Tribunal for the former Yugoslavia)
2.2. The UN Definition of Genocide
The right to life, as the most fundamental right there is, is found in all human rights conventions around the world.33 From this it follows that it has to be in the interest of all states to protect humankind from extermination acts. Even though punishment for genocide is also explicitly enshrined in various national legal systems, the legally most relevant definition of Genocide can be found in the Genocide Convention, where it states in Article II:
In the present Convention, genocide means 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.
2.2.1. Legal Nature
The Genocide Convention, which obliges a state to prosecute genocide, is a treaty of modern customary international law.34 The rights and obligations anchored in the Convention are absolute rights and obligations erga omnes, that is if a state breaches the law it is responsible to the international community as a whole and not to an individual state in the context of diplomatic relations.35 Due to their universal acceptance by the vast majority of states, the fundamental principles enshrined in the Convention are also jus cogens, thus (in the sense of Article 53 of the Vienna Convention on the Law of Treaties36) mandatory in nature and leave no room for deviation from them.37 Therefore, the rights and obligations are non-derogable, non-negotiable and binding on all states, regardless of whether the Convention has been ratified by the state or not.38 Although these two legal principles often overlap, they are nevertheless different in nature as the concept of erga omnes concerns the scope of application, while jus cogens concerns the substantive core of the rules.39 Regarding the temporal application of the Convention, it has been observed that it is not retroactive, thus, only crimes committed after 1951 can be prosecuted.40 Furthermore, genocide is not subject to the statute of limitations. In order to avoid the application of domestic
33 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 103. 34 Ian Brownlie, Principles of Public International Law (8th edn, Oxford University Press 2008) 642. 35 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 317-319. 36 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331. 37 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 94. 38 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 244. 39 Birgit Haslinger and Sigmar Stadlmeier, Public International Law: Texts, Cases and Materials (2nd edn, Pedell Wissenschaftsverlag 2019) 34. 40 Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331 art 28. 6
statutes of limitation, and thus comply with the erga omnes principle, the General Assembly adopted the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity in 1968.41 Finally, genocide does not require a temporal connection with a declared war, it therefore does not matter whether the crime was committed during times of peace or times of war.42
2.2.2. Protected Groups
Victims of the crime according to Article II of the Genocide Convention can be members of a group with particular characteristics, such as nationality, ethnicity, race or religion. These cultural or sociological features shape a particular group identity, that distinguishes the group from other groups and it has been repeatedly stated that these subjective elements are an important part of the crime’s framework.43 The ICTR held that a common feature of the four types of groups is that membership of such groups is usually not contestable by their members, who often belong to it automatically by birth. Hence, more mobile groups (such as political groups) that one can join or leave voluntarily are excluded.44 However, this does not apply to religious groups, as these are explicitly mentioned in the Convention. In order to be convicted of genocide it is sufficient that a substantial collection of people of the distinct group are affected, that is when the numbers of people affected are high in relation to the overall size of the group.45 Moreover, it can also be classified as significant if a prominent member of the designated group is murdered or if the affected part of the group – no matter its size – is symbolic of nature or important for the survival for the rest of the group.46 The destruction of a group ‘in part’ also includes the intentional destruction of a group within a specifically limited geographical area. It was further noted that intentionally exterminating a group within certain geographically limited areas, such as the region of a country or a municipality, can constitute genocidal acts.47
2.2.3. The Matter of Conduct (actus reus)
Article II of the Genocide Convention contains an exhaustive list of the strategies of genocide in question in the paragraphs (a) - (e). The actus reus is one of the two constitutive elements of the crime, the second being the mens rea.48 While killing in the sense of physical or biological destruction is undoubtedly the key conduct of genocide and is punishable under Article II (a), it must be emphasised that one does not necessarily have to kill in order to be prosecuted.49 Against common belief, homicide and genocide have to be viewed separately, as homicide denies the right to life, while genocide denies the right of existence of the targeted groups.50 As Lemkin had already noted, the root of genocide lies in various political and social practises with a diverse set
41 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (adopted 26 November 1968, entered into force 11 November 1970) 754 UNTS 73. 42 Convention on the Prevention and Punishment of the Crime of Genocide (adopted 9 December 1948, entered into force 12 January 1951) 79 UNTS 277 art I. 43 Prosecutor v Krstic (Judgement) IT-98-33-T (2 August 2001) para 590. 44 Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) para 511. 45 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 318. 46 Prosecutor v Krstic (Judgement) IT-98-33-A (19 April 2004) paras 8-12. 47 Prosecutor v Krstic (Judgement) IT-98-33-T (2 August 2001) para 589. 48 ibid [542]. 49 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 14. 50 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 23. 7
of instruments that deliberately set in motion a genocidal process.51 The actions that are legally equivalent to murder are listed in Article II (b) - (e), which shall be explained in more detail below. It is made explicit that for each of the acts described, the requirement of the necessary genocidal intent (mens rea) is presupposed. Article II (b) of the Convention covers non-fatal acts, which lead to ‘bodily or mental harm’ and are so serious in nature that they eventually contribute to the destruction of the targeted group.52 Mental damage is defined as damage that ‘results in grave and long-term disadvantage’, concerning the life quality of a person, while physical harm is given when internal organs or other parts of the body have been seriously injured or disfigured.53, 54 In the recent decades, the tribunals analysed and interpreted these acts more broadly and repeatedly emphasised, that the harm caused can come in various forms. Acts legally equivalent to mass killing may be for example mutilation, mental or physical torture or inhumane treatment such as deprivation of food and enslavement. It has also been reaffirmed that – given the necessary genocidal intent – acts of rape, deportation or forcible transfer under inhumane conditions can constitute genocide.55 The ICTY has acknowledged, that forced migration, also called ‘ethnic cleansing’ is very similar to genocide.56 While it may very well be an indication of genocidal intent, it does not constitute genocide according to predominant case-law.57
Paragraph (b) of Article II includes acts that indirectly cause death by bringing about circumstances that prevent or impair a longer life. The focus should be on the ‘infliction of substandard condition of life’, that will eventually lead to the physical destruction of the group. It was further noted that no proof of actual death is required.58 A violation of the third act may constitute, inter alia, the systematic expulsion from homes, physical exertion and excessive work. In its most recent judgement, the ICTY stated that very poor living conditions and hygiene standards, including lack of clothing, food and only providing insufficient medical care can also be classified as acts punishable under Article II (c).59 If the required evidence cannot be provided, it must be examined whether these strategies were objectively suitable to bring about success, taking into account in particular the duration of the submission and characteristics of the group.60
In relation to Article II (d), which was interpreted in Prosecutor v Akayesu, it was held that preventing births within the group include acts such as sterilisation, sexual mutilation and forced birth control, prohibiting marriages or the separation of men and women. These measures can be either mental (in the sense of threats) or physical of nature, which was illustrated by the example that the sexual trauma after being raped can lead to a refusal to reproduce in the future.61
Another act, and thus the only recognised form of cultural genocide62 that has been criminalised in Article II (e) is the transfer of children to another group, with the aim of eliminating the cultural component of the targeted group.
51 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 17. 52 Prosecutor v Mladić (Judgement) IT-09-92-T (22 November 2017) para 3434. 53 Prosecutor v Krstic (Judgement) IT-98-33-T (2 August 2001) para 513. 54 Prosecutor v Mladić (Judgement) IT-09-92-T (22 November 2017) para 1434. 55 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 14. 56 Prosecutor v Krstic (Judgement) IT-98-33-T (2 August 2001) para 564. 57 ibid [589]. 58 Prosecutor v Karadžić (Judgement) IT-95-5/18-T (24 March 2016) paras 546-548. 59 Prosecutor v Mladić (Judgement) IT-09-92-T (22 November 2017) para 3434. 60 Prosecutor v Karadžić (Judgement) IT-95-5/18-T (24 March 2016) para 548. 61 Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) paras 507-508. 62 Cultural genocide aims to destroy the cultural identity of a group and will be explained in more detail in section 2.5. 8
In Prosecutor v Akayesu it has been noted that not only physically transferring but also mental components, such as traumatising or threatening the victims in order to make them giving away their children are sanctioned.63 As of today, no one has been convicted on the basis of this article itself, however, a basis for further discussions within the framework of the 'Stolen Generation' has been created.64 This matter will be assessed in more detail in section 3.3.2.
Criminal liability also incurs in the case of omission (provided there is a duty to act), aiding and abetting, as well as instigation of genocide. One is liable to prosecution for aiding and abetting if one contributes to the commission of the offence by assisting, encouraging or providing moral support to a crime, as long as it has a ‘substantial effect upon the perpetration of the crime’.65 The aider and abettor must have knowledge of the genocidal intent of the main perpetrator and needs to be aware of the essential elements of the crime.66 However, the accused does not have to share the genocidal intent himself. It is sufficient that he knows of the genocidal intent of the principal perpetrator.67 With regard to the instigation of a crime, it has been described as the act of explicitly or implicitly ‘prompting’ the principal perpetrator to commit genocide.68
In addition to genocide pursuant to Article II, the Convention lists further punishable acts (that lead to criminal liability) in Article III. Accordingly, conspiracy to commit genocide, to direct public incitement as well as to attempt and to be complicit in the crime are punishable. Regarding the act of conspiracy, the ICTR equated it in Prosecutor v Ngitabatware with aiding and abetting, inciting or inducing genocide.69 Furthermore, concerning the actus reus of incitement, the court highlighted the importance of the public element, thus, private events are excluded from the scope of the offence. Solely speeches or other forms of public discourse are included in the actus reus of incitement, given that it is held in a place where it is accessible to the general public.70 Finally, in order to be charged of complicity to genocide as a variant of participation, the principal offence has to be completed without reasonable doubt.71
2.2.4. The Matter of Intent (mens rea)
Together with the actus reus, the mens rea represents the second constitutive element of the crime of genocide, that deals with the mental state of the perpetrator. It concerns the subjective side of the offence; thus, the perpetrator has to have the specific intent (dolus specialis) to wilfully perform the genocidal acts as listed in the Genocide Convention. It is necessary that the perpetrator acts intentionally, not only in terms of the modalities of the offence, but also in terms of destroying at least a significant part of the group. As has been repeatedly emphasised by the case-law, this mental element is the most defining and distinct feature of the crime, without which there will be no liability. It is necessary that the intent covers each individual element of the offence, otherwise liability does not apply.72 It has also been noted that every single perpetrator who
63 Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) para 509. 64 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 30. 65 Prosecutor v Mladić (Judgement) IT-09-92-T (22 November 2017) para 3563 - 3567. 66 Prosecutor v Bagaragaza (Sentencing Judgement) ICTR-05-86-S (17 November 2009) para 23. 67 Prosecutor v Karadžić (Judgement) IT-95-5/18-T (24 March 2016) para 577. 68 ibid [572]. 69 Prosecutor v Ngitabatware (Judgement) ICTR-99-54-T (20 December 2012) para 1347. 70 ibid [52]. 71 Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) para 530. 72 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 318. 9
participated in the crime must meet this intent requirement.73 Most international criminal courts and tribunals have adopted the view that the mental element of the offence is fluid and include a combination of special and general intent.74 If there is a direct, thus temporal or geographical connection between the offence and the outcome, this constitutes specific intent. In the case of general intent, these two elements can be further apart and it is sufficient if the perpetrator could have been aware that his conduct would probably lead to harm (‘reasonably foreseeable’). This is particularly relevant in those cases that do not directly lead to the completion of the offence, such as the acts described in Article II (b) - (e). Criminal liability does not presuppose a priori the intention to exterminate a group, which is particularly evident in the case of colonial states. Here, the primary motive was land acquisition and not the extermination of Indigenous populations. Thus, even if the primary objective is different, genocidal intent can be affirmed if the perpetrator indirectly knows that the expulsion measures will ultimately lead to the extermination of the affected group and yet no countermeasures are taken.75
Proving the required intent in the absence of a confession is a major challenge for the courts, as this lies in the nature of the crime. Therefore, it was recognised that it should be possible to draw conclusions on intent on the basis of various indicators. These include the general context, certain criminal tendencies, persistent or repetitive discrimination, and certain measures that allow an inference of genocidal intent.76 It has also been emphasised that inferences should be drawn from the evidence as a whole, rather than looking at each piece of evidence individually. However, it is important to note that the particular personal motive of the perpetrator is irrelevant to the assessment of mens rea, as this is distinguished from specific intent.77 Consequently, even if the motives can give some indication of the existence of the required intent, the only element that must be proven by the prosecution is the intentional commission of the offence.
2.3. Procedure and Jurisdiction
Since the Genocide Convention does not have its own implementational system, domestic or competent international courts must be called upon for enforcement. With regard to the prosecution of genocide there are different tracks in international law, depending on whether it is a question of individual criminal responsibility or state responsibility. If an individual is being accused of committing genocide, it falls within the jurisdiction of the International Criminal Court (ICC). If it is a question of state responsibility, thus, a state is accused, this is a matter for the International Court of Justice (ICJ).
However, the demarcation between state and individual responsibility is difficult. The following approaches have therefore developed in jurisprudence: the ‘monistic concept’ holds that the state is responsible for its rulers, thus individual responsibility is a consequence of state responsibility. According to this concept, the individual should therefore be relieved of their responsibility while the state is responsible for reparation. This view stems from the older conception of international law, in which the individual was not yet a subject of international law. The ‘dualistic concept’ on the contrary, distinguishes entirely between individual and state responsibility but an interaction
73 Prosecutor v Krstić (Judgement) IT-98-33-A (19 April 2004) para 142. 74 Prosecutor v Tolimir (Judgement) IT-05-88/2-A (8 April 2015) para 247. 75 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 38. 76 Prosecutor v Tolimir (Judgement) IT-05-88/2-A (8 April 2015) para 246. 77 Prosecutor v Karadžić (Judgement) IT-95-5/18-T (24 March 2016) para 554. 10
between those two is acknowledged.78 This interaction of state and individuals in the case of Australia will be analysed in section 3.3. Pursuant to Article 5 of the Rome Statute of the International Criminal Court (Rome Statute)79, the ICC has jurisdiction to prosecute individuals (ratione personae) for committing the crime of genocide (ratione materiae), the definition of which is identical to that of the Genocide Convention. The aim of this court is especially highlighted in the Preamble of the Statute, where it is stated that the ‘most serious crimes of concern to the international community as a whole’ are to be punished. In contrast to the criminal tribunals for Rwanda and Yugoslavia, the ICC is the product of an international treaty and is thus only binding to state parties that ratified the statute. The ICC is independent from the UN and is an international institution which has jurisdiction that spans beyond the temporal or geographic scope of specific conflicts. The court itself is administered by the Assembly of States Parties, which also has a supervisory and legislative function.80 It has its seat in Den Haag, Netherlands and is composed of eighteen judges, who are distributed among the various chambers and are normally appointed only once for a term of nine years.81 Even though there is no temporal limitation in the Genocide Convention, according to Article 24 of the Rome Statute, the temporal scope (ratione temporis) of the ICC's jurisdiction only extends to crimes committed after the ICC entered into force on 1st July 2002. As a result, the Statute is not retroactive, and no one can be prosecuted for genocide before that date.82
Article 12 of the Rome Statute sets out in which cases the ICC can exercise its jurisdiction. Accordingly, the jurisdiction is territorial and personal of nature, which means it exercises its jurisdiction over genocide only if it was committed in a territory of a state party or by one of its nationals.83 It is also possible for a national of a non-member state to be subject to the jurisdiction of the ICC, provided that they committed the offence in the territory of a member state. In case of a referral by the Security Council acting under Chapter VII of the Charter of the UN, neither the territorial nor personal context in is necessary in order for the ICC to be in charge. It is also possible, according to Article 12 (3), for a non-member state to accept the jurisdiction of the ICC in a particular matter.
In accordance with the principle of complementary, derived from Article 17 of the Statute, the ICCs main task is to support national criminal justice systems rather than replacing them. Accordingly, it may only intervene if a state’s national justice system fails to take the necessary investigations to track an alleged offender, because it is not able to or refuses to do so. This can be the case if there are merely insufficiently developed legal institutions, which leads to a lack of enforceability of the laws or simply due to the unwillingness of the government to act.84 Nevertheless, if a state's court, after due process, rules that a person is innocent, the ICC must accept this and can take no further action.85
78 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 141. 79 United Nations General Assembly, ‘Rome Statute of the International Criminal Court’ (17 July 1998) 2187 UNTS 38544 (Rome Statute). 80 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 299. 81 Ian Brownlie, Principles of Public International Law (6th edn, Oxford University Press 2003) 572. 82 Ian Brownlie, Principles of Public International Law (8th edn, Oxford University Press 2008) 679. 83 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 299. 84 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 541. 85 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 303. 11
As far as the procedural regime is concerned, it is largely a combination of common law and civil law systems. It must be kept in mind that the main feature of international criminal responsibility is to be a combination of international and domestic enforcement mechanisms.86 This is clear from Article VI of the Genocide Convention, which requires that genocide should be prosecuted either by domestic courts (‘a competent tribunal’) in whose country the genocide is alleged to have occurred, or by an international penal tribunal. Since it is usually easier to remain within the framework of national jurisdiction, enforcement by national courts should therefore take precedence and the ICC should merely be a kind of permanent ad hoc tribunal.87 Article 13 of the Rome Statute states the mechanisms of recourse to the ICC. Firstly, the court may be called upon referral of a situation by a state party. Since the laws against genocide are jus cogens, they go hand in hand with the principle of universal jurisdiction. It follows that any state, with or without a personal or territorial connection to the crime is entitled to take legal action.88 The court can also be called upon the UN Security Council acting under Chapter VII of the Charter of the United Nations.89 In this case, is not necessary for the state concerned to be a party to the Statute, the jurisdiction of the court is in any case binding.90 The third possibility is that the court’s own prosecutor starts an investigation on their own initiative (proprio motu91) if they have reason to believe that a crime, that falls in the Courts jurisdiction has been committed. For this, an authorisation from the Pre-Trial Chamber needs to be requested in order to continue with the investigation. After thorough examination, the chamber then decides whether there are grounds to investigate further and based on this decision, authorisation to start the investigation is granted or refused. Once the Pre-Trial Chamber has confirmed the charges, a Trial Chamber will be established to conduct subsequent proceedings. The ICC relies on the cooperation of the states concerned, which must immediately initiate the arrest of the person concerned or give them the opportunity to surrender, however, offenders may also appear before the court voluntarily.92
In the proceedings before the ICC, comprehensive support and assistance is also provided to victims and it is ensured that they can sufficiently participate in the proceedings. According to Article 15 (3) of the Statute, victims can already participate in the pre-trial stage and contribute to the examination of the application. In addition, the Victim Participation and Reparations Unit ensures that at all times they have the right to participate at all stages of the proceedings by testifying and presenting their views.
Within the framework of a mostly public trial, the Trial Division ultimately decides on the guilt of the offender.93 The aim throughout is to ensure an expeditious and fair trial in which the offender's criminal liability is established. Regarding the presentation of evidence, it has been emphasised that allegations implying the commission of genocide (as already explained above under 2.2.1., the intent of genocide is usually not directly provable94) require fully conclusive evidence.95 If there is sufficient evidence to believe that a perpetrator is guilty, the Trial Chamber ultimately issues an arrest warrant.
86 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 288. 87 ibid 298-302. 88 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 532. 89 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 246. 90 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 299. 91 Ian Brownlie, Principles of Public International Law (8th edn, Oxford University Press 2008) 682. 92 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 300-304. 93 ibid. 94 Prosecutor v Tolimir (Judgement) IT-05-88/2-A (8 April 2015) para 246. 95 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 318. 12
Regarding the severity of the sentence if the perpetrator is found guilty, Article 77 (1) (b) of the Rome Statute states that the penalty for particularly serious crimes, such as genocide, is life imprisonment, which the convicted must then spend in the ICC detention centre. Additionally to imprisonment, the court may also impose fines and confiscate certain assets obtained from the offence. Pursuant to Article 75 of the Statute, victims then can also request reparations on an individual or collective basis, restitution, compensation and rehabilitation. If there is any doubt about the legality of the judgment, it can be challenged. A sentence may be appealed if it is claimed by the prosecutor or the convicted person that there has been a procedural error; an error of fact or law; the crime and the sentence are disproportionate; or the fairness or reliability of the trial are put in doubt. The Appeal Chamber then can either reverse or amend the decision, judgment, or sentence, or order a new trial before a different Trial Chamber.
Once again, it should be noted that the ICC's jurisdiction regarding the legitimacy of liability is directed only against individuals. If it is a case of state responsibility, it is therefore not possible for the ICC to hold a state itself accountable.96 The only possibility for states to be held accountable is to appeal to the International Court of Justice (ICJ), which will be explained in more detail in the following section.
2.4. State Responsibility and Genocide
As mentioned above, it is important to distinguish between individual and state responsibility. Although it is possible that these two types of responsibility may overlap, for the sake of simplicity, these two procedures will be demonstrated separately. This section provides an overview of state responsibility and will address the questions of whether the state itself can be held responsible for genocide and in which cases state responsibility arises. Finally, a brief overview of the procedure before the ICJ will be provided.
The concept of state responsibility, that is the accountability of a state for actions that violate its obligations under international law, is a relatively new concept in international law and only emerged as a topic of legal discussion during the late 1990s.97 Although there is no international treaty codifying state responsibility, it is currently generally accepted as customary international law.98 However, some legal indication can be found in the 2001 Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DARS)99 and the 2011 Draft Articles on the Responsibility of International Organisations (DARIO)100 by the International Law Commission (ILC).101 According to the DARS, state responsibility is composed of two elements. Firstly, the violation of an international obligation and, secondly, the attributability of this action or omission to the state.102 It is further important that the damage was caused directly or indirectly by these acts or omissions. Responsibility only arises from the violation of the interests of other subjects of
96 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 142. 97 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 139. 98 ibid 201. 99 International Law Commission ‘Responsibility of States for Internationally Wrongful Acts’ (November 2001) Supplement No. 10 (A/56/10), chp.IV.E.1 (DARS). 100 International Law Commission ‘Draft articles on the responsibility of international organizations’ (2011) A/66/10 (DARIO). 101 Birgit Haslinger and Sigmar Stadlmeier, Public International Law: Texts, Cases and Materials (2nd edn, Pedell Wissenschaftsverlag 2019) 79. 102 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 153. 13
international law, more specifically through the violation of obligations under international law. This occurs either through a violation of bilateral or multilateral treaties, or through violations of customary international law.103
Due to the erga omnes character of the Genocide Convention, all states are equally affected by its violation. Consequently, if a state’s act or omission results in a violation of the Convention and therefore in harming the interests of other states, it commits an offence under international law.104 In 1996, the ICJ became the first international judicial body to recognise state responsibility by violating the Genocide Convention in the case of Bosnia and Herzegovina v Yugoslavia. The Court concluded that the designation of genocide as a crime under international law, together with the duty to prevent genocide, prohibits genocidal acts from states and their organs.105 This finally overcame the previously widespread belief that states had a right to commit genocide or that it was an inevitable evil inherent in warfare.106
State responsibility can arise from the actions of a multitude of legal entities whose acts or omissions are attributable to a state. This is because states must exercise their powers through their organs, thus, through individuals acting on behalf of the state.107 In the DARS, too, ‘governmental authority’ is repeatedly emphasised as the decisive criterion for attributability to the state (see Articles 5, 6, 9). This contextualisation of individuals in state apparatuses was a step towards acknowledging that crimes of genocide are also institutional in nature.108 The legal basis for the liability of the state and its actors is enshrined in Article IV of the Genocide Convention, which states that prosecution for genocide is also possible against constitutionally responsible rulers and public officials. Of course, there is no immunity for these public officials as a consequence either.109 Included are both natural and legal persons – such as state commissions or ministries – as well as public and private institutions and persons used by the state to implement its strategy.110 It has now been established that the connection between the state, the population, its organs as well as individuals are intertwined and that consequently the actions of a state must be considered as a combination of these elements. State crime is thus characterised by an organised interaction of those actors, who act in their entirety on behalf of and for the account of the state.111
Legally speaking, a state itself can never be the perpetrator from the perspective of international criminal law.112 This has been reaffirmed by the ICJ, when it stated in Bosnia and Herzegovina v Yugoslavia, that even though each state is obliged to prevent and punish the crime, the state itself cannot be held directly responsible.113 This becomes particularly clear with the idea of imposing a custodial sentence on a state, which is naturally not possible. A state is created by its people to serve them and to act on their behalf, which leads to the conclusion that unlawful acts attributable to the state are ultimately attributable to its people. It is the duty of a society to stop genocidal
103 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 139. 104 ibid. 105 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 318. 106 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 1. 107 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 177. 108 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 139. 109 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 170. 110 ibid 154. 111 ibid 177. 112 ibid 178. 113 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Judgement) [1996] ICJ Rep 616. 14
operations through its politics and if there is failure to act, it is the society as a collective that is being held responsible for the commission of those crimes. Hence, a state can only be viewed as criminal from a political perspective, as it will have to face political sanctions resulting from the diminished reputation within the community of states, such as the impairment of diplomatic relations. State responsibility therefore does not mean that the state per se is held accountable, but rather it results in a collective responsibility of its people.114 State responsibility arises as soon as a state becomes aware of genocidal events in progress or when it could have been aware, with sufficient attention, that such events were occurring.115 At the national level, this means that states must comply with procedural provisions, thus establishing a national competent tribunal that is free from political influence in order to ensure sufficient prosecution.116 The state has the duty to prosecute, regardless of whether the perpetrators are private individuals or state officials acting on behalf of the state. This obligation exists regardless of the nature of the conflict from which the genocidal acts arose and is not limited to an area within the state's borders.117 In order to ensure adequate prosecution and effectively prevent genocide, it must be understood that genocide by its very nature involves a systematic interaction of various parameters.118 Coordinated and structured action is required, which translates into different levels of responsibility and accountability as well as knowledge and complicity.119 Even a mere indirect promotion of the policy by the individual actors as members of a collective is sufficient for collective responsibility to arise.120 If a state fails to comply with these obligations, the consequence is that it is subject to prosecution by the ICJ.
Pursuant to Article IX of the Genocide Convention, the ICJ is declared competent over disputes between states, when it is claimed that one of them committed genocidal acts through his organs. While the ICJ is responsible for dealing with the criminal liability of individuals, the court must assess whether a state, thus its people can be held responsible. The ICJ is the UN’s main body of jurisdiction and dispute mediator between state parties and its main function is to harmonise the incorporation of the Convention into domestic law of the states.121 It can be called upon by all state parties and those states who accepted it’s jurisdiction, either in general or for a specific case.122 In contrast to the ICC, the ICJ is politically dependent, since it does not only have to deal with individuals but with the ‘guilt’ of an entire state and thus its people.123
According to Article 34 DARS, if state responsibility is affirmed, collective or individual reparation must be made either in the form of restitution, compensation, or satisfaction. These variants of reparation are subsequently interpreted in more detail in Article 35 - 37 DARS. Restitution requires the restoration of the previous state, which will usually not be possible in the case of genocide. Compensation covers pecuniary or monetary damage, including lost profits, but not the immaterial damage caused. Satisfaction, as the third variant, often takes the form of formal public apologies or other symbolic acts by the state expressing its regret and recognition of the acts that violated international law.124 In practice, these reparation variants often go hand in hand, thus, reparation
114 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 176-177. 115 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 319. 116 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 246. 117 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 317-318. 118 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 134-138. 119 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 138. 120 ibid 177. 121 ibid 170. 122 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 815. 123 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 190. 124 ibid 167-169. 15
and satisfaction are often demanded at the same time. Specifically with crimes of genocide it has been shown that the greatest want of survivors and their descendants is usually for the state to publicly acknowledge the events and the harm done to them.125 Even though it is psychologically challenging to acknowledge the commission of such crimes, it is an indispensable political and moral act to recognise and commemorate the victims. This seems to suggest that collective reparation in the sense of satisfaction could be the most effective way to achieve the purpose of the intended reparation. Nevertheless, many questions regarding state responsibility have not yet been conclusively clarified, so that the concept of state responsibility is still in its infancy and questions remain unanswered. The question regarding the role of the state, particularly in the case of Australia, will be addressed in more detail in sections 3.3. and 3.4. However, it is not only the question of state responsibility that poses some problems. Thus, the following criticism regarding the Genocide Convention will be discussed.
2.5. Criticism
The Genocide Convention is widely disputed and the focus of harsh criticism ever since its adoption. Robertson talks about a ‘woeful’126 outcome and ‘norms of imagination’127, strongly marked by government’s interests and the attempt to avoid any possible form of prosecution between the state parties (which in many cases were allies). Tatz describes the Convention as grievously flawed and calls Article II of the Convention a 'yardstick' because of its narrowness.128 Douglas Irvin-Erickson argues that the major powers, due to their political power, were able to create their own tailor-made law and thus ‘writing out their own genocides’ of the Convention.129 Hence, the main points of criticism are the strong political influence of the states and the controversial and vague formulations which lead to the assumption that the Convention is a weak treaty.130 The procedure in particular, which differs greatly depending on whether national or international courts are involved raises a number of questions. An unclear division of roles, the lack of enforcement possibilities by biased courts, and the practical non-provability of the intent requirement (mens rea) pose major challenges in the context of the enforcement of the Convention. The most important aspects of criticism shall be discussed below.
International law has always been the embodiment of state practice and international treaties. Thus, the creation and subsequent consent of international treaties and conventions is strongly influenced by the political interests of states.131 This also became evident during the drafting process of the Convention, where it was almost exclusively the governments of the states that had an influence on its formulation.132 Knowing the moral force that the Convention would have, especially regarding domestic implementation, states behaved rather hesitantly.133 Thus, delegates were instructed to vote in the favour of their governments and the experts involved were influenced by their states.134 Ultimately, it seemed as if the general philosophy of law was gradually pushed into the background.135 Whether a state is held accountable for genocide by another state
125 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 222. 126 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 47. 127 ibid 87. 128 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 316. 129 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 8. 130 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 14. 131 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 93- 94. 132 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 8. 133 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 188. 134 ibid 184. 135 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 8. 16
therefore depends heavily on the political relations between the states. Political interests, diplomatic relations or other alliances mean that only rarely is a state accused by another state for its wrongdoings.136 However, this would be crucial to ensure state accountability as required by Article IX of the Convention, especially since victim communities are rarely in a position to bring a case for state crimes.137 Additionally, the theory of the criminal state is still very controversial since, as already examined, the state itself cannot legally be considered a perpetrator. Based on these examples, the result is an international law that is shaped by the interests of states and not, as is often claimed, an international law in the sense of those who have been victims of violations of international law.
Another problem is the lack of effective prosecution, whether before national or international courts.138 No system can be derived from the Convention that investigates suspicious events and, if there are grounds for suspicion, transfers the cases to the competent courts. This matter is largely left to the domestic courts, whose prosecutions are often criticised for being deficient and disorganised, not least because the courts often act in a biased manner.139 However, due to the principle of complementarity, states have primacy in prosecutions and can largely regulate genocide prosecutions at a national level. They are free to decide when and whether to refer a case to the international courts, or whether and to what extent to investigate an alleged perpetrator. In other words, even when it seems clear that a national procedure does not meet the standards set by the international community, the international courts cannot act because their ability to prosecute usually only comes into play when they have the consent of the state concerned to act.140 Finally, it can be held that states usually want to avoid creating precedents, that shape future investigation and procedural measures, as it can be counterproductive to their, or their allies, agenda and put them in a precarious position.141 The combination of different jurisdictions and thus different treatment of criminal cases, as well as the lack of clarity about when a case must be brought before the international courts, ultimately leads to weak enforcement mechanisms.
Particularly state responsibility cases pose a major challenge for international courts. Firstly, blurred boundaries between the state and its actors make it difficult to attribute a crime to the state and can result in overlapping jurisdictions of the ICC and the ICJ.142 Secondly, as the signatory states have been held responsible for punishing genocide, it is subsequently the state itself that must prosecute its state officials and effectively sanction its own crime.143 Since states have also been instrumental in shaping the proceedings, heads of state and other state actors often enjoy immunity from the law and thus from prosecution as far as their actions while in office are concerned.144 Hence, there is a great deal of leeway in the matter of the extent to which states prosecute their organs, as it has not yet been conclusively clarified what the requirements for an investigation should be (for example, in terms of Article 17 of the Rome Statute).145 Thirdly, since the requirements for state preventive measures have not been specified either, it seems contradictory to many that the state itself cannot be held accountable but has the duty to prevent and punish genocide.146, 147
136 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 189. 137 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 142. 138 Ian Brownlie, Principles of Public International Law (8th edn, Oxford University Press 2008) 671. 139 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 542. 140 Ian Brownlie, Principles of Public International Law (6th edn, Oxford University Press 2003) 572. 141 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 47. 142 ibid 355. 143 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 25-26. 144 Ian Brownlie, Principles of Public International Law (8th edn, Oxford University Press 2008) 688. 145 Ian Brownlie, Principles of Public International Law (6th edn, Oxford University Press 2003) 572. 146 ibid 303. 147 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 317. 17
If, despite all this, a case goes to trial, another great difficulty is proving the intent requirement.148 This is undoubtedly one of the main points of criticism, as many scholars claim that the requirement of intent is set too high and therefore very difficult to prove.149 Especially if the crimes were not prevalent or publicly supported in any way, and if the evidence is not completely conclusive, the accused may simply deny their genocidal intent.150 There are also great difficulties regarding state responsibility, as the DARS Articles do not provide for the imputation of intent to a state itself. It must be proven that the persons acting as state organs have themselves formed the required intent. This makes the prosecution of states doubly difficult, in addition to the obstacle of proceedings being instituted at all.151 The result is a wide scope to evade accountability and in practice, therefore, most convictions fail to prove intent.
Article II of the Convention was especially criticised by many for being too narrow.152 The structuring of the subjective elements of the offence (actus reus) provides no distinction or graduation concerning the different genocidal acts listed in Article II. From the fact that there are no different degrees or levels of genocidal behaviour, it follows that the killing of human beings is on the same level as the causing of physical or mental health.153 This is problematic, since from a legal perspective it is relatively unlikely to be convicted of genocide if no physical killing has taken place.154 Another major oversight of the Convention is the narrow definition of the victim groups. While the draft contained the wording ‘a group of people’, in the end, the protection of political groups and other minority rights were eventually excluded from the scope of application.155 Further disregarded are economic classes and social organisations as well as gender groups, and homosexual people, unless they are members of a group whose membership can be attributed to a nationality or a tribe.156 However, victims can often be assigned to several identities, some of which overlap, making it even more difficult to assign them to a group or define their membership.157 Victim groups often feel ridiculed when the intent must be rigidly related to a victim group, because otherwise there is a risk that the acts will be excluded from criminal liability altogether.158 While the 'soft-framing' of genocidal strategies thus promises a wide scope of application, the 'hard-framing' of victim groups in reality leaves little room for condemnation.159
Another highly criticised aspect of the Convention is the exclusion of cultural genocide.160 The debate on cultural genocide has been ongoing since the drafting process and remains one of the most debated issues surrounding the Convention. Lemkin already considered cultural diversity essential to civilisation and claimed that strategies aimed at destroying a culture, moral values or religion would amount to physical genocide.161 His view was also implemented in the draft when no distinction was made between physical and cultural genocide at the beginning of the drafting process. According to the original wording, genocide therefore was ‘any deliberate act committed with intent to destroy the language, religion, or culture of a national, racial, or religious group’.162
148 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 319. 149 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 26. 150 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 316. 151 Gurgen Petrossian, Staatenverantwortlichkeit für Völkermord (Duncker & Humblot GmbH 2019) 139. 152 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 8. 153 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 25. 154 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 14. 155 ibid 244. 156 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 245. 157 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 34. 158 ibid 15, 537. 159 ibid 21. 160 Malcolm N. Shaw, International Law (8th edn, Cambridge University Press 2017) 316. 161 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 160. 162 John Cooper, Raphael Lemkin and the Struggle for the Genocide Convention (Palgrave Macmillan 2008) 130. 18
Subsequently, in the 1948 Ad Hoc Committee Draft, cultural genocide was removed from Article II and dealt with in a separate article.163 However, due to strong opposition from the colonial states, which were also among the main powers, this term was eventually removed from the Convention by the Sixth Committee and the scope was thus limited to the material destruction of the protected groups. This was a particularly harsh setback for minority rights, mainly because what would have originally constituted genocide was now no longer considered genocide. Such acts would have been the banning of cultural property, such as museums or religious buildings, or even the banning of languages in certain environments.164 Today, the debate on cultural genocide is mainly led by Indigenous people who demand reparations from the states that have violated their and their ancestors' rights.165 By excluding cultural genocide, some scholars argue, colonial and Indigenous genocides have thus been ‘written out of the law’.166 Currently, many Aboriginal scholars argue that cultural genocide is an ongoing problem in Australia. This will be discussed in more detail in section 5.
The legal function of cultural genocide is thus limited to supporting the indication of the existence of genocidal intent and thus to substantiate cases of suspicion of genocide. This was reiterated by the ICTY in Prosecutor v Karadzic.167 It was further emphasised that, although not particularly relevant from a legal perspective, it is important to consider cultural genocide as part of the framework to ensure a broad understanding of genocide and its various strategies.168 For example, rewriting or erasing a group's history or destroying symbols to the point of banning language strongly indicate genocidal intentions.169 Indeed, through these acts, the social relations and practices that are crucial for the survival of group identity are slowly diluted and eventually lost.170 From a legal perspective there is no basis for punishing cultural genocide. This narrows the scope of the Convention even further and thus, as already explained, particularly affects the criminal liability of colonial states. However, the happenings in the settler-colonial states are not just issues of cultural genocide. At this point it is appropriate to raise the issue of Australia’s history with colonialism and genocide. Therefore, the next section will specifically deal with Australia’s history, especially regarding the treatment of the Indigenous people who inhabited the continent long before the settlers arrived.
163 United Nations Ad Hoc Committee on Genocide ‘Draft Convention on Prevention and Punishment of the Crime of Genocide’ (19 May 1948) UN Doc E/AC.25/12. 164 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 183- 184. 165 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 30. 166 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 182. 167 Prosecutor v Karadžić (Judgement) IT-95-5/18-T (24 March 2016), para 553. 168 Jeffrey S. Bachmann, Cultural Genocide : Law, Politics, and Global Manifestations (Routledge 2019) 2. 169 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 246. 170 Jeffrey S. Bachmann, Cultural Genocide : Law, Politics, and Global Manifestations (Routledge 2019) 4. 19
3. Crimes of Genocide against Aboriginal People in Australia
3.1. Historical Context
In order to apply and then subsume the legal components explained above to historical events in Australia, it is important to understand the historical context and outline both the history and culture of Aboriginal people in Australia. Therefore, this thesis will firstly provide a historical overview of Australia’s colonisation process. This will enable subsequent subsumption under Article II of the Genocide Convention and placement in a context of international law.
The colonisation of Australia by the British, thus, the beginning of Western settlement, started in 1788, when the first fleet under the leadership of Admiral Arthur Philip arrived in Sydney Cove. The goal was to establish new penal colonies, and on board there were approximately 1 000 convicts. It is estimated that at that time there were about 300 000 to over one million Aboriginal people living on the continent, divided into more than 500 Aboriginal nations.171, 172 By designating the land as terra nullius, which corresponds to the idea that the territory in question belongs to no one, the British, like many other colonial powers before them, justified the occupation of the territory.173 This is also called the phenomenon of settler colonialism, where the state empowers its subjects to take over the land and settle territories.174 Since the British saw Indigenous people as inferior and being at the bottom of the evolutionary chain, they felt justified in taking legal power over them.175 For the settlers, the understanding of a functioning and interactive system of government was very different to that of Aboriginal people, hence they could not recognise Aboriginal laws and traditions, and they wrongly assumed that political organisation was absent. The lack of recognisable formal structures to the Western settlers, disadvantaged the Aboriginal population as they could not communicate with the settlers and their authorities, and the pre- existing Aboriginal nations were quickly outvoted by Western systems of governance.176 Due to the 'Doctrine of Discovery', Aboriginal people henceforth were regarded as British subjects, while at the same time they did not have the same legal status as British subjects.177 Thus, the legal basis for the territorial acquisitions and therefore numerous violent encounters was created.
Subsequently, further colonies were established in what are now known as the states of Victoria, Queensland and South Australia. In 1803, Van Diemen's Land, that is now known as the state of Tasmania was also eventually settled.178 During this early period, the Aboriginal population across Australia came to a sharp decline. Firstly, due to the rapid increase in the spread of the various settlements, the Aboriginal population subsequently had to struggle with new diseases introduced by the settlers. Aboriginal people had poor immunity to European diseases such as smallpox and measles, which often proved fatal and thus claimed many lives.179 Secondly, violent conflicts became more frequent, as there were disputes regarding food and medical supplies as well as
171 Australian Bureau of Statistics (1994) Statistics on the Indigenous Peoples of Australia
defence of land. The Indigenous people were blindsided by the Europeans, who were unfamiliar with their way of life and their understanding of the law. Since the settlers did not want to share the land with the Indigenous population, they were gradually deprived of their lands and displaced to the outer edges of the city settlements. In many cases they were banished to specially designated reserves or areas. For example, 2 000 settlers reportedly marched along the borders and drove out Aboriginal people on an island, resulting in death for many.180 In an attempt to help themselves, they set fires or killed the settlers' livestock, but were only able to minimally curb the killing on the frontier.181 Violent massacres occurred over the country, some of the most prominent ones that followed were the Pinjarra Massacre 1834 in Western Australia or the Myall Creek Massacre in New South Wales in the following year. The genocidal nature of these events will be subject to a detailed case study in section 3.3.1.
Around the 1830s, the first tentative attempts were taken by the settlers to grant some rights to Aboriginal people. The first reports showing a rapprochement between the Aboriginal and non- Aboriginal population date from 1835, when the first alleged treaty - now known as Batman's Treaty - was drafted between the two parties. Reportedly, Mr John Batman, an Australian farmer and businessman born in Sydney, entered a treaty with a group of Aboriginal Australians for the rights to 250 000 hectares of land in exchange for blankets and goods. However, the motivations of this treaty are disputed and some scholars suggest that it was a scheme developed by the settlers in order to gain more land. Due to language barriers, a true consent to the treaty was unlikely, given that Aboriginal people did not fully understand the content of the treaty. Since the Aboriginal elders were not familiar with the concept of land ownership, their capacity to sign, and thus partake in the treaty was compromised.182 Moreover, the treaty was never officially recognised by the authorities.183
Slowly, the settlers realised that there was no justification for their behaviour towards Aboriginal people. In 1837, the British Select Committee recognised the poor treatment of Aboriginal Australians and proposed to appoint a commissioner called ‘Protector of Aborigines’.184 In the course of this, the poor treatment of Aboriginal children was also acknowledged by the governments for the first time (for the issue of the Stolen Generation please refer to section 3.3.2.). In 1898, the Royal Commissioner Archibald Meston was appointed to investigate the murderous events in Northern Queensland. In his report he described the treatment of Aboriginal people as a ‘disgrace to humanity’ and noted the state of terror, they had to live in.185 According to Tatz, the first anti-genocide law was created just one year later when the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 came into force, particularly relating to the trade and consumption of opium.186 The aim was to provide protection and care for ‘Aboriginal and Half- Caste Inhabitants’ in Australia, since the consumption of substances like opium or alcohol brought in by the Europeans had become a problem for many Indigenous people back then.187 From 1901, Aboriginal people living in the settlement areas were included in the censuses if they were 'half-
180 Nicholas Clements, The Black War Fear, Sex and Resistance in Tasmania (University of Queensland Press 2014) 126. 181 Thomas J Rogers and Stephen Bain, ‘Genocide and Frontier Violence in Australia’ (2016) vol 18.1, Journal of Genocide Research, 84. 182 Robert Kenny, ‘Tricks or Treats?: A Case for Kulin Knowing in Batman’s Treaty’ (2008) vol 5.2, History Australia, 83.1-83.2. 183 Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015) 102. 184 ibid 116. 185 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History, 23. 186 ibid. 187 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 324. 21
bloods' (see section 3.3.2 for an explanation of the definitions).188 All these examples show the attempt to grant rights and protection to Aboriginal people.
Malpractices against Aboriginal Australians and their dispossession still prevailed throughout the country well into the 20th century and violent conflicts continued. Towards the end of the 19th century Indigenous Australians were assumed a dying race, with their numbers already reduced to a fraction.189 It was estimated that by 1920 the number of Aboriginal people and Torres Strait Islanders still alive had already been reduced to only 60 000.190 Furthermore, during this time troopers were still sent to Queensland under the command of New South Wales to ‘open the land for settlement and kill natives’.191 Only 20 years before Australia ratified the Genocide Convention, in 1926 and 1928, there were reports of further massacres.192 The ratification of the Convention by many was seen as a formal act rather than Australia actually wanting to take responsibility for what was happening and acknowledging what was still going on even at the time of ratification.193
Even after the Genocide Convention came into force, there have been incidents that show that little had changed regarding the rights of Aboriginal Australians. Especially their right for self- determination and land rights have been further disregarded. One of the mostly debated topics among genocide researchers are Australia’s child removal practices between the 1910s and 1970s with the purpose of assimilation of Aboriginal people into Western society. Some of these acts might qualify as cultural genocide and it is argued that Indigenous social figurations and family networks are still suffering in the aftermath of this dispossession. However, due to the research focus of this thesis on legal analysis under the Genocide Convention, it is only noted that the study of cultural genocide has attracted considerable attention in recent years. Regarding Aboriginal rights it can therefore be concluded that although the 20th century was also seen as the peak of human rights movements, there was (and is) still much to be done in terms of human rights for Indigenous Australians.
In the 1970s, more voices were raised to stop the social division and ongoing discrimination against Indigenous Australians. As Aboriginal people living outside the settled areas were still not included in the censuses, an activist-led campaign resulted in the famous referendum for the Constitutional Amendment (Aboriginals) 1967. The two main questions covered by the referendum were whether Aboriginal Australians should be included in the censuses and if the Australian government should be entitled to legislate for them. The vast majority of people, 94%, within the Australian states (please note that populations within the Northern Territory and the Australian Capital Territory were not eligible to vote) voted in favour of this constitutional amendment.194 It was believed that this would end the ongoing discrimination and was an important step towards equal rights for Aboriginal Australians. However, it is a common misconception that the
188 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 6. 189 Robert van Krieken, ‘Rethinking Cultural Genocide: Aboriginal Child Removal and Settler-Colonial State Formation’ (2004) vol 75.2, Oceania, 126. 190 Australian Bureau of Statistics (1994) Statistics on the Indigenous Peoples of Australia
amendment contained any measures concerning the provision of equal rights to Aboriginal people. In fact, the Australian government was only further legitimised to enforce laws for them, which did not necessarily mean that the laws enforced had to contain any anti-discriminatory provisions. The amendment was seen by many Indigenous Australians and scholars as disillusioning and a failure, as there was little change in the actual position of the Indigenous population in Australia.195 However, the Constitutional Amendment is still seen as a high point of the Aboriginal rights movement, as some laws were indeed passed with good intentions in the following years.
Around the 1970s, the first scholars began to talk about the numerous murders of Aboriginal people in Australia. However, although it was widely acknowledged that there were physical killings, massacres or at most exterminations, the word genocide was not used. Even though this content was gradually included in university and school teaching, it was nearly impossible to find these events described in terms of genocide in any of the key literature on Australia’s history and international law. After a long period of silence regarding these events, some scholars finally started to classify the conduct of the private settlers and squatters as genocidal, and to question the complicity of the colonial authorities. The first scholars that used the term genocide were Michael Cannon in Who Killed the Koories on the frontier killings in New South Wales; and Anne McGrath, who wrote about attempted genocide regarding the happenings in Tasmania.196 Regarding the Stolen Generation, it took even longer for the child removal practices to be identified as genocidal. When Tony Barta - the first historian to publicly speak about genocide in Australia, especially regarding the Stolen Generation - presented his work at the German-Jewish Experience Symposium in Sydney, it was mostly ridiculed and described as a surreal account of Australia’s history.197 The Australian state's attitude towards the killings and child removals will be more fully elaborated in section 3.3.
The following section will try and answer whether or not the acts during colonisation and beyond, against Aboriginal Australian people fulfill the criteria of genocide, as defined by the Genocide Convention. Firstly, in order to assess the validity of this claim, a discussion will be held surrounding whether Aboriginal Australians qualify as a victim group under Article II.
3.2. Aboriginal People as a Protected Group within the Meaning of Article II of the Genocide Convention
Understanding the identity and complex culture of Aboriginal people is necessary for understanding Australian history. Although this paper refers to Aboriginal culture as a singular, it should be remembered that there is not ‘one Aboriginal culture' but that there are hundreds of Aboriginal nations across the continent, each of them with their own distinct Creation Stories and traditions.198 Nevertheless, this thesis will try to emphasise the commonalities and strive for an adequate representation of the core of these cultures, which is why in the subsequent section it will be referred to the Aboriginal culture as a whole. There are still many misconceptions about Aboriginal cultures, therefore the aim is to familiarise the reader with this subject by drawing on
195 Larissa Behrendt, ‘The 1967 Referendum 40 Years On’ (2004) vol 82, Precedent (Australian Lawyers Alliance), 7. 196 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History, 18. 197 ibid 19. 198 Ambellin Kwaymullina, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson, Indigenous Peoples as Subjects of International Law (Routledge 2017) 5. 23
Aboriginal literature. This will provide a basic understanding to subsequently be able to make an adequate legal assessment, in particular subsumption under Article II of the Genocide Convention.
Indigenous cultures around the world have always been diverse and multifaceted cultures that are by no means subject to a rigid construct. As prior inhabitants of the Australian continent, Aboriginal Australian’s cultures are claimed to be the oldest living cultures in the world, with their history tracing back approximately 60 000 years.199 Primarily, their cultures are characterised by their holistic worldview and versatility. This shows in the large number of Aboriginal nations all over Australia, whose religions, traditions, and lifestyle also differ greatly among themselves.
Aboriginal communities differ from Western cultures primarily in their strong sense of community rather than being focused on the individual.200 Instead of legal constructs such as the state or other central institutions, it is their families that are central.201 These are usually very large in number and do not necessarily consist only of blood relatives. Membership of the group is determined by whether a person is of Aboriginal descent, identifies as such, and ultimately whether they are acknowledged as such by other Aboriginal people. This method is commonly used today (also by state authorities) to assess whether someone can be identified as Aboriginal.202 Due to their close- knit family and relationship-oriented way of life, their kinship relationships are based on strong social networks.203 It is therefore not the nation but the family that conveys a strong sense of belonging, which is why for Aboriginal people talking about their nation is synonymous with talking about their family. Since Aboriginal cultures have such a fundamentally different concept of nation and citizenship, their encounter with international law and other Western legal systems is particularly challenging.204
Within cultural groups, Aboriginal elders hold an important position. Should disputes arise or other matters that need to be discussed, there are specifically designated persons every member of the mob can turn to.205 These elders are usually people of older age who are equipped with higher authority and they have often been described as leaders and people rich in knowledge. The fact that women are not excluded from this function and often also have a higher status than men suggests that Aboriginal cultures are not patriarchal.206 Their functions frequently, but not always, include legal matters, such as taking over the decision-making and acts of correspondence with other authorities as well as representation in bureaucratic processes.207
199 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 318. 200 Larissa Behrendt, ‘Aboriginal Urban Identity: Preserving the Spirit, Protecting the Traditional in Non Traditional Setting’ (1995) vol 4, Australian Feminist Law Journal, 57. 201 Ambellin Kwaymullina, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson, Indigenous Peoples as Subjects of International Law (Routledge 2017) 13. 202 Australian Institute of Aboriginal and Torres Strait Islander Studies, ‘Proof of Aboriginality’ (Australian Institute of Aboriginal and Torres Strait Islander Studies)
Although there are individuals who hold higher positions, some Aboriginal scholars emphasise that their nations are organised in an egalitarian rather than hierarchical manner, as is demonstrated in their relationship with their environment.208
Aboriginal cultures have a strong spiritual interconnectedness to the environment that also extends to the land and wildlife.209 Their kinship systems are thus not limited to their people, but also include various parts of the ecosystem.210 Aboriginal people believe that all their relationships are also determined by the land, the weather, and the animals because of their relationship to the environment. Therefore, when Aboriginal people introduce themselves, the first reference is usually to where they come from, since in their view it is the land that defines who they are and shapes their identity.211 In contrast to the common view in Western cultures that humans are superior to other living things, Aboriginal people see themselves as part of the worldly organism. For them, the environment serves as a resource for all the necessities of life and in return they see themselves as custodians of the environment.212 However, it is considered quite normal in Western legal systems to establish ownership of land - which has been evident from the time of the arrival of the British in Australia, especially in the later dismissed notion of terra nullius. Conversely, in the minds of Aboriginal people, proprietorship of land has never been possible.
These different perceptions of land can be seen, among other matters, in the different interpretations of state and territory, and thus, in the concept of state borders. In contrast to the settlers, the boundaries of the various Aboriginal nations were not strictly defined, but of natural origin. Their boundaries were primarily dictated by natural features such as rivers and elevations, rather than the rigid, linear land boundaries typical of the colonisers. Since the land is considered part of the Aboriginal kinship system it is therefore also seen as a legal actor. Since it is therefore a source of law in itself and regulates its borders independently, it follows that there is no need for border controls either.213 Border law concepts and an immigration policy, typical of Western legal systems, also do not exist in Aboriginal nations. If someone wants to enter an Aboriginal nation, this must be accepted by the locals, usually through a formal welcome offered by the people of the country. In the past, this was usually done in the form of fire signals, but currently, for example at public events, either an official ‘Welcome of Land’ or an ‘Acknowledgement of the Land’ is given if no member of the respective nation is present. However, since the arrival of the colonisers, their legal system has applied, thus these forms of greeting are merely for the purpose of showing respect to Aboriginal Australians.214 This example shows the different ways of thinking of the Aboriginal and the Western culture and thus also demonstrates how varied is their respective understanding of law.
Aboriginal law, which has been completely overruled by the Australian legal system, is very different from Western law. Contrary to popular belief, the Indigenous people of Australia had their own legal traditions, trading and negotiation systems before the fleets arrived to the continent.
208 Larissa Behrendt, 'Aboriginal Urban Identity: Preserving the Spirit, Protecting the Traditional in Non Traditional Setting’ (1995) vol 4, Australian Feminist Law Journal, 56. 209 ibid 55. 210 Ambellin Kwaymullina, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson, Indigenous Peoples as Subjects of International Law (Routledge 2017) 13. 211 ibid 9. 212 Larissa Behrendt, 'Aboriginal Urban Identity: Preserving the Spirit, Protecting the Traditional in Non Traditional Setting’ (1995) vol 4, Australian Feminist Law Journal, 55. 213 Ambellin Kwaymullina, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson, Indigenous Peoples as Subjects of International Law (Routledge 2017) 14. 214 ibid 13. 25
Although before the arrival of the British in 1788, Aboriginal communities had no concept of nationhood or legal contracts; they indeed had their own understanding of the law.215 However, unlike the laws of Western legal systems, Aboriginal laws are not written down in legal texts, as the focus here is rather on narratives that establish the relationships between the land and the people. Thus, it is said that Aboriginal laws are created ‘through the living of it’, hence, passed down orally through art and storytelling within the kinships.216 Due to the interconnectedness with the environment, according to them, everything – including the law – derives from what is called the ‘Dreaming’. This is their Creation Story and it was during this time when the Dreaming Ancestors entered the world and shaped the land, the traditions of the people and the law.217 Moreover, since their kinship models are not homogenous, their laws consequently are not homogenous as well.218 This again shows that Aboriginal people's understanding of law differs fundamentally from the Western understanding in many different matters. Naturally, this led to numerous conflicts between Indigenous and non-Indigenous Australians throughout time, both historically and at present.
Looking at the relationship between Aboriginal and other Australians today, it is observed that there is still a strong divide. Although some have managed to revive their cultures, Indigenous peoples all over the world have encountered colonialism and still collectively feel a deep sense of hurt, grief and sorrow.219 The impact of colonisation on Aboriginal people and their culture runs deep, and the deaths of their 'old people' – as the deceased ancestors are usually referred to – have left many Aboriginal people still feeling resentful towards the wider Australian society and the state.220 This is compounded by the fact that many attempts at reparations by the state have failed in their perception and not enough has been done to restore a defensible state of affairs (for the matter of reconciliation see section 3.4.). However, even though Aboriginal culture has adapted over time, it still features the same characteristics described above and is thus clearly different from more Western cultures.
This elaboration now leads on to the subsumption under the Genocide Convention. There it is stated that victims can only be the groups designated in Article II, hence, the prohibited acts must be committed against a ‘national, ethnical, racial or religious group’ as such. Based on the findings above, it can be concluded that the cultural and sociological features of Aboriginal cultures clearly distinguish them from other groups. Moreover, there is also no evidence to doubt the identification as a protected group pursuant to Article II. Therefore, this qualifies as a ‘fact of common knowledge’ which, according to the ICTY, does not require further judicial determination.221 Since their membership usually depends on whether someone is of Aboriginal descent, it can also be inferred that the required incontestability of membership is given. This is, as mentioned above, another common characteristic of the designated groups under the Genocide Convention, which brings them within its scope of application. On the basis of what has just been outlined, it therefore does not pose any great difficulties to subsume the Aboriginal population in Australia as a protected group in the sense of the Convention.
215 Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015) 6. 216 ibid 12. 217 Ambellin Kwaymullina, ‘Aboriginal Nations, the Australian nation-state and Indigenous international legal traditions’ in Irene Watson, Indigenous Peoples as Subjects of International Law (Routledge 2017) 6-7. 218 ibid 15. 219 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 30. 220 Sally Babidge, Aboriginal Family and the State : The Conditions of History (Routledge 2016) 193. 221 Prosecutor v Tolimir (Judgement) IT-05-88/2-A (8 April 2015) para 180. 26
3.3. Selected Example Cases
Since it has been concluded that Aboriginal people constitute a protected group within the meaning of Article II of the Genocide Convention, this section undertakes a legal analysis of selected examples and examines whether they fulfil any of the criteria of Article II (a) - (e). In particular, the massacres during the frontier wars as prime example of physical killings pursuant to Article II (a) will be addressed. Additionally, the more complex issue of forced removal of Aboriginal children and its qualification as an act of genocide under Article II (e) is examined in more detail. Each case study will be examined for the actus reus and the mens rea, as well as the other necessary elements of the offence to verify the legal validity of claims. It should be noted however, that the Genocide Convention cannot be applied retrospectively, hence, the aim of this section is merely to subsume the happenings under the Convention and to examine if the happenings would theoretically constitute genocide.
3.3.1. Frontier Killings and Massacres
3.3.1.1. Actus Reus
The actus reus in Article II (a) of the Convention, the punishable conduct, is killing in the sense of physical or biological destruction. It is undisputed today that numerous killings by Australian settlers and squatters occurred during colonisation and that this led to a severe decimation of the Aboriginal population. The conflicts over land ended fatally in many cases - mainly through shootings, poisonings and sometimes burnings.222 Compared to the European settlers, the Aboriginal clans were disadvantaged by their technological equipment, especially their weapons, and thus could only defend themselves ineffectively.223 However, instead of exterminating many people at once, the killings occurred in ‘small doses’, meaning that only comparatively small groups of people were killed at any one time.224 Opponents of the genocide theory therefore argue that the scale of the killings is not comparable to other famous examples of genocide, such as the Holocaust, and therefore could not be considered genocide. However, this view can be invalidated by the fact that neither Lemkin originally, nor the Genocide Convention, require the total extermination of a target group and, moreover, the severity of the scale of the killings does not matter. For a finding of genocide, and thus for liability under Article II (a), it is sufficient that a substantial part of the group falls victim to the acts.
The perpetrators were mostly private settlers, but the state is also accused of being involved in the events. After the arrival of the first fleet in Sydney Cove, Governor King declared martial law and thus enabled private settlers to legally shoot at Aboriginal people to drive them out of the settler areas. There were also self-organised groups of non-officially appointed justice officials, such as vigilantes and police officers, who were responsible for numerous murders of Indigenous men, women and children.225 Violence against Indigenous Australians also increased after many European convicts were released after serving their sentences.226 However, it is also alleged that
222 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 324-325. 223 ibid 316. 224 ibid 324. 225 ibid. 226 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 119. 27
by failing to take action against the events, or sometimes even by enabling them to take place, the state acted as a criminal accomplice under Article III (a) of the Convention. The state was especially accused of being involved in the acts by not taking action through its acting organs when the murderous events became known.227 The colonial authorities and officials in particular were accused of ignoring the happenings and therefore enabled and supported the killings as silent by-standers.228 In summary, the perpetrators were mainly private individuals, but due to the actions of the state including the declaration of martial law and the failure to prevent the commission of the crimes, the state could have rendered itself liable under Article III of the Convention through conspiracy or at least complicity in genocide.
The mass killings were spread across the Australian continent. The killings mainly occurred on the frontier, which was the land that was in the process of being colonised. Many extermination acts also occurred outside the settled areas, where several massacres of entire Aboriginal communities were committed over the years. Examples include, but are not exhaustive, Myall Creek, Bathurst, Gippsland and Pinjarra. There have been records of other massacres occurring in Orara River, Palmer River and Alice Springs.229 In total, there are said to have been more than a hundred massacres between the start of colonisation and the early 1990s. One massacre even occurred as recently as 1926 in the Kimberley Region in Western Australia, known as the Forrest River killings.230
Regarding the total number of deaths, there are no concrete figures, however, some estimates have been made based on previous records. In Queensland, an estimated 10 000 Aboriginal people were killed between 1824 and 1908, making it the state with the most deaths.231, 232 Around the same period, a stark decimation of the Aboriginal population was recorded in central Australia, particularly around the Alice Springs area, with about 40% of the total deaths attributed to shootings.233 According to Tatz, the peak of what he calls the 'Australian Killing Era' was reached around 1830.234 A rough estimate put the total death toll from the massacres at around 20 000.235 As a result, by 1911, the Aboriginal population in Australia was decimated from an estimated 300 000 to over one million at the start of colonisation, to just 31 000.236
From the facts presented above, it can be concluded that the actus reus as defined in Article II (a) of the Convention, namely the completion of the act of physical killing, is satisfied. The killing of thousands of Aboriginal people and thus the extermination of a considerable part of their population during the massacres and frontier wars is sufficient proof of the required actus reus.
227 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 319. 228 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 119. 229 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History, 18. 230 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 325. 231 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 119. 232 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History, 23. 233 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 325. 234 ibid 316. 235 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 116. 236 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 320. 28
3.3.1.2. Mens Rea
For the mens rea it is necessary that the criminal conduct under Article II (a) of the Convention was committed intentionally against Aboriginal people. The decisive criterion for the liability of the perpetrators, the private settlers and the colonial authorities as accomplices, is that they murdered members of the Aboriginal community with the specific intent (dolus specialis) to destroy the Aboriginal population. Therefore, it must be clarified whether the killings of Aboriginal people were committed precisely because they were of Aboriginal descent. This topic is contentious and a definitive answer still evades consensus, hence it still forms the basis of much debate today. Many genocide researchers affirm genocide in Australia, arguing that the killings were clearly a genocidal act and that it was committed because the victims were of Aboriginal descent.237 However, the opposition claims that there was no genocidal intent and that the killings were merely a ‘necessary evil' or an unfortunate by-product of the extraction of land and resources, thus, necessary to ensure the economic progress and growth of the Australian state.238 In assessing the mens rea, international tribunals often consider the factors of the specific number of victims, the organisation of the crime and the manner in which the killings were carried out.239 Since both the organisation and the manner of the killings have already been explained, the following section will address the number of victims and, finally, the motives of the perpetrators.
In terms of numbers, as already noted, the Aboriginal population in Australia was severely decimated by the beginning of the 20th century. While this points to the mass killing of Aboriginal people, it must be remembered that the many deaths were not only due to shootings and massacres. In fact, diseases introduced to Australia by European settlers have been identified as another major factor in Aboriginal deaths during that time.240 Some academics even argue that measles and smallpox, as well as typically European diseases such as the common cold and whooping cough, were deliberately introduced by the settlers in the 1790s to eradicate Indigenous Australians.241 This ‘disease-as-genocide’ theory, however, has not found much favour with most genocide researchers. Given the state of medicine at the time, this concept seems unlikely as the settlers were probably unaware of the epidemiological impact of the diseases. Accidental and unintentional killings cannot be classified as genocide and thus can never be punishable, since the mens rea component is missing. When looking at the general figures, a strikingly unequal ratio of deaths of Aboriginal and non-Aboriginal Australians can be observed. Henry Reynolds, a prominent historian whose research focused on the frontier wars in Australia, estimated that approximately 40 000 Aboriginal people died in the course of these killings. In contrast, 'only' about 2 000 - 3 000 settlers lost their lives in the wars.242 The disparity between the number of lives lost between the groups could be partly attributed to the differences in weapon technology and previous exposure to introduced diseases; both of which advantaged the settlers. These findings could additionally indicate that people with Aboriginal descent were specifically targeted by the settlers, which is why the possible reasons for this are examined below.
237 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 120. 238 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 323. 239 Prosecutor v Mladić (Judgement) IT-09-92-T (22 November 2017) para 3111. 240 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 322. 241 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History, 18. 242 Reynolds H, The Forgotten War (NewSouth Publishing 2013) 121-134. 29
The motives for the violent conflicts were diverse. According to Jones, the motivations for violence were a combination of ideologies, pressures, and circumstances.243 However, proving the necessary genocidal intent is particularly challenging in the case of colonial states, as the explicit intention to exterminate the Indigenous population was not the focus. The goal of the European settlers was primarily the expansion of the colonies and the extraction of land, as they wanted to establish their cattle, timber and precious metal industries.244 As many areas were still inhabited by Aboriginal communities at that time, the Europeans were looking for opportunities to expand their settlements even further. Thus, whole Aboriginal communities and clans were evicted, in most cases for life, from their native areas to isolated and inaccessible penal colonies or foreign lands.245 In some cases, Aboriginal people were integrated into the settler society as agricultural labourers and domestic servants, but in most cases, they were forcibly removed. This was supported by the general view that Aboriginal Australians were inferior to the colonisers and that this was necessary for ‘their own good’.246
To provide a better understanding of how it could have been justifiable for the settlers to place this ‘greater common good’ above the lives of thousands of Aboriginal people, it is important to analyse how Indigenous Australians were perceived by the settlers. As could often generally be observed in colonial states, settlers were convinced of their white superiority and that all other races were inferior to them.247 Aboriginal tribes and their cultures were seen as primitive and not as highly developed as those of the Europeans, which lead to the view that Aboriginal Australians were not equal to the settlers. In order to describe them, terms such as ‘backward’, ‘savage’ or ‘uncivilised’ were commonly used.248 Another widespread view was that Indigenous tribes were at the bottom of the evolutionary chain, if they were human at all.249 Another narrative that helped the settlers justify violent encounters with Aboriginal people was the classification of Australia as terra nullius, which provided a legal basis for considering Aboriginal people as part of the flora and fauna to explore the land.
A further requirement for the affirmation of the mens rea is that it must have been foreseeable for the perpetrators that their actions would lead to the extermination of at least a significant part of the target group. As already explained, it is sufficient for the affirmation of genocidal intent if the perpetrators are aware of the probability that their actions would result in death. Thus, it must have been predictable for the settlers that the eviction of Aboriginal people from their native territories far into the Australian outback would in many cases end fatally. In view of these facts, it seems rather unlikely, even at the state of knowledge at the time, that the settlers were not aware of the potentially fatal consequences of the evictions of many Aboriginal people. Apart from the forced resettlements, the numerous violent border conflicts and massacres cost many Aboriginal people their lives. The connection between the attacks and the resulting deaths are overlapping both temporally and geographically, thus leaving no doubt about the foreseeability of the harm. In fact, in many cases it was even explicitly stated by the Europeans that the goal of these killings was the eradication of Indigenous Australians. Edward M. Curr, an Australian squatter and author at
243 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 119. 244 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 323. 245 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History, 24. 246 ibid 26. 247 Anna Haebich, For Their Own Good : Aborigines and Government in the South West of Western Australia, 1900- 1940 (2nd edn, University of Western Australia Press 1992) 128-129. 248 Larissa Behrendt, 'Aboriginal Urban Identity: Preserving the Spirit, Protecting the Traditional in Non Traditional Setting’ (1995) vol 4, Australian Feminist Law Journal, 58. 249 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 119. 30
the time, wrote in his book The Australian Race that the Aboriginal race was ‘destined to be exterminated’.250 Another statement was made by the prominent novelist Anthony Trollope, who claimed that ‘the sooner their doom is accomplished […] the better will it be for civilisation’.251 These statements demonstrate the widespread view at the time that the extermination of Aboriginal people for the purposes of colonial objectives was inevitable. Consequently, it seems to have been not only predictable, but the explicit intention of the settlers to achieve the extermination of the Aboriginal population.
From the findings above, it can be concluded that the European settlers might have deliberately carried out the killings to exterminate Aboriginal people in Australia. Considering the means by which this goal was pursued and the number of deaths, it could be concluded that the settlers likely wanted their actions to eventually lead to the extermination of the Aboriginal population. Even if the acts were committed with the motive of merely pushing them out of the settlement areas for the ‘common good’, the genocidal outcome still remains the same. Moreover, the fatal outcome seems to have been foreseeable for the settlers – if not the only logical consequence – and it seems highly unlikely that they were unaware that their actions would lead to the extermination of Aboriginal people who were displaced. The settlers killed with the intention of ensuring the achievement of colonial goals and, according to statements by some state officials (see above), it appeared that they explicitly wanted to achieve racial extinction. It is thus concluded that the killings and massacres at the frontier, with the simultaneous presence of the actus reus and the mens rea, could constitute as genocide within the meaning of Article II (a) of the Genocide Convention.
An additional aspect of the overall picture of the treatment of Aboriginal people in Australia is the subsequent policy of assimilation. This aimed to further diminish Aboriginal society in Australia and ultimately achieve a white nation-state.252 How the surviving Aboriginal people were subsequently to be physically and psychologically adapted to Western standards through these assimilation policies will be examined in the following section.
3.3.2. The Stolen Generation: Australia’s Child Removal Practises
3.3.2.1. Actus Reus
The actus reus of Article II (e) of the Genocide Convention is, as already stated, the forcible transfer of children from the target group to another group. Even though Article II (b) - (e) of the Convention has not been given much importance to date, it has repeatedly been emphasised that definitions of genocide extend beyond physical killing. Particularly emphasised in this context were the child removals of Aboriginal children carried out by the Australian state - which thus embodies the perpetrator in this case - and the resulting separation of thousands of Aboriginal families. These events are described in Australian history under the name of the ‘Stolen Generation’ and are still at the forefront of Australian society’s consciousness today. In order to examine whether these practices constitute genocide in the sense of Article II (e), the following provides an overview of the legal basis of Australia's child removal practice, how it has changed over the decades, and
250 Edward M Curr, The Australian race : its origin, languages, customs, place of landing in Australia, and the routes by which it spread itself over that continent (John Farnes, Govt. Printer 1887) cited in Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 325. 251 Robert Manne, Making Trouble: Essays Against the New Australian Complacency (Black Inc. Agenda 2011) 336. 252 Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015) 119. 31
the resulting living situation of the children affected. The beginnings of child removal and assimilation practices can be observed in the early 19th century under the legislation of Governor Lachlan Macquarie. Since, as already explained, the goal from the beginning was an all-white Australian nation, the settler colonial regime saw the solution in removing children of Aboriginal origin from their families and then civilising and assimilating them to Western standards. Hence, the first institutions and missions were created for children to be placed. The earliest educational institution for Aboriginal children was established near Parramatta as early as 1814, but was closed again six years later due to strong opposition from parents of the children in question. However, this stance did not hold and plans continued to be sought to create a legal basis for the removal of children with the aim of adaptation of these children to the settler society and its way of life.253
One such proposal to achieve assimilation was the concept of the protectorate system and was created in the 1860s.254 As the British Select Committee found in 1827 that the situation regarding the treatment of Aboriginal people in Australia is particularly bad, a way was sought to solve this problem within the framework of Native Affairs.255 The Committee recommended the creation of protectorate systems, which focused on the initial segregation of children and subsequent education. The laws that would govern these matters were usually made at the federal level, and so the states and territories seized the opportunity and accordingly created new protections for children of Aboriginal descent. The first state to introduce such a protectorate system was Victoria, when its colonial government passed the Aborigines Protection Act 1869 and at the same time established an Aboriginal Protection Board to administer such matters. This Protection Act stated that the Governor should at all times have the power to make (and amend) regulations relating to ‘the care custody and education of the children of Aborigines’. From this point onwards, the states had real legal power over Aboriginal people and the foundation was laid for the subsequent, gradually more systematic removal of their children. All states and territories eventually adopted this protectorate system by 1911, with the exception of Tasmania.256
Most states also appointed designated ‘Chief-Protectors’, who played an important role in the subsequent segregation practices. These ‘protectors’ were usually former police officers who exercised a pronounced control function over the children of the Stolen Generation and their lives. In the name of child protection, they therefore were consulted for matters of child care, support and education. Their decision-making power extended to legal decisions regarding the segregation process, including when it should be carried out and how the children should subsequently be raised. In some states, the protectors were even appointed their legal guardians, although in reality the children concerned often had intact families and there was no other reason to remove them from their parents' guardianship.257 Among the most prominent protectors was the civil servant Auber Octavius Neville, who is currently considered one of the key figures and founders of child removal practices in Australia.258 Despite progression into adulthood, the majority of the members of the Stolen Generation had their occupations and marriages dictated by their
253 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 2. 254 ibid. 255 Great Britain Parliament House of Commons Select Committee on Aboriginal Tribes, Report of the Parliamentary Select Committee on Aboriginal Tribes, (British Settlements.), (Franklin Classics 2018) v. 256 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 2. 257 ibid 2-3. 258 Ryszard W. Wolny, ‘Multicultural Australia. Narratives of Conflict, Narratives of Reconciliation: From Politicians’ Speeches to Stolen Generations Narratives’ (2018) vol 24, British and American Studies, 82. 32
protectors, with only rare exception.259 The protectors also decided on administrative and control matters of the institutions and reserves to which the children were sent and the principal aim was to remove the children from their families as early as possible.260, 261 The rationale for this was that children were more malleable at a younger age and could therefore be more easily adapted to Western standards.262 This shows that the children of the Stolen Generation were made objects of almost total control by the Australian state and de facto deprived of any right to self- determination. This control began in the earliest years of their childhood and often extended throughout their entire lives.
The reasons for the removal of Aboriginal children were varied and often ambiguous. When the children were taken from their families by the protectors, they usually had to fill out consent forms. It was stipulated that a reason for child removal be given in these forms and this then had to be subsequently signed by the parents. Initial examples of permissible grounds for taking away children under the various state legislations were delinquency of children and alleged family neglect (for a legal analysis of the reasons for child removals in the late 20th century see below). In reality, however, many children were declared neglected or delinquent without any evidence. It was also not uncommon that the required parental consent forms for the removal were falsified. In one case, the reasons for removal were added by the guardians only after the parents had signed the form. This mother only discovered the reason for her daughter’s removal when they were reunited and read the subsequently completed consent form. It stated that the removal was done ‘to take the child from association with Aborigines as she is a fair-skinned child’.263 This shows that it was not uncommon for situations to be staged to justify the removal of a child, thus legitimising the numerous child removals that followed.
The law required adaptation in the early 20th century as the number of people of mixed descent rapidly increased. The Australian state called the consequences of the increased population of those of Aboriginal descent the ‘Aboriginal Problem’. It was observed that due to the change in population demographics, increasingly divergent societies were formed with marked inequalities between Indigenous and non-Indigenous Australians. The state was now more eager to enforce new adaptations to the law to achieve the goal of assimilation, which is why the initially undifferentiated definition of ‘Aboriginality’ required change. In these years, specially tailored designations were created for people with mixed descent. From then on, classifications were developed on the basis of percentage of ancestry. Initially, a distinction was made between what were called 'full-bloods', that is people with full Aboriginal ancestry and 'half-castes', people who had one non-Indigenous parent.264 However, this was not the end of the matter and further distinctions were made, repeatedly illustrating that Aboriginal people were considered inferior and treated as if they were not human. People who had an Indigenous grandparent were called ‘quadroons’ or ‘quarter-castes’ and those who had an Indigenous great-grandparent were called
259 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 2-3. 260 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 538. 261 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 2. 262 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 547. 263 ibid 530. 264 ibid 541. 33
‘octoroons’.265 A big distinction was made legally between ‘full-bloods’ and ‘half-castes’, as people who were perceived as ‘half-castes’ in particular were removed from their families in order to merge with the Western society.266 By developing these designations, a foundation was created that allowed for broader applications of this policy to impose on Aboriginal people. The language to describe 'Aboriginality' for these people was made and imposed by the state. The different statuses of ‘Aboriginality’ held different social standing and thus led to increasing legal inequality between Aboriginal and non-Aboriginal people in Australia.
To further address the ‘Aboriginal problem’, governments also adjusted their protection laws. Since the segregation practises alone did not solve the basic problem of the emergence of two co-existing societies, the laws and strategies to achieve their goals also had to be reconsidered.267 The main components of assimilation policy, as before, were child removal practices and birth control measures. The strategies employed from then on were many and varied, and some would warrant a separate discussion in the context of the Genocide Convention.
The biological control of the Aboriginal population by influencing the reproduction of Aboriginal women was part of the assimilation policy and has received much attention. This has ranged from more innocuous methods such as segregating women and men in dormitories and encouraging marriage to non-Aboriginal people; to more extreme methods such as official control of marital and sexual relations. Young Aboriginal women in particular were placed in domestic training homes set up specifically for girls or in foster families, where it was not uncommon for them to have children with non-Aboriginal men (who were then also made wards of the state).268, 269 In some cases, there were even reports of forced sterilizations or the administration of various fertility-preventing drugs. In this context, the administration of the contraceptive drug 'Depo- Provera', that caused three months of infertility, was discussed.270 Regarding these accusations, however, no corresponding intent directed at the actual sterilisation of these women could be proven. These procedures are not the subject of this thesis and require further research, especially regarding the intent requirement. Nevertheless, the mention of these procedures is important for contextualising the events, because they were also instrumental in Australia’s assimilation plan.
Regarding the protectorate system, the states now saw the solution to achieving the desired fusion of Western and Aboriginal society in shifting the focus away from mere segregation and towards education and employment. Subsequently, children were to be able to be taken from their families to be trained for work or to attend an institutionalised school or mission. Thus, under the protectorate system, it was possible for state officials, in the name of educating and training children, to remove children from their families and transfer them to appropriate institutions.
The State Native Welfare Conference was held in 1937 and the proceedings led to a shift towards the handling of those children and especially the transfer policies. While some chief protectors
265 These terms are considered highly offensive today. However, for better understanding, these terms will be used in the context in which they were used by governments at the time. 266 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 541. 267 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 3. 268 ibid. 269 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 530. 270 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History, 24. 34
were holding onto the vision of a functioning assimilation policy, frustration slowly spread due to the ineffectiveness of the state’s assimilation method.271 The truth was that Australia’s assimilation plan had in fact ‘failed’. Some Aboriginal people across the continent have been able to preserve their traditional cultural values and they continued to exist within themselves, despite still being subjects of ongoing discrimination by the laws and the wider Australian society. Reformers also came to the realisation that the institutionalisation of orphans or delinquents – whether they were Indigenous or non-Indigenous – was damaging and should be ideally reduced.272 These findings eventually informed more extensive policy change.
Child protection matters were now transferred to the regular child protection agencies, which were equally responsible for Indigenous and non-Indigenous children.273 The newly established Child Welfare Act 1939 provided in paragraph 82, among other things, that children could be taken from their families if they were ‘neglected’ or ‘uncontrollable’. The definition of ‘neglect’ in paragraph 72 was changed to the extent that children who were destitute or ‘whose parents are unfit to retain the child or young person in their care, or are […] unfit to retain the child or young person in his care’ were also considered neglected. Thus, if the court decided that a child was either neglected or uncontrollable, it could, under paragraph 82 (c) and (d):
(c) commit the child or young person to the care of some person who is willing to undertake such care upon such terms and conditions as may be prescribed or as the court may, in any special case, think fit […]
(d) commit the child or young person to the care of the Minister to be dealt with as a ward admitted to State control; or commit the child or young person to an institution, either generally or for some specified term (whether expiring before or after the date upon which the child or young person attains the age of eighteen years) not exceeding three years.
The result of these provisions was that the removal of Aboriginal children was only further supported. It was mainly these children who were subjects to these regulations, as most Aboriginal families at that time were struggling with poverty due to the effects of colonisation.274 It was also still common for the state to control and supervise the children. This was because the welfare workers, who were in charge of these matters, could inspect Aboriginal homes and monitor school attendance of the children. In addition, these workers cooperated closely with the police, which meant that in most cases it was now the same people who had already been responsible for the previous child transfers. Thus, even though the intention with this law reform was equal treatment of Indigenous and non-Indigenous children, it was argued that this did not change the ongoing discrimination against Aboriginal children. They were henceforth taken in the context of deprivation rather than race, but they were still disproportionately affected. This can be attributed to the fact that due to the aftermath of colonisation, Aboriginal people generally had a lower socio-economic status. As a result, this led to even more child removals in the following years.275
271 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 4. 272 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 540. 273 Haebich A, ‘Neoliberalism, Settler Colonialism and the History of Indigenous Child Removal in Australia’ (2015/2016) vol 19.1, Australian Indigenous Law Review, 25. 274 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 4. 275 ibid. 35
Around the 1960s, when the decolonisation movements started to gain popularity, the assimilation policy was denounced. At that time, the number of institutionalised children was so high that the state had to address the overcrowding. Therefore, the state began to increasingly place children for adoption instead with non-Indigenous foster families. This resulted in 97% of the children in foster care in the Northern Territory being of Aboriginal descent in the 1970s.276 The pressure against the state to put an end to these conditions increased as people became more aware of the extent of child removal practices and how poor the living conditions were in the various institutions. For the state’s reaction to Indigenous activism regarding the Stolen Generation it is referred to section 3.4.
The legal measures just examined were created to legitimise the separation of Aboriginal children from their families and then to place them in special institutions or reserves. These institutions provided education for the children and prepared them for a life in 'white society'. Furthermore, these centres were often isolated and located far from the children’s families. Although some children were used as cheap labour for the settlers, like their parents, the vast majority of Aboriginal children were sent to state or church institutions.277 These institutions were mostly missionary and orphanages as well as boarding and training homes. In many cases they were specifically designed for Aboriginal children, as can be seen from the names ‘Aborigines Mission Homes’ and ‘United Aborigines Mission Homes’.278 Sometimes, whole families were sent to reserves together. However, once they arrived at those reserves, they were separated from each other. In Queensland, for example, the Chief Protector in charge ordered that all Aboriginal people, regardless of age, be moved to the missions. There, families were separated and parents had to sleep separately from their children in different dormitories. This was not an isolated case, as similar practices were recorded in the other states.279 Later, the children were preferably sent to non-Indigenous foster families, which was partly due to the poor living conditions in the institutions.280
The conditions in these institutions were harsh. In many cases, they were simply trained for a life as workers or as domestic servants. The aim was to discipline the children and assimilate them to Western societal standards, which was especially visible in the fact that they were repeatedly urged to ‘give up their Aboriginality’.281 In some institutions, children were even given new (Western) names upon arrival, and in harsher cases, they were given only numbers. To further alienate them from their family and culture, there was also a strict ban on practising Aboriginal traditions or speaking their language. Due to the residential nature of these institutions, the children's lives were characterised by isolation and all contact with their families was strictly forbidden.282 They were monitored around the clock, and if they did not abide by the rules they were punished by the staff. The managers of these institutions and reserves were known for their rough treatment of the children and it was not uncommon for them to abuse them violently and
276 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 4. 277 ibid 2. 278 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 530. 279 ibid 538. 280 Haebich A, ‘Neoliberalism, Settler Colonialism and the History of Indigenous Child Removal in Australia’ (2015/2016) vol 19.1, Australian Indigenous Law Review, 25. 281 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 3. 282 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 530. 36
sometimes sexually.283 The food and medical care was also very poor and in extreme cases the lack of access to adequate nutrition or medical attention led to death. The children often starved and often had to fight diseases that could spread due to the overcrowded facilities. The most prominent example of these facilities was the Moore River Reserve in Western Australia, that was located 135 km from Perth. Life in this total institution, which was also described by those affected as ‘hell on earth’, was characterised by state control and particularly poor living conditions.284 Many Aboriginal people lost their lives there. It was also the last facility of its kind, and eventually closed in 1951. As a consequence of the living conditions in these institutions, many of those affected struggled with physical and mental consequences.285
In summary, it can be concluded from the above findings that the actus reus requirements of Article II (e) of the Genocide Convention are met. Thousands of Aboriginal children were forcibly removed from their families over the decades and placed in various institutions or with non- Indigenous foster families. Moreover, as already stated in section 2.2.1., it is irrelevant for the constituent element of violence whether physical or psychological methods are used to achieve the genocidal goal. As already emphasised in Prosecutor v Akayesu, psychological methods such as the threat of sanctions in case the victims do not obey, fulfil the criteria of genocidal acts under Article II (e) of the Convention.286 As there is usually a penalty associated with non-compliance with a law, parents were forced to obey state officials and accept the child removals. Thus, the laws established by the Australian states and territories constitute a form of psychological coercion that served to enforce the child removals. Whether this genocidal act actually constitutes genocide within the meaning of the Genocide Convention depends on whether the intent requirement is also met.
3.3.2.2. Mens Rea
The subsumption of the subjective side of the perpetrator regarding child removal practises will be examined in this section. For the mens rea, the state must have intentionally carried out a genocidal act within the meaning of Article II (e) of the Genocide Convention. The forcible removal and transfer of Aboriginal children by the state (respectively the organs acting on behalf of the state) must therefore have had the specific purpose of exterminating the Aboriginal population in whole or in part. At this point it is important to mention that it would not be sufficient if merely a change in Aboriginal culture was intended. Due to the lack of genocidal intent, this would only constitute cultural genocide, which cannot be subsumed under the Convention.287 Since intent must relate to each individual element of the offence, it is therefore crucial for the affirmation of the mens rea that the state deliberately intended the substantial decimation of the Aboriginal population.
283 Colin Tatz, ‘Genocide in Australia‘ (1999) vol 1.3, Journal of Genocide Research, 335. 284 Nicolas Perpitch, ‘A journey into ‘hell on Earth’’ (Australian Broadcasting Corporation, ABC 25 May 2018) < https:// www.abc.net.au/news/2018-05-26/moore-river-aboriginal-settlement-journey-into-hell-on-earth/9790658?nw=0> accessed 1 April 2021. 285 Anna Haebich, For Their Own Good : Aborigines and Government in the South West of Western Australia, 1900- 1940 (2nd edn, University of Western Australia Press 1992) 199-204. 286 Prosecutor v Akayesu (Judgement) ICTR-96-4-T (2 September 1998) para 509. 287 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 356. 37
Concerning the existence of specific intent, it is also helpful in the case of the Stolen Generation to examine the motives of the perpetrator, which is an indicator for the presence of intent. As previously elaborated, the primary motive of the forcible child transfers was the same as that of the physical killings in the frontier wars and massacres already outlined: the desire to create an all-white Australian nation. To achieve this goal, it was first necessary to reduce the Aboriginal population and eventually to exterminate Aboriginal people altogether. This was partially achieved through the killings at the frontier, however, further action through the gradual merging and assimilation of the Aboriginal community into Western society attributed to their vision for Australia. The goal of mixing through ‘outbreeding’ of colour became particularly evident in the official state policies that promoted the practices of merging and assimilation, which can be seen as a form of social and biological engineering.288 The child removals were intended to exterminate the Aboriginal race from the very beginning. This becomes particularly clear when examining some statements made by state officials.
Especially in the beginning of the assimilation process, the general view among these responsible people was that the extermination of Aboriginal people was inevitable. Cecil Cook, one of the Chief Protectors appointed for the Northern Territory, for example stated, that through the resettlements ‘the problem of our half-castes will be quickly eliminated by the complete disappearance of the black race’.289 There was a clear link between child removal and the goal of eradicating the Aboriginal population and this was also clearly communicated on several occasions. As it was feared that Aboriginal children growing up with their biological families would become an ‘ever increasing burden’ because they were destined to ‘turn out idle, useless people’, child removals became more established.290 The aim was to strategically ‘breed them white’ over generations, which was made particularly clear by a Commonwealth and State Administrations statement in 1937. It was asserted that ‘the destiny of the natives of Aboriginal origin, but not of full blood, lies in their ultimate absorption by the people of the Commonwealth, and it therefore recommends that all efforts shall be directed to this end’.291 Cook went even further with his assurance that ‘every endeavour is being made to breed out the colour [of Aboriginal people] by elevating female half- castes to the white standard with a view to their absorption by mating into the white population’.292 His view, which was the dominant one among state actors until World War II, was that the native characteristics of the Aboriginal population will fade and ‘ultimately be eradicated’.293, 294 Even when the Genocide Convention was already in the process of being drafted, the Australian delegate Mr. Hood stated in the Third Committee that the best solution would be to assimilate all
288 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 556. 289 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 3. 290 The Chief Protector of Aboriginals, ‘Report of the Protector of Aborigines for the Year ended June 30, 1912’ (South Australia, 1912) 6
groups because this would be ‘in the best interest of all in the long run’.295 In summary, both the language used - namely the regularly used words such as 'outbreeding' or ‘eliminating’ - and the statements made by state officials and agencies indicate the presence of genocidal intent.
Opposing voices argued that the intentions of the state were good, thus in the children’s best interest, and therefore not genocidal. Many politicians and other responsible people promoted the child removal practises, because they genuinely believed that removing Aboriginal children from their families would give them a better life. However, it is claimed by many scholars that the main reason for this concern was the threat to Western society, rather than actual concern for the welfare of the children.296 These arguments thus can be easily dismissed, since it has already been made clear that the existence of genocidal intent is not affected by the nature of the motive.
In conclusion, the child removals committed by the Australian state constitute attempted genocide within the meaning of Article II (e) and Article III (d) of the Genocide Convention. Regarding the wording, it even appears that Article II (e) is specifically tailored to the Australian child removal policies. The required genocidal intent of the state as perpetrator was present and applied to all elements of the crime. It was also foreseeable for the perpetrators that the criminal conduct of child removal would ultimately lead to the decimation of the Aboriginal population by destroying the physical and emotional underpinnings of their society. In fact, the above statements illustrate that it was the clear and expressed intention of the state to achieve the extinction of Aboriginal culture through child removal. In 1997, the Bringing Them Home Report, an official report funded by the state, even officially acknowledged that these laws were specifically targeted at Aboriginal children and that these practices constituted attempted genocide as defined by the Genocide Convention on the basis of Article II (e).297, 298 Even though to date there has been no conviction in international law for genocide based on Article II (e) of the Convention itself, this set in motion an important process in Australia to acknowledge what had happened and provided a basis for further discussion in the context of the Stolen Generation.299
3.4. Acknowledging the Happenings: Reconciliation Acts and Denialism
After the 1967 Referendum, there were increasing demands for the state to acknowledge and apologise for the events of colonisation, especially regarding the child removal practices. In the following, an overview of important acts of reconciliation by the Australian state will be described and, in this context, the phenomenon of Denialism will also be explained.
In contrast to the Stolen Generation, whose topic has received increasing attention within the wider Australian society, the massacres and frontier killings were minimised or ignored. The genocidal character of these killings has not really been addressed by the state until today, and in prominent history and international law literature little can be found on this topic. This lack of action by the state can be explained by the prolonged denial of the genocidal character of these murders.
295 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 31. United Nations Economic and Social Council ‘Commission on Human Rights: Third Session Summary Record of the Seventy-Third Meeting’ (24 June 1948) Un Doc E/CN.4/SR.73, p 10. 296 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 546. 297 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 30. 298 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 4. 299 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 30. 39
Physical genocide pursuant to Article II (a) of the Genocide Convention was briefly discussed by the Australian state during a parliamentary session in 1949, but merely in relation to the Holocaust and not in relation to the physical killings of Aboriginal people.300 This designated phenomenon of Denialism, that is also described as ‘the final state of genocide’, is often mentioned in the context of genocide studies. Although it is often mentioned in connection with the Holocaust, this association is not correct, as it was only individual deniers and marginal groups who denied the mass murders in Nazi Germany. What makes Denialism particularly dangerous is that it is embedded in a broad social consensus and thus these are not minority positions.301 It refers to the denial of the facts and reality of certain circumstances and includes the propagation of falsehoods or half-truths. Due to the fear of the consequences of a confession and the accompanying stigmatisation, denialists thus distance themselves from the unwanted views about certain events by replacing them with their own desired ideas. One of the most common arguments among these people is that only a small number of people have died. Other common arguments refer to the elements of the crime and the interpretation of the Convention. These include, among others, the lack of intent to commit genocide, or not having targeted a designated group.302
The phenomenon of Denialism can be observed in Australia, within some members of the state, and the non-Indigenous society. Regarding the killings at the frontier, the argument of self-defence or mutual violence was used. In addition, attempts were made to justify the killings on the basis that there were hardly any people – and thus potential victims – on the continent when the fleets arrived in 1788. With the argument of good intentions, moreover, a powerful language of goodwill was used to protect the responsible rulers and state officials.303 However, it seems that the most entrenched view in Australia was the sheer impossibility of committing such a crime due to the good and moral nature of its society.304 It has been repeatedly communicated from many perspectives that because of these reasons, identifying Australia as the perpetrator would be absurd. Genocide scholars describe this lack of insight as ‘collective pathological narcissism’, that makes coming to terms with the past impossible.305 Another widely held opinion among Australia’s denialists, voiced by Prime Minister John Howard as late as 1997, was that new generations should not be held responsible for the transgressions of previous generations.306 This attitude of denial extended to the murders at the border and initially also to the child abduction practices. In particular, it was argued that there had never been a Stolen Generation, which was supported by the argument that there were court rulings stating that those responsible had acted within the law. This view eventually lost ground and towards the end of the 20th century, as tentative steps were taken by the state to acknowledge the past. There have been various acts of reconciliation over the years, however, only the reconciliation acts relating to the genocidal acts will be highlighted in this thesis.
States and territories slowly began acknowledging the extent of the child removal practices around the 1970s. Since reclaiming their children became central to the agenda of Indigenous activists over these years, the state felt increasingly pressured to act and put an end to the child removals.307 At an Adoption Conference in 1967 welfare officials were from then on asked to pay
300 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History , 17. 301 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 517. 302 ibid 518-519. 303 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol. 29.4, Journal of World History, 542. 304 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History , 17. 305 Adam Jones, Genocide: A comprehensive introduction (2nd edn, Routledge 2011) 520. 306 Ryszard W. Wolny, ‘Multicultural Australia. Narratives of Conflict, Narratives of Reconciliation: From Politicians’ Speeches to Stolen Generations Narratives’ (2018) vol 24, British and American Studies, 81. 307 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol. 29.4, Journal of World History, 560. 40
increasing attention to those children of Aboriginal descent who were living with non-Indigenous foster families. As it was gradually recognised by the state that the ongoing child transfers were serious human rights violations, the relevant child transfer laws were eventually repealed in all states and territories by 1969.308 In the following years, laws and agencies were introduced to provide support for Aboriginal families to enforce their rights. Additionally, the Racial Discrimination Act 1975 was introduced, prohibiting differential treatment on the basis of race. The first family reunions were organised in 1980 by an Aboriginal corporation ‘Link-Up’. In the 1980s, the ‘Aboriginal Child Placement Principle’ was introduced in all states, according to which children of Aboriginal descent who needed to be placed in out-of-home care must preferably be placed with an Aboriginal family.309
The publication of Peter Read's book The Stolen Generation in 1981 marked the starting point of reconciliation, as it set in motion a formal process of national reparation.310 Subsequently, the Council for Aboriginal Reconciliation, funded by the Commonwealth government, was established under the Council for Aboriginal Reconciliation Act 1991. Its mission was to raise awareness, improve the socio-economic situation of Indigenous Australians and to achieve reconciliation by 2001. The federal government's commitment to reconciliation was reaffirmed in 1992, by the former Prime Minister Paul Keating in his famous Redfern Speech, in which he publicly committed to reconciliation and made it the main goal of his agenda. This speech was also a response to the famous Mabo v. Queensland (No.2) decision that overturned the legal fiction of terra nullius. In this judgement, it was ruled that Aboriginal Australians had territorial dominion over their respective territories before the colonists arrived.311 In the course of this, the National Reconciliation Week was introduced, that annually takes place from 27th May to 3rd June (the anniversaries of the 1967 Referendum and the Mabo decision).312
The Going Home Conference held in 1994 in Darwin resulted in more than 600 members of the Stolen Generation being reunited with their families, however, further steps towards reconciliation were necessary. Therefore, the Human Rights and Equal Opportunity Commission was commissioned by the state to conduct a national inquiry into the child removal practises in 1995. This resulted in the government-funded Bringing Them Home 1998 report, which is considered a milestone regarding the recognition of the Stolen Generation. This was the first government document explicitly referring to those practices as genocide. The Commission recommended the issuance of an official apology by the federal and state governments and appropriate reconciliation to be achieved through restitution, compensation and rehabilitation.313 In the report an estimate of the numbers was made, stating that between 10% and 30% of Aboriginal children were victims of child removal practices. However, due to incomplete or inaccurately kept records, statistics often tend to underestimate the true numbers of victims.314
The reactions on the part of the government were initially rather reserved, as Prime Minister Howard and Senator Herron held more of a denialist position. They believed that an apology would also mean an acceptance of responsibility and feared that this could lead to criminal liability.315 The first official apology from the Commonwealth government, still under Howard, followed in
308 Justin Healey (ed), Stolen Generations and the Way Ahead: Issues in Society, (The Spinney Press 2019) 5. 309 ibid 5-6. 310 Colin Tatz, ‘Confronting Australian Genocide’ (2001) vol 25, Aboriginal History, 19. 311 Mabo and Others v Queensland (No.2) [1992] HCA 23, (1992) 175 CLR 1, para 58. 312 Reconciliation Australia, ‘National Reconciliation Week’ (Reconciliation Australia)
1999, in which it expressed its ‘deep and sincere regret over the removal of Aboriginal children from their parents’.316 This apology was widely criticised as being too vague and subsequent attempts by the opposition to amend it were unsuccessful. Condemnation was expressed when the Australian state’s response was confronted by the UN Committee on the Elimination of Racial Discrimination (CERD) that same year for its inadequate response to the report's recommendations.317 Due to its special meaning in the Indigenous community, the use of the word 'sorry' played a particularly important role in the reconciliation process.318 Members of the Stolen Generation have repeatedly emphasised that healing requires not only an acknowledgement of the happenings, but also an adequate apology. As a result, a National Sorry Day was introduced in 1998, to be held annually on 26th May, which is the anniversary of the Bringing Them Home Report.319 Additionally, a collection of over 400 'Sorry Books' was created, consisting of apologies and statements about the Stolen Generation from various authorities, churches and other communities.320
Regarding financial reparations, however, little has been done. In the report Healing: A Legacy of Generations, the Senate Legal and Constitutional References Committee called on the government to establish a Reparations Tribunal. However, the focus remained on family reunification and other services rather than financial reparation and compensation. This was criticised by the Aboriginal and Torres Strait Islander Social Justice Commissioner in 2003, which resulted in the establishment of several compensation tribunals and a Stolen Generation Taskforce in Victoria. The first financial compensation awarded to a member of the Stolen Generation, that suffered injuries and sexual assault in a state institution was in New South Wales.321 The first and only court decision to award compensation to a victim for a child removal was Trevorrow v State of South Australia (No. 5) in 2007. To date, Tasmania remains the only state to offer compensation specifically for Indigenous children, establishing a $5 million fund through the Stolen Generation of Aboriginal Children Act 2006.322 Western Australia provided redress generally for child victims of abuse in state care, which also covered members of the Stolen Generation.323 In 2016, the New South Wales government awarded $73 million in a reparations programme to survivors of the Stolen Generation.324
Another significant event occurred in 2008 when Prime Minister Kevin Rudd issued an official apology to the Stolen Generation. As the first official act of his government, this was a clear contrast to his predecessors Howard and Herron. It was also the first time that a formal apology was issued by the state, acknowledging the past and apologising unreservedly for what had happened, and for the inaction of previous governments. Rudd referred to the Stolen Generation as ‘blemished chapter of Australian history’; reflected honestly on past ‘mistreatments’; and stated that the focus henceforth was to be on healing and to looking into the future. This was also the first official state act to open with a ‘Welcome to Land’, which is an important ritual in Aboriginal cultures. The speech also received some criticism as it has been argued that these speeches
316 Prime Minister Howard Rudd, ‘Motion of Reconciliation’ (Parliament of Australia, 26 August 1999)
were ‘mere postulates and ideological propaganda for purely political purposes’.325 Nevertheless, this act of state was certainly an important step regarding the policy of reconciliation. Further steps towards reconciliation were taken after Rudd's famous speech, however, it is argued that not enough was done to be considered a success for the Indigenous community and hopes for full reconciliation have been diminished in recent years.326 The need for further steps was re- emphasised when the annual Social Justice Report in 2015 once again strongly emphasised the continuing importance of the Bringing Them Home Report.327
325 Ryszard W. Wolny, ‘Multicultural Australia. Narratives of Conflict, Narratives of Reconciliation: From Politicians’ Speeches to Stolen Generations Narratives’ (2018) vol 24, British and American Studies, 80-84. 326 Damien Short, ‘When sorry isn’t good enough: Official remembrance and reconciliation in Australia’ 2012) vol 5.3, Memory Studies, 302. 327 Ryszard W. Wolny, ‘Multicultural Australia. Narratives of Conflict, Narratives of Reconciliation: From Politicians’ Speeches to Stolen Generations Narratives’ (2018) vol 24, British and American Studies, 80-84. 43
4. Discussion and Findings
While the introduction of the Genocide Convention in 1948 raised high expectations for the combat against genocide, the expected impact has remained limited from today’s perspective. The implementation of the Convention into national law undoubtedly has the potential to influence developments at the international level and may lead to positive changes in the future. However, this would require a more conclusive interpretation as well as consistent enforcement of the rights enshrined in the Convention. The vague formulations of the Articles are particularly controversial because they create a wide scope for interpretation in favour of the accused and thus significantly complicate the implementation of the goals pursued in the Convention.
One of the most common misunderstandings in the legal interpretation of the Convention is the belief that evil intent is required for the commission of genocide. However, for the justification of criminal liability under Article II, it is irrelevant with what intentions – whether for their ‘own good’ or because of other ‘good’ intentions – the severe decimation of the Aboriginal population was undertaken. Regardless of the motive, the decisive criterion is the genocidal result of the behaviour, which is the systematic destruction of a targeted group. This also easily invalidates the most common positions of Australian denialists, which were mainly based on the argument of good intentions.
The wide scope for interpretation also leads to major challenges regarding the enforceability of the Genocide Convention and thus to a weak provision of international criminal law. It will usually be easy for the accused to evade prosecution by simply denying the allegation of genocidal intent. Although circumstantial evidence may be used to establish guilt, in practice it will be difficult to prove the necessary intent. This difficulty is particularly evident in more subtle cases of genocide such as colonial violence. The enforceability of the Convention is even more challenging in the case where a state is to be held accountable within the framework of state responsibility. These cases in particular show that genocide is an interplay of many different levels, the boundaries of which are often blurred. The unlawful acts can only be committed by people acting on behalf of the state, which further complicates the presentation of evidence and has rarely led to convictions. There is currently one case pending before the ICJ that deals with state responsibility regarding the Genocide Convention. The case of The Gambia v Myanmar, which deals with the mass persecution of the Rohingya minority, gives hope for an upcoming clarification of issues in this matter, and may give precedence regarding the presentation of evidence. Due to the current COVID-19 pandemic, the deadlines have been extended, which will delay a judgement.328
Another aspect that makes it significantly more difficult to hold states like Australia accountable is their great influence on the trial process. Firstly, scholars believe that the fact that any kind of development of international law requires ratification (and thus the consent of states) means that international law mainly reflects the interests of states. They also talk about the ‘paradox of international law’, because it is created by the very states it is ultimately supposed to control.329 It is additionally usually dependent on these states to decide whether to initiate proceedings, which
328 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v Myanmar) (Pending) ICJ Press release 2020/14
is particularly unlikely in cases where a state would have to hold itself accountable. Thus, without the will of the states, it will be almost impossible to implement the objectives of international treaties and conventions. Secondly, the likelihood that other states will turn to the ICC to prosecute a state is relatively low. This is because, realistically states will try to avoid diplomatic missteps and embarrassment in order to avoid damage to diplomatic relations. As little has been done to address these issues to date, some scholars also speak of ‘imaginary norms’ because the rights guaranteed in the Genocide Convention do not benefit those it is supposed to protect.330 They suggest that international criminal law and its enforcement should be shaped less by the national interests of the governments and parties currently in power, and more by the interests of the protected groups under the Convention.331 Thus, for the concept of state responsibility to work, states must abide by the rules of the conventions they have created to ensure a more focused attribution of liability.332, 333 Therefore it would be advisable to commission more independent experts to prosecute the crime in the future in order to limit the power of the states in this regard.334, 335 Whether these recommendations will be implemented in the future, however, remains to be seen.
Despite the work of Indigenous activists since the 1960s, it has been criticised by many that Aboriginal people still have a less privileged status in society.336 Speeches by politicians like Howard and Rudd initially raised hopes, however this turned into disillusionment in the following years. Aboriginal scholars, in particular, criticise that the decolonisation movements of the 20th century have not shown the desired effectiveness and claim that colonisation in Australia has never stopped.337 Especially among the wider Australian society, the public image of Indigenous Australians is still marked by many prejudices and misconceptions.338 Moreover, there is a persistent belief that this issue only involves previous non-Indigenous generations and therefore the newer generations have no responsibility to bear in this regard. However, there are reports of enduring suffering of people of Aboriginal descent from the effects of colonisation, which illustrates that this is an ongoing issue.
It is also argued that white ownership and power is still exercised through the Australian state and other public institutions.339 In recent years, there has been growing concern about the emergence of a ‘new Stolen Generation’.340 The Family Matters Report 2020 found that the rate of Aboriginal or Torres Strait Islander children living in out-of-home care is currently 11 times higher than that
330 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 87. 331 Douglas Irvin-Erickson, Raphaël Lemkin and the Concept of Genocide (University of Pennsylvania Press 2017) 8. 332 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 90. 333 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (Routledge 2012) 145. 334 Jeffrey S. Bachmann, Cultural Genocide : Law, Politics, and Global Manifestations (Routledge 2019) 2. 335 Geoffrey Robertson, Crimes Against Humanity: The Struggle For Global Justice (2nd edn, Penguin Books 2002) 350. 336 Christina Firpo and Margaret Jacobs, ‘Taking Children, Ruling Colonies: Child Removal and Colonial Subjugation in Australia, Canada, French Indochina, and the United States, 1870–1950s’ (2019) vol 29.4, Journal of World History, 560. 337 Irene Watson, Aboriginal Peoples, Colonialism and International Law: Raw Law (Routledge 2015) 13,88. 338 Aileen Moreton-Robinson, The White Possessive Property, Power and Indigenous Sovereignty (University of Minnesota Press 2015) xi – xix. 339 ibid. 340 Michael Lavarch, ‘A new stolen generation?’ (2017) vol 19.1, Flinders Law Journal, 3. 45
of children of non-Indigenous descent.341 According to the most recent data (June 2018)342, Indigenous children make up about 50% of the children in out-of-home settings, while they make up 6% of the total child population in Australia.343 In comparison, at the time of the Bringing Them Home report, Indigenous children made up 20% in out-of-home settings, although they only made up 2% of the total population at the time.344 It has been warned that this overrepresentation will sharply increase in the coming years if no countermeasures are taken. This shows that the rate of Indigenous children currently being removed from their families is even higher than the rate during the Stolen Generation. Accordingly, the overrepresentation of Indigenous children in foster care currently raises concerns among researchers. Children often still live far away from their biological families and are thus deprived of the opportunity to make connections to their cultural heritage and identity.345 However, this is a highly complex topic and the reasons for the increase are multifactorial and require further exploration.
Another issue that needs to be highlighted, is the discussion about the relevance of cultural genocide. This variant of genocide targets the destruction of the cultural identity of a group. Even though cultural genocide is legally not relevant and thus not addressed in the framework of this thesis, there are many scholars and activists who highlight the ongoing importance of cultural genocide with respect to Indigenous peoples. In Australia, it has already been established through the process of acknowledging the Stolen Generation that child removal practises constitute one aspect of cultural genocide. However, it has also been emphasised that there are other forms of cultural genocide that put the identity of Aboriginal people still at risk. It was observed that Indigenous Australians – especially members of the Stolen Generation – are still facing considerable impairment of their psychological and physical wellbeing. This is attributed to the effects of the colonisation and the ongoing loss of autonomy and restriction in their self- determination.346 The effects on their mental health often lead to alcohol and substance misuse, and some scholars argue that this also leads to multiple imprisonments later in life. Overrepresentation of Indigenous Australians in Australian prisons has been a problem in recent years and as revealed in the latest Australian Bureau of Statistics (ABS) release, the numbers of Indigenous prisoners are still on the rise.347 The ABS also found that the mortality rate for Aboriginal and Torres Strait Islander people remains higher than that of non-Indigenous Australians to this day, with one of the top five causes of death being suicide. The suicide rate among Indigenous Australians has been steadily increasing since 2015.348 Based on these
341 Secretariat of National Aboriginal and Islander Child Care and others, ‘The Family Matters Report 2020’ (Family Matters, 2020) 64
observations, there are serious concerns that this could further lead to the destruction of the Aboriginal cultural identity in the following years. The field of research on cultural genocide will undoubtedly gain further attention in the coming years and it remains to be seen what will emerge in this regard.
47
5. Conclusion
This thesis has shown that Australia, like other colonial powers, has a genocidal past that deserves more attention and needs to be further addressed in the future. It has particularly shown that genocide is an interplay of several components and, above all, that it can also take place within the boundaries of the law. It is now undisputed that in Australia the extermination of the Aboriginal race was actively pursued until the middle of the 20th century. This thesis has found that the physical killings in the form of massacres and frontier wars could constitute as genocide under Article II (a) of the Genocide Convention. Racial superiority and the concomitant belief that Aboriginal people were inferior to the colonisers justified not only the declaration of the continent as terra nullius, but also the severe decimation of the Aboriginal population until the beginning of the 20th century.349 As a more hidden form of genocide, the forced child removal was intended to lead to a systematic dilution of Aboriginal culture and ultimately the Aboriginal race. That Australia's child removal policy constitutes genocide within the meaning of Article II (e) of the Convention is not only clear from the seemingly tailored wording of this article, but has also been officially confirmed by the state in the Bringing Them Home Report in 1998. However, in the context of international criminal law, there has been no prosecution of Australia under Article II (a) of the Convention, because the jurisdiction of the ICJ is not retrospective. There has also been no prosecution under Article II (e) in relation to the Stolen Generation, which may be due to the difficulty of prosecution regarding state responsibility.
The findings of this thesis show that there is still a need for further action in the following years to overcome the divide that has arisen between the Indigenous and non-Indigenous societies in Australia. It must be emphasised that this is a highly complex issue that involves an interplay of many different factors. These include not only the issues regarding child welfare discussed above, but also the ongoing struggle for land rights and the persistent inequality of Indigenous Australians in their communication with the state and the law. What makes communication between the parties even more difficult are the cultural differences between Western and Aboriginal cultures. One way to strengthen cross-party communication in the future would be to appoint NGOs as mediators. However, to sustainably ensure better communication, it would be crucial to acknowledge and accept the differences between the two cultures. The most important tool to raise awareness among future generations is the educational system. The inclusion of Australia's colonial history in school and university curricula and the associated teaching of its continuing importance has been increasingly implemented in recent years. Moreover, the subject of genocide and its more hidden forms is also deliberately addressed and discussed in an Australian context. Nevertheless, it is essential to present what happened truthfully, without distorting the facts. Only if this topic is discussed persistently, it will be possible to gradually overcome deeply rooted prejudices and thus slowly combat the multi-layered difficulties that can still be observed in Australian society – ideally resulting in the establishment of a common cultural and social ground. Nevertheless, it is crucial to recognise Australia’s history and foster a general willingness to discuss the past in order to never forget the events of colonisation.
349 Larissa Behrendt, 'Aboriginal Urban Identity: Preserving the Spirit, Protecting the Traditional in Non Traditional Setting’ (1995) vol 4, Australian Feminist Law Journal, 58. 48
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Behrendt L, ‘The 1967 Referendum 40 Years On’ (2004) vol 82, Precedent, 4.
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Funston L and Herring S & ACMAC, ‘When Will the Stolen Generations End? A Qualitative Critical Exploration of Contemporary 'Child Protection' Practices in Aboriginal and Torres Strait Islander Communities’ (2016) vol 7.1, SAANZ, 51.
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Goodall H, ‘”Saving the Children”: Gender and the Colonisation of Aboriginal Children in NSW, 1788 to 1990’ (1990) vol 2.44, Aboriginal Law Bulletin, 6.
Haebich A, ‘Neoliberalism, Settler Colonialism and the History of Indigenous Child Removal in Australia’ (2015/2016) vol 19.1, Aust. Indig. Law Rev., 20.
Kenny R, ‘Tricks or Treats?: A Case for Kulin Knowing in Batman’s Treaty’ (2008) vol 5.2, History Australia, 38.1.
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Short D, ‘Australia: a continuing genocide?’ (2010) vol 12.1-2, J. Genocide Res., 45.
Short D, ‘When sorry isn’t good enough: Official remembrance and reconciliation in Australia’ 2012) vol 5.3, Memory Studies, 293.
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Australian Bureau of Statistics (2020) Causes of Death, Australia
Australian Bureau of Statistics (2020) Prisoners in Australia
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Australian Institute of Aboriginal and Torres Strait Islander Studies, ‘Proof of Aboriginality’ (Australian Institute of Aboriginal and Torres Strait Islander Studies)
Australian Institute of Family Studies, ‘Child protection and Aboriginal and Torres Strait Islander children: CFCA Info Sheet’ (Australian Government, January 2020)
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Flinders University, ‘Appropriate Terminology, Indigenous Australian Peoples’ (Flinders University)
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Perpitch N, ‘A journey into ‘hell on earth’’ (Australian Broadcasting Corporation, ABC 25 May 2018)
Prime Minister Howard Rudd, ‘Motion of Reconciliation’ (Parliament of Australia, 26 August 1999)
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Thomas M, ‘The 1967 Referendum’ (Parliament of Australia, 25 May 2017)
United Nations International Residual Mechanism for Criminal Tribunals, ‘The ICTR in Brief’ (Legacy website of the International Criminal Tribunal for Rwanda)
United Nations International Residual Mechanism for Criminal Tribunals, ‘Timeline’ (Legacy website of the International Criminal Tribunal for the former Yugoslavia)
Walking Together Reconciliation Committee, ‘Colonisation 1788 – 1890: Timeline’ (Walking Together Reconciliation Committee, June 2020)
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