There are four crimes within the jurisdiction of the International Criminal Court. These crimes include crimes against humanity, war crimes, the crime of aggression and genocide. Article 6 of the Rome Statute of the International Criminal Court states:
“For the purpose of this Statute, “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.”
Australia ratified the International Convention on the Prevention and Punishment of the Crime of Genocide (“Convention”) on 8 July 1948 yet did not legislate to make genocide a crime in Australia until 2002. It was only under the Rome Statute of the International Criminal Court that gave need to Australia to implement the obligations it owed under the Convention. It is claimed by some that the potential for litigation by Indigenous Australians ensured our Federal Government did not make the crime of genocide apply retrospectively.
The Stolen Generations
The last line in the Rome Statute of the International Criminal Court is of key importance, defining an act of genocide as including “forcibly transferring children of the group to another group”. The phrase “Stolen Generations” comes immediately to mind, where Indigenous children had been taken from their families and detained in government and church institutions under the assimilationist policies of the Australian Government. The Australian government sought to break the children’s connection with their traditional culture, heritage and language in an effort to assimilate the children into white society. The guiding rational for these policies is arguably captured in the following resolution by the Australian governments at a conference in 1937, where it was stated 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 be directed to that end”.
A report by the Humans Rights and Equal Opportunity Commission found that the transfer of between one in three and one in ten Indigenous children from their homes from the early 1900s to 1970 constituted genocide as it was defined in the Convention. However, the removal of Australian children from their homes predated our nation’s federation. The Aboriginal Protection Act 1869 (VIC) enabled the Governor to order the removal of any Aboriginal children from their family and placement in reformatory and industrial schools if the child was deemed neglected or unprotected. Post federation, in 1911, the Federal Parliament through the Aboriginals Ordinance 1911 (Cth), under Section 3 was able to remove any aboriginal or half-caste child if it was, in the Northern Territory’s Chief Protector’s opinion, in the bests interests of the child. The taken child could be placed many miles away from their family, or even moved interstate. Even more offensively, variously terminology including terms such as ‘half-caste’, ‘quadroons’ or ‘octoroons’ was used to determine the child’s descent. The believed percentage of Aboriginal blood in a child was effectively determined by the child’s complexion. It took decades for this legislation to change, a significant period of time in which lives were utterly shattered. The number of Aboriginal children taken from their families in the 1900s amounts to in excess of over 40,000.
The institutions where the children were taken to had insufficient resources to adequately shelter, food and clothe the children, a report by the Human Rights and Equal Opportunity Commission found. This report, Bringing them Home, also found that the standard of education provided by the institutions that took the children in as being very basic, designed for the children to work as labourers on farms and as domestic servants. The children were also subjected to an excessive amount of physical punishment, and in some cases that abuse was of a sexual nature. Furthermore, the children were forbidden to speak their native languages and were subjected to punishment if they did.
The appalling actions taken by the Australian government, whilst constituting a permanent stain on our nation’s history, is compounded by recent observations made by our judiciary. Wilcox J stated in his judgment in Nulyarimma v Thompson in 1991 that there was a great deal in Australia’s history that could be interpreted as genocidal. Even more alarmingly, the Court also stated that genocide was not a crime in Australia.