Wednesday, 26 March 2008

Genocide of Australia’s ‘lost generation’

Readers of this blog know that I am not particularly tolerant of extravagant use of the term ‘genocide’. For several years, a debate has been underway in Australia as to whether the ‘g-word’ should be used to describe the forced transfer of aboriginal children to families of European origin. Australians call this the ‘lost generation’. Thanks to Sophie Cacciaguidi-Fahy for this recent account in an Australian newspaper: http://www.theaustralian.news.com.au/story/0,25197,23421344-2702,00.html. In principle, the Genocide Convention excludes acts of ‘cultural genocide’, that is, acts falling short of the physical extermination of a group. But there is one exception, the ‘forced transfer of children from one group to another’. The words of the Convention bear a striking resemblance to what happened in Australia. The real issue, then, is whether this was done with ‘intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such’. In my view, the Australian debate is certainly not one belonging to the frivolous category of allegations of genocide.
There are Australian cases on this issue: Nulyarimma v. Thompson, [1999] FCA 119; Kruger v. Commonwealth (‘The Stolen Generations Case’), (1997) 190 CLR 1. And quite a body of academic literature: Ben Saul, ‘The International Crime of Genocide in Australian Law’, (2000) 22 Sydney Law Review 527; Andrew Mitchell, ‘Genocide, Human Rights Implementation and the Relationship Between International and Domestic Law’, (2000) 24 Melbourne University Law Review 15; Sean Peters, ‘The Genocide Case: Nulyarimma v Thompson’, [1999] Australian International Law Journal 233; Sarah Joseph, ‘Kruger v Commonwealth: Constitutional Rights and the Stolen Generations’, (1998) 24 Monash Law Review 486; Michael Schaefer, ‘The Stolen Generations -- In the Aftermath of Kruger and Bray’, (1998) 21 University of South Wales Law Journal 247; Tony Buti, ‘Kruger and Bray and the Common Law’, (1998) 21 University of South Wales Law Journal 231; Matthew Storey, ‘Kruger v The Commonwealth: Does Genocide Require Malice?’, (1998) 21 University of South Wales Law Journal 224.
We’ll be discussing this and other related questions at our annual doctoral seminar, which begins next Monday at the Irish Centre for Human Rights.

4 comments:

claire said...

Small correction - Australians call this the 'stolen generation', not the 'lost generation' ... this is important to denote the fact that the Indigenous Australians were taken from their families through a deliberate policy - indeed, stolen from their families.

Andrew said...

Genocide should not be used without professional legal opinion confirming the situation is genocide.

Unfortunately for victims like West Papua, George Bush has hi-jacked and neutralised anti-genocide efforts with the Darfur civil war.

mukedo said...

The Armenian question is a matter of debate, leaving the highly charged question aside, from a point of international law Turkey has not been take to trial & therefore has no such conviction. Is it not unlawful for some western parliaments including Australia's local NSW & South Australian parliaments to not only accuse but convict Turkey of genocide? Are they not overreaching their roles in the balance of powers & crossing the line into a field which in fact involves judicial organs?

mukedo said...

Leaving the highyly charged question aside which is a matter for debate by historians, some western parliaments including local state parliaments in Australia are not only accusing Turkey of genocide against Armenians but they are overreaching their roles & convicting the Turkish Nation of genocide. Is this not disregarding the balance of powers & despite the fact Turkey has never stood trial for such matter, aren't these politicians breaking their own & international law by acting as self appointed judges? www.armeniangenocidelies.com