Executive
Summary
- Introduction
- Is there a need for the
criminalisation of genocide in Australia?
- Is there a need for
anti-genocide legislation by Commonwealth
Parliament?
- The Bill’s definition of
genocide
- Retrospective application
- Liability of states
- Extra-territorial application
- Co-operation with international
criminal law enforcement mechanisms
- Miscellaneous
- VCCL’s suggested
amendments to the Bill
REVISED
EXECUTIVE SUMMARY
(Revised 16 February 2000)
Section 2 (re Inquiry term of reference no. 1
(b))
- There is a need for Australia to criminalise
genocide, both on moral grounds and in order
to fulfill Australia’s international
obligations under the Convention on the
Prevention and Punishment of the Crime of
Genocide ("the Convention"), which
Australia ratified in 1949. This is despite
possible objections that genocide is not
amenable to legal categorisation, that its
criminalisation would be superfluous, and
that its criminalisation would be
ineffective.
Section 3 (re Inquiry term of reference
no. 1 (b) & (e))
- Genocide is arguably not currently a crime in
Australia. Its criminalisation is best done
by Federal Parliament passing legislation.
Ratification of the Convention is not enough.
Section 4 (re Inquiry term of reference
no. 1 (a))
- The Bill’s definition of genocide
expands on that of the Convention in ways
that are consistent with developments in
international law since 1949. That expanded
definition is desirable, but could lead to
problems in some extradition cases if the
requirement of "double criminality"
could not be satisfied.
The list of
"distinct groups of people" who
might be the target of genocidal acts should
explicitly include groups based on age and
sex. An implicit feature of the expanded
definition of genocide is that some acts will
not really be genocide when performed on some
of the newly included groups of people.
Difficulties remain with the notion of
destroying a group "in part". The
qualifying phrase "as such" should
be reinstated in the definition, in relation
to "distinct groups of people".
Section 5 (re Inquiry term of reference
no. 1 (d))
- The presumption against retrospective
legislation is rebutted in this case. The
Bill should be amended to give it
retrospective application at least to 11
December 1946, the date of UN resolution 96
(1).
Section 6 (re the Bill’s proposed ss.
10 & 13 )
- The Bill provides little recognition of the
fact that many acts of genocide have been
committed by states rather than individuals.
Section 7 (re Inquiry term of reference
no. 1 (f))
- The Bill’s extra-territorial application
is in keeping with international law, but
consideration should be given to whether
Australia would be best qualified to
prosecute charges of genocide stemming from
East Timor.
Section 8 (re Inquiry term of reference
no. 1 (g))
- Any co-operation with international criminal
law enforcement mechanisms should be the
subject of other legislation.
Section 9 (re the Bill’s proposed
s.12)
- The principle that a person may be convicted
of a lesser charge that the one laid is an
important one. However, if the proposed s.12
intends to embody that principle, it does not
express that clearly, and should be
re-drafted. It is in the interests of all
directly involved in genocide prosecutions,
prosecuting authorities, suspects, defendants
and decision makers, as well as the community
at large that penal and ameliorating
provisions be clearly and unambiguously
drafted.
1. INTRODUCTION
The Victorian Council for Civil Liberties Inc.
("VCCL") is an independent non-government
organisation which traces its history to 1936. The
VCCL is committed to the defence and extension of
human rights and civil liberties. It seeks to promote
Australia’s compliance with the human rights and
freedoms recognised by international law.
Any proposal by Parliament to create a new crime
is clearly something of fundamental concern to VCCL.
There can be few more serious restrictions of
people’s liberty than to make criminal some of
the acts they might perform in the exercise of their
freedom. Even when the proposed criminalisation is of
conduct that is universally and properly recognised
as morally abhorrent, as is the case with genocide,
VCCL’s view is that, nonetheless, such
criminalisation should proceed with great caution. At
the same time, VCCL is also concerned that those who
have suffered the evils of genocide be recognised as
such, and supports in principle the enactment of
Australian legislation that would go some way in
acknowledging that such acts constitute one of the
gravest of crimes known to humanity.
Accordingly, much of the following submission is
concerned to identify aspects of the Bill which
harbour potential problems from a civil liberties
perspective. (Some of the other terms of reference of
the Inquiry into the Anti-Genocide Bill 1999 will
also be addressed below.)
2. IS THERE A NEED FOR THE
CRIMINALISATION OF GENOCIDE AUSTRALIA?
There are two sorts of reasons that can be
advanced in favour of the criminalisation of genocide
in Australia.
2.1 International obligation
First, it is clear enough from Australia’s
own ratification (over half a century ago) of the
Convention on the Prevention and Punishment of the
Crime of Genocide ("the Genocide
Convention" or "the Convention") that
it has an obligation to the international community
to reform its laws so as to criminalise genocide.
That commitment is a simple matter of Australia being
obliged to keep its promises to the other contracting
parties, and the argument’s force is independent
of the particular content or merits of the
legislation in question. Nonetheless, at the end of
the day, it is the content of the proposed
legislation that must be treated as of paramount
importance. After all, it is presumably that content
which prompted Australia to ratify the Genocide
Convention and assume international obligations in
the first place.
2.2 Moral grounds for and against
criminalisation of genocide
The second sort of reason, then, for passing laws
outlawing genocide is, in essence, a moral one. It is
common ground amongst all civilised people that
genocide is a great moral wrong, even appropriately
termed an evil. Given that fact, and the fact that
one of the functions of criminal law is to recognise
and denounce various kinds of moral evil, then, the
argument runs, genocide should be made a crime. It is
not necessarily to be assumed, however, that that in
itself is sufficient ground for its criminalisation.
This point may be pressed on two fronts.
2.2.1 Genocide not amenable to criminalisation?
First, it might be suggested that the peculiarly
extreme nature of the evil of genocide is simply not
amenable to being treated as another legal
category. Some writers on the Nazi Holocaust against
the Jews (including some of those who experienced it)
have sometimes expressed something like this view.
VCCL respects this attitude, but maintains that,
despite what might be inevitable imperfections on
this score, some effort ought still to be made in the
legal sphere to deal with them.
2.2.2 Criminalisation of genocide superfluous?
Secondly, it might be suggested that the acts that
would constitute genocide are already criminal
according to existing laws. This is different from
the first view, insofar as it suggests that the
immorality of genocide, far from being
unencompassable by law, is in fact already
encompassed by it satisfactorily. On this view, it
might be said that the existing laws against murder
and assault, and the recognition in sentencing of
racial or ethnic motivations to such crimes as
aggravating factors, are sufficient to deal with the
kinds of acts that would be sought to be prosecuted
as genocide under the proposed legislation.
VCCL has an initial sympathy with this approach,
insofar as it expresses reluctance to multiply the
number of types of crime beyond what is necessary.
Nevertheless, VCCL accepts that genocide is different
again from the "usual" offences against the
person — not least insofar as it is primarily an
offence against a group of people — and
thereby merits distinct appellation.
2.3 Ineffectiveness of criminalisation?
A further kind of query regarding the
appropriateness of creating a new crime of genocide
queries whether such criminalisation would really be
effective in preventing or punishing
acts of genocide. This view could be prompted by
reflecting on the history of genocidal campaigns,
which seem mostly to have been state-organised or, at
least, conducted by large and powerful organisations,
and which might therefore be thought to be too
difficult to bring under the power of any particular
country’s legal system. Only international law,
backed by properly empowered international
prosecution and enforcement agencies, can deal, it
might be thought, with genocide of this kind.
Without wishing to deny the force of such concerns
(and, indeed, wishing to point out that the Bill
appears very much in the traditional mode in
supposing the crime of genocide to be primarily one
carried out by individuals, which may be a weakness
in its formulation — see further below), VCCL
nonetheless maintains that criminalisation of
genocide in Australia remains appropriate, regardless
of the prospects of success in preventing or
punishing acts of genocide by other nations. VCCL
acknowledges that the criminal law is not only
concerned to prevent crimes or to prosecute and
punish criminals; it is also one of the ways in which
a society expresses to itself what it values and
denounces. That being so, it is appropriate that
genocide at least be said, legislatively, by
Australia to be a crime.
2.4 Genocide against indigenous Australians?
It is worth noting, at this point, that part of
the current community concern to put genocide on the
Australian criminal books has arisen in the context
of the "Stolen Children" issue in the wake
of Bringing the Home, the 1997 Report of the
National Inquiry into the Separation of Aboriginal
and Torres Strait Islander Children from Their
Families, by the Human Rights and Equal Opportunity
Commission. In that Report, the allegation was made
that "the policy of forcible removal of children
from Indigenous Australians to other groups for the
purpose of raising them separately from and ignorant
of their culture and people could properly be
labelled ‘genocidal’ in breach of binding
international law from at least 11 December
1946." (p. 275)
Thus, in contrast with the point of view discussed
in sub-section 2.3 above, the issue comes much closer
to home. It also makes the prospect of individual
prosecutions more immediate. Such prosecutions would,
however, if made pursuant to the proposed
legislation, be retrospective. (See further below.)
3. IS THERE A NEED FOR
ANTI-GENOCIDE LEGISLATION BY COMMONWEALTH PARLIAMENT?
Accepting that there is a need to criminalise
genocide as such, is legislation by the Commonwealth
Parliament the appropriate means to do so? VCCL
accepts that it is.
3.1 Genocide not currently a crime in Australia
It is clear from the recent decision of the Full
Court of the Federal Court of Australia in Nulyarimma
v. Thompson that genocide is not presently a
crime in Australia, either as a statutory crime or as
a crime recognised by the common law (the minority
reasons of Merkel J with regard to the common law
notwithstanding). The only way, therefore, that
genocide may be made a crime in Australia, in the
view of the Federal Court decision, is through
legislation passed by Parliament. (It is obvious,
moreover, that such legislation should be at the
national, rather than state, level, given the
international status of genocide.)
3.2 Ratification and "legitimate
expectations"
The High Court case of Minister for Immigration
and Ethnic Affairs v. Teoh is of little
assistance to those who would seek to have genocide
recognised as a crime in Australia. According to the
principles enunciated in that case, the Genocide
Convention itself simply is not law in Australia
without there being domestic legislation that
incorporates it into Australian law.
What might have given hope to some is that Teoh
also laid down the principle that
ratification of an [international] convention
is a positive statement by the executive government
of this country to the world and to the Australian
people that the executive government and its agencies
will act in accordance with the convention. That
positive statement is an adequate foundation for a
legitimate expectation, absent statutory or executive
indications to the contrary, that administrative
decision-makers will act in conformity with the
Convention [on the Rights of the Child]. (para.
34, per Mason CJ and Deane J).
Such "legitimate expectations" with
regard to the Genocide Convention would not, however,
it is submitted, provide a sufficient basis for the
prosecution of a criminal act of genocide in
Australia. The legitimacy enjoyed by any expectations
here would not compel the executive or its agencies
(including its prosecution agencies) to press ahead
with a genocide prosecution (see para. 36 of Teoh).
In any case, no court of law, as a separate branch of
power, would be bound to summon a law into existence,
so to speak, in order to meet those expectations.
4. THE BILL’S DEFINITION OF
GENOCIDE
Turning now to the substance of the Bill, the
first and perhaps most important question to be
considered is the formulation of an appropriate
definition of genocide. It is almost inevitable that
there will be some controversy surrounding any
definition of genocide, since the concept is still
relatively new, unsettled, and, at least in part, a
strongly contested one; humanity is still coming to
grips with genocide as a concept and a phenomenon.
The challenge to legislative drafters, then, is to
come up with a workable legal definition that
adequately reflects at least a common core of
understanding of the concept without assuming that
the concept is necessarily cut and dried.
4.1 The Bill’s expanded definition of
genocide
The Bill is notable for its explicit expansion of
the Genocide Convention’s definition of genocide
in Article II. The Convention definition is as
follows:
Any of the following acts committed with intent
to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such:
- Killing members of the group
- Causing serious bodily of mental harm to
members of the group;
- Deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in part;
- Imposing measures intended to prevent
births within the group;
- Forcibly transferring children of the
group to another group.
The Bill proposes to insert into section 3 of the Genocide
Convention Act 1949 the following definition,
which alters the Convention definition above
(additions thereto are underlined, deletions thereto
are struck through):
Any of the following acts committed with intent
to destroy, in whole or in part, a distinct
group of people including, but not limited to,
a national, ethnical, racial or religious group, or
a group based on gender, sexuality, political
affiliation or disability as
such:
- Killing members of the group
- Causing serious bodily of mental harm to
members of the group;
- Deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in part;
- Imposing measures intended to prevent
births within the group;
- Forcibly transferring children of the
group to another group.
In making these changes the Bill goes beyond the
Convention, more than fulfilling Australia’s
obligations, and also takes the definition of
genocide beyond that found in a number of other
countries. In effect, though, the changes here are in
keeping with developments in international human
rights law since 1949, which have seen an extension
of the range of human groups recognised as worthy of
respect and warranting protection. (See, for example,
the International Covenant on Civil and Political
Rights, Articles 2 and 26.) Insofar as the
Bill’s greater scope involves a greater
protective umbrella, VCCL endorses it in principle,
notwithstanding the amendments suggested below.
4.2 Would the new definition jeopardise
international co-operation?
One difficulty, though, is that the possibility of
co-operation with foreign states or international
bodies in this regard may possibly be jeopardised by
such definitional divergence. The possibility arises
at least in regard to the "double
criminality" requirement in extradition law. By
that requirement, the offence a person is to be
extradited for must be a crime in both the country
requesting the extradition and the country to which
the request is made. Could, for example, Australia
ask for the extradition from a foreign state of an
Australian alleged to have committed a genocidal act
against a group based on political affiliation where
that foreign state followed the Convention definition
and did not recognise such an act as genocide?
VCCL does not suggest that this sort of problem is
in itself sufficient reason to oppose the Bill’s
expanded definition of genocide, but it is a
consequence that needs to be borne in mind. It may
ultimately need to be left to the courts to decide
the matter - and it might not be an Australian court.
4.3 "A distinct group of people"
The essential thrust of the Bill’s definition
is that it puts the focus more generally on "a
distinct group of people" as the potential
victim of genocidal acts, whereas the Convention
definition, more narrowly, explicitly and
specifically enumerates those particular kinds of
groups which could be victims of genocide. The Bill,
in effect, treats "genocide" as
"group-killing" or "the killing of a
group". (This is to be distinguished from
"mass killings of members of a group"
— though in actual cases this might be a
difficult distinction to make: see further below.)
The Bill incorporates the Convention’s
enumerated kinds of groups and also expands the list
to include others (Thus, under the Bill’s
definition, campaigns such as the Nazi assault on
people with disabilities or homosexuals would count
as genocide, whereas they would not under the
Convention definition.) Perhaps more importantly,
however, is that the Bill’s list is open-ended.
Just what collections of human beings will qualify as
"distinct groups of people" under the Bill
is, presumably, to be left to the courts to decide in
particular cases.
4.3.1 The Convention’s traditional
"generational" groups
In making this change the Bill is presumably
giving expression to a development in modern Western
cultures which has seen a diminishing of the relative
importance of traditional groupings of people.
Such traditional groupings were mostly based on
race, language, culture and/or religion, and it was
(and in most cases still is) a fundamental feature of
the group that it perpetuated itself through its
members giving birth to and raising those people who
would constitute the next generation of the group
— who, in turn, "join" the group
mostly without any question of "voluntary
association" arising. Though it was not strictly
necessary for language, culture and/or religion to be
passed on this way, it is clear enough that in almost
all cases they have been so passed on.
It was primarily these sorts of traditional
groupings that the Convention definition sought to
encompass — not simply "distinct groups of
people", but groups that had an essential generational
aspect defining the group (even if it was not
necessary that all individual members of the group
were in fact the children of members). This is clear
when one considers the Convention’s inclusion in
its definition of genocide of acts of the kinds
referred to in paragraphs (d) and (e): preventing
births and the removal of children.
4.3.2 The Bill: beyond the traditional groups
The Bill, then, seeks to go beyond this
traditional, generational notion of "the
group" and proposes the much more broad-ranging
concept of "a distinct group of people",
which, it must be assumed, might be identified in a
relatively wide variety of ways — and, indeed,
the further particular kinds of groups that the Bill
puts forward are diverse in the way in which their
distinctness might be ascertained. This reflects a
more contemporary conception of social groupings that
is more flexible and diverse than the traditional
approach, and one that allows for a greater variety
of modes of human association. Indeed, the Bill
includes groupings that perhaps would not need, in
order to qualify as a distinct group of people, much
if any conscious associating between its members,
such as to make for a developed group identity. For
example, it is possible in another time and place
that disabled people could form a distinct group for
the purposes of genocide without there having to be
any on-going association between its members. What
would make it a group for the purposes of genocide
would be not so much its own sense of itself as a
distinct group, but rather the attitude of the
perpetrators of genocide, who see their victims as
forming a group. This is an important change from the
Convention approach, but, given the history of
certain campaigns against various groups in the
twentieth century, it is appropriate that that form
of grouping be recognised by the Bill.
As stated, VCCL is not opposed in principle to
this sort of broadening of the scope of the concept
of genocide, but urges caution in doing so. There are
two particular aspects of the Bill that are of
concern to VCCL in this regard. First, there is the
question of who should be explicitly included in the
list of what will count as "a distinct group of
people". Secondly, there is the question of
whether the five types of genocidal act identified in
the Bill fit well with some of the groups identified.
4.4 The list of "distinct groups of
people" should be expanded further
Some might argue that, by leaving the list open,
the Bill allows the possibility of future abuse
through oppressive or vexatious application of the
notion of "a distinct group". Might, for
example, police regard themselves as "a distinct
group of people" in the required sense, such
that a campaign by a radical anarchist group against
police would be genocidal? However, any legislation
can be sought to be applied in oppressive or
vexatious ways, and VCCL does not seek to have the
Bill amended merely to circumvent all such possible
abuses. Ultimately, protection from such abuse is
best left to the courts, and so the present
flexibility afforded by the Bill is appropriate.
At the same time, VCCL believes that it is
desirable to provide some further explicit
protection in the Bill to groups based on age
and sex. The latter might be thought to be
already included under gender, but in fact the
two concepts are distinct in so far as the modern
concept of gender simply identifies the psychological
and social attributes and behaviours associated, by
the surrounding culture, with particular biological
sexes. Thus, to kill people with masculine gender
attributes and behaviours is not at all necessarily
the same thing as killing people whose sex is male.
With regard to age, it would seem at least as
appropriate to protect, for example, the elderly from
the threat of genocide as it is appropriate to
protect homosexuals.
VCCL submits, then, that the Bill be amended so
that the definition of "genocide"
relevantly reads roughly along the following lines: "...
with intent to destroy, in whole or in part, a
distinct group of people as such, including but not
limited to, a group based on nationality, ethnicity,
race, religion, gender, sex, sexuality, political
affiliation, disability or age." (The
re-inclusion of "as such" is discussed
below.)
4.5 Some acts not genocidal when performed
against certain groups
In extending the notion of genocide to cover
"distinct groups of people" as such the
Bill creates a possible tension with the other limb
of the definition of genocide, namely the acts
which are to be regarded as genocidal. The list of
acts has been adopted by the Bill from the Convention
unchanged. But this could lead to certain scenarios
being classifiable as genocide in something of a reductio
ad absurdum of the Bill’s definition.
This is particularly so with regard to those acts
which involve preventing births or transferring
children. Clearly these are not relevant to a group
based on, say, political affiliation, where such
affiliation is understood to be a matter of voluntary
association and not simply something that flows from
ethnic or religious group membership with its
attendant inter-generational element. For example,
suppose a group of fanatics conceives a hatred for
the Australian Labor Party, and conspires to abduct
ALP member’s children and send them overseas for
illicit adoption. Such a conspiracy would amount to a
conspiracy to commit genocide under the Bill. It is
clear that such conduct would be criminal, but to
classify it as genocide would be absurd.
However, such scenarios are sufficiently fanciful
or unlikely that they do not justify amending the
Bill specifically to exclude them. As already stated,
for almost any law absurd applications can be made
while fitting the letter of the law, but that does
not warrant explicitly excluding all absurd
interpretations beforehand. Again, the exclusion of
such matters is best left to the courts, if the need
should ever arise. Nonetheless, it remains worthwhile
at this stage to point out the conceptual limitations
inherent in the Bill.
4.6 What is it to "destroy a group in
part"?
This is a further question to be raised in
relation to the definition of genocide. Here there is
something of a grey area between genocide "as
such" and racially (or similarly) motivated
attacks. If someone intentionally kills a number of
members of a particular group because he hates
that group and its members and likes to see as many
of them dead as possible, has he destroyed that group
"in part"? In one sense, he has — he
has destroyed that part which is constituted by the
members whom he has killed. But is this what the law
against genocide is aiming to capture here? If so, it
will be hard to distinguish cases of racially
motivated murder from genocide, even where only one
person is murdered. Abhorrent though such murders be,
the crime of genocide is intended to mark out
something distinctive again. It is appropriate to
include "in part" lest all currently
identified acts of genocide be mere attempts. (It
would be offensive to deny, for example, that the
Nazi Holocaust against the Jews was only attempted
genocide on the basis that not all Jews died.)
However, if genocide overlaps with racially motivated
murder, something of its unique force might be
blunted.
It is submitted that, in order to make the right
distinctions here, the notion of "in part"
needs to be understood as referring not to simply a
number of members of the group in question, but to
something of the group’s identity as a whole.
That is to say, to destroy a group in part should be
understood as being to destroy something which damages
the group as a whole without necessarily
destroying the whole. The difficulty here is that
that something which is damaged is not easy to define
or identify in a way that is easily written into
statutes. It will involve relatively abstract matters
of group identity and the relationship the group
generally feels with its various parts. (A desire for
concreteness in this regard is what will possibly
encourage identifying "in part" with simply
"a number of members of".)
If, on the other hand, the matter becomes too
removed from the need for there to be actual
destruction of some number of members of the group,
then there is the risk of genocide as such merging
with "cultural genocide", which, VCCL
understands, it is not the task of this Bill to
address. Moreover, there is also the problem that not
all groups will necessarily have the sort of group
identity which might be affected in the way described
above. In such cases, it may be necessary to fall
back on the merely numerical interpretation of
"in part".
The above comments are not intended to ground
suggested amendments to the Bill in relation to the
"in part" provision. The problems of
interpretation on this point are most likely too
subtle and complex for there to be a legislative
amendment that is sufficiently clear and concrete,
and would perhaps be best left to possible future
judicial consideration of the legislation, if passed.
Nonetheless, VCCL maintains that it is important to
be aware of such difficulties from the outset.
4.7 Reinstating the qualification "as
such"
The Bill has left out the words "as
such" that appear in the Convention definition.
Their presence in the Convention is, presumably, to
make it clear that it is the national, ethnical,
racial or religious group itself that is at
issue and not simply the individual members thereof.
The Bill makes that point clear also in its own way,
by specifically identifying "a distinct group of
people" as the object of concern.
VCCL submits, however, that the words "as
such" are nonetheless important in this context
and should be reinstated so that the definition would
read " with intent to destroy, in whole or in
part, a distinct group of people as such, including,
but not limited to, ...".
5. RETROSPECTIVE APPLICATION
The Bill in its current form does not explicitly
provide for retrospective application of its
provisions. The law of statutory interpretation is
clear that, in such cases, the statute in question is
to be read as being prospective only, that is
concerned only with acts done or omitted to be done
after it comes into operation. Should the Bill,
though, be amended so as to make it explicitly
retrospective?
As a civil liberties lobby group, VCCL is
presumptively opposed to retrospective laws,
especially in the criminal sphere. VCCL supports the
basic argument against retrospectivity, namely that
it constitutes an affront to natural justice because
it means that a person judged under it could not have
known the legal consequences of his or her action at
the time it was performed.
Nonetheless, VCCL acknowledges that the
presumption against retrospective legislation can be
rebutted where it can be shown that the retrospective
law would not in fact produce injustice of the kind
referred to and would achieve a properly just goal.
In this sort of case, this means that retrospectivity
would perhaps be permissible if it is clear that
prosecutions under retrospective legislation would
not really take offenders "by surprise",
since they really did know at the time that they were
doing something morally wrong (or at least something
which they knew most other people would judge to be
morally wrong). This argument has sometimes been put
in terms of retrospective legislation being
acceptable where it simply realigns a state’s
"positive" law with the pre-existing
"natural" law (or human morality more
generally) or with international law (which is
perhaps more likely these days).
In the case of genocide, both these justifications
are readily available. It would appear that pasts
acts of genocide are paradigm examples of acts that
their perpetrators knew to be grave moral wrongs, or
which they knew or should have known would be judged
by others to be grave moral wrongs, regardless of
what any particular laws said or did not say. In the
case of international law, genocide has long been
acknowledged as a crime under customary international
law. At the very least, it is certainly the case
that, since the United Nations resolution 96 (1) on
11 December 1946, genocide has been acknowledged as a
crime under international law, thereby providing some
specific external reference point for retrospective
anti-genocide legislation.
On that basis, VCCL recommends inclusion of a
retrospectivity clause which specifies 11 December
1946 as a reference point, but without limiting the
applicability of the customary international law
against genocide to conduct prior to that date,
something along the lines of the following:
Section [ ]
Without limiting the applicability of the
customary international law against genocide, this
Act applies to acts done since 11 December 1946.
Such retrospectivity would possibly bring within
the scope of the proposed legislation the cases of
alleged genocide against Indigenous Australians, in
particular the alleged acts of genocide in relation
to the removal of Aboriginal children from their
families. (See the Human Rights and Equal Opportunity
Commission report Bringing Them Home at pp.
270-275.) This would undoubtedly be met with strong
controversy, even if no individuals are alive today
to face the prospect of prosecution and even if there
were a stated policy of non-prosecution in any case.
VCCL does not wish to pre-judge the various
positions that might be taken in any such debate, but
does submit that such an issue is one that Australia
should discuss sooner or later and should not shirk.
The proposed legislation clearly provides an
appropriate context and prompt for that debate, and
the opportunity to amend the Bill so as to provide
for retrospectivity should not be passed up for fear
of controversy.
6. LIABILITY OF STATES
The "persons" whom the Bill envisages as
the perpetrators of genocide are, it would seem,
natural persons or individual human beings. Section
10 makes it clear that any such person has to be
either an Australian citizen (who may only be
individual human beings) or "present in
Australia" (and artificial persons, such as
corporations, could not be said to be
"present", as opposed to
"registered" or "carrying on
business", in Australia). Similarly, a sovereign
state, as an "international personality",
could not be said to ever be "present in
Australia".
This is understandable and acceptable, insofar as
Australia should leave prosecutions of foreign states
for genocide to appropriately constituted
international tribunals, and should, in relation to
corporations, charge the individuals concerned. It
does mean, however, that the Bill provides little recognition
for the fact that many acts of genocide are not
merely criminal acts of individuals but are acts of a
state or some "authoritative" body. Part of
the horror of the Nazi Holocaust is not simply that a
lot of individuals, even a lot of individual Germans,
wanted to "rid the world" of the Jews; the
German State itself was a perpetrator.
Section 13 provides some minimal acknowledgement
of this allowing, rightly, for such circumstances as
referred to in paragraphs (a) and (b) of s. 13 to be
taken into account in sentencing, while ruling
out defences that might shift ultimate responsibility
onto "a superior officer or public authority.
Admittedly, there is little else the Bill could have
done in this regard, but, again, it is important to
acknowledge that even inevitable shortcomings are
still shortcomings.
7. EXTRA-TERRITORIAL APPLICATION
7.1 Should Australia extend its jurisdiction to
international cases?
Though this aspect of the Bill is less concerned
with civil liberties issues, and is more concerned
with Australia’s role in the international
community, VCCL would like to make some observations
in this regard.
The Bill expressly extends its application to acts
done or omitted to be done outside Australia (s. 6).
At the same time, however, it limits who may be
prosecuted under the proposed legislation in s. 10:
only Australian citizens or persons present in
Australia may be charged. This would allow for the
prosecution under the proposed legislation of any
person for a genocidal act committed anywhere in the
world, so long as that person was in Australia.
(Presumably, however, it would not permit the
extradition to Australia of someone who was not an
Australian citizen and who allegedly committed
genocide outside Australia, for under extradition law
a person must be charged before being extradited.)
Insofar as genocide is recognised as a
"peremptory norm of customary international
law", such vesting of universal jurisdiction is
in keeping with the obligations thereby imposed on
Australia. (See Nulyarimma at paras. 18 to 30,
per Wilcox J.) An analogy with piracy is sometimes
made in this regard, since piracy, as an offence
against the law of nations, may be tried and punished
by any and all states.
On that basis, then, VCCL accepts that the
(limited) extra-territorial application of the Bill
is appropriate. It is worth noting, however, that, in
terms of the political or diplomatic
"selling" of the Bill domestically and
internationally, Australia would be wise to emphasise
that this extra-territoriality is not a veiled
expansionism, and that Australia would happily accede
to reasonable requests for the transfer of
prosecutions to relevant foreign courts in
appropriate cases.
7.2 East Timor
With regard to the application of such
extraterritorial powers specifically to East Timor,
VCCL wishes to point out that it would be undesirable
for Australia to prosecute under the proposed
legislation any alleged acts of genocide arising out
of the recent horrendous events in East Timor. At the
very least, the history of Australia’s
relationship with Indonesia and East Timor has
included sufficient controversy for there to be a
serious question raised as to Australia’s
"moral authority" to assume the seat of
judgment over any pro-Jakarta militia members or
Indonesian military personnel accused of genocide. If
there are any genocide charges (or indeed any war
crimes or crimes against humanity charges) arising
out of the events in East Timor, then it would be
appropriate that they be tried either under East
Timorese law or directly under international law in
the appropriate international court. (Such court
could sit in Australia, or could even be an
Australian court appropriately vested, if that were
logistically preferable and constitutionally
possible.)
8. CO-OPERATION WITH INTERNATIONAL
CRIMINAL LAW ENFORCEMENT MECHANISMS
VCCL is concerned that Australia make every effort
to act as a model international citizen, so long as
that does not conflict with a basic commitment to the
civil liberties of its citizens and other people in
Australia. In the context of anti-genocide laws, such
international co-operation can take different forms.
First, as intimated above, Australia could seek to
have its courts vested with appropriate international
jurisdiction where it is not feasible or desirable
for the United Nations either to constitute an ad
hoc international tribunal, in the manner of the
International Criminal Tribunal for the Former
Yugoslavia, or to convene the planned International
Criminal Court. Secondly, Australia could offer the
services of its investigative and prosecutorial
agencies to any appropriate international tribunal in
relation to genocide (or indeed other crimes).
Thirdly, it might be appropriate for Australia to
refer some future cases under the proposed
legislation to an international criminal court.
With regard to these matters, however, VCCL
submits that it would be best to deal with them in
other legislation, rather than amend the present
Bill.
9. MISCELLANEOUS
9.1 Poor drafting in section 12.
VCCL would like to point out that the drafting of
the proposed section 12 leaves much to be desired.
The aim of section 12 is presumably laudatory, but
its poor drafting will likely obstruct the
realisation of that aim. Section 12 presumably will
be the basis for a judge’s charge to a jury
hearing a genocide case. It is very hard to imagine,
however, that there would be much success in
conveying the meaning of the section to jurors, when
even experienced criminal lawyers have encountered
great difficulty in extracting a coherent meaning
from it.
10. VCCL’S SUGGESTED
AMENDMENTS TO THE BILL
10.1 Amendments to the definition of genocide
VCCL submits that clause 2 of Schedule 1 of the
Bill, being concerned with the definition of
genocide, be amended to read as follows (amendments
underlined):
genocide means any of the
following acts committed with intent to destroy, in
whole or in part, a distinct group of people as
such, including, but not limited to, a
group based on nationality, ethnicity, race,
religion, gender, sex,
sexuality, political
affiliation, disability or age;
- causing serious bodily of mental harm to
members of the group;
- deliberately inflicting on the group
conditions of life calculated to bring about
its physical destruction in whole or in part;
- imposing measures intended to prevent
births within the group;
- forcibly transferring children of the
group to another group.
10.2 Retrospectivity
VCCL submits that a new section be inserted into
the Bill to make it retrospectively applicable, as
follows:
Section [ ]
Without limiting the applicability of the
customary international law against genocide, this
Act applies to acts done since 11 December 1946.