This following article notes that Australia never implemented the Genocide Convention.

September 27, 1999

NO LAWS TO BACK 'OUR' TREATY

GENOCIDE and its punishment are in the air. The United Nations High Commissioner for Human Rights, Mary Robinson, is setting up hearings already of crimes against humanity in East Timor, perhaps including

allegations of genocide. Closer to home, the Federal Court has rejected actions brought by Aborigines alleging genocide by several prominent politicians, including the Prime Minister.

Both the East Timor actions and the Australian court cases have their origins in the United Nations Convention on the Prevention and Punishment of the Crime of Genocide, signed by 43 countries in 1949, after three years of negotiations. Australia, Ecuador, Ethiopia, Iceland and Norway were the only countries that had ratified the convention by the end of 1949. Today, 129 countries have.

The irony is that, in the 50 years since, no Australian government has introduced domestic legislation into Federal Parliament to make genocide an offence. It was on this technical point that an appeal failed earlier this month in the Federal Court in a case brought against the Prime Minister, John Howard; the then leader of the National Party, Tim Fischer; Independent Senator Brian Harradine; and One Nation Party leader Pauline Hanson over the Native Title Act.

The case, brought by Wadjularbinna Nylyarimma, Isobel Cox, Billy Craigie and Robbie Thorpe, alleged genocide in the implementation of the amended Native Title Act. Justices Murray Wilcox and Anthony Whitlam, in a majority decision, said the international customary law the Genocide Convention had no standing in Australian courts; there was no legislation to back it.

Perhaps a greater irony is that 50 years ago Australia, with pre-Castro Cuba, proposed the resolution to the UN General Assembly which then adopted the Genocide Convention. Indeed, the ghosts of 1948-49 haunt today's resurrection of the treaty.

The world was a vastly different place 50 years ago, and the UN reflected it. In the long debates in the General Assembly and in the various committees set up to draft the Genocide Convention, statements were made which resound today. For instance, according to the UN Yearbook of 1948-49, in the 82nd meeting of the Sixth Committee of the General Assembly, Greece had an amendment included in the treaty to say that

genocide included the act of forcibly transferring children from one group to another". This was at a time when Australian state governments were actively saving" Aboriginal children by taking them from their parents. At

the time, Australia's Dr H.V. Evatt was president of the UN General Assembly.

Despite strenuous efforts on the part of the Soviet bloc, cultural" genocide was not included in the Convention, most delegates saying that the topic was better dealt with under the heading of human rights.

Everybody agreed there was a crime of genocide but some argued that the world did not need an international convention to define it, or if it had to be defined then a general definition was preferable. France, however, persuaded delegates that acts of genocide should be listed explicitly.

Then there was tortuous debate on what individuals and groups should be protected by such a convention, and whether, for instance, the elimination of a political group could be classed as genocide. Eventually, delegates decided that genocide meant an act committed with the intent to destroy, in whole or in part, a national, ethnical, racial, political or religious group as such".

The acts that are deemed to constitute genocide are: killing members of the group (listed above); causing serious bodily or mental harm to members of the group; deliberately inflicting conditions of life calculated to bring about the group's physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group.

If another irony were needed it concerns November's referendum on turning Australia into a republic. Back in 1949, when King George VI was undisputed head of state of Australia as one of his dominions, Britain argued on behalf of several monarchies that a charge of genocide should not be brought against a head of state" because the text would appear to include Heads of State of constitutional monarchies who, according to the constitutions of their countries, enjoyed immunity and could not be brought before a national court".

Two monarchies, the Netherlands and Thailand, came up with an amendment of the English text, which now sheets genocidal responsibility to constitutionally responsible rulers, public officials or private individuals".

One of the continuing problems with charges of genocide has been where to try such cases. The drafters of article 6 of the convention acknowledged that there was a need for a competent tribunal" in the state where the offence occurred, or an international tribunal.

The US, no champion of tribunals over which it has no control including the World Court persuaded delegates to accept that trials could take place before an international tribunal as may have jurisdiction with respect to such Contracting Parties as shall have accepted the jurisdiction of such tribunal". A convenient loophole for those countries that decide not to accept such jurisdiction.

Last year, with much fanfare, a UN ministerial conference in Rome agreed to establish an International Criminal Court that could try individuals charged with offences against a range of international conventions, including drug trafficking, war crimes and crimes against humanity. Fifty years before, the debates on the Genocide Convention raised the issue of an international criminal court. Then, the USSR objected strenuously to the concept on the grounds that such a court would be an interference in the domestic affairs of states. It was much the same objection that the US voiced in muted terms last year.

Of particular significance to the recent Australian court cases, the convention contains an explanatory text about genocide trials: The first part of Article 6 contemplates the obligation of the State in whose territory acts of genocide have been committed. Thus, in particular, it

does not affect the right of any State to bring to trial before its own tribunals any of its nationals for acts committed outside the state." However, to do this or, more specifically, to try cases committed within the state, Australia would have to have a domestic law of genocide. No such law exists.

Australia was by no means a passive observer in the drafting of the Genocide Convention. It was responsible for Article VIII, which states, Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the UN as they consider appropriate for the prevention and suppression of acts of genocide or of any of the other acts enumerated in article III." The acts listed are: genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempts to commit genocide; and complicity in genocide.

The issue of cultural" genocide was raised again in the General Assembly, several countries saying the convention was deficient if it did not have a clause to cover such cases. Those arguing for such a clause in the immediate post-war world of 1948-49 were the then USSR, Venezuela, newly independent Pakistan, Egypt (still a British protectorate), Soviet satellites Byelorussia and Poland and Nationalist China, which was about to vacate the mainland for Taiwan but retain China's seat in the UN.

Agreement on what constituted cultural" genocide was more difficult to define. Pakistan wanted a narrow definition of forcible mass conversion of persons and the destruction of religious edifices". Venezuela wanted it widened to include the systematic destruction of religious edifices, schools or libraries". India argued that such material destruction would not necessarily annihilate a group.

The Soviet Union, with the support of its allies, proposed a series of amendments, all rejected, probably because of Cold War politics and a US that had still to cleanse itself of overt racism. The USSR proposed that genocide be linked with racial and national hatreds, the domination of the so-called "higher races' and the extermination of the so-called "lower races'." The US said this smacked of genocide's being linked with certain doctrines stemming from World War II. The crime of genocide should be pursued in all situations, the US maintained, but still rejected the concept of genocide as necessarily racist.

Another Soviet amendment described genocide as any deliberate act committed with the intent to destroy the language, religion or culture of a national, racial or religious group on grounds of national or racial origin, or religious beliefs" and it then listed such elements as suppression of specific-language publications, banning the use of the language in schools; destroying libraries, museums, schools, historical monuments, places of worship or other cultural institutions of the group. This, too, was rejected.

We are likely to hear much more about the convention on genocide. Already a person from East Timor, allegedly a militia member, was discovered among refugees in Australia and sent back. Had he stayed, any of several charges relating to genocide could not have been heard in Australian courts.

It would be surprising if, in the wake of the Federal Court's ruling and the planned appeals, federal politicians of all parties were not seeking to have domestic genocide legislation introduced into Parliament or prevent it.