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If Kruger v Commonwealth had gone to an international forum would it have been decided differently?

In 1997, the laws governing the so-called Stolen Generation were subjected for the first time to the judicial scrutiny of the High Court. The Court was asked to consider questions relating to the validity of the Aboriginals Ordinance 1918 (NT) and its subsequent amendments in 1939 and 1953. The plaintiffs—five people who had been taken from their families under the Ordinance, and one parent whose child had been taken from her under the same provision— sought a declaration that the Ordinance was invalid. Section 6 of the Ordinance allowed the Chief Protector of Aborigines to take into ‘care, custody, or control … any Aboriginal or half-caste, if, in his opinion it is necessary or desirable in the interest of the Aboriginal or half-caste for him to do so’. Under section 7, the Chief Protector of Aborigines was made legal guardian of indigenous children until the age of eighteen, regardless of the existence of parents or other living relatives. He was empowered to keep Aboriginal people on reserves under section 16. One of the challenges posed by the plaintiffs in their statement of claim was whether the Ordinance violated Australia’s obligations in relation to the international crime of genocide.

You are tasked with addressing the following questions:

  • Outline briefly the relevant law in relation to what constitutes genocide and the status of the prohibition on genocide under international law. In answering this you are asked to discuss the sources of international lawwhich may be relevant.
  • Were the practices undertaken in accordance with the Aboriginals Ordinancea violation of the prohibition of genocide under international law? In answering this question you are to apply an approach of treaty interpretation in your analysis (including attention to any relevant supplementary means of interpretation)
  • What are Australia’s obligations under international lawwith respect to the crime of genocide? In answering this question please address what Australia’s obligations were are at the time the plaintiffs were taken, and whether those obligations are different today.
  • Are there any questions of self-determinationthat could be argued, with respect to the Stolen Generation?

Background of Kruger v Commonwealth

The case of Kruger v Commonwealth (1997) 190 CLR 1 concerned the issue relating to the stolen generation where the court had to determine the legal validity of Aboriginals Ordinance 1918 (NT) and the amendments done to it. The plaintiffs who had their family members taken away from them wanted declaration that the ordinance was not valid. Under section 6 of the ordinance the chief protector was provided the powers to take the custody of any aboriginal if he felt that it is required for ensuring their interest. The chief protector had been made the guardian of the children under the provisions of s. 7 until they attained the age of 18 years. One of the claims made by the plaintiffs in their statement of claim was that the ordinance was in violation of the obligation of the country with respect to international crime of genocide.  The courts in this case held that the ordinance was not valid. The purpose of this paper is to analyze the situation in context of international law rather than constitutional focus as done by the High court. The paper outlines the law in relation to genocide. Further the paper analyzes whether the ordinance violated international norms on genocide. The paper also considers the obligation of Australia in terms of international law on genocide and also discussions questions of self-determinations which can be argued in relation to the stolen generation. The essay also focuses on the broad question that “If Kruger v Commonwealth had gone to an international forum would it have been decided differently?”

Various forms of international crimes are recognized by international law such as aggression, crime against humanity, war crimes and genocide. However not all crimes get the same level of attention as genocide. When the term genocide is raised it can result in far reaching implications. The words genocide has been derived from the Greek word “genos” which means tribe, nation or race and a lain words “cide” which means “to kill”. According to Lemkin genocide has been defined as the destruction of an ethnic group or nation via a coordinated plan of actions having an aim of destructing essential basis of life and having the aim of annihilating the group. The purpose of this plan is the disintegration of social and political institutions, language, culture, religion, national feelings and existence of national groups. It also consists of destruction regarding health, dignity, security and lives of individuals of the group. Genocide is used against groups as a whole and is actions are directed against individuals as they are a member of the groups rather than their individual capacity. The UN Genocide Convention on the Prevention and Punishment of the Crime of Genocide is a law passed by the United Nation at international level to stop genocide in all parts of the world. Article 2 of the convention had defined genocide as an act done with the intention of destroying in part or whole a racial, national, ethical or religious group by killing member of the group, causing mental harm to the group, inflicting the condition of life of the group, planning to physically destroy the group, putting in place ways to prevent birth and transferring the children of the group forcefully to another group. The convention has nineteen provisions. The law sets out ways on how the states have to deal with genocide and how such actions are to be punished. It is also considered parallel to the human right of existence. The convention also takes into consideration the states and the responsibilities with respect to prevention and punishment of genocide. The convention therefore deals with genocide by considering question of criminal law, human rights and state responsibilities. This convention acts as a strong source of international law on genocide. Under Article 1 of the convention the member states are required to prevent and punish genocide. Under Article 9 of the convention matters in relation to genocide has been provided the right to be taken to the international court of justice.

International Law on Genocide

According to the aboriginal Ordinance, the chief inspector has been provided the power to take the custody of the children belonging to the aboriginal community. The people of the northern territory were subjected to the provisions of Northern Territory Aboriginals Act 1910. The claimed purpose of the act was to protect and control the aboriginal people of the community. Further the "Chief Protector of Aboriginals" under s.9 was made the guardian of all children who had aboriginal mother and also was given the right to confine the children under s.16 to a aboriginal institution or reserve. The interpretation of this section clearly meant that indigenous children could be removed by an administrative order whereas a court order was needed to remove non-aboriginal children. The Aboriginals Ordinance No. 9 of 1918 (Cth) provided powers to the inspector to control the aboriginal women and the control of the institution was provided to the churches. In the year 1971, foster care had 97% indigenous children. Article 2 of the convention clearly provides that genocide includes an act done with the intention of destroying in part or whole a racial, national, ethical or religious group by killing member of the group, causing mental harm to the group, inflicting the condition of life of the group, planning to physically destroy the group, putting in place ways to prevent birth and transferring the children of the group forcefully to another group. Therefore one of the ways in which genocide may be committed is by transferring the children of the group forcefully to another group. The Ordinance in context manifestly allows the chief officer to remove the children from the possession of their mothers and putting them in control of another group (churches).  This means that the actions are totally against the provision of Article 2 and the children are taken away from their groups without the permission of their parents. Therefore the taking away of children is to be considered as genocide as defined under the convention. The other question is that of intention. Article 2 does not emphasize on intention of the party carrying out the act. It only focus on physical actions. Therefore, the facts of the Kurger case would be considered as genocide.

Another question which arises in the situation is that what obligation Australia has in relation to international law of genocide. Australia is a signatory of the convention.  The case of SS Wimbledon Case [1923] PCIJ (ser A) No 1 is related to the decision of permanent court of international justice. The case addressed the issue related to features of sovereignty, jurisprudence and treaty obligations qua internal law. In this case the court stated that German was totally free to legislate its neutrality in relation to the war. However, the neutrality did not allow prevention of passage through the canal. This case signifies that Australia is also free to legislate in any matter which it is not forbidden to. As Australia has ratified the treaty it has obligations to conform with it. In the case of SS ‘Lotus’ (France v Turkey) (Judgment) [1927] PCIJ (ser A) No 10 it had been stated by the court that sovereign states may operate in a manner as long as their actions do not breach an expressed prohibition. These provisions would also ask Australia to make law which is anti genocide as genocide is expressly prohibited. In Asylum Case (Colombia v Peru) [1950] ICJ Rep 266 the court stated that for a custom to be of an applicable character it must be executed in an uniform and continuous manner. It was not a custom in Australia to take away children from the possession of their parents at the time the case was decided and even now. Therefore the obligation of the country under international law would remain the same. In North Sea Continental Shelf Cases (Germany v Denmark, Germany v Netherlands) [1969] ICJ Rep 3 discussed the rules in relation to praeter legem. In these cases the court stated that it may sometime go beyond the rules of law and decide a case based on principles of equity if required. In this situation also the international court may use the principles of equity to decide the case and render the ordinance invalid in context of international law. In Right of Passage case (Portugal v India) [1961] ICJ Rep 6 signified that a local practice would prevail over any general rules in case such practice is a custom.  As discussed taking away children was not a custom in Australia and this case would not be applicable. In Nuclear Tests Cases (Australia v France, NZ v France) [1974] ICJ Rep 253 the court signified that no further judgement is required in case there has been an implied settlement between the parties. In Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 stated that where there is no express law to deal with an issue equity law will intervene and unless the issue is expressly contrary to the provisions of law it would be considered as valid. These principles had also been discussed in the case of Anglo-Norwegian Fisheries Case (UK v Norway) [1951] ICJ Rep 116. Therefore as the act of taking away children is genocide it would be considered as invalid if decided in an international forum. In Nicaragua Case (Nicaragua v US) (Merits) [1986] ICJ Rep 14 the US was held to have violated the provisions of human rights by breaching its obligations under an international treaty signed by the parties. Here also the ordinance is in gross violation of human right of existence. Therefore in international forum the court would have decided the case in favour of the plaintiffs and rendered the act as genocide.

Self-determination right is a cardinal principle in modern international law and is also known as Jus Cogens rule. The rule is binding on the United Nations in from of a authoritative interpretation of character norms. According to the norm, people in relation to the rule of fair equity of opportunity and principle of equal rights can freely chose international political status and sovereignty. This is the right of freedom from the state in relation to any oppressionist power. This means that the states are free to make law which they want without the influence of any other external power. In modern times the rule refers to secessionist groups can enter international society by departing from a structure which is not representing them. In this situation also the aboriginal can use the elf determination doctrine to represent themselves in the international forum.

In conclusion, it can be stated that if Kruger v Commonwealth had gone to an international forum would it have been decided differently and in the favour of the plaintiff. This is because, the act allowed by the ordinance is to be considered as genocide as it involves extracting children from one group and placing them in another group by the use of force. Further, as Australia is a party to the UN Genocide Convention on the Prevention and Punishment of the Crime of Genocide it has an international obligation to abide by the law. The case laws discussed above also show that if the case was decided in an international forum the aboriginal ordinance would have been considered as invalid. The rule of self-determination available at international level would have also allowed the aboriginals to represent themselves.

Anglo-Norwegian Fisheries Case (UK v Norway) [1951] ICJ Rep 116

Asylum Case (Colombia v Peru) [1950] ICJ Rep 266

Clark, Donald, and Robert Williamson, eds. Self-Determination: International Perspectives. (Springer, 2016).

Jacobs, Steven Leonard. "Definitions and Concepts of Genocide: Lemkin and the Concept of Genocide." Multidisciplinary Perspectives on Genocide and Memory. (Springer, Cham, 2018). 9-20.

Jones, Adam. Genocide: A comprehensive introduction. (Routledge, 2016).

Kruger v Commonwealth (1997) 190 CLR 1

Music, Esmir. "Raphael Lemkin and his struggle for the recognition of genocide by international law." (2017).

Nicaragua Case (Nicaragua v US) (Merits) [1986] ICJ Rep 14

North Sea Continental Shelf Cases (Germany v Denmark, Germany v Netherlands) [1969] ICJ Rep 3

Northern Territory Aboriginals Act 1910 (NT)

Nuclear Tests Cases (Australia v France, NZ v France) [1974] ICJ Rep 253

Right of Passage case (Portugal v India) [1961] ICJ Rep 6

Rummel, Rudolph J. Death by government: genocide and mass murder since 1900. (Routledge, 2018).

SS ‘Lotus’ (France v Turkey) (Judgment) [1927] PCIJ (ser A) No 10

SS Wimbledon Case [1923] PCIJ (ser A) No 1

Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226

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