Storey, Matthew --- "Kruger v The Commonwealth: Does Genocide Require Malice?" [1998] UNSWLawJl 17; (1998) 21(1) UNSW Law Journal 224
Kruger v The Commonwealth:
Does Genocide Require Malice?
MATTHEW STOREY
[*]
I. BACKGROUND TO THE KRUGER GENOCIDE
CLAIM
On 31 July 1997, the High Court handed down its decision in the case of
Kruger & Ors v The Commonwealth of
Australia.
[1] The plaintiffs in
the action, members of the Stolen Generation of the Northern Territory, had
argued that the legislation which
authorised their removal from their Aboriginal
families was unconstitutional and thus invalid. The legislation in question was
the
Aboriginals Ordinance 1918 (NT). The Ordinance provided in
part:
s 6(1) The Chief Protector shall be entitled at any time to undertake the
care custody or control of any aboriginal or half-caste,
if, in his opinion it
is necessary or desirable in the interests of the aboriginal or half-caste for
him to do so ...
Section 67 of the Ordinance was a regulation making power
and provides for the making of regulations:
...
(b) providing for the care custody and education of the children of
aboriginals and half-castes;
(c) enabling any aboriginals or half-caste child to be sent to and detained
in an Aboriginal institution or Industrial school ...
The Court noted that
such regulations were in fact made and “conferred on Protectors ‘at
their discretion’ the powers
to ‘forward any aboriginal or
half-caste children to the nearest aboriginal institution or
school’”[2]
The
plaintiffs asserted the Ordinance’s invalidity on a number of
grounds.[3] One of these was that the
Ordinance:
... was contrary to an implied constitutional right to freedom from and/or
immunity from any law, purported law or executive act:A.
providing for or
having the purpose, the effect or the likely effect of the destruction in whole
or in part of a racial or ethnic
group, or the language and culture of such a
group ...
C. constituting or authorising the crime against humanity of genocide by,
inter alia, providing for, constituting or authorising:
(i) the removal and transfer of children of a racial or ethnic group in a
manner which was calculated to bring about the group’s
physical
destruction in whole or in part;
(ii) actions which have the purpose, the effect or the likely effect of
causing serious mental harm to members of a racial or ethnic
group;
and
(iii) the deliberate infliction on a racial or ethnic group of conditions
of life calculated to bring about its physical destruction
in whole or in
part.
[4]
This aspect of the
plaintiffs’ claim clearly relies upon the definition of genocide in the
Genocide Convention 1948.[5]
It
should be noted that Dawson J (with whom Gummow J concurred) also suggested that
the plaintiffs’ claim included an assertion
that the authorisation of
‘cultural genocide’ is beyond the constitutional power of the
Commonwealth. His Honour went
on to note: “the Genocide Convention is
not concerned with cultural genocide, references to cultural genocide being
expressly
deleted from it in the course of its being
drafted”.[6]
II. THE COURT’S CONSIDERATION OF
GENOCIDE
All the members of the Court found that the Ordinance did not violate the
asserted freedom or immunity because the words of the Ordinance
did not display
the necessary intent.
[7] Justice
Gaudron succinctly summarised the opinion of the Count when she
stated:
Although it may be taken that the Ordinance authorised the forcible
transfer of Aboriginal children from their racial group, the settled
principles
of statutory construction, to which reference has been made, compel the
conclusion that it did not authorise persons to
remove those children
‘with intent to destroy in whole or in part ... [their] racial ... group,
as such’.
[8]
While Toohey
and Gaudron JJ emphasised[9] the
principles of statutory interpretation that suggest a statute should be read as
being in conformity with international law; Dawson,
McHugh and Gummow JJ and (as
noted at footnote 7) Brennan CJ emphasised more the phrase “necessary or
desirable in the interests
of the aboriginal or half-caste” in s 6 of the
impugned ordinance to suggest a beneficial intent on the part of the
legislature.[10] Despite this
distinction in emphasis, all their Honours concurred in finding failure to
establish genocide in part because an “intent
to destroy” was not
displayed by the Ordinance.
This discussion investigates the issue of
genocidal intent as it applies to the facts underlying the Kruger
litigation. Of course, the finding of the Court was based on more than just
this issue. Amongst these considerations were issues
relating to an implied
constitutional prohibition on genocidal legislation, the status of genocide at
various times this century,
and the interrelation of the Ordinance and the
policy of child removal. With some slight exception with regard to the last
matter,
all of these additional issues are beyond the scope of this paper.
Accordingly, the suggested conclusions of this paper should not
be seen as
questioning the decisions of the Court in the Kruger
action.
III. INTENT AND MOTIVE
Some light is shed on the definition of intent in the Convention by an
examination of the discussion during the drafting of the Convention
that
preceded its inclusion.
Much of the refinement of the original version of the
Genocide Convention that had been prepared by Professors Lemkin, Donnedieu de
Vabres and Pella, was carried out by an Ad Hoc Committee of the Unite Nations
Economic and Social Council.[11]
Art II of the Ad Hoc Committee’s draft defined genocide as
“deliberate acts committed with the intent to destroy a national,
racial,
religious or national political group on grounds of the national or racial
origin, religious belief, or opinion of its members”.
The work of
drafting the Convention was later referred by the United Nations General
Assembly to the Assembly’s (Legal) Sixth
Committee. The Sixth
Committee’s Draft of the Convention was adopted without amendment by the
General Assembly.[12] Commenting on
some of the Sixth Committee’s amendments from the Ad Hoc Committee’s
version, Lippman notes:
In the end, there was uncertainty over interpretation of the phrase
‘as such’. It was pointed out that the phrase ‘as
such’
might mean either ‘in that the group is a national racial religious or
political group’ or ‘because
the group is a national racial,
religious, or political group’. It is clear that under Art II the
requisite intent to commit
genocide must be accompanied by proof of motive,
however the motive requirement may be interpreted. Delegates feared that if
intent
was not linked with a motive requirement that situations such as
‘bombing which might destroy whole groups ... might be called
a crime of
genocide; but that would obviously be
untrue’.
[13]
An
explanation of the meaning of the words “as such” is given by the
delegate from Venezuela who moved the amendment to
include “as such”
into the Ad Hoc Committee’s draft. The delegate stated:
... that an enumeration of motive was useless and even dangerous, as such a
restrictive enumeration would be a powerful weapon in
the hands of the guilty
parties and would help them to avoid being charged with genocide ... It was
sufficient to indicate that intent
was a constituent factor of the
crime.
...
The purpose of [the amendment] was to specify that for genocide to be
committed a group - for instance, a racial group - must be destroyed
qua
group.
[14]
The issue of motive
has been discussed by a number of
commentators.[15] For the purposes
of the present discussion a concise summary is provided by Starkman when he
suggests that:
... the impetus behind genocidal policies must be a combination of motives.
Must the genocidal motive be the predominant one? The
drafters of the Genocide
Convention in the United Nations Sixth Committee were unable to agree on a
resolution of this question and
a proposal to make special mention of the
motives in the Convention rejected. Opinion opposing the proposal suggested
that the intent
to destroy the group was sufficient to constitute the crime
regardless of any underlying motives. Commentators who have addressed
this
issue agree that
the reasons for perpetrating the crime and the ultimate
purpose of the deed are irrelevant. The crime of genocide is committed whenever
the intentional destruction of a protected group takes
place.
[16]
The essence of the
intent requirement in genocide then, would appear to be the undertaking of one
of the prohibited acts in relation
to one of the protected groups with the
intent to destroy that group as a group in whole or
part.[17] The fact that this act is
committed with a beneficial motive is apparently irrelevant. Genocide does not
require malice; it can
be (misguidedly) committed “in the interests
of” a protected population.
Before moving to re-examine the Ordinance
in light of this discussion of intent, one additional aspect of the genocide
definition
needs to be considered. That aspect is “to
destroy”.
IV. TO DESTROY
As previously noted, Dawson J referred to the exclusion of cultural
genocide from the Convention. The deletion of cultural genocide
from the
convention occurred during the Sixth Committee’s revision of the Ad Hoc
Committee’s draft.
[18] The Ad
Hoc Committee had defined cultural genocide as: “any deliberate act
committed with the intent to destroy the language,
religion, or culture of a
national, racial or religious
group”.
[19] However, the
removal of cultural genocide was subject to one slight exception. As Lippman
notes:
Although included under ‘cultural genocide’ in the draft
Convention, the Greek delegate, Mr Vallindas, successfully argued
that the
‘forced transfer of children to another human group should be categorised
as physical
genocide’.
[20]
The
inclusion of the ‘forced transfer of children’ provision and the
‘imposing measures intended to prevent births
within the group’
provision in the definition of genocide would suggest that physical genocide
extends beyond simply killing
the protected population. Rather, physical
genocide is constituted by steps aimed at eliminating “in whole or in
part”
the actual existence of a group as a group. The
‘forced transfer’ provision and the ‘measures to prevent
birth’ provisions both envisage actual elimination
taking place over a
period of a generation or more (if employed in isolation). With both of these
provisions, the elimination occurs
through denying the group the means of self
perpetuation.
The self perpetuation of a group takes place on two
planes: first, the physical reproduction of members of the
group;[21] and second, the
continuation of the features that define the group as a group, distinct from the
broader community. (It should be
noted that viewed thus, an act of forced
transfer of children can constitute both physical and cultural
genocide).
Recalling the previous discussion of intent and motive, it can be
seen that an agency, carrying out acts (at least in some way) beneficial
to the
individual members of a group, but bringing about the destruction of part of the
group by denying it the means of self perpetuation
(on one or both levels
mentioned above) could be engaged in a genocidal act. Of course, the acts
beneficial to the individuals would
have to be carried out with the intent to
destroy the group (or part of it). However, while there must be this
destructive intent, it does not have to be the sole, or even predominant,
motive.
Indeed, the primary motive may be a desire to benefit (or act “in
the interests of”) the individuals comprising the
group.
V. ASSIMILATION AND GENOCIDE
It is suggested then, that a program that was designed to benefit the
children of a racial group by removing them from that group
and eliminating from
those children the features that distinguish the group as a group constituted
genocide. It is further suggested
that this is so even where an aspect of the
removal program was the (intended) substantial improvement in the material
condition
of the children.
Clearly then, it is also suggested that the policy
of removal as part of the assimilationist policies of previous governments
constituted
genocide. A precis of the operation of the policy of
assimilationist policies in the Northern Territory is given in the report of
John William Bleakley: Bleakley was Chief Protector of Aboriginals in
Queensland and appointed by the Commonwealth (Bruce-Page)
Government to report
on Aborigines in the Northern
Territory.[22] With regard to
‘half castes’, Bleakley noted the need to identify “how to
check the breeding of them and how to
deal with those now with
us”.[23] Bleakley made two
recommendations to deal with this issue:
complete separation of half-castes from the Aboriginals with a view to
their absorption by the white race; [and] complete segregation
from both blacks
and whites in colonies of their own and to marry amongst
themselves.
[24]
Barbara Cummings
analyses these recommendations thus:
Bleakley’s policy was one of biological as well as cultural
assimilation and depended firmly on the control of the breeding
habits of those
ostensibly in the process of becoming ‘more
European’.
[25]
The
implementation of Bleakley’s recommendations can be identified in the
official reports of the period after his report was
delivered:
In the Territory the mating of an Aboriginal with any person other than an
Aboriginal is prohibited. The mating of coloured aliens
with any female of part
Aboriginal blood is also forbidden. Every endeavour is being made to breed out
the colour by elevating female
half-castes to the white standard with a view to
their absorption by mating into the white
population.
[26]
It is suggested
that the foregoing demonstrates the intent to cease the actual existence of part
of a group; the mixed descent Aboriginal
population of the Northern Territory,
on both of the levels of self perpetuation described earlier. It remains to be
seen whether
this policy of assimilation was authorised by the impugned
legislation.
VI. THE ABORIGINALS ORDINANCE
1918
The relevant sections of the Ordinance have been reproduced above in Part
I. From the discussion in this paper it will be apparent
that the reference in
s 6 of the Ordinance to an action by the Chief Protector being “necessary
or desirable in the interests
of the aboriginal or half-caste” does not
prevent the legislation from evincing the necessary intent. A beneficial motive
can coexist with a genocidal intent. Indeed much of the policy documentation of
the period suggest it is in the interests of half-caste
children to be denied
their Aboriginality.
[27]
However, as noted in Part II, members of the Court in Kruger held
“settled principles of statutory construction ... compel the conclusion
that it did not authorise persons to remove those
children ‘with intent to
destroy in whole or in
part’”[28]. Thus, while
it would appear open to the Court to have concluded that the fact that the
legislation (and not just its operational
implementation) operated on an
explicitly racial basis demonstrated the necessary intent, this opportunity has
apparently been rejected.
Rather, the Court has suggested that the legislation
did not authorise genocide because the statute should not be construed as
authorising such acts (either because of interpretative principles
or based on
an interpretation of ‘interests’).
This being the case, the
question is posed: If the Ordinance did not authorise genocide, what would be
the legal effect of an implemented
policy of genocide purportedly authorised
under the legislation? Justice Gaudron perhaps provides an indication of the
Court’s
response to this question when she notes:
... subject to a consideration of the existence of a time bar, if acts were
committed with the intention of destroying the plaintiffs’
racial group,
they may be the subject of an action in damages whether or not the Ordinance was
valid.[29]
No doubt this is a
matter that will tested when the common law claims that the Stolen Generation
are currently pursuing in the Federal
Court go to trial.