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LEGAL AND CONSTITUTIONAL REFERENCES COMMITTEE
12/05/2000
Anti-Genocide Bill 1999

CHAIR —Welcome. The Centre for Comparative Genocide Studies lodged with the committee submission No. 19, which we have published. It is now part of the public debate on this issue. We thank you for that submission and ask you now if you have any amendments or alterations you want to make to that submission. If you do not, I invite you to make a short opening statement and at the conclusion of your remarks I will invite members of the committee to address questions to you.

Mr Margossian —There are no amendments.

Prof. Tatz —I would very briefly like to state for the record that our centre was founded in 1993. It is one of only four or five such centres for comparative study of genocide in the Western world. We have set ourselves the task of trying to come to an understanding of both the theory and practice of genocide in the world, particularly going back to the period of the Armenian genocide at the beginning of the last century. Regrettably, we have also had to take into consideration the fate of indigenous communities in different parts of the world, including the fate of Australian Aborigines.

We have tried at length to come to grips with the vexed problem of what is genocide in the international legal definition. It is a flawed definition, as I am sure you are aware. We can explore the flaws if you wish, but even after something like 30 or 40 years of serious study by scholars around the world into the definition, the International Criminal Court did not hesitate for more than 60 seconds, I gather from various delegates to that Rome convention, in deciding that in future the International Criminal Court will adopt holus-bolus the genocide convention definition of genocide.

That came somewhat as a surprise to me. I thought the time had come, certainly after all the research, to repair the flaws in the definition. But this is not to be. My understanding is that the reason for not retraversing the definition is that many of the nation states that subscribed to the convention in 1948 and that subsequently would have the opportunity come their way to reconsider their support for international genocide would not have signed the new definition in the International Criminal Court.

So for better or worse I think we are stuck for the foreseeable future with the definition that we were given in 1948. Therefore part of our research hinges on how one can in fact deal with the coequation of article 2 from (a) to (e) which conflates and coequates physical killing of people with things like the sterilisation of people and the forcible removal of children. This, of course, simply poses an enormous problem for Australia in that we have a general population that is unwilling to come at any notions of genocide in Australia. The conventional imagery we have of genocide is simply people in striped pyjamas hanging off the wire at Auschwitz. This is inconsistent with anything we have ever done in Australia, ergo there has been no genocide in Australia. From there, perhaps we can have some dialogue about some of these issues.

CHAIR —Your submission also addressed the impact—and I think it is related to those comments you made about the definition of genocide—of the Rome Statute on the International Criminal Court. I note in your submission that you do not have an expectation that the International Criminal Court will come into effect until well after the year 2000. What implications, if any, do you see that having on this particular bill which will have only Australian jurisdiction?

Prof. Tatz —There is a problem in the sense of looking at—and I understand the International Criminal Court is no longer confined to jurisdiction over states but that individuals can be tried by such a court irrespective of their nationality—whether this country or the United States, in particular, would become a signatory to that international court, given that it applies to individuals and, in a sense, almost sets aside any national jurisdiction matters. The timing and the date become equally important. I am not sure, I do not have the details in my head, as to how many national state signatories there have to be before that International Criminal Court comes into being. You might be able to help me.

Mr Margossian —Sixty ratifications.

Prof. Tatz —Sixty are required.

Mr Margossian —I think on 6 April there were roughly eight. So there is still a long way to go before the court can actually come into being and exercise jurisdiction over individuals and states that perpetrate acts of genocide and torture and things like that.

CHAIR —There have actually been commitments given by a number of states that it is going to happen once domestic legislation has been enacted in respect of nation states. Is that not the case?

Mr Margossian —As I understand it, yes, it is.

CHAIR —It does have a bearing on the retrospectivity argument. In your opinion, where would you see the retrospective elements of this particular bill that is before the Australian parliament and certainly before this committee at the moment?

Mr Margossian —My conclusions are similar to those adopted by the Human Rights and Equal Opportunity Commission. If it does operate retrospectively—and I am hoping it does, because otherwise you are omitting from its scope pretty much every genocidal activity from 1950 onwards, including East Timor, Rwanda and the former Yugoslavia—I believe one option is for the operation to begin from, I think, 11 December 1946, when resolution 96 was passed by the General Assembly of the United Nations condemning genocide as a crime against either humanity or international law.

From December 1946 onwards, it acquired the status of customary international law. However, the obligation to legislate comes into being when it gained entry into force in 1951. If it does operate retrospectively, I assume that probably the strongest foundation for retrospective operation would begin in December 1951.

Senator GREIG —Professor, given that you focus on looking at comparative acts of genocide and application, could you paint a picture for us: if this bill were to be implemented—to become an act as it stands, or perhaps with some amendments, as are being advocated by some groups—how would it stand comparatively with anti-genocide legislation as it exists elsewhere in the world?

Prof. Tatz —This is a difficult one. One of the problems is that, in anti-genocide legislation in other countries, such as it exists, the predominant case study that everybody has in mind is the Holocaust period during the Second World War. More and more attention is now being paid, especially in Scandinavian countries, of which I understand several are either in the process of, or have just passed, antigenocidal legislation. The Swedish parliament, about two weeks ago passed a bill that recognised the Armenian genocide as a specific case study of genocide. Israel, for a variety of reasons in recent times, has announced that it, too, will begin to countenance the validity of the Armenian genocide. As we know, the American Congress has been in the process, for at least 20 years, of trying to get a two-thirds majority to pass a resolution recognising the Armenian genocide.

I would hope that any bill that emanates from Australia will be worded in such a way as to give cognisance to the genocides at least of the 20th century, if not the 19th century—obviously, in the case of some of the events in this country and in similar other countries with indigenous minorities. I am not sure that we should actually look specifically to the models that are being offered by other parts of the world. I think we have a very real reason to take into account some of our own historical events. I think the Prime Minister called them the `blemishes of the past'. There is a blemish of a very considerable dimension here. I think we really ought to pass a bill that is both consonant with international treaty obligations, the ratification that we engaged in in 1949 and that is also consonant with the Australian experience.

Senator GREIG —I take your point about Australia doing its own thing. I wonder, though, whether there are not opportunities for us to learn from other examples. I went to the Press Club luncheon some months ago when Eli Rosenbaum was out here from Washington. He praised very highly the approach of the Canadians in dealing with this. Can you comment on that and illustrate what we might be able to learn from the Canadian experience?

Prof. Tatz —The Canadian experience is a somewhat mixed one. Our centre has been publishing a number of research pieces in recent times about the Canadian experience of Holocaust history where courts have allowed debates to take place as to whether the Holocaust did occur. The Zundel and the Keegstra cases were two very significant cases in Canadian history, which seemed to indicate that Canadians were shying away from the model that they are now proposing. I think the Canadian one has yet to be shown to have the teeth that it purports to have in its philosophical attitudes to genocide.

Mr Margossian —In relation to the United States anti-genocide legislation, the bill that was ratified in 1989 or 1988 has been watered down substantially. It contains 15 reservations and understandings, rendering it pretty much ineffectual. But there is one novel element present in that legislation and that is the fact that not only are criminal punishments prescribed for the breach of particular acts but also there are fines imposed. I will give you a hypothetical example. If the bill was to operate retrospectively in Australia and the Australian government was to be implicated through its endorsement of forcibly removing indigenous children, for example, often it would be difficult, considering that states perpetrate genocide and are responsible for its prosecution as well, to find an actual perpetrator of genocide. So in those cases, obviously an injustice has been created, but it is often difficult to succeed in prosecuting an individual. The other option, of course, is a monetary remedy such as compensation or a fine imposed against the Commonwealth as an entity, instead of punishment that is confined to an individual.

Senator PAYNE —Professor, your submission notes that the proposed bill omits the words `as such' after the words `racial or religious group' and you think that might be a positive in terms of avoiding the confusion and the difficulty associated with determining whether perpetrators intended to destroy a group as such. We have other submissions which argue that it is important to retain those words to prevent perpetrators arguing that they lacked the prerequisite intent. I am interested in that contrast.

Prof. Tatz —It is a good question and it is a very vexed one. The worst- case scenario about the two words `as such' occurred somewhere around the 1960s when Paraguay was brought before the General Assembly on a charge of genocide of the Ache Indians of that country. The ambassador got up and explained that, yes, certainly Ache Indians had been killed; they had been killed by bulldozers and Western progress towards uranium mining or forest clearing, or whatever the case may be, and certainly there had been mass killings, but they had not been killed because they were Ache Indians; they happened to be killed because they happened to be in the way of the bulldozers, metaphorically speaking. And they were able to get off the hook because the `as such' was not sustainable. That leaves me, and I am sure it would leave you, very troubled.

One of the things we have in the Australian context is the vexed question, since you have raised it, of intent and whether intent should be specific in a bill such as this or whether the intent can be viewed as having to be proven to be maleficent intent rather than beneficent intent, which is one of the arguments that has been raised in Australia—that we did it for their own good, sort of thing. The question of intent in the Australian context is, in my opinion, fairly clear. I have a research discussion paper called `Genocide in Australia' and if I have not given this to the Senate committee before, I will. I would like to table it, if that is permissible. It deals with the issue of people like O.A. Neville in Western Australia saying that the greatest kindness that we could do to Aborigines is to have them disappear by a variety of staged activities such as intermarriage between quarter-castes and non-Aborigines, removal of children and so on. His purpose was that they should disappear for their own good.

The point that I want to make is that people like Neville, people like J.W. Blakeley, people like Dr Cecil Cook in the Northern Territory's history, specifically adopted and implemented policies to cause the disappearance of Aboriginality—in other words, `as such'. Should that, therefore, be in? Yes, I think it should be in, because the thrust of most of my research and argument has been that the fate of Aborigines, at least in terms of the genocidal process, whether it was physical killing in the 19th century or the forcible removal of children in the 20th century, was because they were Aborigines. So one personal part of me, perhaps an emotional part of me, says, yes, I would like to see the specificity of targeting a particular group for one of those five acts of genocide.

Senator PAYNE —You have pre-empted my second question, so thank you for your assistance with that.

CHAIR —Thank you for the discussion paper, Professor. We do appreciate receiving it. The Nulyarimma case, which is also addressed in your submission, is a matter now before the High Court on appeal. That appeal will probably be heard later this year. It has been argued to the committee in other submissions that perhaps the legislation we have before the committee and the parliament is premature and ought to be delayed until we get a result from the High Court case. You have addressed Nulyarimma in here. Have you addressed that matter of whether or not it would be better left to the legal system or whether legislation is needed?

Mr Margossian —There are a couple of points to be made. Firstly, if the issue does go to the High Court, the determinative precedent when the case was before the Federal Court is most likely to be overturned. The dynamics of the interaction between international law and domestic law have changed over the 50 years in which the binding decision was made. Thus, it is very likely that the point of law will be overturned and genocide will be recognised. It is important to realise that, legally speaking, the facts of that case do not fall within the international definition of genocide.

The primary contention of the plaintiffs in that case was that acts of dispossession—and I am sure they are genuine in their beliefs—breached articles 2(b) and 2(c) of the genocide convention. But if you look at the drafting of the convention and at the debates, you will realise that those two acts do not refer to ethnocidal activities at all. Those two acts actually refer to the almost immediate physical destruction of group. They are things such as deportation, death marches and infliction of very poor standards of living in places like concentration camps. It makes no reference to things such as the dispossession of land. In fact, such activities were deliberately deleted after pressure was put on the committee by the United States. If you look at the facts, the facts of that case limit what will be the eventual outcome of the case.

There is another point to be made. The charges brought in that case are not necessarily concerned with the ratification or the legislation of genocide. It deals with genocide as part of international customary law. That also creates various problems as well because other precedents stand in the way of recognising a genocide charge, especially when genocide is perpetrated by the state that is trying the offence, as is the case in Nulyarimma. You have principles such as those established in 1948 by the High Court in Cain v. Doyle. That said basically that the Commonwealth could not be held criminally liable in common law. Basically, that acts as a kind of sovereign immunity with a domestic application. In those circumstances, it is highly unlikely that the Commonwealth will be held liable criminally unless there is a radical reformulation of the law in that regard.

There are other principles as well, such as section 16 of the Parliamentary Privileges Act. It prohibits things such as the comments of parliamentarians being used as evidence that can lead to criminal sanctions on those individuals making the comments. There are things like that. So there are a lot of obstacles in the way of such an action. Assuming a genocide law is passed that operates retrospectively, a lot of those problems will be overcome. A case you bring before a court under international customary law is pretty much doomed. If you look at a variety of precedent in this regard, a lot of it is uncertain. Often international law is rather vague. Courts are often reluctant to invoke international customary law.

CHAIR —The High Court has been criticised in recent years as being more proactive than that. That is a comment rather than a question. You seem to have some doubt as to whether the case has actually gone to the High Court or not. In your opening response to my question, you seemed to have some doubts as to whether or not the appeal has been accepted by the High Court in Nulyarimma.

Mr Margossian —No, the point I was making is that the facts, as argued by the plaintiffs in Nulyarimma, do not fall within the definition of genocide. So the point is if the issue does go to the High Court—and this is the first I have heard that it has—on the facts the case is most likely to fail. That is the point I was making.

CHAIR —Even with the remarks of Justice Merkel in his dissenting comments?

Mr Margossian —I think so, because Merkel, unlike the other two that formed the majority, was of the opinion that genocide was recognisable in Australian courts, but he agreed with the other two judges that the facts did not fall within the international legal definition of genocide.

Prof. Tatz —If I may take up your theme, Senator, if I understand you correctly, we have had several cases brought by Aboriginal plaintiffs in civil action, starting with Joy Williams and going through a number of cases, some of which are ongoing. It seems to me that, if for no other reason, we ought to take into account certainty in law as an argument for a genocide bill. I am not saying this is the primary reason—please do not let me give a wrong impression—but a subsidiary reason for having such legislation is to produce clarity and certainty. It seems to me, just as an observer of this, that in the absence of a genocide bill, and even with a number of probable Aboriginal cases, some of which have already failed, these lawsuits will continue indefinitely until some kind of an outcome is obtained by plaintiffs in a particular case. It seems to me—and this is just an observation; there is no proof in these matters—that a number of the counsel acting for plaintiffs in various cases have gone out of their way to avoid genocide and to find all sorts of extraordinarily convoluted ways of arriving at something that would have been reasonably clear if we had national legislation on genocide.

For example, in the Kruger case, to argue that there was in fact a loss of right to religious practices because of the removal of children seems to me to be a very convoluted way of going about trying to say, `You forcibly remove children.' Lawyers seem to me to be stretching for extraordinary arguments. This is a parliamentary privileged hearing, as I understand it, so I am free to say something reasonably openly. I was consulted by the solicitors for the Northern Territory litigants and suggested that they run a genocide case. After much ado, they have opted for a breach of duty of care kind of line of argument. They wish to avoid the genocide argument partly because I think they feel it is safer but also—if I may make this observation, which is purely an ex cathedra observation—there are many Australians who do not want to engage in confronting the issue of genocide. It is just unpalatable; it is just in a sense unthinkable.

If you look at the comments that I have quoted at the beginning of that research discussion paper, one is a quote from Mr Leslie Haylen and the other is from Mr Archie Cameron, who both in a sense object to Australia's ratification of the genocide convention by saying, `But genocide is unthinkable in this country. Why are we even engaging in a ratification of a treaty because Australians could never possibly commit genocide or have anything to do with a genocidal process because, after all'—I think one of the gentlemen says—`we are a moral people.' I think that this is a stance that some of the lawyers that I have engaged with also would like to take; that it is more palatable in a sense subjectively to the person to engage in a breach of duty of care kind of case than to be going into a court of law and arguing about genocide. But that is just simply an observation. It may not be worth 2c, but I offer it.

CHAIR —Nonetheless, it has been made and it is on the record. Thank you for that, Professor Tatz.

Senator PAYNE —Ex cathedra or otherwise.

CHAIR —I will ask you what that means later. The bill also extends the meaning of genocide to beyond what is contained in the convention grounds. I am going to ask your view on that. I will just quote specifically, `a group based on gender, sexuality, political affiliation or disability.' Do you or your organisation have a view on the extension of the term?

Prof. Tatz —Our organisation has argued very strongly for a repair of the omission of political groups from the definition of victim groups. We know from history that the reason political groups were omitted from the original genocide convention was because the Soviet Union said categorically that they would not sign the convention if political groups were mentioned. This is because of the Soviet record of what happened to kulaks, the land-owning peasants, between the two world wars and also the people whom Stalin conveniently labelled as the enemies of the people. We know that some 30 million people died in this process. The Soviets would simply not have come at it on that basis. We then go to the 1950s where half a million people were massacred in a genocidal sweep in Indonesia because they were labelled Communists. There are dozens and dozens of people who are targeted because they are political groups.

The two main researchers on this are two American professors, a man called Ted Gurr and his wife Barbara Harff. They have produced a model of what they call politicide. It is a huge list of communities that they deem to be at risk—through using a number of indicators of what it means to be at risk—of genocide for being members of political groups. If we look at this whole spectrum of who are the omitted groups from the existing international legislation, I think political groups should come in first.

When it comes to issues of gender, we do have a view, but we have not done any sustained research into the question of whether gender has been a basis for genocidal victimisation. One could argue from a Western point of view that the fate of women in certain Muslim countries, like Afghanistan at the present time, amounts to more than just cruel and unnatural punishment as Westerners or non-Muslims would see it.

Ageing is a very serious problem because we have a history of genocidal processes in Nazi Germany during the whole T4 euthanasia program. The taking of life unworthy of living was the original 1928 dogma the Nazis came up with which justified the elimination of people because they were a burden to the state. Therefore, ageing would be very much part of my concerns.

Mr Margossian —I have just a few points regarding the inclusion of political groupings. If you look at the prevailing international context within which genocide exists, there is a paradox in international law. You have international instruments, such as the refugee convention, providing refugee status on grounds of political persecution, people who survive genocidal activities perpetrated on the grounds of political views are allowed to seek refuge. You have the victims of such crimes, on the other hand, having no recognisable action against such an offence. Say I am a left-winger or a right-winger and there is an attempt by a perpetrator government to exterminate me because of my political affiliations, even if it is ratified in both international law and domestic law, I have no cause of action against political persecution when it is conducted in such a systematic manner that the eventual outcome is genocide.

It is also quite problematic, especially when extradition is involved. In the recent case of General Pinochet decided by the House of Lords, there was a request made by the Spanish prosecutor or magistrate on the grounds that there was a breach of the genocide convention as General Pinochet and his regime at the time attempted to exterminate left-wingers. The reply given by the British prosecutor was that it is not worth pursuing because, by legal definition, political groupings are not covered and thus it could not be considered as genocide.

Prof. Tatz —As a follow-up to that, we saw a rather enormous flaw in the South African Truth and Reconciliation Commission process, which ended some time last year, in which the legislation specifically allowed amnesty to people who claimed that the perpetration of their acts—it was not genocide, but we are talking here about something akin to this: mass murder, massacres, torture and so on— was done for political purposes. In other words, even when some of the secret police destroyed children, the argument was `Well, we thought this was a political act because they could grow up into terrorists.' It is a weird kind of defence that is possible because of an international attitude that political groups or political victimisation is somehow a special category of people that is very different from any other kind of targeted group. In other words, there is almost a cocoon of protection around groups that are defined as political. As my colleague has suggested, if we look at international law from Grotius going back to the 16th century, there is no extradition for political offences.

CHAIR —In the South African experience you just mentioned, was not the immunity granted to people on the basis of admission to the crime or the offence rather than a claim that it was of a political nature?

Prof. Tatz —It had to be of a political nature, as far as I am aware.

CHAIR —But wasn't the admission a catalyst for whether or not it had prosecution?

Prof. Tatz —The admission was the absolution fulcrum. The whole issue of being given amnesty hinged on the fact of confession. But if it could be shown that murder was murder and it was not done for `political reasons', then we had another kind of ball game.

Mr Margossian —The proposed national definition also covers, as you mentioned before, groupings based on disability, gender, sexuality and I think there is another criterion as well. The point I want to make is that the inclusion of protected groups based on criteria such as sexuality has drawn much criticism from the RSL and the Reverend Fred Nile. Criticisms of those sorts are often ill-founded and should fall on deaf ears because what the law prohibiting genocide does grant is not necessarily a substantive right like freedom of speech or freedom of association or something like that. It grants a more limited but nevertheless significant right. And that is a basic right to exist as a member of a protected group. It is not a catalyst for gay rights or any other type of political lobbying or stunt making, as has been suggested by some parties. It is a very limited right.

Senator COONEY —Thanks very much for your submission. It was well thought out. The bill itself covers a wide range of activities, some more serious than others—for instance, killing members of the group and causing serious bodily harm. As you know, serious bodily harm can be a blood nose or a black eye. You have dealt with this in the submission. The criminal code in my state of Victoria has a lot of different offences: people are locked up for causing death or injury; it goes from murder to common assault. Have you given any thought to how you might graduate genocidal offences in the same way? The big problem, as you have no doubt considered, is life imprisonment, whether you give somebody a bloody nose or kill them.

Prof. Tatz —You are quite right. In the submission that my colleague prepared and in the document I have tabled today we have spent an inordinate amount of time analysing what you are calling gradations of genocide. Before you came in, Senator, we did very briefly touch on the whole question of how flawed this international definition is because it equates (a), `killing members of the group', with (e), `forcibly transferring children of the group to another group'. This is really a matter for subjective opinion. Let me put it to you this way: during the Turkish genocide of Armenians from 1915 to 1922, Armenian children could be saved if they agreed to forcible transfer to Turkish Muslim families. I would argue, from a very personal point of view, that to be alive is to be alive, even if you are forced to become a Muslim Turk. This is very different from physical killing. Yet these are independently acts of genocide of co-equal seriousness in the international convention, in the International Criminal Court.

In relation to (b), `causing serious bodily or mental harm to members of the group', you are quite right—what is bodily harm and what is mental harm? In terms of bodily harm we could well put forward case histories of slave labour in the concentration camps and in the work camps, in special work laagers and so on. What is mental harm? And (c) is `deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part'. The question is: what is a part of a group, what constitutes a part, what part of it has to undergo these various processes for it to be called genocide? In fact, in my whole experience I have never yet seen a case, either contemplated or brought before a court or international tribunal on the basis of (b) and (c) in that definition. I am not saying they should not be there, but they are very waffly kinds of words. They are difficult words to get a hold of, in a sense, to come to grips with, whereas sterilisation or removal of children or killing people is fairly explicit.

You also have another problem: (a), (b) and (c) seem to be, as they were, born out of the vortex of the Second World War and the Holocaust period, and the implication of those is immediate death or destruction; and (d) and (e) seem to be a totally different category of genocide altogether, taking long periods of time. How long would it take to eliminate a group by sterilising all women or men? How long would it take to eliminate a group by forcibly removing their children? Obviously, several generations. So we have a grouping in (a), (b) and (c) which in time, space and nature is very different from (d) and (e).

What I am saying is that I do not see how an Australian genocide bill could somehow get around the fact that we are on the hook of an international legal definition which we have ratified, unless we break out and do something absolutely radical of our own. I think we have to live with this. I think Senator McKiernan has already pointed out that if such a bill does proceed there is an intention to widen it and broaden it, rather than to deal with these conflicts and flaws that lie within the present definition.

Senator COONEY —Thank you. If, instead of Professor Tatz, you were Mr Justice Tatz—which, may I say with respect, it well could be—and you had a person coming before you who had committed terrible slaughter on a particular race, and that was case 1 that you dealt with, and then case 2 was a young Englishman who, when he had had a few beers, gave a couple of hard punches to an Irishman saying, `May this happen to every Irishman—I am trying to eliminate the race,' what do you do? Do you look this up and say, `Well, it is life imprisonment for both.'

Prof. Tatz —Hopefully, I will not be a justice in the Northern Territory, Senator.

Senator COONEY —That was my first question. My second question is about the really big problem of retrospectivity. It has been thought about for years. The same sort of issue occurred in 1987 with the War Crimes Bill. You always get to the point where you worry and you say to yourself, `I'm going to allow retrospectivity. Am I doing that because I want to rationalise the fact that I am going to allow retrospectivity, or do I have a respectable intellectual argument to start off with that leads to retrospectivity?' It is very easy to start with retrospectivity and to stick to the arguments underneath that proposition. It is a lot harder to start off the other way around—that is, to argue to retrospectivity on the basis of a series of principles.

Prof. Tatz —In the scale of things, you could say to me that you were not wearing a seatbelt in 1954 or 1955 and you had an accident, et cetera, and that now we have seatbelt laws and we are going to make them retrospective. It is a very different kettle of fish when we look at the genocidal process and the disastrous damage that befell various victim groups. This did not cease at the time the atrocity occurred but in fact has ongoing consequences to this day.

I do not particularly want to spend your time or my time talking about the effects on stolen children. I have just finished a three-year study of Aboriginal youth suicide in New South Wales and the ACT, and the results of the removal of children are manifesting themselves in pretty dire ways right now as I speak. I was in Wide Bay two days ago at an indigenous youth suicide conference with over 100 people in attendance. At least 50 people in the room were removed children or siblings of removed children and so on. The intergenerational effects of a genocidal process linger for an awfully long time. Again, this is a very personal view, but I do not see any problem with subjecting to legal accountability—or even to moral accountability—somebody who perpetrated that who may still be alive and whose victims are still alive.

Senator COONEY —I believe there is no problem about the morality, and there does not seem to be a great problem with civil compensation. People say, `After all, it is only money and you are compensating people as a consequence.' But visiting a criminal character upon it and suddenly saying, `Professor Tatz, you are now a criminal for something you did,' is what worries me a bit.

Prof. Tatz —Yes. If I may, all this hinges on the whole idea of statutes of limitations and when to draw a line. If we look at the origins of statutes of limitations, they arise from an international criminal justice system which says that if the penalty for the particular offence is death and if the state cannot get off its butt, so to speak, within a period of 25 year or 30 years—whatever it is—to take action against a particular perpetrator, then it does not deserve an opportunity to try that man or woman for his or her life. I think we are past that sort of 17th century criminal justice notion. I think the genocides of the 20th century have woken us up to the fact that there are people whom we know have committed offences of the most heinous kind who are alive and well and who walk away from responsibility, claiming a kind of `earlier era' statute of limitations. The statute of limitations may apply because these people have not been able to be secured.

Senator COONEY —It is not the statute of limitations that is the making of the crime. We are looking at genocide, but clearly there was murder and all those sorts of things that existed there and then.

Prof. Tatz —Yes.

Senator COONEY —Murder is still pretty bad and ought to be visited by heavy penalties. We have introduced these other sorts of crimes when there are ones already there. We argued this in 1987. I just want to know what you think about that.

Prof. Tatz —I would take a view going back to one of the sources of international law where the dictates of natural law suggest that, in the absence of precedence and statutes, you use your reason. Reason would say that huge massacres of, say, Armenian populations in 1915, even though there may not have been an international crime of crimes against humanity or war crimes as we know them today, clearly during that period was a crime against humanity as we know it today. It is very interesting that a Turkish extraordinary courts-martial, not using any of the propositions of international law, tried some 36 people who were guilty of the atrocities in Turkey at the time and came up with wording which said that manifestly what these people did was criminal.

Senator COONEY —Following on from that, in a certain sense what the Turks did to the Armenians in 1917—am I right?—

Prof. Tatz —Approximately 1915 to 1922.

Senator COONEY —and the Holocaust in Europe are very classic cases in the sense that you look at them and you say, `What is the answer? There is no answer to that.' It was just a terrible evil. What we are starting to do is to spill over what are classic cases to other situations. If you do look at Yugoslavia as it is now it is perhaps not so clear as the Holocaust was or the Armenian situation was. Have you got any concerns that by taking the classic cases as the basis of what we do that we then might be applying principles in other situations which are not quite so clear-cut?

Prof. Tatz —Our centre exists just to try and document those very differences that you are talking about and to distil that which is similar, dissimilar, common or uncommon. What I am agreeing with is your point that the word `genocide' is not a flat word that applies to all cases at all times and in all places. It does not. To show how badly misused this word is, I always tell my students that the Age newspaper some 15 or 18 years ago, when the hunting season opened, had a headline on page 3 saying, `Duck genocide begins'. It is a ludicrous use of the word but in fact, in the case studies that you have alluded to, the Holocaust becomes the paradigm of what genocide is. It gets misapplied to all sorts of cases that are nothing like that particular high or low water mark.

Senator COONEY —The images of the Armenian being hung in the streets—did you ever see those?

Prof. Tatz —Yes.

Senator COONEY —They were horrifying. But then you say you have one law that says life gaol for anybody who commits genocide and someone who did that—

Prof. Tatz —I take your point.

Senator LUDWIG —When you were talking, it raised the issue that the international definition that is almost accepted in the international community differs somewhat from the one that we have here in the bill. What problems do you see that might arise from a difference between the one that is in the proposed bill as against the one in the international convention?

Mr Margossian —Quite frankly I do not really see any problems. It is quite easy to actually include or increase the groupings which are covered without any definitional or interpretive difficulties. If you look at the bulk of genocidal episodes they are perpetrated against racial groups and groups based on political views. In most instances, courts would merely have to look at the particular act, ascertain whom it has been perpetrated against and why and that is, in itself, enough to establish the necessary amount of proof.

Senator LUDWIG —Looking from a legal perspective—from a non-lawyer's perspective anyway—does the power exist under the Commonwealth Constitution to provide for a broader definition than that which is contained in the convention?

Mr Margossian —The external affairs power is a purposive power, so when the High Court interprets that power it provides what the European Court of Human Rights terms a `margin of appreciation'. In other words, it leaves it to the discretion of parliament to consider, in line with cultural sensitivities and things like that, the manner in which such a law will be implemented domestically. For example, if you have five particular provisions, the Commonwealth may choose to omit two. That would be the margin of appreciation provided by the court. It would still determine that law as valid. It would be the same when it comes to the inclusion of political groups. Naturally, they will mask their intentions in judicial reasoning, but there is a common view that things like that should be left to the parliament. Courts are often unwilling to make value judgments as to the reasons why parliament sought to include or not include a particular provision or a particular word of an international agreement.

CHAIR —Professor Tatz and Mr Margossian, thank you very much for your attendance here today and the assistance you have given the committee in our inquiry.

Prof. Tatz —Thank you for your consideration.

[10.33 a.m.]