Notes
1.
The Genocide Convention Act 1949 (Com) approved the ratification by Australia of
the Genocide Convention. However, as observed by the High Court in Kruger v. The
Commonwealth (1997) 190 CLR 1, the Convention had not, by the time of that case,
been implemented by legislation in Australia and therefore did not form part of
Australian law: Dawson J at pp 70-71; Toohey J at pp 87-88; and Gummow J at p
159.
2.
On 16 November 1993, the Commonwealth Attorney-General, Mr Lavarch, supplied
the following answer to a question on notice regarding the implementation of
Australia’s obligations under the Genocide Convention (House of Representatives,
Debates, vol 190 (1993), p 2955):
I am informed that the common law and criminal codes of States
and Territories provide adequate punishment for acts prohibited by
the Convention on the Prevention and Punishment of the Crime of
Genocide (Genocide Convention) and the passage of new
legislation is not necessary to meet Australia’s obligation under the
Convention.
(Source: 15 Aust Year Bk of Int L 580 (1994))
3.
On 29 November 1995, the Minister for Small Business, Customs and Construction,
Senator Schacht, tabled in the Senate the Government Response to the Joint Standing
Committee on Foreign Affairs, Defence and Trade Report entitled A Review of
Australia’s Efforts to Promote and Protect Human Rights. Extracts from the
response concerning the Genocide Convention follow (Senate, Debates, vol 176, pp
4246-4281):
Recommendation 8
The Committee draws the attention of the Government to the lack of legislation for
implementation of the Genocide Convention.
Response
Do not agree that legislation is necessary.
Comment
The Government does not accept the assumption implicit in the recommendation that
specific legislation is necessary in order to fulfil Australia’s obligations under the
Convention. The approach until now has been that common law and criminal code
of States and Territories provide adequate punishment for acts prohibited by the
Convention on the Prevention and Punishment of the Crime of Genocide.
This approach accords with the practice of most other State parties to the Genocide
Convention, and has not put us in breach of our obligations under the Convention.
(Source: 17 Aust Year Bk of Int L 496 (1996))
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4.
On 28 June 1999, in the House of Representatives, in an answer to a question on notice
concerning the implementation of the Genocide Convention, the Attorney-General, Mr Daryl
Williams, said:
I would reiterate that the Government has been advised that the common law and
criminal codes of the States and Territories provide adequate punishment for a number
of acts prohibited by the Convention.
(Source: 20 Aust Year Bk of Int L 481 (1999)
5.
Notwithstanding the consistent (but incorrect in law with regard to genocide committed
outside Australia) position of successive Commonwealth governments that legislation was not
necessary to implement the Genocide Convention in Australia law (see notes 2, 3, 4 above),
the need for such legislation was recognised when Australia ratified the Rome Statute of the
International Criminal Court on 1 July 2002. In this regard, the International Criminal Court
(Consequential Amendments) Act 2002 (Com) amended the Criminal Code Act 1995 (Com)
to create genocide as an offence under Australian law (ss 268.3-268.7) whether committed
within or outside Australia (s 268.117). The purpose of this legislation, which also created
crimes against humanity (ss 268.8-268.23) and war crimes (ss 268.24-268.101) as offences
under Australian law, is to ensure the primacy of Australian jurisdiction in respect of offences
within the jurisdiction of the International Criminal Court (s 268.1).
6.
What are the obligations of a State party under the Genocide Convention? Are those
obligations (e.g., “to prevent and to punish”) limited to acts of genocide committed in the
territory of the State party? See Application of the Convention on the Prevention and
Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro),
Preliminary Objections, Judgment, ICJ Reports 1996, p 595. In this case, the International
Court of Justice observed (p 616) that the obligation on State parties to prevent and to punish
the crime of genocide is not territorially limited by the Genocide Convention. In its final
judgment given on 26 February 2007 the International Court of Justice (by 12 votes to 3)
found that, in breach of Article I of the Genocide Convention, Serbia had failed to prevent the
genocide which occurred at Srebrenica, Bosnia in July 1995 when 7,000 Bosnian Muslim men
and boys were murdered by Bosnian Serb military forces. In the opinion of the Court, Serbia
had the means to prevent the genocide and manifestly refrained from using those means.
7.
Although Article VI of the Genocide Convention provides that persons charged with genocide
shall be tried by a tribunal in the state in which the genocide was committed (the territorial
state) or by an international penal tribunal (there being no such tribunal until the
establishment of the ICTY in 1993 and the ICTR in 1994), this provision has been interpreted
as not excluding the exercise of universal jurisdiction by a state other than the territorial state.
See Attorney-General (Israel) v. Eichmann 36 ILR 5 (1961) (Article VI did not prevent the
trial in Israel of a German national for genocide of the Jewish people committed in Europe
during the period of the Nazi regime); Guatemala Genocide Case Judgment No
STC237/2005, Constitutional Tribunal (Second Chamber), Spain, 26 September 2005; noted
100 American Journal of International Law 207 (2006) (Article VI did not prevent the trial in
Spain of Guatemalan military officers and public officials for genocide of the indigenous
Mayan people committed in Guatemala in the 1970’s and 1980’s).
8.
As the International Court of Justice observed (at [130]) in Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v.
Serbia), Judgment, 3 February 2015, “genocide [as defined in Article II of the
Genocide Convention] contains two constituent elements: the physical element, namely
the act perpetrated or actus reus, and the mental element, or mens rea.” With regard to
the mens rea of genocide, which may be established indirectly by inference, the Court
further observed:
132. The “intent to destroy, in whole or in part, a national, ethnical, racial or
religious group as such” is the essential characteristic of genocide, which
distinguishes it from other serious crimes.
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It is regarded as a dolus specialis, that is to say a specific intent, which, in
order for genocide to be established, must be present in addition to the intent
required for each of the individual acts involved.
These observations were made in the context of a claim by Croatia and a counter-claim
by Serbia that the other party had committed genocide in violation of the Genocide
Convention during an armed conflict in Croatia in the period 1991-1995 following the
break-up of the former federal republic of Yugoslavia.
With regard to the physical element or actus reus of genocide, the Court found that,
within the meaning of Article II (a) and (b) of the Genocide Convention, Serb forces
had engaged in the killing of the national or ethnical Croat group and had committed
acts causing serious bodily or mental harm to members of that group. However,
Croatia had failed to prove (the onus of proof being on Croatia) that these acts were
perpetrated with the necessary mens rea or genocidal intent i.e. the intent to destroy, in
whole or in part, the Croat group, as such. Rather, the evidence indicated that the
crimes committed against the Croat group were aimed at the forced displacement of the
Croat population from particular regions of Croatia rather than the physical destruction
of the Croat group, as such. In reaching this conclusion, the Court reaffirmed that the
standard of proof required the Court to be “fully convinced” that the allegations of
genocide had been “clearly established” ([178]).
Likewise, the Court found that, during a military operation in August 1995, Croatian
forces had engaged in the killing of the national or ethnical Serb group and had
committed acts causing serious bodily or mental harm to members of that group.
However, Serbia had failed to prove that these acts were perpetrated with genocidal
intent. Accordingly, the Court rejected both Croatia’s claim and Serbia’s counterclaim.
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