Robert van Krieken*
One aspect of the Bringing them Home Report1 that has caused considerable controversy was its appeal to the United Nations Convention on the Prevention and Punishment of the Crime of Genocide2 (‘UNGC’) to characterise the removal of Aboriginal children as state-sponsored genocide.3 This utilisation of the UNGC having been debated in the wake of the Bringing Them Home Report, there is now general agreement that it was deeply problematic. Before the Bringing Them Home Inquiry had been undertaken, Hal Wootten, as Commissioner for the Royal Commission into Aboriginal Deaths in Custody, was one of the first to identify the perception among Aboriginal people of the removal of their children as ‘falling within the modern definition of genocide’;4 but later he also assessed the Bringing Them Home Report’s reliance on the UNGC to address the question of genocide in the history of Australian settler-colonialism as a misjudgement.5 Four years after the Bringing Them Home Report, its Chair, Sir Ronald Wilson, admitted that ‘[w]ith hindsight, I think it was a mistake to use the word genocide … once you latch onto the term “genocide”, you’re arguing about the intent and we should never have used it’.6 When you think about it, the UNGC was really an unlikely ally for any attempt to deal with the harms inflicted by the removals of Aboriginal children from their families, having been produced by an organisation, the United Nations, that was broadly in support of the full assimilation of Indigenous peoples in a range of settler-colonial settings.7 Although opinions were divided among the different nations making up the United Nations, on balance it was opposed to the notion of ‘cultural genocide’ and the application of the genocide convention to the treatment of Indigenous peoples, seeing that as an issue to be dealt with under the heading of ‘minority rights’.8
However, this does not mean that the concept of genocide has no further role to play, not least because Indigenous people themselves continue to see it as capturing a central part of their experience of assimilation into European society. When the UNGC was being put together, the distinction between cultural and physical destruction was actually highly unstable. The clause concerning the forcible transfer of children, art 2(e) of the UNGC, to which the Bringing Them Home Report referred,9 was a prime example of this instability. It had been moved around from one category of genocide to the other in the drafting of the UNGC.10 We may need to recognise that the concept ‘genocide’ can have different meanings depending on what we want to say and which problems we want to address. It is possible to have both a narrow, legally legitimate conception of genocide, but also a broader one that does justice to the violence at the heart of the settler-colonial project. Rather than organising our understanding around the UNGC, it may be necessary to reflect more deeply on the basic problem confronting non-Indigenous Australians – how to be a ‘good’ colonist – a problem which is today still not being confronted to real effect. II The UNGC Definition of Genocide, Legal Definition is Unhelpful
The Bringing Them Home Report argued that the removal of Aboriginal children from their families constituted acts defined as genocide by art 2(e) of the UNGC.11 Under art (2), these are ‘acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group … [including] [f]orcibly transferring children of the group to another group.’ In relation to the Stolen Generations, the relevant Australian legislation allowed for the removal of Aboriginal children without parental consent.12 This means
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that such removals could be seen as falling within the possible acts of genocide...