Colin Tatz – Australia’s problem with genocide

Australia is on the verge of sending military forces into Syria. Without legal validation for our intrusion there, Tony Abbott insists we address this “death cult”. ISIS is so much more than that. It is a genocidal crusade, potentially more catastrophic than the Holocaust era that ended in the deaths of forty to fifty million people.

The radical jihadism of ISIS has no geographic limits, unlike Nazism. In January 1942 the Wannsee Conference listed the Jews slated for special treatment, “Zusammen über 11,000,000”. Furthest away from their genocidal engines were the 700,000 Jews located in France’s “unoccupied territories” in North Africa. ISIS has no such boundaries, seeking death to Christians, Jews, infidels and Muslims not to their liking — wherever they are.

Australia reluctantly ratified the UN Convention on Genocide in 1949. Liberal Archie Cameron said “no one in his right senses” believes Australia could ever be “called to the bar of public opinion” to answer any of the things mentioned in the Convention. Labor’s Leslie Haylen insisted that “the horrible crime of genocide is unthinkable in Australia … That we detest all forms of genocide … arises from the fact that we are a moral people.”

Just how moral are we in our perception and recognition of genocide? In 1961, Attorney-General Garfield Barwick refused a Russian request to extradite Ervin Vicks, chief of security police in Tallin, for the deaths of thousands of Jews. The Estonian Supreme Court sentenced him to death in absentia a year later. Viks, said Barwick, should be able to make a new life and turn his back on “past bitternesses”: “the time has come to close the chapter”.

By a mere one-vote majority, the High Court validated the War Crimes Amendment Act of 1988 allowing Nazi war crimes trials here. (Trials came about only because of confronting evidence there were over 4,000 Nazis and auxiliaries resident in Australia.) Justice Brennan dissented — as did many public, church, military and judicial figures — on the grounds that genocide only became an international crime in 1948, apart from which it would be wrong “to select [for trial] a specific group of persons [Nazi collaborators] from a long time past” who committed war crimes. Australia closed down the War Crimes Unit after three trials ended in acquittals, mostly on technicalities.

Vociferous denial was the federal government response to the 1997 official inquiry into the removal of Aboriginal children from their families. The Bringing Them Home report found that genocide had occurred here, not only with physical killings but by forcible child removal. These are two of the five acts of genocide established by the UN Genocide Convention in 1948. John Howard and Minister John Herron, among many others, were outraged by the report, as were a coterie of journalists like Christopher Pearson, Frank Devine, Paddy McGuinness and the usual radio shock jocks. It took until 1992 for Paul Keating to acknowledge the murders and the child theft and until 2008 for Kevin Rudd to announce a national apology.

What of today’s “detestation of all forms of genocide”? Is it morality or political expediency that guides our responses to the events that occurred in Turkey between 1915 and 1923 — including the deaths of 1.5 million Armenians, between 750,000 and 900,000 Greeks and between 275,000 and 400,000 Christian Assyrians.

In February this year the Department of Foreign Affairs and Trade (DFAT) declared our sympathy for “the horrific and tragic loss of life and suffering”. “There is no question that these events (which included massacres and forced marches) took place” but the “government does not recognise these events as ‘genocide'”.

By the centenary anniversary in April 2015, twenty-three nation-states (including former Turkish allies Germany and Austria) had officially recognised the genocide, as had forty-three of fifty American state governments, and two of Australia’s six state parliaments. Recognition has also come from the European Parliament, the Council of Europe, the World Council of Churches, Pope Francis, and the International Association of Genocide Scholars. Some countries have criminalised denial of the event.

Who are the historical and legal sources within the Australian government that determine what is and what is not genocide? Have all of the above-mentioned governments and organisations got it wrong? Are they, for unspecified reasons, pursuing some malign vendetta against Turkey?

The UN Convention definition of genocide is flawed, overly broad, confusing. But it is international law, and domestic law in many nations, and it is the only actionable and justiciable basis on which we can operate. That wording has been in place from 1948 to date, and was reinforced by its verbatim inclusion in the statute that created the International Criminal Court in 2002.

The Holocaust as an historical reality has been on trial in several courts. The Keegstra (1990) and Zundel (1992) cases in Canada arose from the accused denying it happened. The David Irving condemnation by Britain’s High Court in 2000 held that the free speech clamour could not trump or traduce historical realities. Our own Fredrick Töben was jailed in Germany for breach of the Holocaust denial laws.

The now traditional Turkish response to the “events” has been, among others, that the matter has to await the verdict of the historians. The historians, including several esteemed Turkish scholars, have long given their verdict: “genocide”, as legally defined, and without reservation.

Do we need a forensic foray to enlighten DFAT and the federal government? On a number of occasions Turkish diplomats in this country have threatened lawsuits against those who “insult” their nation by calling the Young Turk leadership genocidaires. Last year the Turkish consul-general threatened a law suit against the ABC and journalist Michael Brissenden for a 7.30 Report in which the consul-general affirmed that Turkey would seek to ban NSW parliamentarians from attending the 2015 commemorations because they had passed a motion recognising the genocide of Armenians, Assyrians and Greeks.

Would Turkey ever pursue a case before an international or a domestic tribunal to test the realities of those years, or when Sultan Hamid II massacred some 200,000 to 300,000 Armenians between 1894 and 1896? Would Turkey be willing, for example, to invalidate the findings of its own Courts-Martial in Istanbul in 1919 where officials were found guilty of massacre, war crimes and the plundering of property? Would they be willing to examine, forensically, the memoirs and confessions of the Young Turkish leadership and several of the Turkish physicians who engaged in “the eliminations of microbes from our midst”?

Would Australia welcome such a trial? The public record suggests that many in Government would not.

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