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...marvelous facility--tranquilly; legally, philanthropically, without spilling blood, without violating a single one of the great principles of morality in the eyes of the world. One cannot destroy men while being more respectful of the laws of humanity (de Tocqueville 2000:325).
The word 'genocide' was introduced by the Polish jurist Raphael Lemkin in 1944 to capture an essential dimension of Nazi Germany's legal and administrative practices in its occupied territories, well before Auschwitz. The foundations of his conception of genocide were laid as the National Socialists came to power in 1933, when Lemkin used the concept of the crime of 'barbarity' to capture 'oppressive and destructive actions directed against individuals as members of a national, religious, or racial group', and that of 'vandalism' to refer to 'malicious destruction of works of art and culture' (Lemkin 1944:91), and his formulation of the crime of 'genocide' combined these two into one. (1) Ever since, however, there have been tensions between broader and narrower understandings of what constitutes genocide. A narrow conception essentially restricts the definition of genocide to the various forms of killing and physical annihilation, whereas the broader conception allows for a wider variety of ways in which human groups can be 'eliminated', including the destruction or undermining of their culture and physical environment. Some of these tensions are certainly generated by the occasional excessive political enthusiasm for calling something seen as destructive in some way or another 'genocidal'. Michael Ignatieff has characterized such enthusiasm as a tendency towards banalization and therefore a weakening of the concept's practical effectivity: rather than operating as a 'validation of every kind of victimhood,' it should, he suggests, be reserved for 'genuine' horrors and barbarisms (Ignatieff 2001:27).
Among the supporters of an understanding which goes beyond outright killing, however, there remains such a heartfelt and persistent sense of organized inflicted violence, pain and suffering, that it is perhaps ill-advised to stand too stubbornly on the conceptual purity of a 'correct' definition of genocide. It is significant, for example, that the argument for a broader conception of genocide has been strongest among Indigenous people subjected to settler-colonialism (Bischoping & Fingerhut 1996; Churchill 1986; 1997). An important example of the argument for applying the United Nations Convention on the Prevention and Punishment of the Crime of Genocide (UNGC) to activities other than killing is the Australian debate around the 'stolen generations', those Aboriginal people who were removed from their families in the course of the twentieth century. Two key focal points of this debate are the Australian Human Rights and Equal Opportunity Commissions (HREOC) 1997 report on the history of the removal of indigenous children from their families, Bringing them Home (BTH), and the High Court Kruger case. (2) The argument put in both contexts was that the removal of Aboriginal children from their families constituted acts defined as genocide by Article II of the Convention, 'acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group', including '(e) Forcibly transferring children of the group to another group'.
In law, the pursuit of a broader understanding of genocide has fallen on stony ground (Saul 2000), with the Australian High Court rejecting the argument that the Ordinance could be considered as characterized by any intent to 'destroy' Aboriginal groups. Heavily influenced by this legal outcome, the argument has also had a similarly rocky passage in broader political terms; the Australian discussion has tended simply to polarize between those who support the applicability of the concept of genocide and those who do not, with little genuine or informed debate between the two positions (Gaita 1997).
However, the mere insistence on the virtues of the narrower conception of genocide does not in itself solve the problem of how to respond to claims based on the broader approach. Acknowledging that 'cultural genocide' does not fall within the scope of the UNGC, and that it provides no effective foundation of an action in law, does not mean that we cannot remain alive to the concerns which that concept is invoked to address, as well as recognizing that there may still be a problem requiring some other sort of engagement, both conceptually and practically. For example, one approach has been to invoke, instead of 'cultural genocide', the term 'ethnocide', described by Pierre Clastres as 'the systematic destruction of the modes of life and thought of a people who are different from those who carry out this destructive enterprise ... genocide kills their bodies, while ethnocide kills their spirit' (1988:52). Rather than simply dismissing the claims regarding cultural genocide and ethnocide because they are ineffective in law, this paper works towards returning from an engagement with those claims with a deeper and broader understanding of the various forms of state-sponsored force. The aim is to recognize the many types of coercion characterizing state formation up to the present day, in order to contribute to the identification of ways in which current social institutions and practices might better avoid or at least address the more problematic outcomes of such organized violence.
ABORIGINAL CHILD REMOVAL, THE BRINGING THEM HOME REPORT AND THE KRUGER CASE
By the last quarter of the nineteenth-century, it had become widely accepted among European Australians that the Aborigines were a 'dying race,' and this was based on the notion of the essential 'fragility' of Aboriginal culture in contact with Europeans (Brantlinger 1995; McGregor 1997). Extinction was thus simply a matter of time, so that the most Europeans could do was to 'smooth the dying man's pillow' (Bates 1944), Around the turn of the century, however, it turned out that 'traditional' Aborigines were not dying as quickly as anticipated, and as European settlement spread across the continent, so did contact between Europeans and Aborigines, including sexual contact, which of course had its inevitable consequence--children. The resultant mixed-blood population was itself very fertile, so that by around the 1890s European Australians were becoming increasingly concerned about what came to be defined as the 'half-caste problem'. 'There was a growing realisation,' writes Russell McGregor, 'that the descendants of a dying race might continue to haunt a White Australia for generations' (1997:134).
One key element to the resultant 'civilizing offensive' on the part of both State and Church, which aimed to protect as well as advance civilization by completely eliminating Aboriginality in this hybrid form from a 'White Australia', was to turn to an existing social technology designed to deal with problems of social discipline, revolving around the concept of 'rescuing the rising generation' (van Krieken 1992). A policy of removing mixed-blood Aboriginal children was introduced in all the Australian states in order to address the dangers of the hybridity of mixed-bloods, their threat to the boundaries between the civilized and the savage. The state was made the legal guardian of all children of Aboriginal descent, overriding Aboriginal parents common-law rights over their children, who were to be removed at official will and sent to a mission or a child welfare institution, or to be fostered with a white family if sufficiently light-skinned. The legislation enabling this was introduced in relatively weak form between 1886 and 1909 in all Australian states, strengthened around 1915, and further reinforced in the 1930s, by which time, in legal terms, the state had become the custodial parents of virtually all Aboriginal children (Haebich 1988:350).
The actual number of Aboriginal children removed from their families is unclear, partly because the records kept were patchy, with no accounting for Aboriginal children sent to homes not specifically designated for Aborigines; some were removed 'unofficially' and placed in the care of church agencies or individuals. Also difficult to quantify, as Peter Read reminds us, were 'those who went away to white people for a 'holiday' and did not return' (1983:8). Rowena MacDonald suggests that in the period 1912-1962, 'probably two out of every three part-descent children spent some of their lives away from their parents as a result of the policy of removal'. The HREOC report sums up its estimation as lying between one in three and one in ten in the period between 1910 and 1970, and points out both that 'not one indigenous family has escaped the effects of forcible removal' and that 'most families have been affected, in one or more generations, by the forcible removal of one or more children' (HREOC 1997:37).
This assertion of legal guardianship by the state over all indigenous children only ceased in the 1960s. The primary and overarching concern was to 'solve' the 'half-caste problem' by breeding out the colour of both body and mind through this program of social engineering, and in this sense the removal of Aboriginal children meshed with the first strategy of controlling sexual relations and reproduction among adult Aborigines. This was certainly the most strongly articulated argument in the writings of the politicians, administrators and anthropologists central to the development of the various forms of legislative and administrative action. 'Merging', 'absorption' and 'assimilation' into the ways of 'civilization' were the key concepts around which this discourse was organized. In 1936 a conference of the leading authorities in Aboriginal affairs declared its belief 'that the destiny of the natives of aboriginal origin, but not of full blood, lies in their ultimate absorption by the people of the Commonwealth' (Commonwealth of Australia 1937:3).
Although there had almost always been at least some European Australians who were as disturbed as Aboriginal people themselves by the ways in which Aboriginal children were removed from their families, critiques of the legitimacy of Aboriginal child removal policies and practices only began to gather effective broader strength during the 1980s. The work of CD Rowley (1962; 1972a; 1972b) laid the foundations in the 1970s, and in the 1980s Peter Read (1983) and Richard Chisholm (1985b) mounted powerful arguments against the ways in which Aboriginal children had been perceived and treated by white Australians. Of particular concern was the assumption within the assimilationist view of the world, that Aboriginal culture and ways of life had no inherent value whatsoever, and that the welfare of the rising generation of Aboriginal children was best pursued by the complete elimination of Aboriginality as any part of a distinct social and cultural identity. Richard Chisholm, for example, wrote that the New South Wales Aborigines Protection Board 'administered a separate system of Aboriginal child welfare based explicitly on policies involving the eventual disappearance of Aboriginal people' (1985a:1).
In 1989, the Royal Commission into Aboriginal Deaths in Custody focused attention on how many Aboriginal prisoners had a long history of institutionalisation, beginning with their removal from their families. Commissioner J.H. Wootten, in his report on the death ('suicide') of one particular Aboriginal prisoner, Malcolm Smith, spoke of 'a life destroyed, not by the misconduct of police and prison officers, but in large measure by the regular operation of the system of self-righteous and racist destruction of Aboriginal families that went on under the name of protection or welfare well into the second half of this century' (Royal Commission into Aboriginal Deaths in Custody 1989:1). Commissioner Wootten went on to draw attention to the fact that 'the attempt to "solve the Aboriginal problem" by the deliberate destruction of families and communities ... is seen by many Aborigines as falling squarely within the modern definition of genocide' (p.5). By 1995 it was possible for the Full Court of the Family Court of Australia to say that, just as Deane and Gaudron JJ had spoken in the Australian High Courts Mabo native title decision of the dispossession of Aboriginals from their land as leaving 'a national legacy of unutterable shame', (3) there can be 'little doubt that at a more directly personal level the policy of colonial, and later State, administrations in Australia to systematically remove aboriginal children from their parents and place them in institutions or other care and the consequences of that can be described in equally strong terms'. (4)
By the time the Human Rights and Equal Opportunity Commission (HREOC) was requested by the Attorney-General, Michael Lavarch, in August 1995, inter alia, to 'trace the past laws, practices and policies which resulted in the separation of Aboriginal and Torres Strait Islander children from their families by compulsion, duress or undue influence, and the effects of those laws, practices and policies', the concept of genocide had already become part of the vocabulary used to understand Aboriginal child removal, and the HREOC Commissioners, Sir Ronald Wilson and Michael Dodson, developed its utilisation still further in the report released on 27 May 1997, Bringing them Home (BTH).
The fact that the legislation allowed for the removal of Aboriginal children without parental consent (5) meant that such removals could be seen as constituting acts identified as one of the possible acts of genocide--the second leg of the Conventions definition--that is, clause (e) of Article II of the UNGC, 'forcibly transferring children of the group to another group'. The first leg of the definition, that of the relevant acts being committed 'with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such' was also satisfied, argued the BTH report, by the overall objective of assimilationist Aboriginal policy among all State and Commonwealth Governments up until the 1970s: the effective disappearance of Aboriginal culture as a distinct basis of individual and collective identity, its 'swallowing up' by a European way of life. This objective had been clearly articulated in 1937, when AO Neville, Chief Protector in WA, posed the rhetorical question, 'Are we going to have a population of 1,000,000 blacks in the Commonwealth, or are we going to merge them into our white community and eventually forget that there ever were any aborigines in Australia?' (Commonwealth of Australia 1937:11) It continued, in language of liberal citizenship, in the thinking of Paul Hasluck, Minister for Territories (1951-1963), who told the House of Representatives in 1950 that '[t]heir future lies in association with us, and they must either associate with us on standards that will give them full opportunity to live worthily and happily or be reduced to the social status of pariahs and outcasts living without a firm place in the community' (1953:6).
It was the absence of recognition of Aboriginal culture underlying assimilationist policies that led the Inquiry to conclude that 'the predominant aim of Indigenous child removals was the absorption or assimilation of the children into the wider, non-Indigenous, community so that their unique cultural values and ethnic identities would disappear. This corresponded to what Lemkin had referred to in relation to the German National Socialists as the pursuit of 'the disintegration of the political and social institutions of culture, language, national feelings, religion, and the economical existence of national groups' (1944:79), with Lemkin's phrase 'national groups' replaced in the BTH report by 'Indigenous peoples'. The 'principal aim', said the Inquiry, was 'to eliminate Indigenous cultures as distinct entities', and the removal of Aboriginal children with this objective was genocidal 'because it aims to destroy the "cultural unit" which the Convention is concerned to preserve'.
The BTH report quoted the argument put by the Venezuelan delegate to the United Nations during the debate on the drafting of the Convention, that:
...the forced transfer of children to a group where they would be given an education different from that of their own group, and would have new customs, a new religion and probably a new language, was in practice tantamount to the destruction of their group, whose future depended on that generation of children. Such transfer might be made from a group with a low standard of civilization and living in conditions both unhealthy and primitive, to a highly civilized group as members of which the children would suffer no physical harm, and would indeed enjoy an existence which was materially much better; in such cases there would be no question of mass murder, mutilation, torture or malnutrition; yet if the intent...
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