The Fourth Geneva Convention: its relevance for settler nations.

• Jurisdiction: Australia
• Author: Veracini, Lorenzo
• Date: 22 March 2005

In recent years academics have engaged in animated debate over the possibility of a genocidal phenomenon in Australian history. (1) Several authors have referred to the United Nations convention on genocide in order to establish whether atrocities against, and policies regarding, Indigenous people in different periods of Australian history fall within its bounds. (2) There has also been debate as to whether Raphael Lemkin's original conceptualization of genocide refers to settler societies. (3) Yet this is not the only body of international legislation that might potentially affect the Australian polity and its historiography.

The implications for Australia of the 1949 Fourth Geneva Convention, for example, and more specifically of its Article 49, are not yet recognized. (4) Article 49 explicitly outlaws any attempt to alter the demographic or cultural balance of a territory under occupation. (5) Developments in international law and the still unresolved status of Indigenous sovereignty within Australia suggest that Australia could be seen as a test case in the politics of Indigenous destruction and racial exclusion.

In the first section of this article I explore some of the reasons why Australia might need to address a specific body of international law. In the second section the focus is on the concepts of 'occupation' and 'genocide' in relation to Australia's past. Ultimately, an Australian historiography of race relations necessitates the delineation of an unambiguously post-settler approach, which in turn requires a renewed postcolonial compact for the Australian polity.

Genocide Studies--Nazi Violence, Aboriginal Sovereignty and the Fourth Geneva Convention

Whereas the reproach of genocidal practices has been applied retroactively in different historical contexts, debates involving the Geneva Conventions of the late 1940s have rarely addressed instances of pre-World War II atrocities against civilian populations. (6) Since then the study of genocide has become a recognized academic discipline encompassing a wide range of approaches, from Israel Charny's proposition that every massacre is a form of genocide to Steven Katz's contention that only the destruction of European Jewry during World War II can be considered genocide. (7) By contrast, occupation studies, which deals with territories and populations waiting for an internationally recognized solution to a conflict or the extinguishment of an inherent sovereign right, has not evolved into an autonomous academic discourse. (8) Yet, despite this divergence in terms of the capacity to stimulate retroactive historical inquiry, there is a common genealogy in international law in the condemnation of the atrocities of the 1940s. While the Fourth Geneva Convention is a legal development that followed the mass transfer and liquidation of populations during the Nazi occupation of Europe, its Article 49 may also constitute an authoritative and unambiguous denunciation of the colonization processes that led to the establishment of settler societies.

There has been extensive debate in recent years regarding the colonial factor in shaping Nazi attitudes and practices. (9) For example, as an archetype of social/settler regeneration, and because of its perceived success in establishing a racially homogenous society, the Australian experience has been said to have influenced a German colonial and eventually genocidal imagination. (10) While 19th-century settler/Australian policies regarding race and the treatment of colonial subjects were not necessarily precursors of Nazi atrocities, it is important to highlight both the trajectory and the dynamics of a specific colonial tradition and its role in ultimately contributing to the scope and practice of Nazi racial policy in Poland and the USSR.

With the exception perhaps of the early decades of colonial expansion, overseas perceptions of Australian colonialism have been neglected by scholarly research. (11) And yet Australia functioned as a privileged site for the projection of colonial fantasies, including a German colonial practice. Not only was the genocide of the Herero people linked conceptually to developments on the North Queensland frontier, but successive policy obsessions with racial miscegenation also suggest a somewhat parallel history in Australia and Germany. (12) For example, a paranoid obsession with the possibility of interracial sexual relations was a common reaction to the presence of Senegalese French colonial troops in occupied Rhineland during the 1920s and to American black military personnel in Australia in the early 1940s. (13)

Australia has been consistently constituted in international debates as an exemplary test case in the successful practice of colonial exclusion, as opposed to both colonial supremacism and racially or nationally mixed examples of European settler expansion. (14) As persuasively argued by Ann Curthoys, the ideal-type of settler society that ultimately solves the indigenous question by consummating the physical destruction of an indigenous people, as in Tasmania, is a crucial feature of past (and current) overseas perceptions of Australia, a typology of understanding that goes beyond the often parochial specificity of Australian debates. (15)

Because of these perceptions internationally, and because of the historiographical and interpretative traditions that link settler societies with genocidal phenomena, it is important to address the condemnation of genocidal pasts in, and a settler occupation of, Australia. The very genealogy of Nazi colonial projects and actions in Poland and the USSR during World War II was often explicitly linked to colonialist practices, language and images that referred openly to settler societies. (16) While both the legislation against genocide and the Geneva Convention referred to Nazi actions, settler societies, and Australia as an exemplary case, are also implicated. (17)

A genealogy of Nazi violence that involves fantasies relating to Australia and the perception of the dynamics of an Australian colonization is not the only reason why a debate about the nature of the European occupation of the Australian continent is needed.

Henry Reynolds, among others, has noted the relevance of international legislation to Aboriginal sovereignty after the demise of terra nullius, including the 1975 Western Sahara case, which was considered by the International Court of Justice. (18) This was a widely debated issue that was not addressed in the 1992 Mabo decision of the High Court. If occupation as a method of obtaining title to territory is only possible with regards to 'uninhabited territories or territories inhabited only by a number of individuals not constituting a social or political aggregation', not only is Australia not terra nullius with respect to property rights, but the issue of how and whether Aboriginal sovereignty was extinguished also remains unresolved. (19) This is not merely a theoretical issue: if the transfer of sovereignty to the Australian body politic remains problematic, Australia may need to address its position with regards to the Fourth Geneva Convention. (20)

Since the 1960s, international law has consistently condemned colonialist practices, and the right of peoples to self-determination has come to be considered a normative one. Modifying borders or the demographic character of territories awaiting decolonization has been similarly condemned. (21) These are now to be considered peremptory norms, a category placed above all others by the 1969 Vienna Convention on the Law of Treaties. (22) With this notion of peremptory norm (jus cogens) international legislation becomes structured in a hierarchical way: some rules become paramount and cannot be derogated. Article 64 of the Vienna Convention is explicit: 'If a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates'. (23) These norms can thus have a retroactive validity.

This argument has been successfully applied to a number of unresolved colonial conflicts involving indigenous peoples and their entitlement to self-determination. (24) When applied to the right of self-determination, international law as it is developing can render invalid previous acts of state; the peremptory nature of this principle overrides any other judicial determination. (25) Specifically, this principle subjects the validity of the acts with which British sovereignty was progressively extended and reinforced over the Australian continent to the approval of all the interested parties. Ultimately, the full validity of the creation of an...