write a conclusion for this essay: Introduction

The issue of genocide has been addressed in the Australian legal system through the Genocide Convention Act 1949 (Cth)[1] and the Criminal Code Act 1995 (Cth).[2] These laws have been enacted to ensure that individuals guilty of such heinous acts can be prosecuted within Australia's jurisdiction or even abroad if they are Australian citizens. However, the application of these laws becomes complex when allegations of genocide arise in countries outside Australia's jurisdiction, particularly those not party to the Rome Statute. This paper will explore the intricacies of Australia's legal response to genocide, the role of the United Nations General Assembly, International Court of Justice and International Criminal Court (ICC), together with the challenges faced when the alleged acts occur in non-member states. Furthermore, it will delve into the potential for domestic legal action against individuals accused of genocide, and the hurdles that Australian authorities may encounter in their pursuit of justice.

The United Nations General Assembly ("UNGA")

The UNGA first acknowledged genocide as an international crime in 1946 (A/RES/96-I).[3] This recognition was further solidified in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, where it was established as a standalone crime.[4] Article II of the Convention provides the definition of genocide, which encompasses acts such as killing, causing severe bodily harm, deliberately inflicting conditions leading to physical destruction, implementing measures to prevent births, and forcibly transferring children.[5] These acts, when committed with the intent to destroy, either partially or entirely, a group based on nationality, ethnicity, race, or religion, constitute genocide.[6]

The UNGA plays a crucial role in addressing issues of genocide, as it is the only UN body where all member states have equal representation.[7] However, its ability to take meaningful action to prevent or punish the crime of genocide is limited by several factors.

Firstly, the UNGA's resolutions are non-binding, meaning they do not have the force of law. This is referred to as 'soft law'.[8]While they can exert moral and political pressure on states, they cannot compel compliance. This is a significant limitation in cases of genocide, where the offending state is often unwilling to halt its actions voluntarily.

Secondly, the UNGA's role is primarily deliberative, not executive.[9] It can discuss and make recommendations on any matter within the scope of the UN Charter, but it cannot take enforcement action.[10] This role is reserved for the United Nations Security Council, which has the power to impose sanctions, authorise the use of force,[11] and refer cases to the International Criminal Court (ICC).[12]

The Responsibility to Protect ('R2P') principle, adopted by the UNGA in 2005, is an attempt to overcome these limitations.[13] It asserts that states have a responsibility to protect their populations from mass atrocity crimes and that the international community has a responsibility to intervene when states are unable or unwilling to fulfil this responsibility.[14] However, the implementation of R2P is still subject to the approval of the Security Council, which can be blocked by the veto of any of its five permanent members (China, France, Russia as successor to the Soviet Union, the United Kingdom and the United States).[15]

International Court of Justice:

The International Court of Justice ('ICJ') and the International Criminal Court ('ICC') also play important roles in preventing and punishing genocide. The ICJ settles legal disputes between states and gives advisory opinions on legal questions referred to it by authorised UN organisations and specialised agencies. However, its judgments are binding only on the parties to the dispute, and it has no enforcement mechanism. The ICC, on the other hand, can prosecute individuals for genocide, war crimes, and crimes against humanity, but it can only exercise its jurisdiction when national courts are unable or unwilling to do so, or when a situation is referred to it by the Security Council.

In the context of genocide, the ICJ's role is primarily adjudicative. It can hear cases related to allegations of genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (1951), to which Australia is a party. The Convention defines genocide and obligates states to prevent and punish the crime. However, the ICJ's ability to take meaningful action is limited by its lack of enforcement power and the requirement for state consent to its jurisdiction.

The ICJ is tasked with handling contentious cases, which are essentially disputes between nations, as well as providing advisory opinions.[16] The case of Ukraine v Russian Federationis contentious. On 2 February 2024, the ICJ ruled on two cases brought by Ukraine against Russia. In the genocide case initiated on 26 February 2022, the ICJ dismissed Russia's procedural objections, allowing the case to proceed. However, Russia's objection regarding subject-matter jurisdiction was upheld, with the ICJ ruling that false allegations of genocide and subsequent uses of force do not fall within the scope of the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). This decision has raised significant concerns about the interpretation of international law in complex geopolitical contexts.

The ICJ's enforcement of its judgments is dependent on the UN Security Council. However, enforcement becomes challenging when a permanent member of the Security Council is a party in the case, as they hold the power to veto any enforcement action. Another critique of the court is its dependence on state consent. The ICJ can only adjudicate cases if the states involved have agreed to its jurisdiction. This implies that states can evade accountability by simply refusing to consent to the ICJ's jurisdiction.

International Criminal Court ("ICC")

The ICC, established by the Rome Statute, is a separate entity from the ICJ. The ICC is a permanent international court established to investigate, prosecute and try individuals accused of committing the most serious crimes of concern to the international community, including genocide. Unlike the ICJ, the ICC has the power to issue arrest warrants and sentences, but it also lacks enforcement power and relies on state cooperation. The ICC is a court of last resort, intervening only when national jurisdictions cannot or will not prosecute.

The ICC's role in preventing or punishing the crime of genocide is significant but limited. It can only prosecute individuals who are nationals of states that have ratified the Rome Statute, or whose alleged crimes occurred on the territory of such states, unless the situation is referred to the ICC by the UN Security Council. This jurisdictional limitation can hinder the ICC's ability to take meaningful action against genocide, especially if it occurs in non-member states.

The ICC's effectiveness is also limited by its reliance on state cooperation for the arrest and surrender of suspects. The ICC does not have its own police force and must rely on member states to enforce its arrest warrants. This has led to situations where indicted individuals remain at large because their home states refuse to surrender them or other states refuse to arrest them.

The ICC's ability to prevent genocide is even more limited. While the threat of prosecution might deter some potential perpetrators, the ICC's slow and uncertain proceedings, coupled with its inability to prosecute leaders in non-member states, diminish its deterrent effect.

Legal Framework and International Engagement on Genocide in Australia

In Australia, laws exist to address the serious offence of genocide. The Genocide Convention Act 1949 and the Criminal Code Act 1995 have both incorporated genocide into the Australian legal framework, allowing for the prosecution of individuals found guilty of this crime. However, these laws apply only to acts of genocide committed within Australia's jurisdiction or by Australian citizens abroad.

When Australia becomes aware of allegations of genocide elsewhere in the world, it can refer the case to the International Criminal Court (ICC) if the alleged crimes occurred in a country that is a signatory to the Rome Statute. However, if the alleged acts of genocide took place in a non-member state, the process becomes more complicated. In such instances, Australia would need to persuade the United Nations Security Council to refer the case to the ICC, which may be challenging due to the veto power held by its five permanent members.

Additionally, Australia can pursue legal action under its domestic laws against individuals accused of genocide. The Genocide Convention Act of 1949 and the Criminal Code Act of 1995 not only incorporate genocide into Australian law but also allow for the prosecution of Australian nationals or residents accused of committing genocide overseas. However, the success of such prosecutions depends on Australian authorities' ability to arrest the accused individuals and gather sufficient evidence for a conviction.