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The Hindu
17-07-2025
- Politics
- The Hindu
How genocide came to be named and codified
According to the UN Special Rapporteur on the Palestinian occupied territories Francesca Albanese, 'Israel's genocide on the Palestinians is an escalatory stage of a longstanding settler colonial process of erasure'. Her latest report urges UN member states 'to enforce the prohibition of genocide' in accordance with their obligations under international law. The debate is no longer about whether what Israel is doing in Gaza is genocide. It is about whether the international community, including private citizens, will uphold their moral obligation to oppose the genocide unfolding before them in full social media glare. On naming evil The term 'genocide' belongs to the language of transgression — words that describe the wilful violation of basic moral codes such as, for instance, the universal taboo on killing children. But there are gradations even in the forms of extreme violence that determine whether a given atrocity is to be deemed a war crime, a crime against humanity, or genocide — a category of evil so unspeakable that humanity hadn't thought of a word for it. It was a Jewish lawyer from Poland, Raphael Lemkin, who coined the term in his book, Axis Rule in Occupied Europe (1944). As a university student in the 1920s, Lemkin was horrified by the mass killing of Armenians during World War 1. He couldn't believe there was no international law under which the Ottoman leaders could be tried. 'Why was killing a million people a less serious crime than killing a single individual,' he wondered. Lemkin's interest in the crime of mass murder took a different colour after World War 2, during which he lost 49 members of his own family in the Holocaust. He devoted the rest of his life to the mission of getting recognition in international law for what Winston Churchill called 'a crime without a name'. As Lemkin explains in his book, he formed the word from the Greek 'genos', meaning 'race' or 'tribe', and the Latin 'cide', meaning 'killing'. He defined 'genocide' as 'the destruction of a nation or an ethnic group'. Despite serving as advisor to Justice Robert H. Jackson, the lead prosecutor at the International Military Tribunal (IMT) that conducted the Nuremberg trials, he wasn't happy with how it dealt with the Nazi leaders. The IMT prosecuted them for 'war crimes' and 'crimes against peace'. But how should they be prosecuted for crimes against civilians who were their own citizens — German Jews targeted for their ethnicity? British and French prosecutors sought to use Lemkin's concept of genocide, but the Americans steered clear of it. Given their own (then prevalent) Jim Crow laws of racial segregation, they were anxious not to grant international court jurisdiction over how a government treated its own citizens, a sentiment that was shared by the Soviets as well. Lemkin was disappointed as the IMT prosecuted the Nazis politicians only on charges of 'crimes against humanity', a juridical approach that failed to account for the criminal logic of the Holocaust, which picked out specific ethnic and political groups, including Jews, gypsies and communists. As Lemkin put it, 'The Allies decided a case in Nuremberg against a past Hitler — but refused to envisage future Hitlers.' His fears have come true in Gaza, where the Israeli military continues to enjoy impunity for its mass murder of Palestinians even as Western governments seem unable or unwilling to acknowledge that these crimes have surpassed the threshold of genocide. Codifying genocide In the years following the Nuremberg trials, Lemkin worked relentlessly to get genocide codified in international law. His efforts bore fruit in 1948 with the United Nations adopting the Convention on the Prevention and Punishment of the Crime of Genocide. Although the Genocide Convention included much of Lemkin's ideas, it did not accept all of them. It had a rather narrow legal definition of genocide, with two main elements. It had a mental element, the 'intent to destroy, in whole or in part, a national, ethnical, racial or religious group', and a physical element, consisting of any of these five acts: killing members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; and forcibly transferring children of the group to another group. Initially, this definition was criticised on the grounds that 'intent' is difficult to establish since no government publicises its intent to commit genocide. Also, it is tough to attribute genocidal intent to individuals who can claim to be merely carrying out orders in their official capacity. However, subsequent proceedings, including those of the tribunals set up to try the accused in the Rwanda genocide (1994) and the 1995 genocide of Bosnia Muslims in Srebenica have clarified that 'a pattern of purposeful action' leading to the destruction of a significant section of the targeted group would suffice to establish genocidal intent. While the 1948 Genocide Convention defines the crime and obligates the states that are parties to the Convention to prevent and punish it, the 2002 Rome Statute gives the International Criminal Court the jurisdiction to take up and try cases of genocide. The Genocide Convention, however, still does not recognise mass murder of any social or political group — say, communists — as genocide, an aspect considered a major lacuna by genocide experts. The concept of genocide has also not been adequately applied to understand colonial mass murder, slavery, deportation and other atrocities inflicted upon native populations, including aboriginals by erstwhile coloniser nations and empires. Away from the media spotlight, the egregious practice of forcefully transferring children away from their Aboriginal families — now seemingly benevolent in intent but barely distinguishable from genocide in practice — still goes on in Australia, according to a 2025 report by Human Rights Watch. The importance of 'thinking' Mass murder is by no means a modern phenomenon. Even in ancient times, it was not uncommon for the victors in a war to massacre the entire male population of the conquered kingdom or state. Typically, however, genocides occurred against an enemy population, or in the context of a war. The phenomenon of a state conducting mass murder of a certain ethnic or national group among its own citizens is a more recent phenomenon — one that has raised fundamental philosophical questions about human nature and evil. Some of the most profound engagement with these questions came from Hannah Arendt, a German American Jewish historian and philosopher who covered the trial of Adolf Eichmann, a key architect of the Holocaust. In her book Eichmann in Jerusalem: A Report on the Banality of Evil (1963), Arendt asks the question: does a person have to be evil in order to do evil? Her answer is 'no'. All that is required for a person to do evil is to suspend thinking. Arendt argued that it is the exercise of the capacity to think that connects one human with others. What gave Nazism its power was its all out assault on thinking, and on the very impulse to reflect. Eichmann's crime, in this sense, was the banality of doing what seemed to be in the best interests of his career — to please his bosses. This is because for him, thinking had been outsourced to the Nazi bureaucracy and leadership. It is this failure to think — achieved on a mass scale through institutionalised assault on intellectual life, on the life of the mind — that is banal. This banality creates the space for evil to assume the garb of the routine, the normal, and the quotidian, all of which are in ample evidence in the routinised daily massacres of Palestinian civilians in Gaza. As the philosopher Judith Butler observed in an essay on the banality of evil, '[Arendt's] indictment of Eichmann reached beyond the man to the historical world in which true thinking was vanishing and, as a result, crimes against humanity became increasingly 'thinkable'. The degradation of thinking worked hand in hand with the systematic destruction of populations.'
The Age
27-06-2025
- General
- The Age
New evidence unearthed of shocking Japanese assault of Australian nurses
In February 1942, when the evacuation vessel, Vyner Brooke, was sunk off the coast of Sumatra, survivors who had fled Singapore just before the island surrendered to Japanese forces, struggled ashore on Bangka Island. Among them were 53 Australian army nursing sisters. Two days later, 21 who made it to Radji Beach lay dead, machine-gunned by Japanese soldiers. The sole survivor of this infamous massacre was Sister Vivian Bullwinkel, who sustained a minor flesh wound just above her left hip. Feigning death, she floated in the water until it was safe to go into the nearby jungle, where she hid for some days, caring for a badly injured British soldier. Finally, the pair realised they had no option but to make their way to the closest town, where they gave themselves up. The soldier died of his injuries, but Vivian survived, the only person, apart from the Japanese, who knew precisely what happened on that isolated beach. The story she told for the rest of her life was one of noble courage, of nurses holding hands, calmly and silently marching into the sea, until cut down by machine gun fire. Fifty years after the event, many people interested in this wartime incident began questioning the veracity of Bullwinkel's account, as the Japanese responsible for the massacre were from the same unit that had raped and murdered British and Chinese nurses in Hong Kong. Japanese historian Yuki Tanaka was even brave enough to suggest that Vivian 'did not tell the truth' at the International Military Tribunal in 1946, to save her dead colleagues from 'the disgrace of being known as victims of rape'. It was not until 2019, building on forensic detective work by writer Barbara Angell and journalist Tess Lawrence, in whom Vivian had confided, that I amassed sufficient evidence, some of it from Vivian herself, revealed in my book Angels of Mercy, to show that the nurses had been raped before being killed, and that the scene on the beach had been horrific. Far from calm acceptance of their fate, the nurses had run for their lives, screaming, some only partially clad and at least one killed by a sword blow to the head. When The Sydney Morning Herald reported my 2019 findings when the book was released, there were naysayers who refused to believe it. They also refused to believe that Vivian had been gagged, although she had also told Lawrence that being forced to remain silent had caused her great emotional anguish. However, the article aroused international interest, and several people contacted me. A former employee of the (now) Department of Veterans' Affairs, revealed that Bullwinkel's files had been 'more closely guarded than the nuclear codes' because 'she had been raped by the Japanese on Bangka Island'. A female army officer reported that in the early 1990s, when chatting to Vivian about her forthcoming biography, published in 1999, she confided that her biographer was refusing to allow her to tell all the facts, to let the truth be known. When asked, 'Well, what is the truth?' Vivian replied, 'we were not just marched into the sea. We were raped and tortured, and then we were marched into the sea'. She told a similar story to a friend, a fellow ex-POW and a police officer, who had suffered terribly on the Burma-Thai railway. Despite her wish to have 'all the facts' revealed, Vivian, by now in failing health, was denied this right by her biographer, who had simply repeated the oft told, censored story. Seven months after publication, death silenced her forever. She died of a heart attack on July 3, 2000, aged 84. Determined to give her the voice she had been so long denied, I began an investigation to determine who had shut her down, and when. Loading The gagging had begun in 1945 with an order issued by Lord Mountbatten's South-east Asia command, forbidding any recovered prisoner of war from making any statement without military clearance. As soon as it was known that Australian nurses had been recovered from a prison camp in Sumatra, an Australian officer was dispatched to Singapore, where he prepared a statement that Vivian signed. It mirrored the sanitised version of the massacre which, by this time, had been published worldwide. The Australian military and government believed that the public should be shielded from the harsh realities of war, but determining who had silenced Vivian was going to be a challenge. However, blessed with a knowledge of how war crimes units operated, I took a punt and was rewarded when I came across a lengthy statement by Francis Hughes, a war crimes investigator. It was a gift from heaven – the missing piece, which vindicated everything Vivian had said. Hughes, who had served in a highly secret wartime unit, applied for service with 1 Australian War Crimes Section. Based in Singapore, his task was to sift through affidavits documenting atrocities to extract data for use by the prosecution. In due course, he came across one from Vivian, not the sanitised version of events but one given to war crimes investigators in which she stated all the facts. Horrified, he sought advice from his superiors who, on learning that the nurses had been subjected to rape that was 'continuous and shocking', decreed that the details should never be disclosed, out of consideration for their families and that no one, including Vivian, who knew the truth, must ever reveal it. Hughes remained tight-lipped for almost 60 years. It is amazing that, in the more than 20 years that his statement has been on the public record, no one noticed it. He also made a second statement, alluding to a cover-up, but that too passed unnoticed. Vivian's affidavit also confirmed that some nurses had been forced to act as comfort women. After reading her affidavit, Hughes reported, 'one knows exactly how they had been subject to indescribable conditions by Japanese officers who were using Dutch Club for this activity'. There is no doubt that Vivian Bullwinkel was not only brutally violated, she was forced to suffer in silence all her life by a succession of men who thought they knew best. She wanted a voice and I am privileged to give it to her. There are sure to be some who would prefer that such a story be left untold, but to continue to deliberately air brush events that are uncomfortable truths, serves no purpose but to subvert our wartime history. I like to get to the heart of the matter. All my books have uncovered a story that was not known before. Truth suppressed, facts buried, for many and varied reasons. The families of the nurses have a right to know. Vivian wanted them to know. To continue to deny the existence of an atrocity, hidden for so long, protects no one but the perpetrators.
Sydney Morning Herald
27-06-2025
- General
- Sydney Morning Herald
New evidence unearthed of shocking Japanese assault of Australian nurses
In February 1942, when the evacuation vessel, Vyner Brooke, was sunk off the coast of Sumatra, survivors who had fled Singapore just before the island surrendered to Japanese forces, struggled ashore on Bangka Island. Among them were 53 Australian army nursing sisters. Two days later, 21 who made it to Radji Beach lay dead, machine-gunned by Japanese soldiers. The sole survivor of this infamous massacre was Sister Vivian Bullwinkel, who sustained a minor flesh wound just above her left hip. Feigning death, she floated in the water until it was safe to go into the nearby jungle, where she hid for some days, caring for a badly injured British soldier. Finally, the pair realised they had no option but to make their way to the closest town, where they gave themselves up. The soldier died of his injuries, but Vivian survived, the only person, apart from the Japanese, who knew precisely what happened on that isolated beach. The story she told for the rest of her life was one of noble courage, of nurses holding hands, calmly and silently marching into the sea, until cut down by machine gun fire. Fifty years after the event, many people interested in this wartime incident began questioning the veracity of Bullwinkel's account, as the Japanese responsible for the massacre were from the same unit that had raped and murdered British and Chinese nurses in Hong Kong. Japanese historian Yuki Tanaka was even brave enough to suggest that Vivian 'did not tell the truth' at the International Military Tribunal in 1946, to save her dead colleagues from 'the disgrace of being known as victims of rape'. It was not until 2019, building on forensic detective work by writer Barbara Angell and journalist Tess Lawrence, in whom Vivian had confided, that I amassed sufficient evidence, some of it from Vivian herself, revealed in my book Angels of Mercy, to show that the nurses had been raped before being killed, and that the scene on the beach had been horrific. Far from calm acceptance of their fate, the nurses had run for their lives, screaming, some only partially clad and at least one killed by a sword blow to the head. When The Sydney Morning Herald reported my 2019 findings when the book was released, there were naysayers who refused to believe it. They also refused to believe that Vivian had been gagged, although she had also told Lawrence that being forced to remain silent had caused her great emotional anguish. However, the article aroused international interest, and several people contacted me. A former employee of the (now) Department of Veterans' Affairs, revealed that Bullwinkel's files had been 'more closely guarded than the nuclear codes' because 'she had been raped by the Japanese on Bangka Island'. A female army officer reported that in the early 1990s, when chatting to Vivian about her forthcoming biography, published in 1999, she confided that her biographer was refusing to allow her to tell all the facts, to let the truth be known. When asked, 'Well, what is the truth?' Vivian replied, 'we were not just marched into the sea. We were raped and tortured, and then we were marched into the sea'. She told a similar story to a friend, a fellow ex-POW and a police officer, who had suffered terribly on the Burma-Thai railway. Despite her wish to have 'all the facts' revealed, Vivian, by now in failing health, was denied this right by her biographer, who had simply repeated the oft told, censored story. Seven months after publication, death silenced her forever. She died of a heart attack on July 3, 2000, aged 84. Determined to give her the voice she had been so long denied, I began an investigation to determine who had shut her down, and when. Loading The gagging had begun in 1945 with an order issued by Lord Mountbatten's South-east Asia command, forbidding any recovered prisoner of war from making any statement without military clearance. As soon as it was known that Australian nurses had been recovered from a prison camp in Sumatra, an Australian officer was dispatched to Singapore, where he prepared a statement that Vivian signed. It mirrored the sanitised version of the massacre which, by this time, had been published worldwide. The Australian military and government believed that the public should be shielded from the harsh realities of war, but determining who had silenced Vivian was going to be a challenge. However, blessed with a knowledge of how war crimes units operated, I took a punt and was rewarded when I came across a lengthy statement by Francis Hughes, a war crimes investigator. It was a gift from heaven – the missing piece, which vindicated everything Vivian had said. Hughes, who had served in a highly secret wartime unit, applied for service with 1 Australian War Crimes Section. Based in Singapore, his task was to sift through affidavits documenting atrocities to extract data for use by the prosecution. In due course, he came across one from Vivian, not the sanitised version of events but one given to war crimes investigators in which she stated all the facts. Horrified, he sought advice from his superiors who, on learning that the nurses had been subjected to rape that was 'continuous and shocking', decreed that the details should never be disclosed, out of consideration for their families and that no one, including Vivian, who knew the truth, must ever reveal it. Hughes remained tight-lipped for almost 60 years. It is amazing that, in the more than 20 years that his statement has been on the public record, no one noticed it. He also made a second statement, alluding to a cover-up, but that too passed unnoticed. Vivian's affidavit also confirmed that some nurses had been forced to act as comfort women. After reading her affidavit, Hughes reported, 'one knows exactly how they had been subject to indescribable conditions by Japanese officers who were using Dutch Club for this activity'. There is no doubt that Vivian Bullwinkel was not only brutally violated, she was forced to suffer in silence all her life by a succession of men who thought they knew best. She wanted a voice and I am privileged to give it to her. There are sure to be some who would prefer that such a story be left untold, but to continue to deliberately air brush events that are uncomfortable truths, serves no purpose but to subvert our wartime history. I like to get to the heart of the matter. All my books have uncovered a story that was not known before. Truth suppressed, facts buried, for many and varied reasons. The families of the nurses have a right to know. Vivian wanted them to know. To continue to deny the existence of an atrocity, hidden for so long, protects no one but the perpetrators.
Sydney Morning Herald
09-06-2025
- Politics
- Sydney Morning Herald
As a judge, I'm sounding the alarm: the out-of-control White House is dismantling justice
For 18 years, I have been a criminal trial judge. I believe in the rule of law and independent and impartial justice in both domestic and international criminal law. The present US administration does not hold to those principles, and is now doing all it can to undermine them. In the case of international criminal law, the International Criminal Court derives from the legacy of Nuremberg where, in 1945, an International Military Tribunal established by the allied forces, tried 22 leading German officials for war crimes. Controversial though it was, the International Military Tribunal demonstrated that justice beyond borders in the form of international criminal law could be real and effective in dealing with the most horrific war crimes, and perhaps be a means of preventing them thereafter. The Nuremberg experience testified to the truth of what many, including Dr Martin Luther King Jr. had said, that 'there can be no peace without justice, and there can be no justice without peace'. In 1998, the signing of the Rome Statute for the establishment of the ICC reaffirmed the purposes and principles of the United Nations Charter. It meant that all UN member states would refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN. These are uncontroversial and necessary international principles. And so, pretty much without fear or favour, in 2002 the ICC went to work. As with all courts, an important foundation of the ICC was judicial independence and the application of the rule of law. Given the gravity of the court's work, it had to be real and impartial justice – no matter who was accused of serious crimes. The judges needed to be able to conduct investigations and trials free from any form of governmental interference. Loading Now, that is no longer guaranteed. Nor is the court's future. The Rome Statute states that 'intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions' is a war crime. On 21 November 2024, the pre-trial chamber of the Court issued warrants for the arrest of Hamas commander Mohammed Deif (who was killed in 2024), Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. The latter two face allegations of being responsible for the war crimes of starvation as a method of warfare, and of intentionally directing an attack against a civilian population. Charges also allege that from at least 8 October 2023 until at least 20 May 2024, Netanyahu and Gallant were responsible crimes against humanity of murder, persecution, and other inhumane acts. The process, if it is allowed to be completed, will tell the world whether those allegations are proved beyond reasonable doubt.
The Age
09-06-2025
- Politics
- The Age
As a judge, I'm sounding the alarm: the out-of-control White House is dismantling justice
For 18 years, I have been a criminal trial judge. I believe in the rule of law and independent and impartial justice in both domestic and international criminal law. The present US administration does not hold to those principles, and is now doing all it can to undermine them. In the case of international criminal law, the International Criminal Court derives from the legacy of Nuremberg where, in 1945, an International Military Tribunal established by the allied forces, tried 22 leading German officials for war crimes. Controversial though it was, the International Military Tribunal demonstrated that justice beyond borders in the form of international criminal law could be real and effective in dealing with the most horrific war crimes, and perhaps be a means of preventing them thereafter. The Nuremberg experience testified to the truth of what many, including Dr Martin Luther King Jr. had said, that 'there can be no peace without justice, and there can be no justice without peace'. In 1998, the signing of the Rome Statute for the establishment of the ICC reaffirmed the purposes and principles of the United Nations Charter. It meant that all UN member states would refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the UN. These are uncontroversial and necessary international principles. And so, pretty much without fear or favour, in 2002 the ICC went to work. As with all courts, an important foundation of the ICC was judicial independence and the application of the rule of law. Given the gravity of the court's work, it had to be real and impartial justice – no matter who was accused of serious crimes. The judges needed to be able to conduct investigations and trials free from any form of governmental interference. Loading Now, that is no longer guaranteed. Nor is the court's future. The Rome Statute states that 'intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including wilfully impeding relief supplies as provided for under the Geneva Conventions' is a war crime. On November 21, 2024, the pre-trial chamber of the Court issued warrants for the arrest of Hamas commander Mohammed Deif (who was killed in 2024), Israeli Prime Minister Benjamin Netanyahu and Defence Minister Yoav Gallant. The latter two face allegations of being responsible for the war crimes of starvation as a method of warfare, and of intentionally directing an attack against a civilian population. Charges also allege that from at least 8 October 2023 until at least 20 May 2024, Netanyahu and Gallant were responsible crimes against humanity of murder, persecution, and other inhumane acts. The process, if it is allowed to be completed, will tell the world whether those allegations are proved beyond reasonable doubt.
