Chicago Journal of International Law

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Until the early 1970s, Australian federal and state government agencies forcibly removed tens of thousands of Aboriginal and Torres Strait Islander children from their families and placed them up for adoption or in group homes and church missions. These children are known as the “Stolen Generations.” Domestic remedies have proven insufficient in securing justice for the Stolen Generations and international adjudication may be a viable alternative. This Comment examines whether Australia may be haled before the International Court of Justice (ICJ) for violations of the Genocide Convention for its Stolen Generations policies. Australia’s policies likely constituted a violation of Article II(e) of the Genocide Convention, which prohibits the forcible transfer of children from one group to another with the intent of destroying the original group. The ICJ would likely have jurisdiction to hear this claim but would likely rule against the claimant were the Court to apply its reasoning from prior genocide cases. This is because the ICJ’s genocide jurisprudence is fundamentally flawed. By setting an unreasonably high bar for proving and inferring genocidal intent in state responsibility claims, the Court has essentially foreclosed Article II(e) claims from adjudication, in contravention of the Convention’s object and purpose. This Comment argues that a claim brought on behalf of the Stolen Generations at the ICJ could correct the Court’s jurisprudential errors in its application of the Genocide Convention and enable the Stolen Generations to achieve justice.

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