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‘When I sat there hearing the evidence … I felt like General Montgomery after the war’

Mark Dapin
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Published: 4 November 2022

Last updated: 5 March 2024

Ahead of his Colin Tatz Oration on the UN definition of genocide, MICHAEL KIRBY talks to MARK DAPIN about North Korea, same-sex marriage, his Jewish nephew – and Israel.

The Honourable Michael Kirby AC CMG, former justice of the High Court of Australia, invites me into his office with courteous reluctance.

He would have preferred to conduct our interview over Zoom, but instead I have turned up at his Macquarie Street rooms – directly opposite the State Parliament of New South Wales – with an embarrassed grin and a headful of half-formed questions.

I am here because Kirby will talk on the topic, “Is the UN’s definition of genocide relevant today?” for The Jewish Independent’s 2022 Colin Tatz Oration at Bondi Pavilion on November 14.

The Jewish Independent asked him to speak. “I never volunteer to give lectures,” he says. “I survive the requests.”

Kirby’s reception room is crammed with law books and leatherbound volumes of his speeches. He shares his inner sanctum with many more books, and an anonymous bust wearing a desk wig.

I guess all judges need a surrogate head to keep their wig in shape, but I find this one a bit distracting: it looks like a po-faced joke, staring at me through sightless eyes.

At the other end of the room, small, neat piles of papers checker the floor, as if the carpet were a recumbent desk.

Kirby is compact and composed. It is a pleasure to listen to him speak. He is understated and funny, with an ear for a deft adjective and the relentlessly logical syntax of an expert jurist.

He is the oldest child of a family whose roots lay largely in the traditions of Ulster Protestantism, but his brother, David – who was also to became a NSW Supreme Court judge – married a Jewish woman in 1972.

"I think there are many similarities between the Jewish people and the Irish people. They’re both slightly crazy. They are both very poetical."

David had two children with his wife, Marie-Line France Hervic, whose parents had escaped from Hungary during the Second World War and found refuge among Catholic nuns in France.

“That was a very happy marriage,” says Kirby. “She died of cancer at about the age of 32. She was greatly loved by our family. I think there are many similarities between the Jewish people and the Irish people. They’re both slightly crazy. They are both very poetical.

“David, fortunately, married a second time,” says Kirby. “He met his second wife at grief counselling. She’d just lost her husband – who, I think, was Jewish. And David brought up his two children by Marie-Line as Jewish children. He sent them to have instruction in the Jewish religion. They haven’t ended up observant Jews, but they have the foundations – they had the bat mitzvah and the bar mitzvah – and he did that to honour his late wife.

“I got the ballot for the NSW Bar Council today, and I saw my nephew on it,” he says, “so he’s coming along as a young barrister on the make.” He laughs. “And that’s a good thing. He’s very smart.”

Kirby himself, the first openly gay High Court judge in Australia, married his long-time partner, Johan van Vloten, in 2019.

“Sometimes, I’ve found over the years that Jewish bodies and Jewish organisations are very defensive of genocide and very defensive of the Holocaust,” he says.

“I once said that making people vote in the postal survey on marriage equality was a terrible thing and added an extra burden. And Johan, who lived the early part of his life under German occupation in the Netherlands, said that all talk after the war was ‘never cooperate with your oppressors; never do things that will come back to haunt you and that are part of the oppression’. So we said we wouldn’t vote, because it was the sort of thing the Nazis did.

Kirby laughs, possibly out of relief that the episode is over. “We reached a happy settlement,” he says, “but I can understand it.”

Kirby first became publicly involved with questions of genocide in May 2013, when he was appointed by the United Nations Human Rights Council to lead a commission of inquiry into human rights abuses in North Korea.

The question arose as to whether the undeniably murderous North Korean regime was guilty of genocide or “only” crimes against humanity.

“It was suggested to us that if we didn’t find genocide on the part of North Korea, that would be a great disappointment to the human rights organisations,” says Kirby.

North Korea refused to cooperate with the inquiry and much of the commission’s work involved collecting testimony from North Korean defectors in South Korea. Under the constitution of the South, every Korean is entitled to citizenship. “I think it’s reciprocal,” says Kirby, “but there aren’t many people seeking to go into North Korea.”

The commission also heard submissions from the North Korean diaspora in London, Washington DC and Thailand.

"It was suggested to us that if we didn’t find genocide on the part of North Korea, that would be a great disappointment to the human rights organisations."

“There was one man who told the story that his job in a prison camp was to take the wheelbarrow in the morning and put the bodies that were thrown out of the huts into the wheelbarrow and wheel the wheelbarrow to a furnace and reduce the bodies to ashes,” says Kirby. “Sometimes, because it was a very inefficient system, they’d see arms and legs sticking out of the bodies which had been reduced to ashes.

“When I sat there hearing the evidence, I felt, ‘this must be how the judges in the Nuremberg trials must have felt.’ I felt a bit like General Montgomery after the war, or General Eisenhower, when they went to these places and saw the terrible refuse that the Nazis had collected, and the dead bodies and the half-dead living human beings.

“I really understood, momentarily, what it must have been like at that time to sit in those [trials] and to keep your composure and not be just overwhelmed with the awfulness of it all.”

Kirby dabs at the corner of his eye. Perhaps by coincidence.

Ultimately, when the commission reported in January 2014, it did not find that genocide had taken place in North Korea. The definition of genocide adopted by the UN in 1948 embraced only acts of violence performed by the state to kill large numbers of people for reason of their nationality, ethnicity, national identity or religion.

"When I sat there hearing the evidence, I felt, ‘this must be how the judges in the Nuremberg trials must have felt'."

The UN Convention on the Prevention and Punishment of the Crime of Genocide – created in direct response to the Nazi Holocaust – does not include slaughter based on the political beliefs of murdered populations, and those North Koreans butchered by the regime were generally killed because of perceived disloyalty to their paranoid, totalitarian government.

Kirby is loathe to talk about Israel (he feels that primarily he has “legitimacy to comment on” North Korea), but he says, “there have been a number of United Nations inquiries into the Occupied Territories, and it is partly because they were always felt by Israel to have been motivated by political rather than legal concerns that I was determined that the North Korea inquiry would simply find the facts, and apply international law to the facts, and reach conclusions and state them.

“My approach was informed by my mandate, which I got from the Human Rights Council. Israel doesn’t think much of the Human Rights Council, but it has a very important job to do in the world, revealing, uncovering, recording and condemning crimes against humanity and the international crime of genocide: that’s bound to be controversial, whatever is said.”

"Israel doesn’t think much of the UN Human Rights Council, but it has a very important job to do, revealing, uncovering, recording and condemning crimes against humanity and the international crime of genocide."

Kirby retired from the High Court in February 2009, but his expertise remains in demand. He will leave soon for a “very big commercial arbitration” in India, which begins in late November and could last for three months.

I ask if he spends a lot of time reading.

“I’m busy!” he says. “Look around!”

He gestures towards the papers on the carpet. “I’m not waiting around here for somebody to come in and ask me a few questions. Talking of which …”

My time is up.

On my way out, Kirby points to a photograph of himself with Paul Keating and another with Tony Abbott, as proof of his “perfect neutrality”.

“And here’s my true love,” he says, pointing to a picture of Her Majesty Queen Elizabeth II on her Diamond Jubilee. “Never took a step wrong in 70 years,” says Kirby, reminding me that he was one of the founders of Australians for Constitutional Monarchy.   

As I sign the visitors’ book, Kirby jokes that our meeting would have cost me “a fabulous amount of money” had it been a legal consultation.

I smile but examine the book carefully to make sure I’m not actually signing a bill.

Michael Kirby will deliver the annual Colin Tatz Oration, presented by The Jewish Independent, on November 14 at the Bondi Pavilion. CLICK HERE for details

About the author

Mark Dapin

Mark Dapin is a novelist and historian. His military history, “The Nashos’ War: Australia’s national servicemen and Vietnam", won the People’s Choice Prize at the 2015 Nib Waverley LibraryAwards and was shortlisted for the 2016 NSW Premier’s Literary Award for non-fiction. His novel “Spirit House”, about Jewish prisoners of war on the Burma Railway, was shortlisted for the Age Book of the Year.

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