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| Judge | No. of Paras | No. of Cases | No. of Texts | ||
|---|---|---|---|---|---|
| Cited | Quoted | Cited | Quoted | ||
| Justice Wilcox | 13 | 3 | 3 | 2 | 2 |
| Justice Whitlam | 22 | 3 | 6 | 0 | 1 |
| Justice Merkel | 104 | 34 | 31 | 19 | 9 |
Wilcox J.
Wilcox J. early in his judgement on this point, having quoted a strongly internationalist piece from the judgement of Brennan J in Polyukhovich v. the Commonwealth (1991) 172 CLR 501; 101 ALR 545 in the High Court, in which that judge asserts that “Australia’s international personality would be incomplete if it were unable to exercise a jurisdiction to try and to punish offenders against the law of nations whose crimes are such that their subjection to universal jurisdiction is conducive to international peace and order.” then proceeds himself to observe as follows [@ para 20] :
“ 20. However, it is one thing to say Australia has an international legal obligation to prosecute or extradite a genocide suspect found within its territory, and that the Commonwealth Parliament may legislate to ensure that obligation is fulfilled ; it is another thing to say that, without legislation to that effect, such a person may be put on trial for genocide before an Australian court. If this were the position, it would lead to the curious result that an international obligation incurred pursuant to customary law has greater domestic consequences than an obligation incurred, expressly and voluntarily, by Australia signing and ratifying an international convention. Ratification of a convention does not directly affect Australian domestic law unless and until implementing legislation is enacted. “
With respect, Wilcox J. here falls straight into the classic misapprehension which befalls many who fail to appreciate (a) the true reason why, in a common law jurisdiction, an unincorporated treaty is generally not self-executing in the absence of incorporating legislation ; and (b) what is the essential difference in character and provenance which distinguishes ‘international customary’ from ‘international conventional ‘ law. With respect to (a) the issue is set out and dealt with in Contention 2 above, but in brief it is essentially a product of the observance of the constitutional separation of powers as between the Executive and the Legislature.
Whilst, with respect to (b) in any one State, the Legislature arguably has as much involvement in the establishment and development of settled international custom, by its legislative contribution to common international standards of statute law, as does the Judiciary, by its judicial contribution to the development of international common law standards of custom ‘accepted as law amongst the nations of the civilised world’, as does the Executive by its diplomatic and political behaviour on international plane in the conduct of its relations with other sovereign states. Certainly it would be absurd to suggest that the Executive in any one State had an undue or constitutionally excessive role in the formulation of international customary law which would then justify the engagement of constitutionally required checks and balances. Accordingly, this reasoning aimed at finding against the common law adoption of international customary law, by way of analogous reference to the well established prohibition on the self-execution of unincorporated international treaties in a Parliamentary system, is simply misconceived at the elementary level. (2)
Later Wilcox J. observes that :
“ 26. Perhaps this is only another way of saying that domestic courts face a policy issue in deciding whether to recognise and enforce a rule of international law. If there is a policy issue, I have no doubt it should be resolved in a criminal case by declining, in the absence of legislation, to enforce the international norm. As Shearer pointed out at p.42, in the realm of criminal law "the strong presumption nullum crimen sine lege (there is no crime unless expressly created by law) applies." In the case of serious criminal conduct, ground rules are needed. Which courts are to have jurisdiction to try the accused person? What procedures will govern the trial? What punishment may be imposed? These matters need to be resolved before a person is put on trial for an offence as horrendous as genocide."
The argument regarding the resort to the well plied latin maxim “nullum crimen sine lege” is well familiar to those who have read the defence arguments put forward for the Nazi war criminals tried, convicted and executed at Nuremberg. It found little favour before that tribunal, it should not find any more today. Since Nuremberg no serious jurist has ever challenged the right to apply certain of the gravest aspects of international criminal law, so as thereby to make individual criminals liable. I cannot speak to the capacity for the Australian common law to provide answers to the administrative and procedural ‘ground rules’ issues, cited by Wilcox J.; but I have no doubt whatever that in England, when needed, the common law has never been found wanting in being able to produce sound and certain answers to such question, wherever any gaps are found to be left in the statutory framework for the administration of criminal justice in this country. The judge then continues :
"27. I am unable to point to much authority for my conclusion. However, the comment of Brennan J in Polyukhovic at p.565 is significant, even though it was made in a somewhat different context. The comment is quoted by Merkel J. Brennan J rejected the notion that municipal law might redefine an international crime and observed: "Rather, what is left to municipal law is the adoption of international law as the governing law of what is an international crime". On the following page, Brennan J said:
"... when municipal law adopts the international law definition of a crime as the municipal law definition of the crime, the jurisdiction exercised in applying the municipal law is recognized as an appropriate means of exercising universal jurisdiction under international law."
28 Plainly, his Honour had in mind adoption by legislation. ...”
With the greatest of respect no such conclusion may be in the least bit rationally inferred from these observations of Brennan J., let alone said to be plain, as is later found to be the case by Merkel J. The statement is clearly comfortable with both common law or statutory incorporation, so long that the definition of the municipal crime in either case is consonant with that disclosed in international law. By way of confirmation of his views Wilcox J. then immediately continues as follows:
“ ... If there is any doubt about that matter, it is resolved by the fact that he followed with a quotation from Brownlie, Principles of Public International Law (4th ed, 1990) at 561:
"Since the latter half of the nineteenth century it has been generally recognized that there are acts or omissions for which international law imposes criminal responsibility on individuals and for which punishment may be imposed, either by properly empowered international tribunals or by national courts and military tribunals. These tribunals exercise an international jurisdiction by reason of the law applied and the constitution of the tribunal, or, in the case of national courts, by reason of the law applied and the nature of jurisdiction (the exercise of which is justified by international law)."
Alas, once again Wilcox J. quotes a passage, with much aplomb, which though has no hint of relevance to, let alone support for, the specific point he claims for it. What is there in the passage quoted which even deals with the alleged need for legislation in order to incorporate custom ? Professor Brownlie, in point of fact, as any student of his standard works will know, is an acclaimed proponent of common law incorporation [adoption] (3) , as he states quite unequivocally in the very work from which this quote above is taken - as follows :
“ The dominant principle, normally characterized as the doctrine of incorporation, is that customary rules are to be considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament or prior judicial decisions of final authority. This principle is supported by a long line of authority.” (4)
Accordingly, it is frankly nothing short of perverse to quote from Professor Brownlie in arguing against non-statutory incorporation. Finally, Wilcox J. concludes his reasoning on this point with the following passage [@ para. 29 on p.630 ].:
"29. Although it is but a straw in the wind, Regina v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No.3)[1999] 2 WLR 827 suggests the same conclusion. This is not because of anything said by their Lordships or even anything argued; but rather because of what was not argued. Usually, a non-argument would have no significance; but this was a most exceptional case. The appeal was twice argued in the House of Lords, and those supporting the extradition of Pinochet to Spain were represented by leading international lawyers. On the view that prevailed (that the issue of double criminality must be addressed as at the date of the conduct, not the date of the extradition application), extradition on all charges would have been secured if counsel had been able to demonstrate that Pinochet would have been punishable in the United Kingdom before the commencement of the 1988 United Kingdom statute adopting and implementing the Torture Convention. Yet, although torture is an international crime, nobody suggested Pinochet would have been triable in the United Kingdom before that date by reason of the incorporation into United Kingdom law of the international customary law about torture. The only explanation of this omission can be that those arguing for extradition accepted that torture was not a triable offence in the United Kingdom until implementing legislation was enacted."
With respect to what was actually said in Pinochet (No.3), and the difference of view between Lord Millett on the one hand and the other six noble and learned Law Lords in the case, I have given a full exposition under Contention 4 above, which not surprisingly comes to an entirely different conclusion. As was so predictable someone, in this case Wilcox J., has failed to read carefully what was actually said by the noble and learned Lords as to why a person charged with having committed torture abroad could not have been extradited from the UK for that crime, prior to the coming into force of the Criminal Justice Act, 1988. Namely, because prior to that Act there was no “extra-territorial jurisdiction” in the criminal courts in this Country with respect to that offence, which is required as a condition precedent to extradition to a third country on a charge for that crime, and which jurisdiction is only capable of being created by statute. With regard to what was not said in Pinochet, by any one, that is Law Lords or even Counsel in argument, I think Wilcox J. would have been well advised to follow his own sound rule (as above), straws in the wind or no, namely a non-argument is an authority for nothing.
In conclusion, I submit regretfully, that the line of reasoning adopted by Wilcox J. , is irrational and fundamentally misconceived and it is hardly surprising that it finds little or no support in the authorities and texts, even those which he himself prays in his aid (5).
Whitlam J.
The first basis upon which this judge purports to reject the non-statutory or common law adoption [incorporation] of international custom is by reference to the observations of Lord Millett in Pinochet (No.3) as regards in turn the decision of the Supreme Court of Israel on the “extra-territorial jurisdiction” issue, as it arose in the case of Eichmann. Having quoted Lord Millett in extenso (6), His Honour comes to following conclusion [@ Para 42 on p.635] :
"42. I am unable to read the judgment of the Supreme Court of Israel as suggesting that the doctrine of universal jurisdiction was to be regarded as an "independent source of jurisdiction" for the trial in Eichmann. The offences in that case were laid under an Israeli statute, the Nazi and Nazi Collaborators (Punishment) Law 1950. The Supreme Court said that, in enacting that Law, the parliament of Israel (the Knesset) only sought to set out the principles of international law and embody its aims."
What of the maxim “nullem crimen sine lege” now ? If there was no jurisdiction in the Isreali courts to try Eichmann prior to the enactment of the above mentioned statute of 1950, then how was Eichmann tried for crimes he was alleged to have committed in Germany and the German Occupied territories in the period 1938-45 without offending against that rule ?
The answer is that the Supreme Court of Israel expressly averred to and specifically found that the State of Israel (only created in 1948) was nonetheless entitled to exercise an “extra-terriorial jurisdiction” in relation to the commission of crimes against humanity (including customary law genocide), which were found to be crimes under international law of “universal jurisdiction” and which were "erga omnes", even though committed in Germany and German Occupied territories during the Second World War, more than 10 years previously. Precisely because they had already been found and declared to be crimes against international customary law at the time, under the law settled by the Charter and in the Judgement of the Nuremberg Tribunal. Accordingly that by the adoption of the rules and norms of international customary law, as settled at Nuremberg, the requisite jurisdiction was incorporated from international law into the municipal law and was merely in confirmation of the later Israeli statute, so that the principle against retrospective jurisdiction was not then breached.
Indeed, in so deciding, the Supreme Court of Israel specifically relied upon English case authorities on adoption [incorporation] such as the classical exposition in West Rand Central Gold Mining v. the King [1905] 2 KB 391 per Lord Alverstone C.J.@ pp.407-8 . The full forensic analysis of the Eichmann authority on this issue being provided in the judgement of Merkel J. at paragraphs [146] to [152] in the judgement. Accordingly, Whitlam J.’s contention that the judgement in Eichmann is an authority against common law adoption is wholly misconceived.
His Honour then moves on to deal with his criticism of the final part of the speech of Lord Millett in Pinochet (No.3) from which he has previously quoted, as follows [@ para 53 on p. 637] :
"53. In England and in Australia crimes are distinguished into common law and statutory crimes, according to whether the legal source of, and the authority for, the statement that particular conduct is criminal is found in common law or statute. In this context the phrase "common law" means law created by the decisions of judges, and I find it odd to speak, as his Lordship does, of the "usually statutory" jurisdiction of the English criminal courts being "supplemented by the common law". Courts are no longer able to create new criminal offences: Knuller (Publishing, Printing and Promotions) Ltd v Director of Public Prosecutions [1973] AC 435. Nonetheless, counsel for the appellants submit that the status of genocide as jus cogens compels recognition of genocide as part of the common law of Australia. This submission strikes formidable statutory obstacles."
The precise issue as to the prohibition on “judicial legislation”, in the sense of the creation of new criminal offences by judges, as dealt with in Knuller -v- DPP is the subject of the next special contention.
However, it is useful here to comment that in so far as His Honour refers to “common law” as here meaning the law created by decisions of judges, I again beg to differ. Whilst doubtless the evolution and development of the common law is today firmly in the hands of the decisions of the judges, it does not follow therefore that the entire body of law, we call ‘the common law’, owes its complete existence to the judges alone. After all no “common law” judge ever decided that murder or manslaughter or any other of the ancient, but continuing, criminal offences under the “common law” shall be crimes. Instead they were punishable trespasses or transgressions under the customs and lawes, which were ‘common’ to both the Anglo-Saxon peoples and their new Norman masters after ‘the Invasion’, and which therefore William the First of England decreed should be held to be a “common law” amongst the subjects of his new Realm. Hence, whilst the ability to create new crimes is certainly now beyond the powers of the common law judges, the existence of a crime, even of the gravest of all crimes such as murder and manslaughter, being disclosed solely at common law is, always has been, and continues to be a vital an vibrant part of English Criminal Law..
Finally, HH Whitlam J. launches into his reasoning on the real ground why he thinks genocide cannot be punished in Australia without statutory authority. He states as follows [@ para 54] :
"54. Section 1.1. of the Criminal Code (Cth) provides:
"1.1 The only offences against laws of the Commonwealth are those offences created by, or under the authority of, this Code or any other Act."
This provision came into operation on 1 January 1997 and abolished common law offences under Commonwealth law. Since that date genocide cannot be recognised as a common law offence under Commonwealth law. “
His Honour then deals with the separate considerations relating to the statutory framework for the summary issue of criminal process within the Australian Capitol Territory under the law there applicable. Finally, he comes to following all important conclusions [@ para 57 on p. 638] :
"57. .... The emergence after the Second World War of the international crime of genocide no doubt imposes non-derogable obligations on Australia under the law of nations. The exercise of universal jurisdiction to prosecute such an offence is a matter for the Commonwealth, yet Parliament has expressly abolished common law offences under Commonwealth law. The courts of the States and the Territories can have no authority for themselves to proscribe conduct as criminal under the common law simply because it has now become recognised as an international crime with the status of jus cogens under customary international law. In any event, common law offences are anathema in the so-called Griffith Code jurisdictions: Queensland, Western Australia, Tasmania and the Northern Territory. It would be absurd if the common law countenanced the selective exercise by municipal courts of a universal jurisdiction under international law.
58. It follows that, in my opinion, genocide is not an offence in respect of which an information may be laid under , and the registrar had no authority to issue the process requested. I would accordingly dismiss the appeal from Crispin J. “
Clearly, in the event Merkel J. came to a different conclusion on this point (8) as regards the possibility of the “common law” of the ACT adopting the crime of genocide from international law; although apparently that would not now be permissible in at least 4 other Australian states with an exclusive statutory criminal code (the so-called Griffith Code states as above).
How so ever that may be, for the purposes of the present Claim I, of course, need make no comment or observation, since the notion of a Criminal Code is (as yet) a creature unknown and indeed anathema, to use Whitlam J.’s word, to the law of England. In so far as Whitlam J. bases his finding that the heinous customary international law crime of ‘genocide’ is not an offence known to the law of Australia, upon the premise that all crime in Australia is now to be found in a Code (be that State or Commonwealth) or it does not exist ; then that is a reasoning which (gratia deus) is unique to Australia, and which is entirely distinguishable from a common law (or un-coded) criminal jurisdiction such as pertains here.
Footnotes.
1. Figures refer to only those parts of the respective judgements solely dealing with the claim of the Commonwealth regarding the need for legislation to incorporate customary international crimina law offence of genocide.
2. This conclusion is supported by the excellent and commendable critique of the judgement in Nulyarimma v. Thompson “Is genocide a crime at common law in Australia ?” provided in the Federal Law Review by Douglas Guilfoyle of Sydney, see [2001] FedL Rev 1 @ section 5.3.1
3. Indeed Professor Browlie, goes so far as to state that as respects international treaty law with respects to the conduct of war and armed conflict, such as the Geneva Conventions, even these aspects of international law are capable of incorporation without requiring the benefit of statutory legislation. see Brownlie, “Principles of Public International Law” (4th ed, 1990) at p.48.
4. See ibid. at p.43
5. Mr D. Guilfoyle in his article (ibid. above note 2) describes this entire line of reasoning as “extraordinary”. I concur. see @ section 5.3.2
6. See paragraphs [37]-[41] on pp.632 to 635.
7. See Attorney-General for Israel v. Eichmann (1962) 36 ILR 5 @ 280 as quoted @ Para [148] on p.659 in the judgement of Merkel J.
8. See the judgement of Merkel J. @ paras. [163]-[164]
