Genocide
75 Senior and junior counsel, appearing pro bono for the appellants in Re Thompson, and also for the applicant, put the same argument on genocide in each proceeding. In Re Thompson, before Crispin J, a number of different grounds were relied upon by the appellants to contend that genocide was a criminal offence under Australian law. However, before the Full Court the appellants relied only upon one ground. That ground can be summarised as follows:
· the prohibition against genocide is a customary norm of international law;
· Australian municipal law incorporates customary norms of international law without the need for legislation;
· the universal crime of genocide, as a customary norm of international law, has been incorporated into the common law of Australia.
76 Thus, so it was contended on behalf of the appellants, the universal crime of genocide being incorporated as part of the common law of Australia can give rise to criminal liability for acts of genocide (wherever committed) which can be tried in any superior court of record in Australia. Counsel for the appellants made it quite clear that their submissions were founded on customary international law and not conventional international law which is the law of treaties cf Dietrich v The Queen (1992) 177 CLR 292.
77 Counsel appearing for the respondents contended that customary international law and, in particular, the universal crime of genocide under customary international law can only form part of the law of Australia if legislation by an Australian Parliament enacts the law. To date, no such enactment has occurred. Accordingly, so it is contended, the offence of genocide is not known in Australian law and cannot give rise to any criminal or civil liability in an Australian court. Counsel also submitted that the material in both cases does not raise an arguable claim of genocide in any event. Counsel appearing for the Registrar in Re Thompson contended that whether or not genocide was part of Australian law (about which the Registrar put no submission) the appeal must fail as the material before the Registrar was such that he was bound in law to refuse to issue the warrants.
78 Although the parties were in dispute over the status of the prohibition against genocide under Australian law they were in agreement, correctly in my view, on its status as a universal crime under international law. In that regard, it was common ground that genocide, as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide ("the Genocide Convention") has been recognised, since at least 1948, as a crime under customary international law over which nation States may exercise universal jurisdiction.
79 Articles II, III and IV of the Genocide Convention, which define conduct constituting the offence of genocide and associated offences, provide as follows:
"Article II
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article III
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide
Article IV
Persons committing genocide or any of the other acts enumerated in article III shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals."
80 It is to be noted that the definition includes not only the destruction of a national, ethnical, racial or religious group through mass killings but also through a co-ordinated plan of different actions aiming at the destruction of essential foundations of the life of the group with the aim of its annihilation: see Lemkin: Genocide 'Crime under International Law' (1947) 41 American Journal of International Law 145 at 147.
81 It was also common ground between the parties, correctly in my view, that:
· the prohibition of genocide is a peremptory norm of customary international law (jus cogens) giving rise to non derogable obligations erga omnes that is, enforcement obligations owed by each nation State to the international community as a whole: see M Cherif Bassiouni "International Crimes: Jus Cogens and Obligatio Erga Omnes", Law and Contemporary Problems Vol 59: No 4 (1996) 63 at 68, Lee A Steven "Genocide and the Duty to Extradite or Prosecute: Why the United States is in Breach of Its International Obligations", Viriginia Journal of International Law Vol 39 (1999) 425 at 437-439 and Brownlie Principles of Public International Law, 4th ed 1990 at 512-515;
· although Australia ratified the Genocide Convention, and that ratification was approved by the Commonwealth Parliament by the enactment of the Genocide Convention Act 1949 (Cth), neither the ratification or its legislative approval as such, had the effect of incorporating the Genocide Convention as part of Australia's municipal law: see Dietrich at 305, 359-360, Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273, 287-288, 298 and 315-316 and Kruger v Commonwealth (1997) 190 CLR 1 at 70-71, 87 and 159.
82 The area of dispute between counsel for the respective parties related to whether the crime of genocide, which attracts universal jurisdiction under international law, can become part of Australian law without a legislative act creating genocide as an offence. That issue involves consideration of the circumstances in which customary international civil and criminal law can become part of the municipal law of Australia.
Incorporation or transformation?
(a) England
83 The two schools of thought as to the manner in which rules of international customary law can become part of English law were explained by Lord Denning M.R. in Trendtex Trading Corporation v Central Bank of Nigeria [1977] 1 Q.B. 529 at 553-554 as follows:
"One school of thought holds to the doctrine to incorporation. It says that the rules of international law are incorporated into English law automatically and considered to be part of English law unless they are in conflict with an Act of Parliament. The other school of thought holds to the doctrine of transformation . It says that the rules of international law are not to be considered as part of English law except in so far as they have been already adopted and made part of our law by the decisions of the judges, or by Act of Parliament, or long established custom. The difference is vital when you are faced with a change in the rules of international law. Under the doctrine of incorporation, when the rules of international law change, our English law changes with them. But, under the doctrine of transformation the English law does not change. It is bound by precedent. It is bound down to those rules of international law which have been accepted and adopted in the past. It cannot develop as international aw develops.
(i) The doctrine of incorporation. The doctrine of incorporation goes back to 1737 in Buvot v. Barbuit (1736) 3 Burr. 1481; 4 Burr. 2016; sub nom. Barbuit's case in Chancery (1737) Forr. 280, in which Lord Talbot L.C. (who was highly esteemed) made a declaration which was taken down by young William Murray (who was of counsel in the case) and adopted by him in 1764 when he was Lord Mansfield C.J. in Triquet v. Bath (1764) 3 Burr. 1478:
'Lord Talbot declared a clear opinion - 'That the law of nations in its full extent was part of the law of England,…that the law of nations was to be collected from the practice of different nations and the authority of writers.' Accordingly, he argued and determined from such instances, and the authorities of Grotius, Barbeyrac, Binkershoek, Wiquefort etc., there being no English writer of eminence on the subject.'
That doctrine was accepted, not only by Lord Mansfield himself, but also by Sir William Blackstone, and other great names, too numerous to mention. In 1853 Lord Lyndhurst in the House of Lords, with the concurrence of all his colleagues there, declared that…'the law of nations, according to the decision of our greatest judges, is part of the law of England': see Sir George Cornewall Lewis's book, Lewis on Foreign Jurisdiction (1859), pp. 66-67.
(ii) The doctrine of transformation. The doctrine of transformation only goes back to 1876 in the judgment of Cockburn C.J. in Reg. v. Keyn (1876) 2 Ex.D. 63, 202-203:
'For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it… Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorise the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing, we should be unjustifiably usurping the province of the legislature.'
To this I may add the saying of Lord Atkin in Chung Chi Cheung v. The King [1939] A.C. 160, 167-168:
'So far, at any rate, as the courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law.'"
84 The incorporation approach treats customary international law, upon its proof as such and without more, as part of the common law of England. The transformation theory requires a further step; a rule of international law only becomes a part of English law when it is accepted and adopted by judicial decision as such ("common law adoption") or by legislation ("legislative adoption"). The point of practical distinction between the incorporation and common law adoption approaches is that under the latter approach the rule of international law is adopted upon a court determining that the rule is not inconsistent with existing legislation, the common law, or public policy and that it is therefore appropriate that it should form part of the common law of England. An additional question arises to whether international criminal law can only become part of municipal law by legislative adoption.
85 Counsel for the appellants and Mr Buzzacott contend that, either by incorporation or common law adoption the prohibition of genocide has become, or ought now to be received as, part of the common law of Australia. Counsel for the respondents contend that it is only by legislative adoption, which has not yet occurred, that the crime of genocide can be considered part of the law of Australia. In order to resolve the competing contentions it is necessary to consider the origin and application of each of the approaches relied upon by the parties.
86 The incorporation approach was explained in Blackstone's Commentaries ((1809) 4 Bl.Comm.66-67):
"The law of nations is a system of rules, deducible by natural reason, and established by universal consent among the civilized inhabitants of the world….This general law is founded on this principle, that different nations ought in time of peace to do one another all the good they can; and, in time of war, as little harm as possible, without prejudice to their own real interests. And, as none of these states will allow a superiority in the other, therefore neither can dictate or prescribe the rules of this law to the rest; but such rules must necessarily result from those principles of natural justice, in which all the learned of every nation agree; or they depend upon mutual compacts or treaties between the respective communities; in the construction of which there is also no judge to resort to, but the law of nature and reason, being the only one in which all the contracting parties are equally conversant, and to which they are equally subject. In arbitrary states this law, wherever it contradicts or is not provided for by the municipal law of the country, is enforced by the royal power; but since in England no royal power can introduce a new law, or suspect the execution of the old, therefore the law of nations (wherever any question arises which is properly the object of its jurisdiction) is here adopted in its full extent by the common law, and is held to be a part of the law of the land."
87 Similarly, in 1805 Lord Eldon, in Dolder v Huntingfield (1805) 11 Ves 283, stated that where a question is not concluded by a rule of English law, and is one to which international law applies, the Courts must apply the principles of international law. In Novello v Toogood (1823) 1 B & C 554 Abbott CJ observed that the law of nations must be deemed a part of the common law. In De Wutz v Hendricks (1824) 2 Bing 314 Best CJ referred to international law being "adopted into" the municipal law of every civilised country.
88 The incorporation approach held sway during the 18th and for a large part of the 19th century. It was summarised by Sir William Holdsworth in "The Relation of English Law to International Law" Goodhart et al Essays on Law and History by William Holdsworth, 1946 260 at 261 as follows:
"….if a statute or a rule of the common law conflicted with a rule of international law, an English judge must decide in accordance with the statute or the rule of the common law. But, if English law was silent, it was the opinion of both Lord Mansfield and Blackstone that a settled rule of international law must be considered to be part of English law, and enforced as such."
89 The question of the relation of English law to international law was the subject of detailed consideration in the Court of Crown Cases Reserved in R v Keyn (1876) 2 Ex. Div. 63. The accused, a German national, was the Captain of the ship Franconia. He negligently ran down another vessel, the Strathclyde and, as a result of the collision a passenger on the latter vessel was killed. His act, according to English law, amounted to manslaughter. The question before the Court was whether an English Court had jurisdiction to try him. Since the collision occurred within the three mile limit of England, that question depended upon whether the English Courts would recognise the rule of international law that the sea within that limit was part of the territory to which it was adjacent.
90 The minority (Lord Coleridge, Brett and Amphlett JJA, Grove, Benman and Lindley JJ) held that, since international law recognised the three mile limit and that law was a part of the law of England, the court had jurisdiction. Lord Coleridge (at 153-154), adopting the Blackstone approach, accepted the well established proposition of international law that a state has dominion over its territorial waters:
"Law implies a law-giver, and a tribunal capable of enforcing it and coercing its transgressors. But there is no common law-giver to sovereign states; and no tribunal has power to bind them by decrees or coerce them if they transgress. The law of nations is that collection of usages which civilized states have agreed to observe in their dealings with one another. What these usages are, whether a particular one has or has not been agreed to, must be matter of evidence. Treaties and acts of States are but evidence of the agreement of nations, and do not in this country at least per se bind the tribunals. Neither, certainly, does a consensus of jurists; but it is evidence of the agreement of nations on international points; and on such points, when they arise, the English courts give effect, as part of English law, to such agreement."
91 However, the majority (Cockburn CJ, Kelly CB, Bramwell JA, Lush and Field JJ and Sir R Phillimore and Pollock B) held that the only international law which could be considered part of English law were those parts which could be proved to have been received into English law: see for example at 161 per Cockburn CJ. That reception, it was held, could be effected by statute incorporating a rule of international law or proved by "the assent" of the nations who are bound by international law to the particular rule. Cockburn CJ (at 202-203), delivering the leading judgment of the majority, said:
"To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express as by treaty, or the acknowledged concurrence of governments, or may be implied from established usage, - an instance of which is to be found in the fact that merchant vessels on the high seas are held to be subject only to the law of the nation under whose flag they sail, while in the ports of a foreign state they are subject to the local law as well as to that of their own country. In the absence of proof of assent, as derived from one or other of these sources, no unanimity on the part of theoretical writers would warrant the judicial application of the law on the sole authority of their views and statements. Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount of a new law. In so doing we should be unjustifiably usurping the province of the legislature."
92 Lush J (at 238-239), who agreed in the main with Cockburn CJ, observed that only an Act of Parliament, rather than international law applying beyond the low-water mark, could "enlarge the area of our municipal law."
93 Whilst some of the observations of Cockburn CJ and Lush J suggest an Act of Parliament is required before rules of international law can be incorporated into municipal law, later authority is to the effect that the basic difference between the majority and the minority judgments in Keyn concerned whether the law relating to the territorial sea had evolved to a stage where it could be received as part of the common law of England. If it had not then it could only be incorporated into English law by statute. Mason J (at 465-466) in the Seas and Submerged Lands Act case, after referring to the judgment of Viscount Haldane LC delivered on behalf of the Board in Attorney-General (Canada) [1914] AC at 174-175 said:
"… Viscount Haldane made it equally plain that the rule of international law was dynamic and that the solution which it might ultimately provide to the issue debated in Keyn's Case would turn on the future evolution of international law."
94 Viscount Haldane had referred to the "obscurity" in the judgement of Cockburn CJ in Keyn on the topic of the relation between international law and municipal law.
95 Holdsworth (at 265-266) said of the majority view in Keyn.
"In other words, it is not true to say that all the rules of international law, as and when they are evolved by the jurists, become part of English law; but only those parts which, by legislation, judicial decision, or established practice, have been received into English law."
96 The majority view indicated that international law was not so much a part, as a source, of English law, rather than the older view that it is per se part of the law of England: see JL Brierley "International Law in England" (1935) 51 Law Quarterly Review 31 and Holdsworth at 267.
97 The majority view in Keyn prevailed in the United Kingdom. In West Rand Central Gold Mining Co Ltd v Rex [1905] 2 KB 391 Lord Alverstone CJ (at 407), delivering the judgment of the court, said that not only must the international law sought to be applied be proved by satisfactory evidence, but it must also be shown:
"…that the particular proposition put forward has been recognised and acted upon by our own country or that it is of such an age and has been so widely and generally accepted, that it can hardly be supposed that any civilised state would repudiate it. The mere opinion of jurists, however eminent or learned that it ought to be so recognised, are not in themselves sufficient."
98 Holdsworth (at 270-271) observed that Keyn established a further condition that:
"…the rule of international law must not conflict with a rule of English law. If it conflicts with a rule of English law no effect can be given to it. In Regina v. Keyn Cockburn C.J. held, in effect, that, by the rules of English law, the English courts had no jurisdiction over the offences of foreigners (not being part of the crew of a British ship) committed by them on the high seas; that English law had never recognized that the English State had a general dominion over territorial waters; that, except for special purposes defined by statute, it held such territorial waters to be part of the high seas; and that therefore to assert a criminal jurisdiction over a foreigner in the case before the court would amount to changing the law of England. Even if all other nations could be proved to have assented to this jurisdiction, such assent would not 'be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law….The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas.'"
99 The majority view in Keyn that the territory of the realm in England did not extend beyond the low water mark into territorial waters was accepted in New South Wales v Commonwealth (1975) 135 CLR 337 ("the Seas and Submerged Lands case") at 368, 378, 465-466; 468-469; 486-487, 490-491. In that case the High Court held by a majority, in reliance on Keyn that the territorial boundaries of the Australian colonies prior to Federation in 1901 did not extend beyond the low water mark.
100 In Chung Chi Cheung v The King [1939] AC 160 an issue arose as to the immunities the domestic courts would afford an accused in relation to a crime committed on a public ship in foreign waters. Lord Atkin (at 167-168), delivering the judgment of the Judicial Committee of the Privy Council, observed that the immunities did not depend upon "an objective extraterritoriality, but on implication of the domestic law". In concluding that under international law the immunities in question were able to be waived by the nation to which the public ship belonged his Lordship said:
"It must be always remembered that, so far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rules is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals."
101 The fact that Chung Chi Cheung and Keyn were concerned with the application of customary international law to a criminal prosecution did not give rise to a different approach or principle.
102 In Trendtex Trading the question was whether sovereign immunity extended to commercial transactions. Previously the principle under international law, which had been accepted as the law of England, was that it did. However, international law had developed over time to deny sovereign immunity for commercial transactions. The court had to determine whether it would recognise the change in international law or was bound by stare decisis to apply the previous rule of law until it was changed by the House of Lords. Lord Denning (at 554), in adopting the incorporation approach, said:
"Seeing that the rules of international law have changed - and do change - and that the courts have given effect to the changes without any Act of Parliament, it follows to my mind inexorably that the rules of international law, as existing from time to time, do form part of our English law. It follows, too, that a decision of this court - as to what was the ruling of international law 50 or 60 years ago - is not binding on this court today. International law knows no rule of stare decisis. If this court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change - and apply the change in our English law - without waiting for the House of Lords to do it."
103 Shaw LJ (at 577) agreed, saying:
"…what is to be adopted into English law and applied in the English courts is the current principle in regard of which 'nations have agreed that it should be so by the law of nations'."
104 Shaw LJ said that the role of English courts is to ascertain what the prevailing international rule is and apply that rule. His Lordship (at 579) expressed his conclusion as follows:
"What is immutable is the principle of English law that the law of nations (not what was the law of nations) must be applied in the courts of England. The rule of stare decisis operates to preclude a court from overriding a decision which binds it in regard to a particular rule of (international) law, it does not prevent a court from applying a rule which did not exist when the earlier decision was made if the new rule has had the effect in international law of extinguishing the old rule. The judgment in The Parlement Belge, 5 P.D. 197 cannot be a binding authority as to what form the doctrine of sovereign immunity would take a century after the judgment was delivered. As Brett L.J. said, at p 205: 'it depends upon whether all nations have agreed'. When they have agreed to a different effect the old rule loses its validity. It is supplanted in international law (and therefore also in English law of which it forms a part) by the new rule which derives its force from, and only from, that agreement of which Brett L.J. spoke.'
This view would appear to be in accord with the dictum of Lord Mansfield C.J. in Heathfield v. Chilton, 4 Burr. 2016, that 'the law of nations will be carried as far in England as anywhere.' So also Lord Lyndhurst in 1853, 'The law of nations according to the decisions of our greatest judges is part of the law of England.' This is hardly consonant with the idea that what was the law of nations persists as part of English law when it has ceased to be part of international law."
105 Stephenson LJ (at 568-572) disagreed, observing that the differences between the incorporation and transformation doctrines may be thought to be "more apparent then real". His Lordship's dissent arose more from his view that the change in international law which the majority accepted, was far from clear. Stephenson LJ observed that rules of international law:
"[w]hether they be part of our law or a source of our law, must be in some sense 'proved'"
106 As his Lordship was not satisfied that the established principles of absolute immunity had been displaced by a new rule, he concluded that the Court was bound by previous decisions to hold that absolute sovereign immunity was a rule of international law until the House of Lords or the legislature declared otherwise.
107 Trendtex Trading has since been accepted as authority for the proposition that, under international law and therefore English law, no immunity from suit can be claimed for a government in respect of ordinary commercial transactions as distinct from acts of a governmental nature: see I Congreso del Partido [1983] AC 244 at 261-262 per Lord Wilberforce and Alcom Ltd v Republic of Colombia [1984] AC 580 at 598-599 per Lord Diplock.
108 However, whether Trendtex Trading has been accepted as re-instating the Blackstone incorporation approach is less clear. Since Trendtex Trading there has been some reference in decisions of the courts to that approach but there has been little consideration of how it is to be applied: see for example Westland Ltd v Arab Organisation for Industrialisation [1995] QB 282 at 310 and JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1989] 3 WLR 969 at 1113-1114 per Lord Oliver.
109 In my view, the conflict between the two so-called schools of thought may, as was said by Stephenson LJ, be more apparent than real. See also FA Mann Foreign Affairs in English Courts 1986 at 124. As was observed by Sir Anthony Mason in "International Law as a Source of Domestic Law" Opeskin et al International Law and Australian Federalism 1997 210 at 215, it seems surprising that the doctrine of precedent was seen as so significant in Trendtex Trading. Once a rule of international law is accepted as part of the law of England there would be no great difficulty in recognising, and therefore accepting, a change in that rule provided that the change was established by evidence and was not inconsistent with legislation, the common law or public policy. On that view, the same result in Trendtex Trading could have been reached by applying the principles established in Keyn and accepted in Chung Chi Cheung.
110 The role of international law was considered in the recent Pinochet extradition case: see R v Bow Street Metropolitan Stipendiary Magistrate; Ex parte Pinochet (No 3) [1999] 3 WLR 827. That case involved a determination of the validity of an extradition request by a Spanish Court of Senator Pinochet for alleged crimes committed during his period in office in Chile from 1973 to 1990. Pursuant to the Extradition Act 1989 (UK) the acts for which Pinochet was accused, were required to be a crime in both Spain (the requesting state) and the United Kingdom. One of the primary issues that arose was whether the definition of an "extradition crime" required the alleged conduct to be criminal under United Kingdom law at the date of its commission, or at the date of the extradition request. The issue was significant as extra-territorial torture only became a statutory offence in England upon the enactment of the Criminal Justice Act 1988 (UK). Thus, the outcome of the issue had the potential to severely limit the number of crimes for which Pinochet could be extradited.
111 In the result, the House of Lords held that in order for a crime (in this case, torture committed extraterritorially) to be extraditable under the Act, it had to have been a crime in both the requesting State and the United Kingdom at the time the offence was committed. As extraterritorial torture had only been made an offence in 1988 by the enactment of the Criminal Justice Act 1988, the extraditable offences were limited to those committed after 29 September 1988. Accordingly, the alleged offences of torture and conspiracy to torture prior to that date were held not to be extraditable offences as they were not crimes in the United Kingdom at the time they were committed.
112 Although it was accepted that torture was a universal crime under international law prior to the enactment of the Criminal Justice Act 1988 (UK) (see Pinochet at 841-842 per Lord Browne-Wilkinson, at 881 per Lord Hope, at 897-898 per Lord Hutton and at 910 -912 per Lord Millett) the decision in Pinochet that extraterritorial torture was not a crime in England prior to its enactment as a crime in 1988 appears to afford strong support for the legislative adoption approach contended for by the respondents.
113 One would have expected that whether the universal crime of torture (wherever committed) under international law was part of the law of England prior to the creation of the statutory offence, as from 29 September 1988 under the Criminal Justice Act 1988 (UK), was critical to determining whether extraterritorial torture committed prior to 29 September 1988 was an extraditable offence. However, surprisingly, in Pinochet it was not suggested by any party that before s 134 of the Criminal Justice Act 1988 came into effect torture committed outside England was an offence under English law: see Pinochet at 833 per Lord Browne-Wilkinson.
114 It was in that context that only Lord Millett considered whether extraterritorial torture was incorporated as part of the law of the United Kingdom prior to that date. Lord Millett (at 911-912) expressed his conclusion on that issue as follows:
"In my opinion, crimes prohibited by international law attract universal jurisdiction under customary international law if two criteria are satisfied. First, they must be contrary to a peremptory norm of international law so as to infringe a jus cogens. Secondly, they must be so serious and on such a scale that they can justly be regarded as an attack on the international legal order. Isolated offences, even if committed by public officials, would not satisfy these criteria. The first criterion is well attested in the authorities and textbooks: for a recent example, see the judgment of the international tribunal for the territory of the former Yugoslavia in Prosecutor v Furundzija (unreported), 10 December 1998, where the court stated, at para 156:
'at the individual level, that is, of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every state is entitled investigate, prosecute, and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction.'
The second requirement is implicit in the original restriction to war crimes and crimes against peace, the reasoning of the court in the Eichmann case and the definitions used in the more recent conventions establishing ad hoc international tribunals for the former Yugoslavia and Rwanda.
Every state has jurisdiction under customary international law to exercise extraterritorial jurisdiction in respect of international crimes which satisfy the relevant criteria. Whether its courts have extraterritorial jurisdiction under its internal domestic law depends, of course, on its constitutional arrangements and the relationship between customary international law and jurisdiction of its criminal courts. The jurisdiction of the English criminal courts is usually statutory, but it is supplemented by the common law. Customary international law is part of the common law, and accordingly I consider that the English courts have and always have had extraterritorial criminal jurisdiction in respect of crimes of universal jurisdiction under customary international law."
115 Trendtex Trading was considered by Lord Phillips but only in the context of state immunity from civil suit. On the question of universal jurisdiction, contrary to the view of Lord Millett, Lord Phillips (at 923-924) said:
"I believe that it is still an open question whether international law recognises universal jurisdiction in respect of international crimes - that is the right, under international law, of the courts of any state to prosecute for such crimes wherever they occur. In relation to war crimes such a jurisdiction has been asserted by the State of Israel, notably in the prosecution of Adolf Eichmann, but this assertion of jurisdiction does not reflect any general state practice in relation to international crimes. Rather, states have tended to agree or to attempt to agree, on the creation of international tribunals to try international crimes. They have however, on occasion, agreed by conventions, that their national courts should enjoy jurisdiction to prosecute for a particular category of international crime wherever occurring."
116 As Pinochet's case itself demonstrates, the issue of the adoption of universal crimes as part of the domestic law of Nation states is not a moot point. In Australia, as a result of the double criminality rule in extradition (see s 19(2)(c) of the Extradition Act 1988 (Cth)) the issue in Pinochet could well arise in respect of universal crimes, including genocide if the crime does not directly involve conduct that is an extraditable offence of Demjanjuk v Petrovsky 776 F.2d 571 (1985) at [14, 15].
117 Under the current state of the English authorities, as a result of Trendtex Trading, the incorporation approach seems to be the preferred view but it is an open question as to whether that will be the view which prevails if and when the issue arises for decision in the House of Lords: see I Congreso del Partido at 261-262 per Lord Wilberforce.