Polyukhovich v The Commonwealth of Australia

[1990] HCATrans 207

M	.i,, AUSTRALIA,..:'	;
--»>	)3 ~.~'-....

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No AS of 1990

B e t w e e n -

IVAN TIMOFEYEVICH POLYUKHOVICH

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

and ROBERT WILLIAM REID

Defendants

Question reserved for

consideration of the Full Court
pursuant to section 18

Judiciary Act 1903

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

MCHUGH J

Polyukhovich(3) 96 4/9/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 4 SEPTEMBER 1990, AT 10.17 AM

(Continued from 3/9/90)

Copyright in the High Court of Australia

MASON CJ: Yes, Mr Burmester?

MR BURMESTER:	If the Court pleases, at the conclusion of yesterday I was dealing with other examples of
State practice which, in our submission, supports
the existence of an international obligation to
search out and bring to trial war criminals. I had
mentioned that a number of States had enacted legislation and that that was set out in a separate
volume of materials.

If I can turn now to some further additional

evidence and that is the fact that a number of

States have actually brought alleged war criminals

to trial. Some States, such as Canada, the Federal

Republic of Germany, France and Israel, have brought prosecutions under their municipal law in municipal courts. There are examples of the

prosecution of Klaus Barbie in France and

Imre Finta in Canada. In the United States, on the

other hand, we have seen examples of the

extradition of alleged war criminals, such as,

Mr Demjanjuk to countries concerned where the

person has been put on trial and I refer you,

without taking you to it, to two articles
reproduced in volume III of the materials from the

Virginia Journal of International Law which sets

out some of that practice and, particularly, the

United States practice.

I would also refer you to the case of Reg v

Finta, (1989) 61 DLR (4th) 85, which is also set

out in the materials at volume II, page 126.	You
will find in that case a consideration of the

constitutionality of the Canadian legislation but I

do not think it is necessary for me to, at this

stage, take you to particular sections of the judgment; I will do that at other appropriate

points but it contains a wide-ranging discussion of

the question of war crimes and the punishment of

war criminals since World War II.

As well as these examples of actual

prosecutions, there have been in a number of
countries the establishment of inquiries in
recognition and in conformity with that aspect of

the obligation which we say requires States to

search out war criminals. And in 1979 the United

States established the office of special investigation which since then has investigated the

presence of war criminals within the United States.

In Canada, we had the Deschenes inquiry

established in February 1985. In the United

Kingdom, the Hetherington inquiry was appointed in

February 1988 and in Australia itself, the Menzies

inquiry was appointed in 1986 and that led,

Polyukhovich(3) 97 4/9/90

ultimately, to the enactment of the Act with which

we are concerned.

I also understand that in New Zealand an

inquiry has been established to inquire into the

possible presence of war criminals, in that

territory.

This practice, in our view, is widespread and

supports the existence of an obligation to search

out and to bring to trial war criminals. What

varies in the practice of States is the means

chosen to fulfill that obligation. Thus, Canada

has chosen to try alleged war criminals in its own

courts; the United States has chosen extradition

and deportation.

The circumstances which have given rise to the

various enactments and the prosecutions and the
inquiries are well known and evidence before the

material before the Court. When one looks at that

set of practice and the practice that I put before

Your Honours yesterday, it seems that one cannot

explain this practice in any other way than that it

is based on a sense of obligation, that States feel

once there is allegations made that war criminals

are in their territory, that they should in fact

take steps to inquire and to bring to justice such

war criminals.

So, in 1990 one still finds States taking

seriously the need to inquire; to search and to

bring to trial alleged war criminals. It is very

hard, also, to ignore the explicit calls by the
United Nations and the statements by the United

Nations of the existence of an obligation on States

to take action in relation to war criminals.

The existence of the rule of international law

that I have described can also be supported by the

writings of jurists which you will recall is a

subsidiary source of international law within the

meaning of the Statute of the International Court,

and I refer you to the references on page 12 of our

written submissions without taking you to them.	I
would, however, take you to one additional reference, and that appears in volume IV, that is
the thin black bound volume, and it is an article
by Professor Green called International Crimes and

the Legal Process, and at pages 102 and 103 of that

volume starting down the bottom of the page, I

would read what he has to say:

Closely connected with genocide and the

traditional war crime are crimes against

humanity, over which it would seem that every

country enjoys jurisdiction. To the extent

Polyukhovich(3) 98 4/9/90

that all are responsible for upholding the

rule of law on the international plane, it may

well be argued that any country failing to try

any person within its territory against whom

prima facie evidence of such an offence exists

is itself in breach of its international

obligations.

This confirms the obligation which we say exists.

Professor Green then goes on to discuss some of the

difficulties that may exist on the international

plane in one State taking another State before the

international court in relation to this obligation,

but I do not think that detracts in any way from

the clear statement made there.

Your Honours, I think before concluding this section on obligation, I do need to say a little

bit more about the psychological element or the

opinio juris that is required in order to reach a

conclusion that an obligation exists. You will

recall yesterday I referred to the existence of two

elements that make up customary law: general

practice and acceptance of that practice as

obligatory and as a matter of law.

The plaintiffs in their written submissions

refer to two international court cases: the North

Sea case and the Nicaragua case, and these are said

to emphasize the need to establish opinio juris as

a necessary element of custom. In our submissions,

however, where there is a situation involving

widespread consistent State practice, which we

submit exists in this case, the need to establish

opinio as a separate element is much reduced.

In the North Sea case, which one finds in

volume IV of the materials, at page 126, if I can

take Your Honours to that, the court was concerned

with whether a rule in a treaty which had only

recently been concluded had the status of customary
international law.	So they were concerned with

whether a rule had emerged fairly recently and

rapidly through the conclusion of a treaty, and in

paragraph 73, on the bottom of page 127, you will

see the court says:

it might be that, even without the passage of

any considerable period of time, a very

widespread and representative participation in

the convention might suffice of itself,

provided it included that of States whose

interests were specially affected.

It seems, Your Honours, that the plaintiffs

wish to use statements like that to argue that

there is some separate requirement to demonstrate

Polyukhovich(3) 99 4/9/90

necessarily the case. the opinio juris, but in our submission that is not

BRENNAN J: It would be curious, would it not, if the

opinionis ..... ,or whatever the plural may be, did

not keep in step with international practice, would

it not?

MR BURMESTER: It would, Your Honour, and if there is

widespread consistent practice, then the
requirement to show as a separate element opinio

is, in a sense, embraced within the evidence that shows the widespread practice. It is only in the

difficult cases where you have inconsistent State

practice, where you have a perhaps recently emerged

rule and the argument is whether it has really been

accepted as a rule that this need to establish

opinio emerges. In our case the authorities

submitted by the plaintiffs do not alter that

contention.

If I can perhaps show you the way in which

some of the writers deal with the matter; if I can

take you to Professor Brownlie in volume III at

page 91 of the materials - the green bound volume -

and the middle right-hand column,

Professor Brownlie says:

there are two methods of approach -

to this practice of determining opinio. He says:

In many cases the Court is willing to assume

the existence of an opinio juris on the basis

of evidence of a general practice -

Only in a -

minority of cases the Court has adopted a more

rigorous approach and has called for more

positive evidence -

and we would submit that those minority cases are

situations where there is inconsistent State

practice where there may be a newly emergent rule

but not, as in our particular situation, where we

have a long established and well established set of

practice. I would also hand up to the Court an

extract from Professor Greig's book on

International Law where he also discusses this

issue and at page 18 of that extract he says, at
the top of the page:

What amounts to state practice for the purpose of creating a customary rule of international

law, and the extent to which it would also be

necessary to establish the "psychological"

Polyukhovich(3) 100 4/9/90

element, will depend entirely on the

circumstances of the case.

And then he gives an example of the "local

remedies" rule and in relation to that rule he

says:

This rule is supported by such a wealth of

practice that there would be no need for a

state relying on it to show any "acceptance"

of the practice as a rule of law.

And then going on about the middle of page 18: where state practice establishing the rule

contended for is lacking, or ambiguous, the

psychological element will assume greater

significance.

Now, Your Honours, in our contentions we do

not have a situation where there is State practice

that is lacking or ambiguous. We would argue that

it is all consistent with only one explanation and

that is that there is an obligation in the terms

contended for.

Your Honours, at this stage I would like to say a little bit more about the sufficiency of the

evidence that is required by this Court to sustain

the contentions of the Commonwealth. I have sought

in the material placed before you to show that Australia does, in fact, have an obligation at international law to search out and bring to trial

persons alleged to have committed war crimes. But

I accept that international law does have inherent

complexities and uncertainties. However, in our

contention it is sufficient if the Court determines

that it is reasonably open to the Parliament to

conclude that such an obligation to bring alleged

war criminals to justice exists.

I would refer you to Richardson v The Forestry

Commission, (1987-1988) 164 CLR 261 at page 295, and there in a joint judgment by Your Honour the

Chief Justice and His Honour Justice Brennan, at

the bottom of the page, the following is said:

The power extends to support a law required to discharge a treaty obligation which is known

to exist and also a law which is required to

ensure the discharge of a treaty obligation

which is reasonably apprehended to exist.

And, Your Honours, we would say the same principle

applies in relation to a customary law obligation.

It is sufficient for constitutional purposes if it

can reasonably be apprehended to exist.

Polyukhovich(3) 101 4/9/90

DAWSON J:  What exactly is the international law that you

say exists, the duty to search out and bring to

justice by one means or another?

MR BURMESTER: That is correct, Your Honour. That, so far

as there is an obligation in international law, all

that the Court need do is satisfy itself that it

can reasonably be apprehended to exist as an

obligation in international law, so if there is,

perhaps -

DAWSON J:  So that we have been in breach of international

law for some time prior to this legislation?

MR BURMESTER:  No, Your Honour, I do not think that would be

the situation. Once we became aware of the

presence of war criminals in our territory we had

an inquiry and, following that inquiry, took steps

to - - -

DAWSON J: But the law is to search out; we did not do
anything for a long time, did we?

MR BURMESTER: But, Your Honour, if one is not aware as to

presence of war criminals or the need to take

particular action, I do not think you can say that

a State is in breach of its obligations and whether

it is in breach of its obligations at international
law is not a matter that goes to the validity of

the legislation today.

DAWSON J:	No, I am not suggesting that.
MR BURMESTER:	It is rather whether the legislation is

supported by an existing obligation.

BRENNAN J:  Mr Burmester, that passage that you referred to

in Richardson v The Forestry Commission was

concerned with an obligation which was apprehended

by reason of the application of a known obligation

to dubious domestic facts, not a question of a

dubious obligation being applied.

MR BURMESTER:  Your Honour, the only reason I was referring

Your Honours to it was to suggest that one did not

have to prove beyond absolute doubt the existence

of an international law obligation in order to

sustain laws enacted on the basis of that

obligation. It is in the realm of international

law, one may be in a realm of some uncertainty and

in customary law that may be a little greater than
in the area of treaty law, although I would submit

that difficult questions of interpretation arise in

relation to treaties just as in relation to

customary obligations.

Polyukhovich(3) 102 4/9/90

But matters of customary international law do

inevitably depend on matters of opinion, matters of

degree. They, perhaps, are not unlike the

speculative matters which were referred to

Stenhouse v Coleman by Justice Dixon, 69 CLR 457

to 470, where he is talking about the defence

power.

But if I can perhaps refer you to another case

where the members of the Privy Council were

grappling with the question whether an

international law obligation exists and suggest

that that indicates the task which this Court is

called upon to perform. In the case of re Piracy

Jure Gentium, (1934) AC 586, at 588 Lord Sankey

said:

Speaking generally, in embarking upon

international law, their Lordships are to a

great extent in the realm of opinion, and in

estimating the value of opinion it is

permissible not only to seek a consensus of

views, but to select what appear to be the

better views upon the question.

And if I can hand up some extracts from a book by

F.A. Mann, called Foreign Affairs in English

Courts, the extracts from pages 125 to 129 contain

extracts from a number of cases where English

courts have been faced with the task of determining

whether a particular customary international law

rule existed.

I emphasize that the cases referred to here

were not, of course, dealing with the same

situation as we are dealing with here. They were

essentially dealing with whether a particular

customary law rule had been incorporated into
domestic law, not whether a statute gives effect to

a reasonably apprehended obligation. But I think

what the extracts indicate is that there is, to a	certain extent, a matter of choice, that one has to	choose, in the words of Lord Sankey, what appear to
be the better views upon the question. And, we
submit, Your Honours, in this case that the
material before the Court is sufficient to enable
Your Honours to reach the conclusion as an
obligation as contended for exists.

Your Honours, that concludes my submissions on

the matter of obligation, however, I think it

appropriate at this stage to perhaps say a little

bit more about the actual definition of war crimes

and crimes against humanity in international law.

Some of this was canvassed yesterday and you will

recall the classic definition appears in article 6

of the Nuremberg Charter which is either at

Polyukhovich(3) 103 4/9/90

volume I, page 152, or I think the Solicitor handed

up article 6 on a separate page. And I would just

remind you of the provisions of article 6 defining

war crimes and crimes against humanity, it is in

volume I at page 152.

MASON CJ:  What page is that?

MR BURMESTER:  Page 152. You will see, Your Honours, that

-war crimes are defined as:

violations of the laws or customs of war.

And the definition then goes on to indicate some of

the sorts of crimes that would be included.	Among
them is murder:

murder ..... of civilian population ..... murder

or ill-treatment of prisoners of war -

and so on. Then:

Crimes against humanity -

also provides a lists of possible crimes -

murder, extermination ..... deportation, and

other inhumane acts committed against any

civilian population, before or during the war,

or persecutions on political, racial or religious grounds in execution of or in

connection with any crime within the

jurisdiction of the Tribunal.

And, as ·we contended yesterday, this definition in article 6 was in no sense an innovation in

international law but reflected, in our submission,
international law as it existed at the time.

What I want to do now is to indicate that the

individual offences that are listed there and the
circumstances in which they are committed are

reflected in the War Crimes Act itself.

MASON CJ:  Mr Burmester, are you covering the same ground

that the Solicitor-General was covering?

MR BURMESTER:  No, Your Honour, I am seeking to elaborate

the individual components that make up war crimes

and crimes against humanity. I am not seeking to

go over the ground about their existence in

international law or the recognition in

international law at the time.

If I can take Your Honours to the 1919 report

of the commission on the responsibility of the

authors of the war, in volume I at page 132 in the

Polyukhovich(3) 104 4/9/90

same volume, you see there a list of individual

crimes which in 1919 were considered as appropriate

to be charged as war crimes and you will see it is

an extensive list, pages 132 and 133. One can also

go to volume II at page 168 and compare the list of

crimes under the instrument of appointment under

the original War Crimes Act which was one of the

components of the definition of "war crime" in the

Act as originally enacted, and again, you see a

lengthy list of crimes based very closely on the

1919 list.

In section 6 of the War Crimes Act, we have

essentially taken the most serious of those
offences and said that they are serious crimes

under the War Crimes Act.

I also want to refer briefly to the sorts of

crimes that would come within section 6(l)(k) of

the War Crimes Act, the type of crimes that are not

committed by a person as a principle but in some

way associated with, or the carrying on, of war

crimes.

It would be our contention that international

law, in the same way as all domestic criminal law

systems, recognizes these associated offences.

Now, I can refer you to Control Council Law No 10

in volume III at page 185 as an example of the

sorts of associated crimes that were subject to

prosecution under that law. That is the green

volume, volume III at page 185, and in the middle

of the page there you see that that law defined

offences if a person committing them was:

(a) a principal or (b) was an

accessory ..... (c) took a consenting part

therein or (d) was connected with plans or

enterprises involving its commission or (e)

was a member of any organization or group

connected with the commission of any such

crime.

And as I indicated yesterday, we view that law not

just as the law of an occupying force, but as a law

that was also consistent with international law,

and the cases to which I referred yesterday would

support that contention.

If I can also draw your attention to volume I,

page 163, to the ILC draft articles, adopted in

1950, and principle VII at the bottom of the page

there:

Complicity in the commission of a crime

against peace, a war crime, or a crime against

Polyukhovich(3) 105 4/9/90

humanity as set forth in Principle VI is a

crime under international law.

And this work done by the ILC shortly after

the war crimes trials, I think, confirms the clear

recognition in international law that complicity

can also amount to a war crime. I refer you,

without taking you to them, to the 1986 draft

articles of the International Law Commission in

volume II, page 274, which also indicates in those

draft articles that conspiracy, complicity and

attempts are seen as appropriately covered within

the definition of crimes against peace and

humanity, and similarly, if one looks at the

Genocide Convention in volume I at page 88, one

also sees that these associated crimes are regarded

as appropriate for punishment.

And, in our submission section 6(l)(k)

reflects these well-established associated crimes

and in that sense should not be seen as in any way

to depart from the sorts of offences that could be

picked up and dealt with if they were in some way
associated with war crimes or crimes against

humanity.

Now, Your Honours, the one issue that I think

perhaps needs some further elucidation is the

connection required between the committal of a war

crime or crime against humanity, and the particular

conflict. War crimes, of course, are committed in

the course of war; they are committed by persons

under the orders or authority against persons on

the other side of a conflict. The laws and customs

of war are concerned to protect particular

categories of persons: prisoners of war, wounded

and sick, and also civilian persons, and it is

sufficient that there be some link to show that a

person is acting in the interests of a hostile or

occupying power to constitute a war crime, and if

one looks at the chapeau to. article VI of the

Nuremberg Charter, at page 152, again, of volume I,

you see it refers to:

persons who, acting in the interests of the

European Axis countries, whether as

individuals or as members of organizations,

committed ..... crimes.

So, the wording used there was, "acting in the

interests of", and in our submission, in order to
constitute a war crime, one needs only to show that

there is this sort of link that was - what one did

was in some way linked to the interests of the

hostile, belligerent or occupying power, and there

is not any need for a direct and substantial

connection as I understand the plaintiff contends.

Polyukhovich(3) 106 4/9/90

In relation to crimes against humanity, the necessary link with war has been a matter of some

difficulty. The key difference, as was pointed out

yesterday, between war crimes and crimes against

humanity, is that war crimes could not be committed

by a national of one State against persons of the

same nationality if there was not the necessary

link with the hostile or occupying power, but many

war crimes could also be crimes against humanity.

The notion of crimes against humanity was, however, not entirely new, and one can find references in

World War I documents to violations of elementary laws of humanity, and I refer you, without taking it, to the 1990 commission, at volume I, at

page 33, and for discussion of crimes against

humanity in the World War I context, I also refer

you to the article by Schwelb in volume II at

pages 194 to 197.

In the Nuremberg Charter itself one finds the

requirement that crimes against humanity be

committed -

"in execution of or in connexion with any
crimes within the jurisdiction of the

Tribunal".

As originally drafted, it was not clear whether

that qualifying phrase which appears at the end of

the definition of "Crimes against humanity"

qualified all crimes against humanity. The

original draft in English had a semicolon between

the word HwarH and "or persecutions", and so there

was an ambiguity. But in a protocol of

October 1945 the semicolon was replaced by the

comma and the significance was that for purposes of

trial by the International Military Tribunal the

qualification entailed by the words "in execution

of or in connexion with any crimes within the

jurisdiction of the TribunalH referred to the whole
text of article 6(c).	And one can find a

discussion of this if one wishes in the article by

Schwalb on crimes against humanity at pages 201 to

202 of volume II.

The requirement that crimes be committed in

execution of or in connection with any other crime

within the jurisdiction was intended to make clear

the special nature of crimes against humanity.

They were not ordinary domestic crimes. Hence a

murder in occupied Ukraine of one Ukrainian by

another Ukrainian at the local hotel as a result of

a drunken brawl would not amount to a crime against

humanity. Some additional connection would be

needed before it could become such a crime at

international law. Under the Nuremberg Charter

Polyukhovich(3) 107 4/9/90

that connection was provided by showing a link with

the planning, preparation or waging of an
aggressive war, or a link with the well-established

crime of the violation of the laws and customs of

war.

This led Schwelb in his article, to which I

have made reference and perhaps I will take you to

the relevant passage - this is in volume II at
page 220 - to describe crimes against humanity in

these terms:

The crime against humanity, as defined in the

London Charter, is not therefore the cornerstone of a system of international criminal law equally applicable in times of

war and of peace.

And then at the middle of the page he says:

It is, as it were, a kind of by-product of war

applicable only in time of war or in connexion
with war and destined primarily, if not
exclusively, to protect the inhabitants of

foreign countries against crimes committed, in

connexion with an aggressive war, by the

authorities and organs of the aggressor state.

It serves to cover cases not covered by norms

forming part of the traditional 'laws and

customs of war'. It denotes a particular type

of war crime -

and then the last sentence of that paragraph:

As defined in the Nuremberg Judgment, the

crime against humanity is an 'accompanying' or

an 'accessory' crime to either crimes against

peace or violations of the laws and customs of

war.

If this relevant connection exists, then, in

our submission, that suffices for an individual

murder committed against a civilian to amount to a

crime against humanity. However, that does not

completely describe the category of "crime against

humanity". One can see that there are certain

special types of crime against humanity and one can

identify as, I think, the Solicitor did yesterday,

the extermination-type crime or the

persecution-type crime.

Now, the extermination or genocide-type crimes

are, in our submission, international crimes in

peace as well as war and no direct connection with

the waging of aggressive war or the committing of

other war crimes is required and if I can hand to

the Court a further United Nations' resolution,

Polyukhovich(3) 108 4/9/90

resolution 96(1) which was passed immediately after

the resolution 95(1) which I took Your Honours to

yesterday, which affirmed the Nuremberg principle.

resolution 96(1) is headed, "The Crime of

Genocide", and in this resolution the General

Assembly unanimously states that:

The punishment of the crime of genocide is a

matter of international concern.

and -

The General Assembly, therefore, affirms that

genocide is a crime under international law.

Your Honours, in our contention, this supports the view that genocide was a crime at international

law whether or not there was a link with other war

crimes as required under the particular wording of

the Nuremberg Charter. One can also find support

for this proposition in the Altstoetter case at

volume II, page 38, and if I can take Your Honours

to that case as I think it provides some useful

insights into the notion of crimes against

humanity. That case, of course, arose under

Control Council Law No 10 which did not contain the

same limitation that acts had to be committed in

connection with other war crimes or crimes against

peace.

BRENNAN J:  Mr Burmester, before you go to that, this

resolution 96(1) has a request for the drawing up

of a draft convention. Was one drawn up?

MR BURMESTER:  Yes, Your Honour. The Genocide

Convention 1948 came out of this resolution and we

would say that what that did was to put on a

conventional basis what was clearly recognised as

already a crime at customary international law.

BRENNAN J:  And would not this resolution be subsumed within

that convention?

MR BURMESTER: Well, Your Honour, the purpose of submitting

this resolution to you is to show that at the time

the alleged acts in question here took place during

World War II, that it was legitimate to say that

they were crimes at international law at that time

and that the fact that shortly after the war the

General Assembly unanimously affirmed that genocide

is a crime under international law highlights the fact that in relation to those extermination-type

crimes against humanity, one does not necessarily

need a link with another war crime or crime against

peace.

Polyukhovich(3) 109 4/9/90

BRENNAN J:  Did the convention descend to particulars in the

definition of "genocide"?

MR BURMESTER:  Did the convention - I am sorry, Your Honour?

BRENNAN J: Give particulars of the definition of

"genocide".

MR BURMESTER:  Yes, Your Honour. The Genocide Convention is

in the materials.

BRENNAN J: Is that something which we need to look at in

order to understand what is meant by "genocide"?

MR BURMESTER:  Your Honours, it may be convenient if I take

you to that. It is at page 87 of volume I and you

will see, in article II on page 88, a definition of

what "genocide" is. Now, Your Honour, we would

submit that the sorts of extermination-type crimes

dealt with in section 3 of the War Crimes Act

clearly fall within that definition. They may not,

in fact, deal with all aspects of it; in fact, I

would say it is probably a narrower component of

the definition but that was the definition in 1948

in the convention. When the general assembly

affirmed that the crime of genocide was a matter of

international concern in 1946, having just at the

same session affirmed that the principles of

Nuremberg were a matter of international law, we would suggest that they clearly had in mind these

extermination-type crimes against humanity and

there is no suggestion that those crimes need to be

connected in some way with other war crimes.

Your Honour, that is confirmed by the

Altstoetter case, at volume II at page 88. As I

was explaining to Your Honours, that tribunal was

not proceeding under the Nuremberg Charter but

under Control Law Council No 10 and so it did not

have this limitation about "committed in the

execution of another war crime" and yet the

tribunal is obviously concerned not as a

consequence to pick up under its purview any

ordinary, domestic crime.

You will see, in the second-half of the

left-hand column of page 88, this concern.	They
say:

It is not the isolated crime by a private

German individual which is condemned, nor is

it the isolated crime perpetrated by - - -

DAWSON J:  What volume is it?

TOOHEY J: It is page 38, Mr Burmester.

Polyukhovich(3) 110 4/9/90

MR BURMESTER: Sorry, page 38, the page numbering is a

little faint on my copy, I apologize.	Page 38,
left-hand column:

" ..... It is not the isolated crime by a

private German individual which is condemned,

nor is it the isolated crime perpetrated by

the German Reich through its officers against

a private individual ..... The provision is

directed against offences and inhumane acts

and persecutions on political, racial, or

religious grounds systematically organised and

conducted by or with the approval of

government."

If you then go down to the last passage on that

left-hand column:

"We hold that crimes against humanity ..... must

be strictly construed to exclude isolated

cases of atrocities or persecutions whether

committed by private individuals or by a

governmental authority.

And, over on the right-hand column you see them,

however, saying that crimes against humanity that

fall within this notion of "atrocities" were

clearly violations of international law and they

particularly cite "genocide".

One can understand this attempt, or this

reason, to exclude the isolated act because what

these war crimes tribunals were concerned to do was
to deal with crimes of such grave international

concern that they could not be left within the

jurisdiction of the State that would normally have

control over the offence under ordinary

circumstances. If the only offence was an act by

one German against another German without any

element of extermination or persecution on

political, racial or religious grounds, then it was

not regarded as an international offence.

I have sought to show that the

extermination-type crimes could clearly be

committed and were committed as crimes at

international law whether or not there was any

particular link with the committing of a war crime

in the narrow sense. The Commonwealth would also

submit that, on reflection, one can say the same

about persecution-type offences, that they also
need not be directly linked to or carried out in

execution of the conduct of war or a war crime

narrowly defined.

If, however, such a connection with war is

required, we would submit that it can be presumed

Polyukhovich(3) 111 4/9/90

to exist from the mere fact that the act is

committed in Europe during World War II. The facts

surrounding these extermination and persecution-

type crimes are notorious and need no elaboration

and I would refer you to Schwelb in his article at
volume II, page 218 at the bottom where he says:

If the commission of an inhumane act charged in the Indictment took place during the war, its connexion with the war was presumed by the

Tribunal.

In our submission, that is sufficient to constitute

extermination or persecution-type crimes, crimes

against international law.

Your Honours, I do not propose to go in detail

work crimes against humanity but I think the work done

through the of the International Law

in that body is helpful and does confirm the

submissions that I have just made. I would refer

you briefly, without taking you in detail to them,

to the various elaborations in the International

Law Commission. When the ILC first looked at the

issue in 1950 they simply formulated a definition

of crimes against humanity which mirrored very

closely the Nuremberg definition and one can find

that in volume I, page 163. In 1954, however, when
they adopted a code on offences against the peace

and security of mankind, one sees specific mention

being made of extermination-type offences and
persecution-type offences.

In volume II again, at page 267, one can see

the 1954 code setting out in article 2(1) the
extermination-type offences and in article 2(11)

the persecution-type offences. You will see that

there is no requirement that to commit such crimes
they must be committed in conjunction with or

directly in execution of a war crime.

More recently, the International Law

Commission has returned to the question of crimes

against peace and security and in 1986 the

rapporteur produced some draft articles which can

be found in volume II at page 273 and here we have

clearly again recognized genocide, apartheid, which

we are not concerned with here, and inhumane acts

committed against elements of a population on

social, political, racial, religious or cultural

grounds being suggested as a crime against peace

and, similarly, on page 290, one finds in a further report by the rapporteur a reformulation in similar

terms of the three types of crimes against

humanity.

Polyukhovich(3) 112 4/9/90

If I can just also commend to you the

commentary that accompanies the 1989 draft articles

prepared by the rapporteur. From page 290 onwards

the commentary seeks to explain the background and
the rationale that lies behind the recognition by

international law of crimes against humanity as

worthy of punishment and, Your Honours, we would

say that the work of the ILC confirms us in our

contentions that persecution and extermination-type

crimes need not be directly linked with the
commission of another war crime in order to amount

to crimes at international law.

Your Honours, we would say that this position at international law is reflected in section 7 of

the War Crimes Act. Section 7(1) deals with the

individual war crime in the narrow sense and crimes

against humanity committed directly in the course of the war or occupation, picking up the words of

section 7(1). Section 7(3), on the other hand,

deals with the persecution and extermination-type

crimes against humanity and, as we have suggested,

except for the fact that they were committed while

a country was occupied, is sufficient to make them

offences at international law as we have contended.

The wording of section 7 clearly would exclude

the private domestic offence. The individual

murder committed with no connection with

hostilities or war would clearly be excluded from

section 7(1) and in section 7(3), unless one can

show the necessary course of conduct, that it was

in the course of political, racial or religious
persecuti9n, or the necessary intent, that it was

done with intent to destroy in whole or in part a

national, ethnic, racial or religious group, then
the ordinary single individual domestic crime would

not fall within those sections.

So, Your Honours, in our submission, that

the international law definitions of war crimes and	suggests that section 7 is mirrored very closely on
crimes against humanity.

Your Honours, I turn now to the next

submission by the Commonwealth which is that if you

.1	do not consider that an international obligation
exists, then nevertheless the Act is a valid
exercise of the external affairs power as it constitutes the exercise of a right conferred on
Australia at customary international law. That
right, we would contend, is a right conferred on
all States and it is a right to try any person
accused of war crimes and crimes against humanity -
in Australia it is ordinary criminal courts, if the
person is within one's jurisdiction, in one's

Polyukhovich(3) 113 4/9/90

territory, regardless of where the acts were

committed.

The recognition that a law which gives effect

to a right enjoyed by Australia at international

law is valid under the external affairs power is

consistent with statements previously made by this

Court and I refer in particular to the Tasmanian

Dam case, 158 CLR 123 and 124, where Your Honour

the Chief Justice made the following remarks - this

is the bottom line on page 123, going over on

to 124:

A provision in a treaty which is designed to

secure to Australia a benefit may be just as

much a matter of international concern,

possessing an international character, with a

potential to affect Australia's relationships

with other countries, as a provision in a

treaty which imposes an obligation upon

Australia.

And if I can go then to page 258, in the same case,
where Your Honour Justice Deane, at the bottom part

of the page had the following to say:

The establishment and protection of the

means of conducting international relations,

the negotiation, making and honouring ..... of

international agreements, and the assertion of

rights and the discharge of obligations under

both treaties and customary international law

lie at the centre of a nation's external

affairs.

Your Honour, we would submit, that in this case the

giving effect to a right which Australia possesses

at customary international law clearly, therefore,

lies at the heart of Australia's external affairs

and can be supported as a valid law on that basis.

In this particular instance, the Act is

implementing the right to punish offences which are

offences at international law and, in our
submission, this is not equivalent to the exercise
of a mere permissive right which each State

possesses at international law in the absence of

any prohibitive rule. In our submission,

international law positively confers a right on a international crimes. So, it is a special and

limited right that is being assertive, it is not a submission that relies on a mere permissive right.

So when the plaintiff describes the defendant's

assertion that we have a right at international law

as clouding the true position, we will contend,

Your Honours, that that is not, in fact, the

Polyukhovich(3) 114 4/9/90

case,that there is, in fact, a positive right

conferred at international law, and it is conferred
in relation to crimes of this particular category,
which are clearly recognised as international
crimes. If we were talking about the right to

prosecute some foreign person for some

non-international crime then it may be that all

Australia would be doing would be exercising some

permissive right. But, in this particular case, we

are talking about crimes at international law and,

as I shall come in a moment to show, the material

support that all States have universal jurisdiction

over such crimes and a right to try persons

wherever the offence was committed.

If I can take you, then, to illustrate this

proposition firstly, to page 260 of volume II,

where one sees an extract from the restatement of

the law of the American Law Institute,

paragraph 404 of the restatement on foreign

relations, and at page 261 the restatement says:

A state has jurisdiction to define and

prescribe punishment for certain offenses
recognized by the community of nations as of
universal concern, such as piracy, slave

trade ..... genocide, war crimes, and perhaps

certain acts of terrorism.

If one then goes to the commentary at the	bottom of
261 over on to 262, you see the rationale	for the
existence of this universal jurisdiction.	They
say:

Universal jurisdiction over the specified offenses is a result of universal condemnation of those activities and general interest in

cooperating to suppress them ..... These

offenses are subject to universal

jurisdiction as a matter of customary law.

BRENNAN J: What is the supporting authority for the

proposition that a State has jurisdiction to define

offences recognized by the community of nations?

MR BURMESTER:  Your Honour, we are saying that international

law defines the reach of international crimes. It

would provide the parameters within which one has

to determine whether something is a war crime or a

crime against humanity. If a State then, in its

own legislation, adopts and incorporates,

establishes crimes that are consistent with those

international law definitions and asserts

jurisdiction over any person wherever they are then

they are essentially exercising their right of
universal jurisdiction over those international

crimes.

Polyukhovich(3) 115 4/9/90

BRENNAN J:	By means of the definition in domestic law of those acts which are already defined as crimes by
international law?
MR BURMESTER:	Yes, Your Honour, but that does not mean that

a State is confined to saying that war crimes, as

defined at international law, are subject to
universal jurisdiction. It comes then to a

question of whether the way in which the domestic

law is drafted and the way in which it asserts

jurisdiction is consistent with the international

law definition and the international law

principles.

BRENNAN J: "Consistent with". That really means, "contains

the same elements as".

MR BURMESTER:  Yes, Your Honour.

BRENNAN J: Well, then, if there is no necessity for

definition because international law already

defines it and the problem is one merely of

jurisdiction to try because the accused is outside

the community of nations, then, why would there be any power to define for domestic purposes the same

crime?

MR BURMESTER:  Your Honour, international law may define

what is a crime at international law but in order

to incorporate that into Australian domestic law,

it is necessary for us by statute to give words and

meaning to that international definition. The fact

that international law says a crime against

humanity is an international crime does have no

direct effect in Australian domestic law. One

would need a statutory provision in order to
translate, to incorporate into Australian law that

international crime.

For instance, if I can take you to hijacking

which is seen by many as an international crime; it

is established under a number of treaties but, I

think, the principles can apply equally to

international crimes not established by treaties,

but what Australia does is that it enacts a special

piece of legislation which brings into Australian

law and defines in Australian law a crime in terms

that are consistent with the international crime

created by the international convention.

In this case, what we would submit we have

done is take the elements of an international crime
and put them into Australia and domestic law, and

that our assertion of jurisdiction over a person

who had no particular connection with Australia at

the time they were committed is consistent with the

right of universal jurisdiction in respect of those

Polyukhovich(3) 116 4/9/90

crimes. In that sense, Your Honour, I think it

goes to a question of whether the way in which the

legislation is drafted is appropriate - reasonably

appropriate, to give effect to the international

right. I do not think you can say that the fact
that something is an international crime at

international law means that the Parliament cannot

use its own words to describe for Australia and

domestic law purposes the way in which that offence

should be defined.

The question then is whether the way in which

I have done it is consistent with the international

law definition. Your Honour, just before I leave

that passage from the restatement, at the top of

page 262 I read out the last sentence of the

paragraph I was reading from:

A universal offense is generally not subject

to limitations of time.

And I think we have seen that confirmed in the fact that there are conventions dealing with the

non-applicability of any statutory limitations to

crimes against humanity and war crimes.

Further support for the existence of universal

jurisdiction can be found in an extract from

Williams and Castel's textbook at volume II,

page 246 of the materials, but I will not take

Your Honours to that. I would, however, refer you

to Professor Brownlie's book in the extract in

volume III, at page lOOG. He approaches the issue slightly differently from most commentators, and he

distinguishes between what he calls, "The universality principle" and "Crimes under international law", which he puts in a separate

category of its own. This is page 100G in

volume III, and he recognizes the special nature of

the jurisdiction exercised by States over crimes at

international law, and specifically gives as

examples war crimes and crimes against humanity.

The distinction he makes between matters over

which a State merely exercises universal

jurisdiction and crimes at international law is not
necessarily made by other writers, it does,
however, highlight, in our submission, the positive

as opposed to the permissive nature of the right

being contended for in this case. And if I can

also refer you, without taking you, to

Professor Brierly in volume II, at page 258. He

makes it quite clear that the jurisdiction created

by the laws of war and by analogy, crimes against

humanity, is not territorial, it is essentially a

universal jurisdiction reflecting the special

nature of the offence.

Polyukhovich(3) 117 4/9/90

A further support for the existence of universal jurisdiction can also be found in

judicial decisions and I would refer particularly

to the Finta case, the Canadian case, which appears

in volume II, at page 125, and at pages 147 to 149

of the judgment - pages 147 to 149 of volume II -

one sees a discussion of the universal jurisdiction

principle, and a quick turn of those few pages

from 147 to 149 shows you the sorts of authorities

that that court relied upon to reach the clear

conclusion that universal jurisdiction existed as a
matter of international law, and supported the

trial by Canada of a person who did not commit the

crimes in question in Canada.

The Eichmann case, back at page 71 of the same

volume, also deals with this question of universal

jurisdiction, and at page 71 in the right-hand

bottom column, you will see the court saying:

there is full justification for applying here

the principle of universal jurisdiction since

the international character of "crimes against

humanity" (in the wide meaning of the term)

dealt with in this case is no longer in

doubt -

and they explain the reason for the existence of

this universal jurisdiction. They say -

the basic reason for which international law

recognizes the right of each State to exercise

such jurisdiction in piracy

offences ..... applies with even greater force

to the above-mentioned crimes.

So just as there is universal jurisdiction in

relation to piracy so, Your Honours, we would

submit there is universal jurisdiction in relation

to war crimes and crimes against humanity.

Going over on to page 74 of that same case in

the materials, the Court concludes:

The State of Israel therefore was entitled,

pursuant to the principle of universal
jurisdiction and in the capacity of a guardian

of international law and an agent for its

enforcement, to try the appellant.

I think this brings out the rationale that lies

behind the existence of this clear right at

international law.

I would also refer you, without taking the

Court to them, to the two Demjanjuk cases from the

Polyukhovich(3) 118 4/9/90

United States which are reported in volume II of

the materials.

The existence of universal jurisdiction is

also confirmed by the Geneva Conventions in

articles 146 to which I think I drew Your Honours'

attention yesterday. Each State is authorized

under that article to bring war criminals before

its own courts regardless of the nationality of the

person. One can also see it confirmed in the

various ILC articles, and I refer particularly to

the 1988 articles at volume II, page 270.

And finally, Your Honour, in relation to

universal jurisdiction may I say just a few more

words about the Genocide Convention which, in our

submission, does not detract from the proposition

that I have been making. That convention, as I

think I indicated yesterday, does contain only

provision for the exercise of jurisdiction by the

territorial State. But as I submitted yesterday,

that is not an exhaustive statement of the right that a State may have under that convention, and

can in no way be seen to detract from or impair the
customary international law right which States may

have in relation to genocide. Surely it cannot be

contended that there is a more extensive obligation

or right in relation to war crimes in the narrower

sense than the even more horrendous crime of

genocide. I think part of the explanation for the

provision in the Genocide Convention may be that

there was thought of an international tribunal

perhaps being given jurisdiction, but in our

submission there is nothing in the words of the

Genocide· Convention that should be seen as

detracting from the otherwise widespread and well

accepted right of universal jurisdiction at

international law.

Your Honours, that concludes my submission on

the exercise of a right at international law. If I

can move briefly to two remaining issues, and that

is, the question of international resolutions and

recommendations and international concern.

I will take first the question of

international resolutions and recommendations, and

this is dealt with briefly on page 29 of our

written submissions. The proposition we would put

simply is that the Act is also valid because it

conforms to or observes the spirit of the

resolutions and recommendations of the United

Nations and other bodies; and it pursues the

international objectives of those resolutions and

recommendations, even if they do not amount to

binding obligations by providing for the trial in

Polyukhovich(3) 119 4/9/90

Australian courts of persons alleged to have

committed war crimes in Europe.

Now, Your Honours, yesterday I took you

through the various resolutions and I sought to

contend that they clearly established an

obligation. But even if you consider they do not

establish obligation, in our contention, the fact
that these resolutions have been passed, that they

have called upon States to take action to fulfill

their responsibilities, provides sufficient basis

for the legislation. And, in support of that

contention, the written submissions set out some

references to cases. For present purposes I

perhaps go simply to the statement in the Tasmanian

Dam case by Your Honour Justice Deane, on page .258

at the bottom of the page, you say that:

It is, however, relevant for present purposes

to note that the responsible conduct of

external affairs ..... will, on occasion,
require observance of the spirit as well as

the letter of international agreements,

compliance with recommendations of

international agencies and pursuit of
international objectives which cannot be

measured in terms of binding obligation.

And Your Honour goes on, in that same passage, to

refer to the well known statement in the

Burgess case, by Justices Evatt and McTiernan, that

the external affairs power may well be deemed

competent to enable the carrying out of

recommendations and draft international

conventions.

Your Honours, if I can then turn to the final issue, and that is the question of international

concern and, we would submit that even if the Court

is not satisfied as to the existence of an

obligation or a right at international law to deal

with the bringing to trial of war criminals, there	is a further basis for the validity of the
legislation and this is established by the fact that the bringing to trial of persons alleged to
have committed war crimes during World War II is
still very much a matter of present international
concern either, because the matter is one of
international debate, discussion and negotiation or
it is of a kind which affects, or is likely to
affect, Australia's relations with other nations.
In our contention, the Act clearly meets that
concern in light of an inquiry that has indicated that there may be a significant number of alleged
war criminals in Australia.

Polyukhovich(3) 120 4/9/90

If I can refer you briefly to the cases on

this matter, one finds Your Honour Justice Dawson

in Richardson v The Forestry Commission,

164 CLR 322, saying the following and this is at

the middle of the page:

As I read the judgments of the majority -

in the Tasmanian Dam case that is -

it is enough to attract legislative power if,

even though there is no treaty, a subject

matter is of sufficient international concern.

However, Your Honours, if you turn to look at some

of the passages in other cases there appear to be

two particular approaches as to whether a matter is

one of international concern, either of which, we
would say, supports the validity of the legislation
in the present case. In the Koowarta case,

153 CLR 234, Your Honour the Chief Justice said:

that a matter which is of external concern to
Australia having become the topic of
international debate, discussion and
negotiation constitutes and external affair
before Australia enters into a treaty relating
to it.

And a similar thought was expressed by Your Honour

the Chief Justice in the Tasmanian Dam case at

158 CLR 124 and 125.

The other approach to whether a matter of

international concern can be reflected in judgments

by Your Honour Justice Brennan. In the Koowarta

case, 153 CLR 258, Your Honour said:

When a particular subject affects or is likely to affect Australia's relations with

other international persons, a law with

respect to that subject is a law with respect

to external affairs.

And, in the Tasmanian Dam case, 158 CLR 220, one

sees a similar thought expressed.

Now, Your Honour, the Commonwealth submits

that on either of these bases, that is, either that

there is a matter of international negotiation,

discussion and debate or that a matter is one which

affects or is likely to affect Australia as with

other nations, we would submit that the War Crimes

Act must be valid. I have taken you through a

considerable body of material and I have no

intention of going through that material again.

However, Your Honours, I would submit that it

Polyukhovich(3) 121 4/9/90

clearly shows that there is current international

concern that would justify legislation of the type in question.

The punishment of alleged war criminals was

Court will see from a collection of legislation

which we have assembled two things: (1) that a
number of countries which could be expected to have

an interest in this area do have legislation on

foot enabling the prosecution of people, even at

this time, for the commission of war crimes during

the period of the Second World War. We have

isolated some 10 examples, (1) is not legislation

it is a bill - the United Kingdom bill - but we use

that to further the argument about international

Polyukhovich(3) 187 4/9/90

concern. We note that most of those countries do

not limit jurisdiction to the territorial doctrine.

They do not require the person who is to be

prosecuted be prosecuted in a place where the

offence was committed. France is an exception to

that; Germany, for example, prosecutes regularly

persons, Germans normally, who have committed war
crimes outside of Germany and could we conclude our
submissions simply by handing to the Court some

copies of requests - recent requests from Germany - demonstrating that they are still in the process of prosecuting these cases and that these are cases of

war crimes and crimes against humanity committed

outside of Germany.

Could we finally just say that if the Court

goes to the last few pages of our written
submissions, the Court will find an up-to-date
statement, in statistical form, of the number of

prosecutions which have been undertaken in Germany

and the number of deportations which have been

undertaken in the United States since the OSI came

into existence in 1979. If the Court pleases,

those are our submissions.

MASON CJ:  Thank you, Mr Weinberg. Mr Solicitor for New

South Wales.

MR MASON:	Your Honour, if it suits the Court, I would be happy to come after my friend for the plaintiff but
I - - -
MASON CJ:	But would your friend for the plaintiff be happy

about that?

MR MASON:  Yes, we have discussed that. I am in a

position, however, to hand up our outline of

submissions if the Court would like to receive it

today if that would be of any assistance.

MASON CJ: Yes, it would be.
MR MASON:	We will hand up 10 copies of the outline.

MASON CJ: Yes, thank you, Mr Solicitor. Perhaps that could

be handed up contemporaneously - well, you have

handed yours in unless you have got an additional

outline.

MR CHARLES:  No, Your Honour.

MASON CJ: Yes, very well, it can be handed in now,

Mr Solicitor. Yes, Mr Charles.

MR CHARLES:  If the Court pleases, at the very heart of the

submissions we desire to make to the Court is this:

it has been made apparent in the submissions the

Polyukhovich(3) 188 4/9/90

Court has heard this afternoon from my learned

friend, Mr Weinberg, and in the preceding day and a

half from the Solicitor-General for the

Commonwealth that the contention is made that

sections 6 and 7 do no more than provide a

jurisdictional or procedural vehicle for taking

proceedings against persons in Australia who, at

all times, back to the time of the commission of

the alleged offences, are guilty of offences under

international law.

At the very heart of our submissions will be

the contention that section 7, both in

subsection (1) and subsection (3), substantially

increases the area of criminality at international

law and, accordingly, that the sections are

retroactive, properly speaking.

So far as section 7(1) is concerned, that

retroactivity is to be found both in the use of the

phrase "in the course of hostilities" and

occupation and the addition of subsection (2) which

refers, of course, only back to section 7(1). The

contention we make is that while the matters
referred to in section 6 may well be the types of
offences which would, properly connected with a war

or an occupation, have amounted to war crimes at

international law, that what is done by the wording

of the parts of section 7(1), taken with
subsection (2), is to reduce substantially the

necessary connection with a war or occupation and,

in that respect, therefore, to take the matters

outside war crimes as defined under international

law.

Secondly, Your Honours, so far as

subsection (3) is concerned, what might be

described as the "genocide subsection", of

section 7, it is our submission that genocide, abominable though all reasonable persons would

regard it, was not before 1945 a crime at

international law, and that this subsection

therefore is introducing something entirely new and

introducing crimes which were not in relation to

events between 1939 and 1945 criminal under

international law. No doubt loathesome, no doubt

by Australian domestic law murder, mass murder, any

of those matters, would be regarded as wrong to all

thinking people malum in se, but none the less, in

our submission, not crimes under international law.

Now, if we make good, Your Honours, those

submissions, then it will be our submission that we

demonstrate that section 7 is substantially

retroactive, and further - and this became apparent

in the course of the last exchanges that were

taking place between Your Honour Justice Gaudron

Polyukhovich(3) 189 4/9/90

and Mr Weinberg - when one turns to section 17, the

operation of section 17 is that the defendant is

not entitled to rely on the defence under

subsection (2) unless there is evidence - not

something to point to - unless there is evidence of

the existence of the facts constituting the

defence.

That will mean, Your Honours, that if there is

an allegation and facts established showing that

accused (a) shot person (b), or that accused (a)

was responsible for the destruction of a building

in which civilians were to be found, or that

accused (a) was driving an army truck negligently

and knocked over and killed in circumstances
amounting to manslaughter a number of civilians,

the only way evidence of facts to justify that

defence will be able to be produced is by any of

the septuagenarians who are now going to be
prosecuted under this legislation getting into the
witness box and exposing themselves to

cross-examination. Otherwise, these defences

simply cannot be raised.

McHUGH J: But, why cannot they extract admissions in cross-

examination of the prosecution's witnesses?

MR CHARLES:  Because, Your Honour, the sorts of matters to

which I have just referred may be only able to be

produced from the mouth of the accused himself.

The facts say that a person driving a particular

lorry swerved to avoid an exploding bomb or swerved

because the commanding officer said, "You've got to

travel in that direction", not intending a superior order to hit those people, may well be only capable of proof, at this stage 50 years after the event,

by evidence out of the mouth of the accused. The
persons who will give evidence for the prosecution

will say, "I saw (a) shoot. (b).	I saw (a) give the
order or fire the gun which knocked down a building
in which civilians were to be found.	I saw (a)

drive the vehicle which killed a number of

civilians". That would not be, by itself, enough

to produce any evidence, producing evidence of the

existence of facts constituting the defence.

McHUGH J:	Mr Charles, no doubt, you will develop the notion of genocide at some stage. I am interested to know
quite what it means and to what extent it acquaints
with the definition or the conduct referred to in
section 7(3). I am not inviting you, of course, to
deal with that now.
MR CHARLES:	Your Honour, I am afraid I shall have to do

that at length, but may I, conscious of the time,

offer members of the Court three articles. The

purpose of my submissions and of my use of these

Polyukhovich(3) 190 4/9/90

articles will be to demonstrate to the Court that

there is an ongoing dispute of a major order as to those matters chiefly to be found in section 7(3); the genocide provisions were, under international

law, offences during the second World War.

Shortly, Your Honours, the submission that we

will be making is that a history of treaties and

conventions demonstrates that before 1945 there was

no such crime at international law, that the

Nuremberg Charter and the International Military

Tribunal's judgment were both directed to setting

out what was international law at that time and the

fact that genocide was not, during World War II, an

offence at international law, was the reason why,

in the very last concluding section of that

tribunal's reasons for decision, the fact that vast

numbers of unfortunate people had been massacred,

by the Nazis, before World War II began, was

treated by the tribunal as something which was

unable to be subjected to its jurisdiction.

McHUGH J: Where does this lead you? If it is now a matter

of international concern that people should be

prosecuted for crimes of genocide occurring in that

period, what is your answer to that?

MR CHARLES:  It is difficult to answer in less than half and

hour, Your Honour. There are about five different

tentacles of the answer: one, will relate to the

proportionality of the response; second, to the way

in which one is able to assess and define the

concern for the purpose of seeing whether the respons~ is properly adapted to that concern;

thirdly, whether concern is at all an appropriate

basis for finding now a head of external affairs

power in this respect; fourthly, whether the fact

that one is responding to a matter of international

concern entitles the Commonwealth to depart, indeed

to pass legislation hotly in conflict with its

international obligations in a way which, if the

Commonwealth were engaged by treaty with another	power or by convention this Court has indicated,
and the Commonwealth would not be entitled to
legislate in that fashion. It would seen an
entirely odd result that the Commonwealth having
accepted obligations by treaty, would, in
legislating under external affairs power, be bound
to comply with the obligations of the treaty and
yet, if the matter is merely one of concern and not
carried forth into a treaty, is yet apparently
entitled to legislate wholly at discretion and in
defiance of its international obligations. Those are simply some of the tentacles of the answer,
Your Honour.

Polyukhovich(3) 191 4/9/90

May I, with great respect, invite the Court,

if possible overnight, with great respect, to look

at the seminal article by Dr Egon Schwelb, which is

to be found in volume II, at page 192, which traces

with clarity and in detail, the history of crimes

against humanity and which, we would submit,

demonstrates precisely why it is that crimes of

genocide were not international law crimes during

the Second World War, and why, indeed, it became
necessary for the Genocide Convention to be agreed
upon in 1949, and why it became necessary for the

Genocide Convention Act to be passed in Australia.

Your Honours the articles to which we refer

and which I now hand up to the Court are three.

The three articles, Your Honours, are these:

firstly one by Joseph Kuntz, entitled, "The United

Nations Convention on Genocide''. It is reported in

1949, 43 American Journal of International Law,

page 738, and in particular at page 742; secondly,

Your Honours, by Professor L.C. Green, in "Canadian

War Crimes and Crimes Against Humanity", 1988, and I think the reference is 59, The British Year Book

of International Law, page 217, especially at

pages 225 to 226, and finally, there is a chapter

by Mr M.N Shaw, "Genocide and International Law"

published in a work by Y. Dinsteen, or edited by

Mr Y. Dinsteen, "International Law in a time of

Perplexity", 1989, and in particular at pages 797

to 805.

What Your Honours will find, among other

things, is that genocide was a term apparently

invented in 1944 by one Raphael Lemkin and pursued

by Lemkin in a series of articles. But,

Your Honours, the best exposition we have found of

the development of the crimes against humanity,

ending up with the Genocide Convention, is in

Dr Schwelb's article in volume II to which I have

referred to the Court.

MASON CJ:  Mr Charles, it will be convenient to adjourn now

and we will resume at 10.15 tomorrow.

MR CHARLES: If the Court pleases.

AT 4.20 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 5 SEPTEMBER 1990

Polyukhovich(3) 192 4/9/90