Is Genocide a Crime Unknown to Australian Law? Nulyarimma v. Thompson

2000 ◽  
Vol 3 ◽  
pp. 362-383 ◽  
Author(s):  
Andrew D. Mitchell
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Criminal Law ◽  
Indigenous Australians ◽  
International Treaties ◽  
Aboriginal Community ◽  
Customary International Law ◽  
Members Of Parliament ◽  
Domestic Legislation ◽  
Domestic Law

While it is clear that international treaties become part of Australian domestic law only once implemented by domestic legislation, it is less certain whether implementing legislation is required to incorporate customary international law into Australian law. This question is assuming a new importance as international law moves beyond dealing simply with relationships between sovereign nations to protecting the human rights of groups and individuals within states. Since the arrival of Europeans, indigenous Australians have witnessed enormous violations of their human rights. InNulyarimmav.Thompson, members of the Aboriginal community alleged that certain Commonwealth Ministers and Members of Parliament had committed genocide, and sought various remedies. Since Australia has not implemented the Convention on the Prevention and Punishment of the Crime of Genocide by legislation, the case squarely raised the issue of whether customary international law, and in particular international criminal law, could become part of Australian law without the assistance of Parliament.

scholarly journals State Practice as Element of Customary International Law: A White Knight in International Criminal Law?

2019 ◽  
Vol 20 (5) ◽  
pp. 784-804
Author(s):  
Harmen van der Wilt
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
Case Law ◽  
International Criminal Law ◽  
Customary International Law ◽  
International Criminal Tribunals ◽  
Domestic Courts ◽  
State Practice

Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.

Part III Security Governance Tools, Ch.41 Criminal Prosecution

2021 ◽  
Author(s):  
Pocar Fausto
Keyword(s):  
International Law ◽  
International Criminal ◽  
Criminal Court ◽  
International Criminal Law ◽  
Crimes Against Humanity ◽  
Criminal Prosecution ◽  
Customary International Law ◽  
Domestic Courts ◽  
Governance Tools ◽  
Domestic Law

This chapter focuses on criminal prosecution. Traditionally, in domestic law, criminal prosecution has been regarded as a tool capable of contributing to peaceful and secure governance. Under international law, however, recourse to criminal prosecution as a safeguard for maintaining international peace and security is very recent and still limited, and in many respects disputed. This is the case both when international rules are applied by international jurisdictions and when they are directed at soliciting the exercise of criminal prosecution by domestic courts. The chapter looks at the Rome Statute of the International Criminal Court (ICC Statute), which expressly provides that the jurisdiction of the Court ‘shall be limited to the most serious crimes of concern to the international community as a whole’, and identifies these crimes as the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. Given that the ICC Statute does not merely codify customary international law, but also partially develops or restricts it, its adoption has produced some degree of fragmentation of international criminal law, which further impacts on the existing international case law.

Using Treaties in Canadian Courts

2001 ◽  
Vol 38 ◽  
pp. 3-87 ◽  
Author(s):  
Gibran van Ert
Keyword(s):  
Human Rights ◽  
International Law ◽  
Common Law ◽  
International Treaties ◽  
Public International Law ◽  
Canadian Law ◽  
Domestic Courts ◽  
Reception System ◽  
Comprehensive Manner ◽  
Domestic Law

SummaryIncreasingly, litigants are seeking to rely on international treaties before domestic courts. The difficulties they face, together with the judges hearing these cases, are great. Public international law is unknown territory for the vast majority of Canadian lawyers, both at the bar and on the bench. Moreover, the rules according to which international treaties take effect in Canadian domestic law engage a wide variety of legal sources, including ancient common law jurisprudence, unwritten constitutional rules, federalism, and the provisions of theCanadian Charter of Rights and Freedomsand other Canadian human rights instruments. The object of this article is to describe in a comprehensive manner how international treaties may be used in Canadian courts. The disparate and seemingly unrelated norms informing the Anglo-Canadian law of treaty reception, including the implementation requirement, the treaty presumption, the rule inLabour Conventions, and the landmark decision inBakerv.Canada, are depicted as internally-consistent manifestations of the guiding principles of the Canadian reception system: self-government and respect for international law.

scholarly journals Globalisation and Court Practice in Iceland: New Case Law of the Supreme Court in Relation to the EEA Agreement and European Convention on Human Rights

2021 ◽  
pp. 151-165
Author(s):  
Halldóra Thorsteinsdóttir
Keyword(s):  
Human Rights ◽  
International Law ◽  
European Convention ◽  
International Treaties ◽  
International Obligation ◽  
European Court ◽  
The Supreme Court ◽  
The Status ◽  
Domestic Law ◽  
Court Practice

AbstractThis article examines the status of international treaties in Iceland law and how Icelandic court practice has developed in recent years in that area. With regard to the relationship between domestic law and international law, Iceland adheres to the principle of dualism. This means that international law does not come into force as Icelandic law unless implemented by the legislator. As a result, Icelandic Courts will not, in general, apply provisions of international treaties unless they have been incorporated into Icelandic statutory law. However, this does not mean that international obligation are not fulfilled, as Icelandic Courts will seek to interpret domestic law in line with international obligation to the extent possible. If an international treaty has been implemented into Icelandic law, its provisions are binding like other domestic law. With regard to the EEA Agreement, Icelandic Courts will seek to interpret national law in accordance with EEA obligations and follow the judgments of the EFTA Court if the Icelandic provision in question is open to such an interpretation. With regard to the European Convention on Human Rights, Icelandic Courts will even go a step further, as recent judgments show that Icelandic Courts tend to interpret the human rights provisions of the Icelandic Constitution in line with interpretation laid down by The European Court of Human Rights, even in cases where such an interpretation does not exactly fit within the direct wording of the provision in question. This is due to a special connection between the human rights chapter of the Icelandic Constitution and the Convention, as one of the legislators’ main goals when amending the Constitution in 1994 was to bring the human rights chapter more in line with the Convention.

scholarly journals Yong Vui Kong v. Public Prosecutor (Sing. Ct. App.)

2016 ◽  
Vol 55 (2) ◽  
pp. 307-338
Author(s):  
Yvonne Mcdermott
Keyword(s):  
International Law ◽  
Public Prosecutor ◽  
Customary International Law ◽  
Domestic Legislation ◽  
Peremptory Norm ◽  
The Impact ◽  
Domestic Law ◽  
Court Of Appeal

On March 4, 2015, Singapore’s Court of Appeal issued its judgment in Yong Vui Kong v. Public Prosecutor, upholding the punishment of caning imposed on the defendant as constitutional. The decision is significant because it discusses the impact of the prohibition of torture, a peremptory norm of international law, on domestic legislation. The Court of Appeal determined that, even if caning were to be considered a form of torture, the customary international law prohibition on torture did not invalidate its domestic law permitting caning as a form of punishment.

The Application of Human Rights Treaties in the Development of Domestic and International Law: A Personal Perspective

2009 ◽  
Vol 22 (4) ◽  
pp. 753-759
Author(s):  
TERESA A. DOHERTY
Keyword(s):  
Human Rights ◽  
International Criminal Law ◽  
International Humanitarian Law ◽  
Personal Perspective ◽  
Humanitarian Law ◽  
International Human Rights ◽  
Human Rights Treaties ◽  
Domestic Legislation ◽  
International Human ◽  
Domestic Law

AbstractThis article considers the application of international human rights treaties or conventions to domestic law in common law countries and the historical differences in approach between some jurisdictions. It promotes the view that the judiciary of a country which has signed an international human rights treaty or convention may refer to such a treaty when interpreting domestic law, notwithstanding the fact that the treaty or convention has not been incorporated into domestic legislation. The article also suggests that international human rights treaties and conventions have a role in developing international criminal law and international humanitarian law. It cites the example of the decision that forced marriage is an inhumane act, a crime against humanity, by the Special Court of Sierra Leone, and gives the factual and jurisprudential background to that decision.

Pinochet's fallout: jurisdiction and immunity for criminal violations of international law

Legal Studies ◽  
2000 ◽  
Vol 20 (4) ◽  
pp. 566-591
Author(s):  
David Turns
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
International Criminal ◽  
International Criminal Law ◽  
Human Rights Abuses ◽  
Customary International Law ◽  
International Crimes ◽  
Sequence Of Events ◽  
House Of Lords

This article provides a general overview, and analysis of the litigation surrounding General Augusto Pinochet's detention in London in 1998 and the subsequent attempts to extradite him to Spain, for trial on charges relating to human rights abuses committed during the period of his militaty dictatorship in Chile between 1973 and 1990. The complicated sequence of events, from proceedings in the Spanish courts (which started in 1996) up to Pinochet's release from British custody on medical grounds in 2000, is examined und the potential consequences of the two substantive House of Lords decisions are explored from a British-based public international lawyer's perspective. The focus of the analysis is not so much on the detailed technicalities of personal immunity in English law: as on the broad concepts of State jurisdiction over international crimes and immunity for such crimes in international criminal law: notable aspects discussed include the future of universal jurisdiction in customary international law and the position of that law in the UK's municipal courts.

KILLINGS AT SREBRENICA, EFFECTIVE CONTROL, AND THE POWER TO PREVENT UNLAWFUL CONDUCT

2012 ◽  
Vol 61 (3) ◽  
pp. 713-728 ◽  
Author(s):  
Tom Dannenbaum
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Organization ◽  
Responsibility To Protect ◽  
Effective Control ◽  
Customary International Law ◽  
Attribution Analysis ◽  
Unlawful Conduct ◽  
Domestic Law ◽  
Court Of Appeal

AbstractThis article analyses two nearly identical lawsuits regarding the actions of UN peacekeepers during the Srebrenica genocide. The decisions are of importance as a matter of international law for three reasons. First, the Court applied human rights obligations abroad, not by holding that the relevant treaties have extraterritorial effect, but by finding the ICCPR to have been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and determining that the standards codified in the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, in finding those obligations to have been breached, the Court relied on the Dutch battalion's eviction of the victims from its UN compound, not on any responsibility to protect those already outside the compound. Finally, on the issue of attribution, the Court of Appeal developed the doctrine of ‘effective control’ in several key respects. I argue that the Court was largely correct in its attribution analysis and that this may prove to be a landmark in the development of international law on attribution in such contexts. Most important among the issues addressed in the Court's discussion of attribution are its findings that: (i) the ‘effective control’ standard applies equally to the contributing state and the receiving international organization; (ii) ‘effective control’ includes not just giving orders, but also the capacity to prevent the wrongdoing; and (iii) troop-contributing states may sometimes hold that ‘power to prevent’ by virtue of their authority to discipline and criminally punish their troops for contravening UN orders.

Approaching Custom Identification as a Conflict Avoidance Technique:TadićandKupreškićRevisited

2018 ◽  
Vol 31 (2) ◽  
pp. 403-429 ◽  
Author(s):  
ALEXANDRE SKANDER GALAND
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Criminal ◽  
International Criminal Tribunal ◽  
International Criminal Law ◽  
Conflict Avoidance ◽  
International Human Rights Law ◽  
Humanitarian Law ◽  
Customary International Law ◽  
Internal Conflicts

AbstractInternational human rights law (IHRL), international humanitarian law (IHL) and international criminal law (ICL) have trouble staying faithful to the two pillars of customary international law – state practice andopinio juris. In ICL, theTadićInterlocutory Appeal on Jurisdiction and theKupreškićTrial Judgement have even gone as far as enunciating new models to identify customs. In this article, I show that the approaches to customs’ identification postulated in these two cases were conflict-avoidance techniques used by the International Criminal Tribunal for the Former Yugoslavia (ICTY) to bring together IHRL and IHL. The crux of the matter in theTadićandKupreškićcases was that the human rights of the victims of war crimes committed in internal conflicts required that a new approach to customary international law be adopted. Thus, the criminal aspect of IHL (i.e., ICL) was updated, and conceptual conflicts between IHL and IHRL were avoided.

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