Polyukhovich v. Commonwealth of Australia and Another

Abstract

War and armed conflict — War crimes and crimes against humanity — Responsibility of individuals — London Declaration, 1942 — Moscow Declaration, 1943 — United Nations Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 1968 — European Convention on the Non-Applicability of Statutory Limitation to Crimes Against Humanity and War Crimes, 1974 — Charter of the International Military Tribunal for the Prosecution and Punishment of Major War Criminals, 1945 — Australian citizen alleged to have committed war crimes during Second World War in German occupied Ukraine — Accused having no connection with Australia at the time of the commission of the acts — Whether conduct constituted a war crime under the rules of international law — Whether in violation of the laws and customs of war — Whether defence of superior orders available — War Crimes Act 1945 (Commonwealth), as amended, Section 9 and Sections 6, 7(1) and 17 — Whether empowering State to take appropriate action to bring war criminals to justice — Whether “serious crime” under the municipal law of the Commonwealth of Australia — Validity of provisions — Whether exercise of external affairs powers and defence powers — Whether Australia having interest or concern in war crimes committed during Second World War — Whether subject matter of international concern — Commonwealth Constitution, Section 51 (xxix)

Jurisdiction — Universal jurisdiction — Scope — War crimes and crimes against humanity — Enforcement of the laws of war — Principle of universality — Whether crimes against ius gentium — Whether such crimes existed in international law between 1942 and 1943 — Conduct alleged to have taken place outside Australia — Conduct amounting to crimes against international law alleged to have been committed in Ukraine when under German occupation — Australian legislation extending to war crimes committed outside Australia — War Crimes Act 1945 (Commonwealth), as amended — Whether legislation a law with respect to external affairs — Whether valid exercise of legislative power by Parliament — Whether implementing an obligation or concern in international law — Whether Act facilitates the exercise of a right of universal jurisdiction existing in international law — Whether similar to piracy having universal cognizance, sui generis, to be punishable by any nation into whose hands the offender falls — Whether municipal law providing for universal jurisdiction recognized by international law — Whether appropriate courts to exercise universal jurisdiction

Jurisdiction — Extraterritorial jurisdiction — War crimes and crimes against humanity — Australian citizen alleged to have committed war crimes in German occupied Ukraine — Charged with offences against the municipal law of Australia — Legislative power of Parliament to pass laws having extraterritorial effect and to create the offences defined by the Act — Whether extraterritorial conduct having sufficient connection with Australia to enliven the external affairs powers — Whether ex post facto creation of war crimes justified — Whether clear intention of Parliament that the Act have retrospective operation — Whether Commonwealth Parliament in the exercise of its legislative powers may create retrospective law including criminal laws with an ex post facto operation — Whether Act amounts to a bill of attainder — Whether legislative usurpation of judicial power — Commonwealth Constitution, Chapter III — War Crimes Act 1945 (Commonwealth), as amended

Relationship of international law and municipal law — War crimes and crimes against humanity — Relationship between legislative competence in international law and the external affairs powers of the Commonwealth of Australia — Act relating to armed conflict occurring in Europe during Second World War — Whether provisions of the Act giving effect to an obligation arising under international law to translate into municipal law the international law definition of war crimes — Whether provisions of the Act correspond with the provisions of international law — Whether retrospective criminal legislation contrary to international law — Whether breach of the principle of nullum crimen sine lege — Whether statutory exclusion of the defence of superior orders consistent with international law — Nuremberg Charter, Article 6(c) — Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Article II — War Crimes Act 1945, as amended, Sections 7(3), 6(c) and 9

Treaties — Treaty obligations of States — Geneva Conventions, 1949 — War crimes and crimes against humanity of serious international concern — Australia’s acceptance of legislative obligations implemented into municipal law by the Geneva Conventions Act 1957 (Commonwealth) — Act retrospective in application to war crimes — Geneva Conventions not retrospective in effect — Whether Act breach of the principles nullum crimen sine lege and nulla poena sine lege — Principle of retroactivity — International Covenant on Civil and Political Rights, 1966, Article 15(1) — European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950, Article 7 — Universal Declaration of Human Rights, 1948, Article 11(2) — War Crimes Act 1945 (Commonwealth), as amended, Section 9

Sources of international law — Custom — General practice of States — Opinio juris — War crimes and crimes against humanity — Obligations of States under customary international law in respect of extraterritorial war crimes — War criminals from the pre-1945 years to be sought out and tried — Absence of widespread practice of States exercising such extraterritorial jurisdiction — Whether Australia under any legal obligation to seek out Second World War criminals and to bring them to trial — Whether War Crimes Act 1945, as amended, gives effect to an international obligation — The law of Australia