V. Cases from Other Jurisdictions

Books

Argentina, Priebke (1995) [available for free online, in Spanish only]

  • In a case about the extradition of a German officer charged with genocide and other war crimes/crimes against humanity, the Supreme Court found customary international law to be directly applicable in the domestic legal order.

Australia, Nulyarimma v Thompson (1999) [available for free online]

  • In this case, concerning the treatment of aboriginals in Australia, the Federal Court held that the international crime of genocide could not be prosecuted under Australian law without implementing legislation.

Botswana, Republic of Angola v Springbok Investments (2005) [available for free online]

  • The High Court concluded that the rules of international law form part of the law of Botswana, as a “member of the wider family of nations,” unless they conflict with national legislation or common law.

Canada, R. v. Hape (2007) [available for free online]

  • R v Hape is a case on appeal to the Supreme Court of Canada regarding a cross-border crime. The court found customary international law to be applicable in Canada stating para. 39 “following the common law tradition, it appears that the doctrine of adoption operates in Canada such that prohibitive rules of customary international law should be incorporated into domestic law in the absence of conflicting legislation. The automatic incorporation of such rules is justified on the basis that international custom, as the law of nations, is also the law of Canada unless, in a valid exercise of its sovereignty, Canada declares that its law is to the contrary.”

Canada, Bouzari v Iran (2004) [available for free online]

  • The Court of Appeal for Ontario citing the doctrine of adoption at para. 65 stating: “…customary rules of international law are directly incorporated into Canadian domestic law unless explicitly ousted by contrary legislation”.

Canada, R v Finta (1994) [available for free online]

  • In the 1994 case v. Finta, Imre Finta, a Canadian citizen, that was originally a Hungarian national, was brought before the Toronto court to stand trial for eight counts of war crimes and crimes against humanity. On addressing claims raised in cross appeal the Supreme Court addressed whether the impugned sections of the Canadian criminal code violated the Canadian Charter of Rights and Freedoms by reason of vagueness. The court found that it did not violate the Charter, stating “Section 11(g) of the Canadian Charter allows customary international law to form a basis for the prosecution of war criminals who have violated general principles of law recognized by the community of nations regardless of when or where the criminal act or omission took place.” Cory J., para 64.

England, Trendtext Trading Corporation Ltd v. Central Bank of Nigeria (1977) [available for free online]

  • The Court of Appeal established that the rules of international law formed part of English law, explaining that the doctrine of incorporation better incorporates the inevitable changes in the rules of international law.

England, R v. Jones (2006) [available for free online]

  • The House of Lords rejected the idea that new crimes under international customary law automatically become crimes under domestic law. However, the court stated that it would be “at least arguable that war crimes, recognised as such in customary international law, would now be triable and punishable under the domestic criminal law of this country irrespective of any domestic statute.” The court did not conclusively answer this question in the case as it determined it was not at issue (distinguishing the crime of aggression from war crimes).

Hungary, Decision 53/1993 [available for free online]

  • The Constitutional Court was requested by the President to review the constitutionality and the compatibility with international law of a law enacted by Parliament in order to extend the non­-applicability of statutory limitations to offences committed during the 1956 events. The Court addressed, in turn, the relationship between international law and the domestic law of Hungary, the relationship between international criminal law and national criminal law in general, and the non­-applicability of statutory limitations to international crimes under customary and treaty law.

India, Gramophone Company Of India Ltd vs Birendra Bahadur Pandey & Ors (1984) [available for free online]

  • The Supreme Court found that although treaties are considered to be non self-executing and thus formal adoption into domestic law is required, “rules of customary international law that are not contrary to the municipal law are deemed to be incorporated in the domestic law.”

Kenya, Rono v Rono (2005) [available for free online]

  • The Court of Appeal found that courts could apply customary international law, even in the absence of implementing legislation as long as it did not conflict with domestic law. The court stated, “[T]he current thinking on the common law theory is that both international customary law and treaty law can be applied by State Courts where there is no conflict with existing state law, even in the absence of implementing legislation.”

Netherlands, re Nyugat (1959) [unavailable online without purchase]

  • In re Nyugat the Supreme Court found that Article 66 (now Article 94) of the Netherlands Constitution granted the Court authority to review domestic law for compatibility with international law, limited to self-executing provisions of treaties and decisions of international institutions.The court precluded the application of customary international law on prize. During Constitutional revision in 1983 the Government upheld the Supreme Court’s narrow doctrine meaning that matters of customary law remain outside the courts’ reviewing mandate.