Investigating and Prosecuting War Crimes and Crimes against Humanity

If I were Commonwealth Attorney-General, I would make it one of my highest policy priorities to rectify the shameful indifference of successive Australian Governments to the presence of alleged war criminals in our nation.  Allegations of responsibility for atrocities perpetrated overseas by individuals now enjoying life in Australia with no apparent prospect of investigation and prosecution (in the absence of an extradition request from another country) are rife in many ethnic communities fleeing societies wracked by conflict and violence.  Even though some of these allegations may well be vexatious, I am convinced that many are not.  Dragan Vasiljkovic’s failed defamation action against News Ltd not only vindicates my personal view but also illustrates the severity of the persistent allegations.  I could not, in good conscience, hold the position of First Law Officer of the Commonwealth and perpetuate the indifference that apparently represents bi-partisan political orthodoxy. My first initiative in pursuit of the policy objective would be legislative reform to fill the gaps in our existing legislation.  The Howard Government’s implementing legislation for the International Criminal Court (International Criminal Court (Consequential Amendments) Act 2002) was both comprehensive and unprecedented in its scope.  Any alleged war crimes, crimes against humanity or acts of genocide committed anywhere in the world after 1 July 2002 (the commencement date of the legislation) can now be prosecuted in Australian courts.

Unfortunately the temporal limitation of the ICC legislation is problematic.  The only war crimes perpetrated before 1 July 2002 that can be prosecuted in Australian courts are war crimes committed in Europe between 1939 and 1945 (War Crimes Act 1945 as amended in 1989) and grave breaches of the four Geneva Conventions of 1949 and of Additional Protocol I of 1977 (Geneva Conventions Act 1957 as amended in 1991).  No acts of genocide or crimes against humanity (with some limited exceptions for acts of torture and hostage-taking) perpetrated before 1 July 2002 can be prosecuted before Australian courts.  I would introduce legislation to amend our ICC implementing legislation.

Critics would no doubt claim that the proposed legislation retrospectively criminalises conduct which at the time it was committed could not have been prosecuted in Australian courts.  I would anticipate that criticism and answer it by reference to the majority opinion of the High Court in Polyukhovichupholding the constitutional validity of the 1989 amendments to the War Crimes Act 1945.  There is a fundamental distinction between retrospectively criminalising conduct which at the time it was committed was not criminal and retrospectively extending the jurisdiction of Australian courts to conduct which was unquestionably criminalised by international law at the time it was committed.

Canada, New Zealand and the United Kingdom have all extended the jurisdiction of their national courts retrospectively to cover international crimes perpetrated outside their respective physical territories.  Both Canada and New Zealand extended retrospective jurisdiction to their national courts at the time of the adoption of their ICC implementing legislation (both in 2000).  The UK’s original ICC implementing legislation adopted in 2001 only had prospective effect.  However, in November 2009, that legislation was amended to extend the jurisdiction of UK courts over war crimes, crimes against humanity and genocide retrospectively.  The legislation requires the court to determine that the alleged act constituted an international crime at the time it was committed as a condition for the exercise of retrospective jurisdiction.

I would hope that with proper explanation and forthright advocacy both Parliament and the Australian people would understand the rationale for and support the adoption of the legislation.  I understand of course that the existence of legislation does not automatically translate into its utilisation.  The case of Dragan Vasiljkovic is again instructive.  The allegations against him constitute grave breaches of the Geneva Conventions and of Additional Protocol I, such that he could have been tried in Australia pursuant to the Geneva Conventions Act 1957 (as amended in 1991).  Despite this legislative framework, there is no evidence of any formal investigation into the allegations against him in this country, despite widespread knowledge in Australia of his alleged involvement in the conflict in Croatia from at least the mid-1990s.  This purely reactive approach to an extradition request is simply not good enough for a country that proudly speaks of its commitment to international justice on the world stage.  If we are not even prepared to act against one of our own citizens who travelled to the Balkans to fight on the side of his ethnic brethren and returned to Australia with allegations of atrocity against him, what hope is there that we will take a more proactive approach to those who have immigrated to Australia with similar allegations against them?

Having achieved the necessary legislative reform, my next policy initiative would be to reinstate the Special Investigations Unit – disbanded controversially in the early 1990s in the wake of failed litigation pursuant to the War Crimes Act against alleged former Nazis (including Ivan Polyukhovich).  I would ensure the allocation of financial resources to rebuild the impressive investigatory expertise that the Unit had developed and I would appoint a Director who would emulate the intellectual acuity, skills, and vision to drive a concerted attack on impunity for atrocity that characterised the Founding Director of the SIU – the late Bob Greeenwood QC.  As the newly reformed SIU investigated allegations around the country I would feel content that I had made a significant contribution to justice and to the enhancement of our national commitment to the Rule of Law.

Tim McCormack is Professor of Law at Melbourne Law School and Special Adviser on International Humanitarian Law to the Prosecutor of the International Criminal Court, The Hague