Australia has historically dealt with war criminals on its territory in a reactive fashion. It has undertaken domestic prosecutions sporadically, applied variable immigration screening procedures and – more commonly in recent times – extradited a small number of offenders.
Since the second world war, a significant – albeit undetermined – number of war criminals relocated to Australia.
The most recent attempts at investigating and prosecuting such people occurred in the 1980s and early 1990s. This followed publicity over the presence of Nazi war criminals who had been residing in Australia for a long time.
Several prosecutions ensued; none were particularly successful. Difficulties such as the health of those accused and the perennial problem of proving crimes committed decades ago in foreign lands plagued the efforts of investigators and prosecutors.
The most notable of these prosecutions was that of Ivan Polyukhovich, an alleged war criminal from the second world war. His appeal to the High Court in the early 1990s gave rise to some important judicial statements about Australia’s capacity to prosecute war crimes committed outside the country.
Making it someone else’s problem
Around the time of Polyukhovich’s appeal, another Australian citizen, Dragan Vasiljković, travelled to Krajina in Croatia. There he allegedly committed war crimes as a commander of the Red Berets unit. He later returned to Australia.
Vasiljković fought a ten-year extradition battle, which ended in his transfer in 2015 to Croatia to stand trial for war crimes.
Throughout that time the option to prosecute Vasiljković in Australia was never seriously contemplated. Instead, millions were spent supporting an extradition process to make his prosecution somebody else’s problem.
Although Vasiljković’s conduct predated recent legislative changes, it mirrors that which Australia now seeks to criminalise and prosecute.
A changing focus?
The flirtation with war crimes prosecutions has largely dissipated, however, along with the appetite to investigate and prosecute war criminals who reside in Australia.
The once well-funded Special Investigation Unit of the Australian Federal Police is long disbanded. There is no longer any specialised investigative authority or expertise within Australian police forces or government at any level, let alone a positive policy in place for the investigation of these cases.
Even immigration screening resources do not align with the Australian government’s obsession with border security. These maintain fairly rudimentary and modestly resourced assessment processes.
Could the war against IS be a game-changer?
The conflicts in Syria and Iraq involving Islamic State (IS) have for the first time in recent years brought the issue of Australians engaging in atrocities in foreign wars to public consciousness.
It is estimated at least 120 Australians are taking part in the hostilities in Syria and Iraq. Notorious among them were Khaled Sharrouf and Mohamed Elomar, both now deceased. They were suspected of having been involved in the rape, forced marriage and slavery of captured Yazidi women.
Legal changes in 2014 made it an offence to enter, or prepare to enter, a foreign country with an intention to engage in a hostile activity. In May this year, five men were charged over an alleged plan to sail a dinghy from northern Australia to Indonesia, and from there to travel to fight with IS.
The policy and public debate resulting from Australia’s involvement in the fight against IS is largely focused on counter-terrorism and, more worryingly, on the place of Muslim dual nationals, migrants and refugees. The war crimes committed in these conflicts have been effectively subsumed into polemics over migration, citizenship and terrorism.
The obvious question, then, is whether Australia intends to pursue different responses to its citizens who fight for IS and those who have committed war crimes in other conflicts. History suggests there will be a different position.
But, it seems these matters have not even been considered.
Australia has a continuing obligation to prosecute war criminals or extradite them to a country where they will be prosecuted. Since accepting the International Criminal Court’s jurisdiction in 2002, Australia enjoys a comprehensive domestic legal framework to pursue war crimes committed overseas after that date.
But unlike a number of other Western countries, Australia has made no effort to identify and prosecute war criminals living in its territory. Legal gaps remain in relation to war crimes committed before 2002.
With a persistent lack of resourcing or policy interest in the investigation and prosecution of anything falling outside the conflict with IS, Australia is likely to remain something of a haven for war criminals who committed atrocities unrelated to the domestic fight against terrorism.
Authors: Gideon Boas, Associate Professor, Monash University Law School, Monash University