Suspected war criminals in Australia: law and policy.

• Jurisdiction: Australia
• Author: Boas, Gideon
• Date: 01 August 2016

CONTENTS I Introduction II Domestic Approaches to Suspected War Criminals A Prosecution 1 1945-51: Post-Second World War Crimes Trials 2 War Crimes Prosecutions in the Post-1980s Period 3 The Current State of War Crimes Prosecutions (a) The Foreign Fighter Phenomenon B Immigration 1 Post-Second World War Immigration 2 Immigration Screening in Contemporary Contexts 3 Article 1F Exclusion Clause and the Character Test 4 Deportation of Non-Citizens or Revocation of Citizenship C Extradition 1 Post-Second World War and Post-1980 Periods 2 Extradition in Contemporary Contexts III Conceptualising Australian War Crimes Policy A Domestic Incorporation of International Treaties B Factors Impacting on Australian Government Policy C The Way Forward IV Conclusion I INTRODUCTION

The presence of suspected war criminals (1) in Australia is an issue that has challenged policymakers for decades. As a nation geographically remote from conflict, Australia has seen relatively little political or community interest in enforcing its international obligations regarding war crimes. (2) In spite of this, Australia has a surprisingly rich if episodic history of investigation and prosecution of crimes of mass atrocity. Much of this history has developed in response to periods of international pressure, spasmodic media interest and intermittent public disquiet at the presence of suspected war criminals in Australia. Whether suspected war criminals reside in Australia continues to be of significant domestic concern, with the recent conflicts in Syria and Iraq raising issues of national security, criminal justice and immigration.

Domestic responses to suspected war criminals are either specific or general in nature; Australia's approach has been to develop specific and ad hoc responses that are inherently reactive, or tailored to achieve certain objectives. (3) The investigations and prosecutions of suspected war criminals have been largely confined to the periods immediately after the Second World War, and subsequently in the late 1980s. Australia's obligations pursuant to international treaties specifically dealing with war crimes and other crimes of mass atrocity have been incorporated into domestic legislation with a measure of inconsistency over time, and gaps still remain in the supporting legislative framework. In addition to these intermittent responses, suspected war criminals have also been dealt with more generally, and with uncertain enthusiasm, through existing immigration and extradition avenues.

This article provides a comprehensive account of the responses developed in Australia to address the presence of war criminals--domestic prosecution, immigration screening and extradition--as well as the policy considerations underpinning these responses. It is apparent that the current avenues available for dealing with suspected war criminals are incongruent in theory and application. Accordingly, this article proposes the adoption of an unambiguous policy position on the issue of suspected war criminals in Australia and the implementation of a coordinated war crimes framework in support. It is argued that existing legislative gaps must be addressed and that there be a renewed focus on investigations and prosecutions, particularly as Australian investigators, prosecutors and courts are now able to draw on the considerable expertise and experience that has evolved in international and domestic war crimes prosecution over the past two decades.

II DOMESTIC APPROACHES TO SUSPECTED WAR CRIMINALS

A Prosecution

1 1945-51: Post-Second World War Crimes Trials

In the period immediately after the Second World War, Australia was responsible for the military trials of more than 800 Japanese soldiers for war crimes. (4) The search for post-conflict justice was driven by popular horror at reports of mass atrocity crimes committed against Australians close to home. Domestic antipathy towards the Japanese was shaped before the Second World War by racism, encouraged by the White Australia policy and its accompanying rhetoric. (5) During the war, acute outrage at reports of specific Japanese crimes fuelled this sentiment, as did the images of returning Australian prisoners of war. (6) Chief Justice William Webb of the Supreme Court of Queensland was commissioned to conduct an official inquiry into Japanese war crimes. (7) The first and second Webb inquiries revealed evidence of numerous mass atrocity crimes committed against Australians, Chinese, American and Indian forces, as well as Papuan and Pacific Islander civilian populations and forces of other Allied nations. (8)

The United Nations War Crimes Commission ('UNWCC') was formed on 20 October 1943, with Allied nations agreeing to the investigation of war crimes and coordination of members' efforts. (9) Australia's contribution in the Pacific was to comprise a part of this effort. Once hostilities ended on 15 August 1945, international interest in prosecution was strong amongst the Allied powers and there was also a growing domestic desire for the trial of enemy combatants within Australia. The War Crimes Act 1945 (Cth) ('War Crimes Act') was introduced on 4 October 1945 and extraordinarily, passed both Houses of Parliament in a single day. (10)

The War Crimes Act facilitated the trials of suspected Japanese war criminals. 'War crimes', until the Act was amended in 1989, (11) were defined as violations of the laws of war, and any offences listed by the Board of Inquiry headed by Webb. (12) The temporal period of the War Crimes Act commenced from 2 September 1939 onwards, (13) and the Act sought to prosecute war crimes committed against persons who were resident in Australia at any given time, British subjects or Allied citizens. (14) Australian Military Forces undertook the investigations, prosecutions and trials of Japanese war criminals between 1945 and 1951, (15) and more than 300 war crimes trials were held in Australian military courts. (16) In 1961, Attorney-General Sir Garfield Barwick announced on behalf of the Menzies Government that the war crimes trials were to come to an end, and that this chapter had closed for Australia. (17) After this high volume and frenetic phase of war crimes prosecutions, the War Crimes Act lay dormant until the late 1980s.

2 War Crimes Prosecutions in the Post-1980s Period

In the 1980s, journalist Mark Aarons brought public attention to the issue of former Nazi war criminals being resident in Australia. (18) After the consequential public outcry, the Hawke Government commissioned an inquiry led by senior public servant Andrew Menzies ('Menzies Review'). (19) Menzies concluded that as a result of 'very substantial gaps' in the post-Second World War immigration screening programs, (20) it was likely that significant numbers of Nazi war crimes suspects were present in Australia. (21) Various commentators have noted that the publicity surrounding the issue of suspected war criminals being resident in Australia was the main reason for the Government's policy orientation towards war crimes prosecutions. (22) Menzies referred to a new generation of Australians who were 'at first dimly aware of the atrocities committed in the war period but in recent years increasingly conscious of the depravity and scale of these crimes.' (23) On 24 February 1987, Attorney-General Lionel Bowen stated before Parliament that 'justice must be done, no matter how much time has passed since the events in question.' (24) As a result of the Menzies Review and related media attention, the Government established a Special Investigations Unit ('SIU') in 1987. (25) The SIU was placed within the Attorney-General's Department and was headed by Robert Greenwood QC. (26) The SIU was a specialist body tasked to investigate and gather evidence about whether allegations against suspected war criminals, having since migrated to Australia, were substantiated: (27)

The main objective of the SIU was to seek and obtain admissible evidence of the commission of war crimes as defined in the War Crimes Act 1945, as amended, for the purpose of charges being laid and prosecutions being undertaken in the ordinary criminal courts of Australia. (28) The SIU was the first specialist unit of its kind in Australia, and it had been handed an enormous undertaking requiring multidisciplinary and cross-jurisdictional work, in the absence of existing infrastructure or protocols. (29) The SIU focused on the identification of alleged suspects through domestic and international inquiries, extensive archival searches and interviews with potential witnesses. (30) The SIU's sources included the Menzies Review, Mark Aarons, the Soviet Procurator, Jewish organisations in Australia, other governments (United States, Canada, United Kingdom and the Netherlands), Australian parliamentarians, law enforcement agencies and members of the general public. (31)

There were various international pressures on the Hawke Government. After the Second World War, there was an international push towards the creation and implementation of human rights and international criminal justice principles. The formation of the United Nations, (32) and the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide ('Genocide Convention'), (33) Geneva Conventions (34) and numerous human rights treaties, (35) as well as the precedential establishment of the International Military Tribunals in Nuremberg and the Far East, (36) were indicative of this international movement. Australia's war crimes investigations and prosecutions constituted a part of this international effort to achieve post-conflict justice. In his speech to Parliament, Bowen stated that the Australian Government 'shares the abhorrence felt by all civilised nations at the serious criminal activities committed in the course of the Second World War, and considers that justice must be done, no matter how much time has passed since the events in question.'...