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SUSPECTED WAR CRIMINALS IN AUSTRALIA: LAW AND POLICY GIDEON B OAS* AND PASCALE CHIFFLET† The current conflicts in Syria and Iraq have for the first time in many years brought to public consciousness the issue of war criminals in Australia. Australia has historically dealt with this issue in a reactive fashion and with varying success, through the domestic prosecution of offenders, immigration screening procedures and extradition. These approaches have, however, generally been incongruent in theory and application. This article examines the issue of war criminals in Australia and demonstrates that Australia has an incomplete and largely dormant enforcement apparatus, a problematic immigra- tion regime and a poor record of extraditing war criminals. Australia is in need of a coordinated and coherent policy and legal responses that re-emphasise the role of domestic investigations and prosecutions, if it is to rise to the challenge of ‘putting an end to impunity’ and assert itself as a nation committed to international criminal justice. CONTENTS I Introduction ................................................................................................................ 47 II Domestic Approaches to Suspected War Criminals ............................................. 48 A Prosecution .................................................................................................... 48 1 1945–51: Post-Second World War Crimes Trials.......................... 48 2 War Crimes Prosecutions in the Post-1980s Period ..................... 50 3 The Current State of War Crimes Prosecutions ............................ 55 (a) The Foreign Fighter Phenomenon ............................................ 56 B Immigration ................................................................................................... 59 1 Post-Second World War Immigration ............................................ 60 2 Immigration Screening in Contemporary Contexts .................... 62 3 Article 1F Exclusion Clause and the Character Test .................... 63 * BA, LLB (Monash), LLM, PhD (Melb); Associate Professor, Faculty of Law, Monash University; Barrister, Victorian Bar. † LLB (Hons), BA, LLM (Pantheon-Sorbonne); Lecturer, La Trobe Law School, La Trobe University; former Legal Officer at the International Criminal Tribunal for the Former Yugo- slavia. The authors would like to thank Monash University for the Monash Research Acceler- ator Grant that contributed to the research for this article. Thanks also to Benjamin Nelson and Lisa Lee for their research assistance. 46 2016] Suspected War Criminals in Australia 47 4 Deportation of Non-Citizens or Revocation of Citizenship ....... 65 C Extradition ..................................................................................................... 68 1 Post-Second World War and Post-1980 Periods ........................... 69 2 Extradition in Contemporary Contexts ......................................... 70 III Conceptualising Australian War Crimes Policy .................................................... 73 A Domestic Incorporation of International Treaties ................................... 74 B Factors Impacting on Australian Government Policy ............................. 76 C The Way Forward .......................................................................................... 80 IV Conclusion .................................................................................................................. 84 I INTRODUCTION The presence of suspected war criminals1 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 gen- eral in nature; Australia’s approach has been to develop specific and ad hoc responses that are inherently reactive, or tailored to achieve certain objec- tives.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 interna- tional treaties specifically dealing with war crimes and other crimes of mass atrocity have been incorporated into domestic legislation with a measure of 1 In this article, ‘war criminals’ will refer to individuals suspected of committing war crimes, crimes against humanity or genocide. 2 This being said, it should be noted that Australia is not socially remote from these conflicts, as the phenomenon of Australian nationals fighting in Syria and Iraq confirms. Compare this for example with the position of the United Kingdom and its relative proximity to the Bal- kans: see below nn 230–1 and accompanying text. 3 See, eg, Tim McCormack, ‘Australia’s Unresolved War Crimes Challenge’ in Philip Crisp (ed), So You Want to Be a Leader: Influential People Reveal How to Succeed in Public Life (Hybrid Publishers, 2015) 398. 48 Melbourne University Law Review [Vol 40:46 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 unambigu- ous 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 respon- sible 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 4 D C S Sissons, The Australian War Crimes Trials and Investigations (1942–51)(2006) 19–20 <https://www.ocf.berkeley.edu/~changmin/documents/Sissons%20Final%20War%20 Crimes%20Text%2018-3-06.pdf>. 5 Michael Carrel, ‘Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints’ in David A Blumenthal and Timothy L H McCormack (eds), The Legacy of Nuremberg: Civi- lising Influence or Institutionalised Vengeance? (Martinus Nijhoff Publishers, 2008) 239, 240–1. 2016] Suspected War Criminals in Australia 49 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. TheWar 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 crimi- nals. ‘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

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