War Criminals in Australia

Memorial to the victims of the Skabrnja massacre
Photo credit: Croq (used under CC BY-SA 3.0 license)

On 9 March 2019 an article in The Australian discussed Balkans war criminals who went on live in Australia. It specifically discussed the case of three Serbs alleged to be war criminals due to their involvement in the Skabrnja massacre in Croatia in 1991 and how they escaped justice while living in Australia. The article includes commentary from La Trobe Law School’s Prof. Gideon Boas calling for Australia to do more to address these war crimes.

Reported in The Australian…

Two of the three people examined have been convicted in Croatia (in absentia) in relation to the massacre. Miroslav Mlinar travelled extensively between Australia and Serbia despite being convicted in Croatia of war crimes while Zoran Tadic was recently identified as an Australian citizen who had been living in Sydney for some time. After his identification and the resulting publicity of his involvement in the massacre, Tadic absconded to Serbia.

The article questions how people like Mlinar and Tadic (and their colleague Pozder) could live freely in Australia, and travel back to Serbia at will, despite being accused of (and in Mlinar’s and Pozder’s cases convicted of) war crimes.

One answer is that Croatia failed to issue international arrest warrants for them or to make formal extradition requests to Australia. Had they done so, this would have triggered a process similar to that involving Dragan Vasiljkovic (or Captain Dragan), who after a decade of legal battles was ultimately extradited to Croatia to be tried for war crimes committed there in 1991.

Another answer is that Australia has little interest or motivation for pursuing war criminals in Australia. La Trobe Law School’s Prof. Boas called for us to do more saying the observed unobstructed travel for alleged war criminal should not be happening. He called for Australia to deal with war criminals within our own judicial system rather than through extradition requests that can get move very slowly due to Croatian politics.

This highlights a need for action

There are reported to be hundreds and possibly thousands of war criminals who have migrated to Australia from conflict zones. 

Prof. Boas and his La Trobe Law School collage Pascale Chifflet published a paper examining the topic in more depth back in 2016. In “Suspected War Criminals in Australia: Law and Policy” (2016) 40(1) Melbourne University Law Review, they argued that if Australia is to rise to the challenge of ‘putting an end to impunity’ and assert itself as a nation committed to international criminal justice we need to:

  1. Address our an incomplete and largely dormant enforcement apparatus
  2. Tackle our problematic immigration regime and a poor record of extraditing war criminals
  3. Create a coordinated and coherent policy and legal responses that re-emphasise the role of domestic investigations and prosecutions.

Croatia’s failure to take proper steps to notify Australia about the Serb war criminals is hardly Australia’s fault. It does however raise some interesting questions about our approach to the presence of war criminals in Australia and our willingness and ability to proactively address the problem.

There are some barriers to action

Unlike the UK, Australia has declined to enact retrospective legislation allowing the prosecution of war crimes, crimes against humanity or genocide prior to 2002 (when we ratified the Rome Statute creating the International Criminal Court and amended our domestic legislation to incorporate such crimes into the Commonwealth Criminal Code). On one view, that means crimes like those of Mlinar, Tadić and Pozder could not be prosecuted in Australian courts.

There is, despite this lacuna, an argument that such crimes, where they amount to grave breaches of the Geneva Conventions, might be prosecutable in Australia, on the basis that we have ratified the Geneva Conventions of 1949 and have incorporated them by reason of the Geneva Conventions Act 1957. The argument is complicated but a number of legal scholars view this as an option. Australia was unwilling to prosecute Dragan Vasiljkovic instead of extraditing him (an enormously costly process that took over a decade) and there appears little interest in re-opening a process of investigation and prosecution of other war criminals in Australia. 

There is an argument for Australia, an affluent country with a strong history of interest and involvement in international criminal law and justice, to be more active. We provided the Chief Justice to the Tokyo War Crimes Tribunal set up at the end of the second World War. We subsequently prosecuted over 800 alleged Japanese war criminals. We investigated and prosecuted Nazi war criminals in the late 1980s and early 1990s. We were strong supporters of the ad hoc war crimes tribunals for the former Yugoslavia and Rwanda in the 1990s and for the creation of the permanent International Criminal Court in the late 1990s and early 2000s. We could be doing more.

These crimes can’t be ignored

We have war criminals on our own doorstep and in our own communities. Whilst numbers are unknown, Australia has consistently accepted asylum applicants from all major armed conflicts since the Second World War, including Cambodia, the former Yugoslavia, East Timor, Sri Lanka, Sudan, Afghanistan, Syria and Iraq. While this would constitute a tiny proportion of asylum seekers who seek refuge in Australia, it is an inevitable feature of migration from conflict that (despite screening efforts) there are invariably those responsible for war crimes who have slipped through the vetting process.

With the advent of returned foreign fighters (citizens who travelled to fight most often for ISIS and now seek to return to Australia) focus should be place on the possible commission of war crimes by these individuals, aside from other terror-related offending with which they may be charged.

Australia has a considerable brains trust in this area, at home and in international organisations and universities around the world, despite being a relatively small and remote country. Australia should consider what more it can do both at home and abroad to contribute to the fight against impunity for the worst of crimes.

aoboler