Why Australia has consistently failed hold war criminals to account

I wrote recently about Australia’s incredibly shameful failures in prosecuting the countless war criminals residing in Australia.

We now have some further information from the Australian Parliament that partly explains the country’s lax attitude towards the issue (via the Lowy Institute):

On Monday Senator Wong tabled… some fascinating answers to a series of questions on notice from Senator Ludlam concerning Australia’s approach to war crimes (see p.110 of this Senate Hansard, made available online this morning). Just incidentally, the questions were asked… on 30… September 2009 — so at 146 days for a reply that’s slightly over the 30-day rule.

A number of Senator Ludlam’s questions are dodged, but there are some interesting insights into the gaps in Australia’s war crimes policy. The most interesting replies concerned:

  • Gaps in our war crimes legislation: the answer to question four confirms the obvious enough fact that the AFP only investigates ‘potential war crimes, crimes against humanity and genocide where there is jurisdiction’ but goes on to note there were serious gaps in Australia’s jurisdiction before comprehensive legislation was implemented in 2002. For war crimes committed in non-international armed conflicts before this date — like the devastating Rwandan genocide — the only legislation referred to in the response is the Crimes (Torture) Act which criminalises torture committed after February 1989 and the Crimes (Hostages) Act which criminalises hostage-taking after June 1990.
  • Asked about closing these gaps consistent with ALP policy, the response was evasive, but noted ‘it is generally not appropriate to punish people for conduct which was not a crime at the time it was committed.’ This highlights the two different approaches Australia takes to war crimes: domestic and international. At an international level, Australia has supported and is a financial contributor to the tribunal set up to prosecute the perpetrators of the Rwandan genocide for crimes committed in just such a conflict well before 2002. Domestically, before 2002, Australia treats such acts differently.
  • Expertise: answer six reveals that just three AFP officers have undergone specialist war crimes training in the last 10 years (five AFP members have also worked at the ICTY). There is no indication whether these individuals serve in the Special Operations Unit that covers war crimes or elsewhere, but we are told the average turnover in the unit is just two years. This highlights the inherent problems with the AFP’s current approach and why countries around the world have set up dedicated war crimes units. It also shows through in results.
  • Results: despite evidence Australia is home to a significant number of war criminals, the AFP has conducted just 29 war crimes investigations in the last decade. And the AFP referred ‘preliminary material’ to the Commonwealth Director of Public Prosecutions in just one of these 29 matters, but ‘this material did not amount to a formal brief of evidence’.
  • What was also revealing is how these individual cases came to the attention of the AFP. Only one referral came from a private citizen. One came from a law firm, one from the Defence Force and one from Foreign Affairs. The Attorney-General’s Department referred four, but the vast majority (21) came from the Immigration Department. These figures suggest the AFP is not doing much of the heavy lifting when it comes to proactively identifying war crimes suspects.