In the course of debate in the House of Representatives on the second reading of the International War Crimes Tribunal Bill 1994 (Cth), the member for Flinders, Mr Peter Reith, expressed a sentiment which may be held widely in the Australian community:
"It must always be the case for a country such as Australia to give very high priority to bringing to justice those who commit serious war crimes."1 As a matter of record in respect of the Second World War, Australia's involvement in the investigation and prosecution of persons responsible for committing war crimes2 was uneven, a fact only partly explained by the geographical and military circumstances relating to Australia's role in the war in the Pacific.
Before the end of the Second World War investigative work in relation to Japanese war crimes had been carried out by the Australian War Crimes Commissioner, Sir William Webb. In March 1944 Justice Webb3 presented a "Report on Japanese Atrocities" to the Minister for External Affairs, Dr H V Evatt, which was followed by a ministerial statement on the subject of Japanese war crimes and Japanese responsibility:
"The Australian Government is determined that nothing that can be done to punish those responsible for brutality and cruelty will be left undone."4 The unconditional surrender of Japan in September 1945 delivered significant numbers of Japanese war crimes suspects into Australian custody. The response of the Commonwealth Parliament was the enactment of the War Crimes Act 1945 (Cth) which authorised the Governor-General to convene military courts for the trial of persons charged with war crimes committed against any person who was at any time an Australian resident or a citizen of any power allied or associated with Australia during the Second World War. Although the War Crimes Act 1945 (Cth) was not limited in terms to Japanese war crimes, this was its scope of operation in practice. During the next five years Australian military courts sitting in Darwin, Singapore, Hong Kong and various locations in the south west Pacific conducted 296 war crimes trials which dealt with 924 individual Japanese defendants, including Koreans serving in the Japanese armed forces. The result of these trials was 148 death sentences, 137 of which were carried out, and 496 sentences of imprisonment.5 Along side this activity at the national level, Australia played a full part in the work of the International Military Tribunal for the Far East which, sitting in Tokyo between May 1946 and November 1948 with Justice Webb as president, tried 28 Japanese leaders on charges of crimes against peace, war crimes and crimes against humanity.
Whether these Japanese war crimes trials, at the national or international levels, constituted justice or retribution awaits final assessment. Perceived procedural shortcomings in some of the work of the Australian military courts have been the subject of criticism6 and the work of the International Military Tribunal for the Far East continues to receive a generally negative press. In 1986 at the 80th annual meeting of the American Society of International Law, the distinguished authority on international criminal law, Professor M Cherif Bassiouni, described the Tokyo trial as "shamefully unfair and riddled procedurally with every type of error, bias, prejudice and unfairness that one can imagine"7. In Japan, in so far as the conduct of its armed forces during the war in the Pacific and in China has been the subject of introspection, the war crimes trials are dismissed as victor's, or one-sided, justice.8 In comparison to its investigation and prosecution of Japanese war crimes, Australia's involvement in like activity with respect to German war crimes, including war crimes committed by persons acting in association or collaboration with Germany in the war in Europe, was more modest. Australia took no part in the work of the International Military Tribunal, Nuremberg although it did formally adhere to the London Agreement, the treaty signed in August 1945 by France, the United Kingdom, the United States and the Soviet Union which established the tribunal and agreed the terms of its charter for the trial of the major German war criminals9. Thereafter and for many years Australia's activity, more accurately, inactivity with respect to German war crimes was limited to allowing, through inadvertence, a significant number of persons to enter Australia whose alleged participation in those crimes warranted investigation and prosecution10.
On 22 March 1961, three weeks before the start of the most notable war crimes trial at the national level since the end of the Second World War, the trial of the German war criminal Adolf Eichmann in Israel11, Sir Garfield Barwick, acting Minister for External Affairs and Attorney-General, made a statement in the House of Representatives in which he explained why the Australian government had refused a Soviet request for the surrender of a naturalized Australian citizen who was alleged to have committed war crimes in Estonia against Soviet citizens in 1941, including personal participation in mass shootings and executions.12 In the setting of this case, which Sir Garfield considered to be "distinguishable in many respects" from the pending Eichmann case,13 the minister stated that, in respect of war crimes committed during the Second World War, "the time has come to close the chapter".
The chapter was reopened with the enactment by the Commonwealth Parliament of the War Crimes Amendment Act 1988 (Cth) in response to media allegations of the presence in Australia of German war crimes suspects and the subsequent recommendations made in the review carried out at the request of the Australian government by Mr A C Menzies14. The Act, which in form amended but in substance replaced the War CrimesAct 1945 (Cth), made provision for the indictment and trial in the ordinary Australian criminal courts of Australian citizens or residents for war crimes committed in Europe during the Second World War. The Special Investigations Unit which was set up within the Commonwealth Attorney-General's Department investigated 834 cases of German war crimes suspects in Australia, many of the cases involving alleged participation in the genocide of the European Jews.15 The difficulty of establishing beyond reasonable doubt the commission of specific offences on the other side of the world almost 50 years ago by persons whose identity sometimes was in issue proved overwhelming. Four cases were referred by the Special Investigations Unit to the Commonwealth Director of Public Prosecutions and war crimes charges were laid against three individuals. Despite the thorough manner in which the Special Investigations Unit and the Director of Public Prosecutions conducted their work the prosecution failed in two of these cases and was stopped in the third case.16 With the decision of the Australian government to terminate the work of the Special Investigations Unit with effect on 30 June 1992 the possibility of any further prosecutions in Australia for war crimes committed during the Second World War is remote.
The experience of the war crimes trials arising out of the Second World War provides the background and has informed the response to the war in the former Yugoslavia 1991-1995 and the genocide of the Tutsi race in Rwanda in 1994. The explicit evidence of large scale commission of war crimes, genocide and crimes against humanity in the former Yugoslavia and in Rwanda, combined with favourable political circumstances in the Security Council of the United Nations, produced two unique resolutions of that body17. In Resolution 827 (1993) adopted on 25 May 1993 the Security Council established the International Tribunal for the former Yugoslavia with jurisdiction to prosecute persons responsible for committing war crimes, genocide and crimes against humanity in the former Yugoslavia since 1991. On 8 November 1994 the Security Council adopted Resolution 955 (1994) which established the International Tribunal for Rwanda with jurisdiction to prosecute persons responsible for committing genocide, crimes against humanity and violations of article 3 common to the Geneva Conventions 1949 and Additional Protocol II 197718 in Rwanda in 199419. The Security Council resolutions respectively included the Statute of the International Tribunal for the former Yugoslavia and the Statute of the International Tribunal for Rwanda which make detailed provision for the organization and functioning of the tribunals and require member states of the United Nations to co-operate with the tribunals and render judicial assistance.
Under Article 25 of the Charter of the United Nations member states agree to accept and carry out the decisions of the Security Council in accordance with the Charter. The Commonwealth Parliament responded to this international obligation by enacting the International War Crimes Tribunals Act 1995 (Cth) which, together with the International War Crimes Tribunals (Consequential Amendments) Act 1995 (Cth), provides a legislative basis for Australia to help the tribunals in the performance of their work. The assistance which Australia may provide to the tribunals in connection with the investigation or prosecution of offences within their jurisdiction includes arresting and surrendering to a tribunal a person in relation to whom the tribunal has issued an arrest warrant, executing a request for search and seizure, obtaining evidence, locating and identifying a witness or suspect, arranging for a person to give evidence or assist an investigation, causing the forfeiture of property or the proceeds of crime, serving documents and arranging for a tribunal to sit in Australia20. In respect of these forms of assistance the principal Act makes detailed provision with a view to striking the appropriate balance between Australia's international obligation and the civil liberties of persons in Australia who may be the subject of investigation or prosecution for offences within the jurisdiction of the tribunals. The principal Act also makes provision for the Attorney-General to authorise Commonwealth legal or financial assistance in cases of hardship where a person is involved in proceedings before a court or magistrate under the Act21.
The Australian community includes a large number of persons whose country of origin was the former Yugoslavia but very few persons with a family or racial connection with Rwanda. This would suggest that the scope of operation of the legislation in practice is more likely to involve the International Tribunal for the former Yugoslavia rather than the International Tribunal for Rwanda. The Joint Standing Committee on Foreign Affairs, Defence and Trade in its report in January 1996 to the Commonwealth Parliament22 referred to allegations which had been made during the committee's public hearings of the presence in Australia of persons suspected of involvement in war crimes committed in the former Yugoslavia. The committee also noted that guidelines had been developed by the Department of Immigration and Ethnic Affairs to deal with the possible entry of alleged war criminals into Australia and the co-ordination of information in relation to sightings in Australia of alleged war criminals. Experience has shown that war criminals tend to be peripatetic and Australia's insufficiency of action in relation to the entry of German war crimes suspects after the Second World War is a warning against complacency. In recent times persons accused of complicity in the genocide in Rwanda have been detained or identified in Belgium, Cameroon, France, Namibia, Quebec, Switzerland and Zambia.
The most significant aspect of the establishment of the two United Nations tribunals is that they represent the first manifestly impartial international judicial bodies with jurisdiction in relation to war crimes and related offences. Whilst the International Military Tribunal, Nuremberg comprised judges from four states and the International Military Tribunal for the Far East comprised judges from eleven states, the judges were drawn only from states which had been at war with Germany and Japan. In contrast, the judges of the International Tribunal for the former Yugoslavia and the International Tribunal for Rwanda have been elected by the General Assembly of the United Nations and comprise persons drawn from diverse and impartial third party states23. The expression victor's justice, invariably mentioned in any evaluation of the war crimes trials arising out of the Second World War, will not haunt the work of these tribunals.
The prospects of a permanent international criminal court, more encouraging today than at any time24, are linked inextricably with the success or failure of the work of the International Tribunal for the former Yugoslavia and the International Tribunal for Rwanda. So too is the credibility of international humanitarian law, particularly the United Nations sponsored Genocide Convention 194825. Failure to bring to account in criminal proceedings the persons responsible at the command level for the genocide in the former Yugoslavia and in Rwanda will relegate the Genocide Convention to the status of a document of little more than historical interest suitable for class room discussion and the lamentation of commentators.
Australia has undoubted competence under international law, conventional and customary, to prosecute in its national courts persons responsible for committing war crimes without limitation as to the place of commission or nationality of perpetrator or victim26. However, the support being given by Australia to the international prosecution of war crimes and related offences in the former Yugoslavia and in Rwanda is to be welcomed.
* Senior Lecturer in Law, The
University of Sydney.
1. House of Representatives, Hansard, 21 September 1994, p 1247.
2. War crimes are violations of the laws or customs of war committed in the course of international armed conflict, including grave breaches of the four Geneva Conventions 1949 and Additional Protocol I 1977. Sometimes related to the commission of war crimes, but technically distinct in terms of definition, are crimes against humanity and genocide. Crimes against humanity were defined first in the Charter of the International Military Tribunal, Nuremberg. The acts included in that definition were "murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population ... or persecutions on political, racial or religious grounds ...". Genocide is defined in the Genocide Convention 1948 as an act, such as killing or causing serious bodily or mental harm, committed with intent to destroy a national, ethnic, racial or religious group as such. Although potentially there is considerable overlap between war crimes, crimes against humanity and genocide, the latter two offences are distinguishable from war crimes in that there is no necessary connection between those offences and international armed conflict and the victim of a crime against humanity or genocide may be a national of the same state as the perpetrator.
3. Sir William Webb was appointed a justice of the High Court of Australia on 16 May 1946. At the time of his appointment as Australian War Crimes Commissioner in June 1943 Sir William Webb was Chief Justice of Queensland.
4. Department of External Affairs, Canberra, Current Notes on International Affairs, Volume 16 (1945), pp 1-3.
6.Dickinson, "Japanese War Trials" (1952) 24 Australian Quarterly 69; McCormack, "Apportioning the Blame: Australian Trials for Railway Crimes" in McCormack and Nelson (eds), The Burma-Thailand Railway: Memory and History (Allen & Unwin, Sydney, 1993), Ch 9.
7. American Society of International Law, Proceedings of the 80th Annual Meeting, 1986, p 62.
8. Buruma, The Wages of Guilt. Memories of War in Germany and Japan (Jonathan Cape, London, 1994), pp 159-176.
9. 82 UNTS 279. Australia notified its adherence to the London Agreement on 5 October 1945.
10. Commonwealth Parliament, Review of Material Relating to the Entry of Suspected War Criminals into Australia, Parliamentary Paper, No 90/1987, pp 177-180.
11.Attorney-General (Israel) v Eichmann 36 ILR 5 (1961).
12. House of Representatives, Hansard, 22 March 1961, p 449.
13.Attorney-General (Israel) v Eichmann 36 ILR 5 (1961).
14. Commonwealth Parliament, Review of Material Relating to the Entry of Suspected War Criminals into Australia, Parliamentary Paper, No 90/1987.
15. Attorney-General's Department, Report of the Investigations of War Criminals in Australia (Australian Government Publishing Service, undated), p 4. This is the published report of the director of the Special Investigations Unit, Mr Graham Blewitt, dated 13 September 1993, to the Commonwealth Attorney-General.
16. Bevan, A Case to Answer. The Story of Australia's first European War Crimes Prosecution (Wakefield Press, Kent Town, 1994), pp 257-258.
17. The text of the resolutions and the statutes of the tribunals established by the resolutions are set out in the schedules to the International War Crimes Tribunals Act 1995 (Cth).
18. Article 3 common to the Geneva Conventions 1949 and Additional Protocol II 1977 provide for the protection of the victims of non-international armed conflict. Breach of these provisions does not constitute a grave breach of the Conventions and, being committed in the course of non-international armed conflict, does not constitute a war crime as traditionally understood in international law.
19. The jurisdiction of the International Tribunal for Rwanda extends to the commission of these offences by Rwandan citizens in the territory of neighbouring states in 1994.
20. Section 7(2).
21. Section 81.
22. Commonwealth Parliament, Joint Standing Committee on Foreign Affairs, Defence and Trade, Bosnia: Australia's Response (Australian Government Publishing Service, 1996).
23. The 11 judges elected as members of the International Tribunal for the former Yugoslavia comprise persons nominated by Australia, Canada, China, Costa Rica, Egypt, France, Italy, Malaysia, Nigeria, Pakistan and the United States. The 6 judges elected as members of the International Tribunal for Rwanda comprise persons nominated by Bangladesh, Russian Federation, Senegal, South Africa, Sweden and Tanzania. The members of the Appeals Chamber of the International Tribunal for the former Yugoslavia also serve as the members of the Appeals Chamber of the International Tribunal for Rwanda.
24. See Crawford, "The ILC Adopts a Statute for an International Criminal Court" 89 American Journal of International Law 404 (1995).
25. The Convention on the Prevention and Punishment of the Crime of Genocide 1948, 78 UNTS 277, was adopted unanimously by the General Assembly of the United Nations on 9 December 1948.
26. In respect of persons committing grave breaches of the Geneva Conventions 1949 and Additional Protocol I 1977, state parties are required to enact penal legislation. Australia implemented this international obligation in the Geneva Conventions Act 1957 (Cth). Under customary international law Australia possesses jurisdictional competence by reference to the universality principle: see Randall, "Universal Jurisdiction under International Law" 66 Texas Law Review 785 (1988).