James Cockayne, Principal Legal Officer in the Extradition Unit of the Attorney-General's Department from 2002-2003, has this response to my post yesterday.
You’re right on the money that difficulties arise as a result of the potential overlap between the political offense exception to extradition and offences such as war crimes and crimes against humanity. It’s that overlap that led to the decision in Snedden v Republic of Croatia [2009] FCA FC 111 (2 September 2009).
But there are moves afoot, already, to try to sort these kinks out. Following the 2005 review you highlighted, this year the Government released a draft bill that would ensure that it was open to the Attorney-General to extradite people charged with war crimes, crimes against humanity, terrorism and similar offences, even if it was alleged that their conduct involved political motives.
However, this would not change the decision in Snedden.
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There the Federal Court held that there was a mandatory objection to extradition: namely, that there were reasonable grounds to believe that Mr Snedden would be punished or detained on grounds of his political beliefs. The Government’s draft bill leaves that as a mandatory ground for refusing extradition, to ensure Australia does not extradite people to face unfair trials.
The draft Bill goes further though: it also expands the grounds for mounting a prosecution in lieu of extradition. The expanded grounds would include cases like Mr Snedden’s.
But as things stand, Australia’s extradition law does not require such prosecution in lieu. (It limits such prosecution to cases where extradition was refused on the grounds of nationality. Not the case here.) Australia probably does have an international obligation under the Geneva Conventions to prosecute Mr Snedden for the alleged offences. But it remains unclear how that would happen: the War Crimes Act 1945 (Cth) deals only with cases from World War II, and the legislation implementing Australia’s obligations relating to the International Criminal Court creates jurisdiction only from 2002. So there is a gap in time, during which cases such as Mr Snedden’s may have occurred which may constitute war crimes engaging Australia’s international obligations under the Geneva Conventions, but over which no Australian court has jurisdiction.
Mr Snedden’s alleged conduct might be prosecuted as an ordinary crime. But it’s hard to see an Australian court finding it had jurisdiction over the conduct, since it occurred extraterritorially. Alternatively, it might be open to the government to pass legislation creating war crimes jurisdiction for a relevant Australian court relating to the relevant period, filling this temporal gap. That probably wouldn’t run afoul of existing prohibitions on ‘bills of attainder’ or retrospective criminalisation, because the conduct in question was already criminalized (by the Geneva Conventions and customary international law) at the time it occurred.
But it seems highly unlikely, at a political level, that such legislation will be forthcoming.