Back in February I speculated that Australia might be inching towards a first — the successful extradition of a resident accused of war crimes. The decision by the full bench of the Federal Court yesterday makes that look less likely.
Croatia had sought the extradition of the accused on the basis of alleged war crimes but the Court ruled 'there are substantial grounds for believing that he may be punished or imprisoned...and that such treatment arises by reason of his nationality or political opinions'.
However, the Court was not required to make any ruling on the allegations he was involved in the commission of war crimes. That raises the obvious question of what to do next. If Australia is unable to extradite the accused because our extradition laws will not allow it, are we then obliged to try him for the alleged offences? [fold]
If the AFP does decide to investigate the Croatian allegations and those from the International Criminal Tribunal for the former Yugoslavia and finds there are grounds to proceed, it will likely come up against some problematic legislative gaps. Australia has enormous holes in its war crimes-related legislation prior to 2002.
The UK has recently had to confront a similar problem with its legislation, which I discussed here in July. The Labor Party pledged to close the gaps in our war crimes legislation back in 2007. They still haven't got around to it, but maybe it's worth dusting off the promise.
In the same spirit, this old review from 2005, discussing the delays and problems with Australia's extradition system, might also be worth dusting off. The accused in the above case has spent over three-and-a-half years in goal while his case ground through the court system, only to now be ordered to be released.