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Sunday 20 Aug 2017 | 08:57 | SYDNEY
Sunday 20 Aug 2017 | 08:57 | SYDNEY

Reader riposte: War crimes

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11 September 2009 11:56

James Cockayne offers a correction to his earlier reader riposte about Australian war crimes law:

The very good post by Alex Duchen on Balibo today made me scurry back to my law books to check something, and I realise now that I was mistaken about the last piece of my analysis last week on Snedden. Then, I argued that no Aussie court had jurisdiction over war crimes alleged to have occurred during the Balkan wars of the 1990s, so he could not be tried in Australia.

I realise now that I was wrong: our courts arguably had jurisdiction at the time through the Geneva Conventions Act 1957, which gave Australian courts universal jurisdiction to try war crimes offences (once the government consented).

That arrangement was picked up by the International Criminal Court Act 2002 and the International Criminal Court (Consequential Amendments) Act 2002, which replace the substantive provisions in the Geneva Conventions Act 1957 creating war crimes offences (and add a range of other offences that the earlier act did not criminalize).

So Mr Snedden could arguably be tried in an Australian court after all, under the ICC-implementing legislation, notwithstanding the fact that it was passed in 2002 – so long as he was prosecuted for one of the offences that it picked up from the earlier Geneva Conventions Act. (otherwise, there would be a retroactivity problem). The Attorney-General would have to consent to such a prosecution, but not to investigation.

And if the AFP is discharging our international obligation to investigate alleged war crimes in Balibo, why would they not do the same for alleged war crimes in the Balkans? What criteria are they are using to allocate scarce resources to investigations of all the various war crimes that might have some connection to Australia? And where do potential impacts on bilateral diplomatic relations come into that determination of whether to open an investigation – if they come in at all?

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