AustLII Home | Databases | WorldLII | Search | Feedback

Alternative Law Journal

Alternative Law Journals (AltLJ)
You are here:  AustLII >> Databases >> Alternative Law Journal >> 2007 >> [2007] AltLawJl 25

Database Search | Name Search | Recent Articles | Noteup | LawCite | Author Info | Download | Help

MacGregor, David --- "Bringing War Criminals to Justice in Australia" [2007] AltLawJl 25; (2007) 32(3) Alternative Law Journal 154

  • BRINGING WAR CRIMINALS TO JUSTICE IN AUSTRALIA: Upholding international criminal law and the principle of non-refoulement
  • BRINGING WAR CRIMINALS
    TO JUSTICE IN AUSTRALIA
    Upholding international criminal law and
    the principle of non-refoulement

    DAVID MacGREGOR[*]

    Adopted in 1998, the Rome Statute of the International Criminal Court embodies the long-held desire of the international community to effectively redress crimes of a magnitude and nature that offend humankind as a whole. Through the Rome Statute, the International Criminal Court (ICC) has established jurisdiction over the crimes of genocide, crimes against humanity and war crimes.[1] And while the ICC is mandated to exercise its jurisdiction over individuals accused of these crimes, the principle of complementarity (as it is applied within the framework of the ICC) preserves the right of a sovereign state to undertake the primary prosecution of an accused person, within its jurisdiction, under its domestic laws.[2]

    The Preamble of the Rome Statute also recalls ‘that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. Amendments to the Criminal Code Act 1995 (Cth), made through enactments of the International Criminal Court Act 2002 and the International Criminal Court (Consequential Amendments) Act 2002, represent the latest developments in Australia’s attempt to fulfil this obligation.

    Recent conflicts in the former Yugoslavia, Sudan, Sri Lanka and Iraq have seen the settlement in Australia of communities from these and other war-torn regions. While no doubt the overwhelming majority of these migrants have travelled to Australia in genuine fear of persecution, the inclusion in their numbers of those fleeing prosecution cannot be ignored. Indeed, with its long history of immigration, it is difficult to imagine that Australia has remained entirely free of migrant war criminals. And yet only one genuine attempt to prosecute an alleged war criminal has been made by Australia since the Japanese prosecutions at the close of the Second World War.[3]

    Australia’s inaction against those responsible for war crimes and other atrocities may be based on any of a number of factors.

    One may relate to a misplaced sense of responsibility to the spirit of competing legal norms where a potentially complicated relationship exists between the obligation to ensure war criminals are prosecuted and the obligation to ensure that no person, irrespective of the accusation against them, is returned to a jurisdiction where he or she faces torture or death.[4] Others may concern the potential diplomatic or political ramifications of exercising domestic laws over the citizens of another state, or perhaps a simple belief that these types of investigations are too complex, too costly and, thus, comparatively lacking in domestic relevance. This article contends that, in order to achieve the ‘lasting respect for and the enforcement of international justice’ guaranteed by the Preamble of the Rome Statute, Australia must fulfil its obligations and develop robust policies in support of recent legislative changes enabling the prosecution of war criminals within its jurisdiction.

    The prosecution of war crimes as a positive obligation: international law and Australian domestic legislation

    The 1949 Geneva Conventions, the 1977 Additional Protocols and, more recently, the Statutes of the ICTY and ICTR create a raft of positive obligations on UN members to enact domestic legislation enabling the prosecution of persons responsible for the gravest breaches of humanitarian law.[5] The scope and tone of the Rome Statute signify a further attempt to codify the criminalisation of certain acts, irrespective of the conflict in which they have occurred. Development of the scope of individual criminality under the Rome Statute is most profoundly noticeable in the context of non-international armed conflict.

    The Preamble of the Rome Statute affirms that the ‘effective prosecution [of the most serious crimes of concern to the international community] must be ensured by taking measures at the national level’. By adopting this treaty, those Parties have ‘demonstrated their resolve to put an end to the impunity enjoyed by perpetrators of the most heinous crimes, and hence to deter the commission of further violations.’[6] This resolve is achieved not only through direct support of the Court and its mechanisms, but through accepting individual state responsibility for the prosecution of war criminals from both international and non-international armed conflicts. The onus of investigation and prosecution is thus firmly placed upon the states at first instance.

    Australia became party to the Geneva Conventions on 14 October 1958 and the Additional Protocols on 21 June 1991, and ratified the Rome Statute on 9 August 2002. The government has passed a number of laws to comply with its international obligations regarding the prosecution of war crimes — although the political will of successive Australian governments and their agencies to conduct such prosecutions appears, with only a handful of exceptions, to have been widely deficient in this respect.

    The War Crimes Act 1945 (Cth) was enacted to provide for ‘the trial and punishment of violations of the laws and usages of war’[7] committed against Allied armies during the Second World War. But subsequent to Australia’s participation in the Tokyo Tribunal, and its prosecution of Japanese war criminals in Papua New Guinea, the former Dutch East Indies and Manus Island between 1945 and 1951, for political reasons Australia made no further attempts to enforce this Act.[8] Similarly the Geneva Conventions Act 1957 (Cth) — passed to criminalise grave breaches of the Geneva Conventions and offering far broader scope for the potential prosecution of atrocities committed beyond the theatre of the Second World War — was similarly overlooked and underused by Australian law enforcers and prosecutors.

    However in 1986, in response to media reports alleging that Australia had knowingly ignored a number of migrants who were suspected of having committed war crimes under the Nazi regime, a government enquiry publicly concluded ‘it was more likely than not’ that former war criminals had assumed residency in Australia.[9] The establishment of a Special Investigations Unit in Australia to investigate the whereabouts and involvement of alleged Nazi war criminals presented a politically expedient solution to the ensuing controversy.[10] In its preamble, the War Crimes Amendment Act 1988 demonstrated Australia’s concern that ‘a significant number of persons who committed serious war crimes in Europe during the Second World War may since have entered Australia and become Australian citizens or residents’.

    Following the 1986 revelations, Australia may have wished to deport alleged Nazis, as has been common practice in the USA since 1978, but the 35 year lapse in Australia’s interest in war crimes prosecutions created a significant hurdle. While Division 4 of the Australian Citizenship Act 1948 (Cth) allows for Australian citizenship to be revoked under certain circumstances, s 201 of the Migration Act 1958 (Cth) had, until amendments made by the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Act 1998 (Cth), only allowed for the deportation of a permanent resident convicted of a criminal offence who had been a permanent resident for less than 10 years.[11] Many of those individuals accused of Nazi war crimes had become naturalised citizens, or at least permanent residents of Australia, decades earlier, and were only accused of such crimes, not tried and convicted, so their denaturalisation and/or deportation was untenable.

    However, perhaps deportation does not represent the most appropriate course of action against war criminals. Although it can reasonably be assumed that the country to which the suspect is deported will undertake a vigorous prosecution of its own. In the case of accused Nazi criminals, this will not always be guaranteed in the case of criminals from other theatres of war. Deportation also seems to relieve states of their fundamental obligation to bring war criminals, regardless of their nationality, before their municipal courts.

    The War Crimes Amendment Act 1988 states ‘it is appropriate that persons accused of such war crimes be brought to trial in the ordinary criminal courts in Australia’. The acceptance of responsibility in law over the potential prosecution of exiled Nazi war criminals in Australia was a clear expression of intent by the Australian government. However, the temporal and territorial interests of this Act are strictly limited and, somewhat unusually given the significant body of international law dedicated to describing the nature and content of war crimes, the Act defines war crimes by reference to ‘serious crimes’ that are ‘ordinary’ crimes under Australian law.[12] Thus, meeting the hefty standard of proof in the criminal prosecution of a person accused of crimes committed over forty years previously, in a non-English-speaking country thousands of kilometres away, during the chaos of war, proved too much for an Australian law lacking the support of genuine political resolve. The Australian government, for example, spent about $25 million on war crimes investigations and prosecutions prior to the disbandment of the Special Investigations Unit in the 1990s. Senator Nick Minchin, the current Minister for Finance and Administration, exclaimed at the time of the Polyukhovich Case, ‘this exercise has done little more than line the pockets of a bevy of lawyers’. [13]

    This response by the then Federal Opposition demonstrates how the politicisation of such matters can undermine the operation of domestic war crimes trials. This lack of political resolve would explain why no attempt has yet been made to prosecute alleged breaches of the Geneva Conventions Act 1957, despite its being the least constrained in terms of its temporal and territorial applications.[14]

    The enactment in 2002 of the ICC Act and the ICC (Consequential Amendments) Act has overcome many of the barriers which prevented previous criminal actions against war criminals based on temporal or territorial parameters or, perhaps most importantly, on distinctions between international and non-international armed conflicts. Chapter 8 of the Criminal Code Act 1995 (Cth) creates ‘certain offences that are of international concern’, reiterating ‘that the jurisdiction of the ICC is to be complementary to the jurisdiction of Australia’ and ‘the ICC Act does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to offences … that are also crimes within the jurisdiction of the ICC.’

    The ICC (Consequential Amendments) Act (Cth) establishes the authority of Australian municipal courts to try war crimes committed during non-international armed conflict. Subsection G, in particular, provides significant depth to Australian law by replicating art 8(2)(e) of the Rome Statute and extends Australia’s jurisdiction beyond what is commonly regarded as customary international law in non-international armed conflict.

    Nevertheless, legislating to expand Australia’s jurisdiction over war crimes will not necessarily translate into actual prosecutions. As previously noted, the Geneva Conventions Act 1957, while not as broad as Division 268 of the Criminal Code, has been at the disposal of Commonwealth agencies for fifty years, and the opportunity to exercise this law has been consistently avoided. Political resolve, in addition to robust law, is therefore clearly required. This article examines several possible explanations for this lag in political will and in the practical implementation of domestic war crimes laws to date.

    Refugee law, human rights and interplay with International War Crimes obligations

    International law has created a series of clear obligations on states to prosecute war criminals. The question of how these obligations interact with other international norms is one worthy of closer examination, especially when it is widely believed war criminals from numerous conflicts over the past sixty years have come to Australia as both refugees and sanctioned migrants, to seek anonymity and refuge from justice. One possible explanation for this inaction on the part of Australian law makers and law enforcers against accused war criminals may be concerns over potentially conflicting obligations under international refugee and human rights law. A related and, given the attitude of Australia’s present government to refugees and asylum, more likely concern, is the potential for genuine refugees to be created — persons known as refugees sur place (a person who did not leave his or her country as a refugee, but who becomes a refugee while abroad due to a change in circumstances within the country or with that person’s status/affiliations). This status could arise as a result of investigations into the alleged criminal behaviour of persons whose original claims to this status may be tenuous at best.

    Refugees and States: Rights and Responsibilities

    The 1951 UN Convention Relating to the Status of Refugees[15] and the 1967 UN Protocol Relating to the Status of Refugees[16] remain the contemporary ‘embodiment of the ancient universal tradition of providing sanctuary to those at risk and in danger.’[17] Art 1(2) of the Refugee Protocol defines the term ‘refugee’.[18] However, Article 1F of the Refugee Convention places a number of caveats on the types of persons who are entitled to claim its protections. It states:

    The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:

    (a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions for such crimes …

    While the Convention is over fifty years old, there is nothing in Article 1F that restricts its application to similarly historical ‘international instruments’, allowing for Protocols I and II and the Statutes of the ICTY, ICTR and ICC to broaden the definition of war crimes.[19] A 2002 report by the then Australian Department of Immigration and Multicultural and Indigenous Affairs (DIMIA, now DIAC), detailing its position on persons deemed unworthy of refugee status under Article 1F, indicated the belief of the Australian Government that the ‘serious reasons for considering’ test in the Convention is triggered by a relatively low threshold that falls short of a criminal standard of proof.[20] Australia also states its belief, in accord with the UN High Commissioner for Refugees (UNHCR),[21] that the receiving state should be the final arbiter of decisions to exclude under this article. Given this low threshold and standard of proof, the UNHCR also recommends that cases be balanced on their individual merit and circumstances, but DIMIA opined that the very nature and gravity of the crimes described in Article 1F(a) make any attempts at balancing the potential effects of persecution with the alleged crimes redundant.[22]

    It must be recalled that a refugee is someone fleeing persecution, not prosecution. Nevertheless, where persecution of an alleged war criminal is a genuine concern of the receiving state, both international and domestic law now supports the possibility of prosecuting crimes attracting universal jurisdiction outside the state where the crimes are alleged to have occurred.[23] A state’s support of the human rights principles contained within the Refugee Convention no longer need outweigh the same state’s desire to seek justice for war crimes.

    The principle of non-refoulement contained in Article 33(1) of the Refugee Convention has arguably attained the status in international law of jus cogens[24]: a higher and over-riding law. Article 33(1) provides that:

    [n]o Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political party.

    Yet despite its arguable status as higher law, the principle of non-refoulement does not provide absolute or unconditional protection for all refugee applicants as defined under the Refugee Convention. In response to the concerns of some states that such a broad obligation may erode sovereignty, para 2 of Article 33 was included so that, if a state believes on reasonable grounds that a refugee poses a danger to its national security or a threat to its community, non-refoulement obligations are suspended. If it is believed on reasonable grounds that a person claiming refugee status has been convicted of a particularly serious crime, that person can be refused the protections of the Refugee Convention and its Protocol.

    The Absolute Right of Protection from Torture

    These exceptions under the Refugee Convention are likely to be academic for states that are party to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, where the principle of non-refoulement, at Article 3, requires that ‘[n]o State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture’.

    There is no exception to this rule within the Convention Against Torture. Its protections extend to suspected criminals, national security risks, and even torturers themselves[25] And the Australian Government accepts the opinion of the UN Committee Against Torture that Article 3 cannot be abrogated under any circumstances.[26] Thus, if, in a particular case, Australia possessed the necessary ‘substantial grounds for believing’, the expedient deportation of a war criminal could not be excused by reference to exceptions under the Refugee Convention.

    While both Conventions fundamentally seek to protect persons from refoulement, the ‘focus of Article 3 is the existence of serious harm which will be suffered, rather than its connection with a specific ground or the person making the claim’.[27] In other words, the definition of a refugee does not implicitly include all individuals protected under Article 3 of the Convention Against Torture, and the exceptions in Article 1F or 33(2) of the Refugee Convention should be relied upon only to justify the deportation of a suspected war criminal when there are no substantial grounds for believing in their likely torture.

    The UN Committee Against Torture, in the case of Sadiq Shek Elmi v Australia[28], demonstrated that an assessment of a person’s claim for refugee status under the Refugee Convention will, in itself, be inadequate to justify their deportation when additional circumstances may exist which trigger protections under the Convention Against Torture.[29] While this is not explicitly enacted in Australian law, s 22(3)(b) of the Extradition Act 1988 (Cth) indicates a general appreciation of this where it states ‘the eligible person is only to be surrendered [if] … the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture’.

    Thus, by virtue of Australia’s understanding of the Refugee Convention, a person considered to be a war criminal will not be recognised as a refugee. Even if this person was not previously known or suspected of committing war crimes in the country from which they have fled, and it is their accusation in Australia that brings them to the attention of their home government, under the Refugee Convention the principle of non-refoulement will not apply and they can be deported. However, as Australia is also a signatory of the Convention Against Torture, any investigation, or even accusation, in Australia of a person in relation to war crimes may create very real concerns for that person if he or she is deported to the country in which the war crimes were allegedly committed.

    Consider, for example, an Iraqi national claiming refugee status and protection in Australia. Enquiries into their involvement in war crimes may create the likelihood of their being tortured in Iraq upon their deportation. That person may effectively be made a refugee in Australia (a refugee sur place). Hence, despite their not being a refugee under the Refugee Convention, because of the exceptions in Article 1F, the Iraqi national’s non-refoulement is guaranteed under the Convention Against Torture.

    Australia and the way forward

    The rejection and deportation of alleged war criminals at the national border, or even those identified within the community, would satisfy Australia’s desire to keep such undesirables out. It is difficult to imagine too many Australians openly accepting suspected war criminals into the community and, in this context, it is certainly in the national interest to ensure that such persons are identified and turned away.

    However, Australia, in line with its international obligations to not only identify but also investigate and prosecute war criminals, must also ensure that justice is sought. And, in this context, war criminals should be investigated and tried in Australia when and wherever they are found. If justice cannot be assured through deportation, Australia must accept the responsibility for their prosecution. It is true that the significant financial cost of the ensuing prosecutions may make such a policy politically unpopular, and that when a crime is committed in a culturally unfamiliar and distant country, taxpayers’ ambivalent ‘it’s not our problem’ mentality would be easy to exploit by politicians desirous of a cheap political point.[30] Public anger at the financial cost of the Polyuchovich trial, for example, ultimately forced the Keating Government to decommission the Special Investigations Unit. But Governments must not be dissuaded from discharging their legal responsibilities by reactionary opposition posturing. Australia’s responsibilities under international law must be recalled whenever necessary.

    It would be naïve and impractical to ignore the various political pressures that invariably influence decisions on whether or not international criminal law is enforced. This political expediency was evident when Australia eventually acquiesced to Japanese post-War pressure and, in 1957, released the last five convicted war criminals from its Manus Island compound.[31] It seems unlikely that pure coincidence alone saw, two days after their repatriation to Japan, the Australia-Japan Commerce Agreement signed in Tokyo.

    Dr Gerry Simpson discusses the tensions that exist between the exercise of international criminal law and diplomacy, ‘the retributive urge and the realist demand, between the necessary and the possible, the visceral and the pragmatic.’[32] How should Australia act toward a high-ranking Indonesian military officer who, while holidaying in Australia in 2007, is accused of orchestrating massacres in Timor Leste in 1999? International law would offer no explicit immunity to the military officer and, as such, Australia would be obliged to act against that person. But, given the sensitive geopolitical relationship between Australia and Indonesia, would such a course of action be realistic?

    Furthermore, while universal jurisdiction may exist allowing a nation to pursue the prosecution of a non-national for such crimes, agreement on a universal solution may not be so clear. Agreement on the application of universal jurisdiction is not always unanimous, and in Polyukhovich v Commonwealth Brennan J states the opposing argument.[33]

    While Australia may have the right — even obligation — to prosecute an Indonesian national for crimes committed in Timor Leste, this course of action may create greater problems for Timor Leste given its genuine need to maintain civil relations with Indonesia. Many states have decided that punitive trials are ultimately more divisive than alternative solutions, such as the Truth and Reconciliation Commissions favoured by South Africa, and have opted to employ these based on a desire to attain peace and stability.

    In recognition of the need to live harmoniously with Indonesia and the West Timorese, Prime Minister Xanana Gusmao has expressed his support for a similar Commission for Reception, Truth and Reconciliation in Timor Leste.[34] Such a commission is considered by many to represent the most appropriate compromise between the values of justice and reconciliation. Problems have already been faced by the ICC whose inaugural prosecution of Joseph Kony may yet confound the attainment of the peaceful resolution which has long eluded Uganda.[35]

    Nevertheless, the universality and overwhelmingly abhorrent nature of war crimes implies that beyond the immediate victims of war criminals, humankind as a whole is the victim.[36] Given this universality, Australia or the ICC may argue the right to seek justice by bringing the worst perpetrators before a criminal court. However, if such prosecutions are achieved at the cost of long-term peace, justice may ultimately lose out to retribution. Furthermore, the principle of generality — the principle that laws shall be applied generally and uniformly to all activities regardless of the status of the actor[37] — demands that if action is taken against one offender, the same laws must be applied to equal actions committed by all others.

    Law does, or at least should, not discriminate based on the arbitrary status of individuals. Issues of politics and diplomacy should not be the concern of agencies charged with examining war crimes cases. Having said this, the intended actions and motivations of other sovereign states should be carefully considered when Australia’s whole-of-government response to a particular war crimes referral is defined. Quite simply, if a war criminal is permitted to hide behind his or her position of power on the grounds of diplomacy or political expediency, any claims that the prosecuting state is serious about attaining justice would have to be questioned. If, however, another state has expressed its desire to proceed against that person in a satisfactory manner, consideration should be given to these options.

    Furthermore, the fact that many of the most heinous war crimes can only be committed by order of those men and women with command responsibility makes nonsense of any opposition to their prosecution that is based on notions of sovereignty, immunity or simple diplomatic posturing. Rather, the maintenance of a robust network of national courts prepared to accept universal jurisdiction over war criminals and the like will send clear messages to all states that to protect such persons is no longer accepted by the wider international community.

    Conclusion

    It is true that the prosecution of war criminals will likely be both complicated and expensive. But is it possible, or even desirable, to attach a price-tag to the attainment of justice, particularly when such horrific miscarriages are in issue?

    Perhaps, in the case of the prosecution of war criminals for the Second World War, the cost and likelihood of failure based on numerous legal and procedural impediments, may exceed the need to achieve justice. The living victims of Nazi atrocities and their families are likely to vehemently disagree with this assessment. But it is important to remember that we are no longer confined to the temporal and territorial context of 1940s Europe. Australia should not be discouraged by the memory of those few unsuccessful actions of the 1990s against suspected Nazi war criminals. Legislative amendments of the past decade significantly improve Australia’s chances of successfully prosecuting war criminals from more recent and less geographically removed conflicts. Future arguments of retrospectivity and ‘no crime without law’ will lose their footing in the expanding body of domestic and international jurisprudence against war criminals.

    Australia has enacted laws in line with its international obligations to ensure that war crimes committed in these and any future conflicts can be prosecuted and appropriately punished. Practical implementation of these laws now relies on the complementary will of government.


    [*] DAVID MacGREGOR is the Australian Federal Police Advisor to the AusAID Fragile States Unit. He holds a Masters in Public and International Law from the University of Melbourne.

    © 2007 David MacGregor

    [1] Philippe Kirsch, ‘Foreword’, in Knut Dormann, Elements of War Crimes Under the Rome Statute of the International Criminal Court (2003), xiii.

    [2] Gillian Triggs, ‘Implementation of the Rome Statute for the International Criminal Court: A Quiet Revolution in Australian Law’ [2003] SydLawRw 23; (2003) 25 Sydney Law Review, 507–533, 512.

    [3] Ivan Polyukhovich was tried in 1993 on allegations of war crimes (committed in Ukraine during the Second World War) and found not guilty by the South Australia Supreme Court. While the author also acknowledges Australia’s current interest in the case of Mr Dragan Vasilkovich, an Australian citizen accused of war crimes by Croatia and whose extradition to Croatia was ordered by a NSW Local Court earlier this year, Australia is not the lead prosecutor in this case and cannot be attributed with commencing any substantive legal action against Mr Vasilkovich with respect to his alleged war crimes.

    [4] See text under heading “Refugee law, human rights and interplay with International War Crimes obligations” in this article.

    [5] Jakob Kellenberger, ‘Foreword’, in Knut Dormann, Elements of War Crimes Under the Rome Statute of the International Criminal Court (2003), ix.

    [6] Statement of the International Committee of the Red Cross, 53rd Session of the UN General Assembly in New York, 22 October 1998, at <http://www.icrc.org/web/eng/siteeng0.nsf/html/57JPEW> , as at 9 August 2007.

    [7] War Crimes Act 1945 (Cth), Preamble.

    [8] Michael Carrel, Australia’s Prosecution of Japanese War Criminals: Stimuli and Constraints (2005), 16.

    [9] Gillian Triggs, ‘Australia’s War Crimes Act: justice delayed or denied?’, (1990) 64(1) Law Institute Journal, 153–157, 153.

    [10] Ibid.

    [11] The amendment made by this Act no longer guarantees persons with over 10 years permanent residency protection against deportation if convicted of an indictable offence or deemed to be of

    ‘bad character’.

    [12] Triggs, above n 2, 518.

    [13] David Bevan, A Case to Answer: The story of Australia’s first European war crimes prosecution.

    [14] Triggs, above n 2, 518.

    [15] UN Convention Relating to the Status of Refugees, opened for signature 28 July 1951 (entered into force 22 April 1954), hereinafter referred to as the Refugee Convention.

    [16] UN Protocol Relating to the Status of Refugees, opened for signature 16 December 1966 (entered into force 4 October 1967), hereinafter referred to as the Refugee Protocol.

    [17] Volker Turk & Francis Nicholson, ‘Refugee protection in international law: an overall perspective’ in Feller, Turk and Nicholson (eds) Refugee Protection in International Law: UNHCRs Global Consultations on International Protection (2003) 3–45, 3.

    [18] It states that a refugee is ‘any person who owing to a well-found fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such a fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

    [19] Geoff Gilbert, ‘Current issues in the application of the exclusion clauses’ in Feller, Turk and Nicholson (eds) Refugee Protection in International Law: UNHCRs Global Consultations on International Protection (2003) 425–487, 434.

    [20] DIMIA Refugee & Humanitarian Division, ‘Persons deemed unworthy of international protection (Article 1F): An Australian perspective’, at <http://www.immi.gov.au/media/publications/refugee/convention2002/05_exclusion.pdf> at 9 August 2007.

    [21] UNHCR Handbook, para 149, at <http://www.hrea.org/learn/tutorials/refugees/Handbook/hbpart1.htm> at 9 August 2007

    [22] DIMIA Refugee & Humanitarian Division, above 20.

    [23] Gilbert, above n 19, 430.

    [24] Cartagena Declaration on Refugees, embodying the Conclusions of the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 19–22 November 1984.

    [25] Deborah Anker, Law of Asylum in the United States (1999), 469.

    [26] Savitri Taylor, ‘Exclusion from Protection of Persons of ‘Bad Character’: Is Australia Fulfilling its Treaty-Based Non-Refoulement Obligations?’ [2002] AUJlHRights 7; (2002) 8(1) Australian Journal of Human Rights, 83–106, 88.

    [27] Joanne Kinslor, ‘Non-refoulement and torture: The adequacy of Australia’s laws and practices in safeguarding asylum-seekers from torture’ [2000] AUJlHRights 24; (2000) 6(2) Australian Journal of Human Rights, 161–179, 164.

    [28] UN Doc CAT/C/22/D/120/1998, Communication No 120/1988 to Australia. In this case, Sadiq Shek Elmi applied for a DIMA protection visa due to his ethnic and religious background and non-compliance with the Hawiye militia in Mogadishu, Somalia. His father and brother were killed and sister raped by the militia. DIMIA, the Refugee Review Tribunal and the Minister for Immigration refused his application based on their findings that Mr Elmi would be unlikely to suffer torture as defined under the Convention Against Torture. The CAT found Australia's assessment to be in contravention of its international responsibility to protect Mr Elmi.

    [29] Kinslor, above n 27, 163.

    [30] See Bevan, above n 13.

    [31] Carrel, above n 8, 15.

    [32] Gerry Simpson, ‘War Crimes: a critical introduction’ in McCormack and Simpson (eds), The Law of War Crimes: National and International Approaches (1997) 8.

    [33] [1991] HCA 32; (1991) 172 CLR 501, 562–563.

    [34] Laura Dickinson, ‘The Dance of Complimentarity: Relationships among domestic, international and transnational accountability mechanisms in East Timor and Indonesia’ in Stromsth (ed), Accountability for Atrocities: National and International Responses (2001) 353.

    [35] BBC News, Uganda ‘war crimes’ probe opens, (2004) at <http://news.bbc.co.uk/2/hi/africa/3935571.stm> at 9 August 2007.

    [36] Rome Statute, Preamble.

    [37] Simpson, above n 32, 11.


    AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
    URL: http://www.austlii.edu.au/au/journals/AltLawJl/2007/25.html