Practice Relating to Rule 157. Jurisdiction over War Crimes
Australia’s Commanders’ Guide (1994) states:
War crimes jurisdiction is universal. This means that any nation may prosecute any person who is suspected of committing a major war crime and no statute of limitations applies for such prosecutions. Trial of a suspected war criminal may take place at any time that the individual is located or evidence of a war crimes commission is unearthed. Australia has vested its war crime jurisdiction in the State Supreme Courts …
Where there is widespread evidence of war crimes having been committed, the international community may elect to establish a world forum or war crimes tribunal to conduct trials. The Nuremberg and Tokyo war crimes tribunals conducted after [World War II] are examples of this approach.
Australia’s LOAC Manual (2006) states:
The Geneva Conventions introduced a new concept, that of “grave breaches”. These are war crimes of such seriousness as to invoke universal jurisdiction. Universal jurisdiction entitles any nation to exercise jurisdiction over any perpetrator, regardless of their nationality or the place where the offence was committed.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s War Crimes Act (1945), as amended in 2001, gives the Australian courts jurisdiction over persons accused of certain “serious crimes” and “war crimes” committed either within or outside Australia during the Second World War. However, it states: “A person shall not be charged with an offence against this Act unless he or she is: (a) an Australian citizen; or (b) a resident of Australia or of an external Territory.”
Australia’s Geneva Conventions Act (1957), as amended in 2002, which provides for the punishment of grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I committed “in Australia or elsewhere”, states: “This section applies to persons regardless of their nationality or citizenship.”
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act (1995).
In the Polyukhovich case before Australia’s High Court in 1991 in which the accused was charged with crimes committed during the Second World War, certain judges addressed the question of the customary law obligation to prosecute and extradite persons accused of war crimes committed during the Second World War. Judge Brennan considered that:
As the material drawn from international agreements and [UN General Assembly] resolutions acknowledges, international law recognizes a State to have universal jurisdiction to try suspected war criminals whether or not that State is under an obligation to do so and whether or not there is any international concern that the State should do so.
Judge Brennan further held:
The universal jurisdiction to try war criminals is a jurisdiction to try those alleged to have committed war crimes as defined by international law … But jurisdiction under municipal law to try a municipal law offence which is similar to but not identical with an international crime is not recognized as a jurisdiction conferred or recognized by the law of nations … However, when municipal law adopts the international law definition of a crime as the municipal law definition of the crime, the jurisdiction exercised in applying the municipal law is recognized as an appropriate means of exercising universal jurisdiction under international law.
Judge Toohey held that the “universality of jurisdiction is in fact a permissive doctrine”.
Judge Toohey further held: “There appears to be general agreement that war crimes and crimes against humanity are now within the category subject to universal jurisdiction.”
Judge Toohey also discussed the relationship between war crimes and universal jurisdiction and held: “The question whether the crimes existed as such at that time is basic. If such conduct amounted, then, to customary international crimes, their very nature leads to the conclusion that they were the subject of universal jurisdiction.”
In 2009, in a statement before the Sixth Committee of the UN General Assembly, made on behalf of Canada, Australia and New Zealand,, the counsellor and legal adviser of Australia stated:
Universal jurisdiction is a long-established principle of international law. It vests in every State the competence to exercise, on behalf of the international community, criminal jurisdiction over those individuals responsible for the most serious crimes of international concern, no matter where those crimes occur. The principle first developed a[s] customary international law in relation to piracy to prevent pirates from enjoying impunity or safe haven. It has since been extended to include genocide, war crimes, crimes against humanity, slavery and torture.
The nature or exceptional gravity of these crimes renders their suppression a joint concern of all members of the international community. The principle of universal jurisdiction is an important mechanism through which the international community aims to ensure that individuals who commit these crimes do not enjoy safe haven anywhere in the world.
Primary responsibility for investigating and prosecuting serious international crimes, as with all crimes, rests with the State where the crime occurs. Where the territorial State establishes effective legal frameworks to prosecute and punish these crimes, the need for other States to assert jurisdiction is, as a practical matter, diminished. The territorial State is best placed to obtain evidence, secure witnesses and enforce sentences. And perhaps most importantly, it is also well placed to ensure that the “justice message” is delivered to affected communities.
However, it is a fact that many such crimes go unpunished, including through the movement of the accused to another country. Universal jurisdiction assists to cover that jurisdictional gap. With that in mind, we call upon all States to incorporate grave crimes into their domestic laws. We further call upon all States to provide each other with practical assistance to promote the rule of law and develop the capacity of domestic criminal justice systems to prosecute grave crimes. This is the front line in the fight against impunity and it should be our first priority.
Universal jurisdiction has a place in our collective system of criminal justice as a complementary mechanism to ensure an end to impunity.
On the rare occasion where a national court has asserted universal jurisdiction, State practice suggests that this has usually been due to a connecting link between the offence and the forum State, for example the presence of the accused on the territory of the forum State.
The national court should always exercise universal jurisdiction – and indeed all forms of extraterritorial jurisdiction – in good faith and in a manner consistent with other principles and rules of international law. This is essential to ensure that the desire to end impunity does not in itself generate an abuse of the principle.
National courts should at all times observe the minimum fair trial guarantees, including the right of the accused to be tried in his or her presence and without delay. Judicial independence and impartiality must be maintained to ensure that the principle is not manipulated for political ends.
In order to prevent impunity for these crimes, we encourage States, consistent with their international obligations and domestic practices, to cooperate to provide all available means of assistance, including mutual assistance, in order to ensure sufficient evidence for prosecution. By cooperating with national courts in prosecutions involving universal jurisdiction we all further our shared aim to end impunity.