Related Rule
Australia
Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
Australia’s International Transfer of Prisoners Act (1997), as amended in 2004, has as its objects:
(a) to facilitate the transfer of prisoners between Australia and certain countries with which Australia has entered agreements for the transfer of prisoners so that the prisoners may serve their sentences of imprisonment in their countries of nationality or in countries with which they have community ties; and
(b) to facilitate the transfer of prisoners to Australia from countries in which prisoners are serving sentences of imprisonment imposed by certain war crimes tribunals. 
Australia, International Transfer of Prisoners Act, 1997, as amended on 25 March 2004, taking into account amendments up to Act No. 19 of 2004, § 3, p. 1.
The Act defines “tribunal” as “(a) the Former Yugoslavia Tribunal; or (b) the Rwanda Tribunal”. 
Australia, International Transfer of Prisoners Act, 1997, as amended on 25 March 2004, taking into account amendments up to Act No. 19 of 2004, § 4, p. 6.
In a later amendment to the Act, sentences of imprisonment imposed by US military commissions have been included, as follows:
For the purposes of this Act:
(a) a military commission of the United States of America is taken to be a court or tribunal of the United States of America; and
(b) any punishment or measure involving deprivation of liberty ordered by a military commission of the United States of America is taken to have been ordered by a court or tribunal of the United States of America in the exercise of its criminal jurisdiction; and
(c) any direction or order given or made by a military commission of the United States of America with respect to the commencement of such punishment or measure is taken to have been given or made by a court or tribunal of the United States of America. 
Australia, International Transfer of Prisoners Act, 1997, as amended on 25 March 2004, taking into account amendments up to Act No. 19 of 2004, § 4A, pp. 8–9.
Australia’s International Transfer of Prisoners (Military Commission of the United States of America) Regulations (2007), states in its Schedule 1 (Arrangement):
1. The undersigned Governments [the United States and Australia] are to afford each other the widest measure of cooperation in respect of the transfer of prisoners in accordance with the provisions of this Arrangement.
2. A person sentenced by a United States military commission in the applicable United States area may be transferred to Australia in accordance with the provisions of this Arrangement, in order to serve the sentence imposed on him or her.
3. Transfer may be requested only by the Government of Australia or the Government of the United States of America, upon application to either by a prisoner desiring to be transferred under this Arrangement. 
Australia, International Transfer of Prisoners (Military Commission of the United States of America) Regulations, 2007, Schedule 1, § 2, p.4.
In 2010, in the Zentai case, in which an appeal against a ministerial decision to extradite the applicant to Hungary for the purposes of a preliminary investigation regarding his involvement in alleged war crimes in 1945 was upheld, Australia’s Federal Court held:
190. Article 2, para 5(a) [of the Treaty on Extradition between Australia and the Republic of Hungary 1995 – the Treaty] is directed to excluding from the operation of the Treaty and hence the Act Extradition Act 1988 (Cth)], true cases of foreign legislation with retrospective application. It deals with the creation of substantive criminal liability as in the case of the specified offence of war crime. Such laws can be distinguished from those affecting procedural matters, the validation of ultra vires administrative acts or declarations that rights in issue in legal proceedings shall be the subject of legislative declaration or action.
191. Article 2, para 5(a) of the Treaty gives expression not only to the principle of nullum crimen sine lege requiring the existence of criminal liability at the relevant time but also the principle of nulla poena sine lege (no punishment without law) as incorporated in to Arts 22 and 23 of the Rome Statute of the International Criminal Court 1998. Article 22 provides that the definition of war crime should be strictly construed and should not be extended by analogy. In case of ambiguity the definition should be interpreted in the favour of the person being investigated, prosecuted or convicted. From this it follows that not only must the law clearly define the elements of a crime so that an individual might know what acts and omissions will make him liable but it must also prescribe a penalty that is certain. This presupposes that the offence of war crime was both clearly defined in the relevant Hungarian written law and that the penalty was publicised in that statute or decree.
192. Both those conditions were absent on 8 November 1944 when the “crime” was alleged to have been committed.
193. To have retrospective application the language of enactment must be such that no other conclusion is possible than that was the intention of the legislature (Victrawl Pty Ltd v Telstra Corporation Ltd (1995) 183 CLR 595 at 622–624 per Deane, Dawson, Toohey and Gaudron JJ). Given the transient and evolving nature of the concept of war crimes, the elements of which may vary at different periods of time, this principle of construction is important. Unlike other international instruments such as the ECHR [1950 European Convention on Human Rights], the ICCPR [1966 International Covenant on Civil and Political Rights] and the [1998] Rome Statute Establishing the International Criminal Court where retrospectivity is qualified by an exception in the case of war crime, the Treaty contains no such exception.
194. Had it been intended to qualify that exception to exclude “war crimes”, it would and should have done so in clear, direct and unequivocal terms. That is not only an Australian drafting approach but is also well known to international humanitarian law pursuant to the various conventions discussed above.
195. It follows therefore that the proviso to Art 2, para 5(a) unqualified by any reservation in the case of war crimes should be read strictly and according to its plain meaning so that extradition must not be ordered unless the nominated offence existed in domestic and Hungarian law at the time of the relevant accepted acts.
199. The fact that Hungary might have sought his extradition for an offence of murder for acts committed in November 1944, does not operate as a de facto or de jure surrogate for the war crime for which Mr Zentai’s surrender (for interrogation) is actually sought.
200. Significantly, the offence of “war crime” requires additional elements such as, relevantly, the killing of civilians by a military person during war or occupation. It imposes a different penalty. Mr Zentai argues that if Hungary relies on an equivalent offence of murder under the Hungarian Criminal Code, it should have requested extradition for prosecution of that offence.
201. Further, the fact that other bilateral extradition treaties that Australia concluded after 1985 do not incorporate the well-known reservations in respect of retrospective war crimes, does not explain the failure of Art 2 to include such a reservation in Art 2, para 5(a) or assist in its construction.
209. I accept that if Art 2(5)(a) is ambiguous, nothing has been produced to resolve the ambiguity. On its face, it reflects an important international human rights principle against retrospectivity. There is no modifying clause equivalent to well-known provisions in the ECHR and ICCPR that seek to counterbalance the international human rights principle of protection of the individual against arbitrary punishment with a premium placed by international humanitarian law in punishing war crimes and crimes against humanity.
210. Murder is not the same thing as a war crime. It may be that killing someone is an element of the offence of murder and the offence of war crime involves killing someone. It does not necessarily mean that they are the same. The penalties, also, are different.
211. Making every possible allowance for the obligations of co-operative, sensible, purposive and liberal interpretation contended for by the Commonwealth, Mr Zentai’s argument is well made in my view. An offence of “war crime” is a different offence from the offence of murder. That is so under Australian law and, on the evidence, on Hungarian law. Secondly, the penalties are different.
212. The Treaty deals with offences. It does not deal with “conduct” as the Department advised the Minister. While it is not surprising that at the end of the war Hungary made the offence of war crime retrospective so that those charged with war crimes during the war might be prosecuted with war crimes, not with murder, that does not overcome the plainest of language in the Treaty. The offence of war crime did not exist in Hungary at the time it was allegedly committed.
394. [In summary] … war crime[s], in any event, did not exist in Hungary at the date it was allegedly committed, and the Treaty proscribes retrospectivity with no exception for War Crimes. 
Australia, Federal Court, Zentai case, Judgment, 2 July 2010, §§ 190–195, 199–201, 209–212 and 394.
[emphasis in original]
Australia’s Commanders’ Guide (1994) states:
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, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1308.
Australia’s ICC Act (2002) states:
Principal object of Act
(1) The principal object of this Act is to facilitate compliance with Australia’s obligations under the Statute.
(2) Accordingly, this Act does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC. 
Australia, ICC Act, 2002, Article 3.
Australia’s International War Crimes Tribunal Act (1995) states:
The objects of this Act are to enable the Commonwealth to co-operate with a Tribunal in the investigation and prosecution of persons accused of committing Tribunal offences, and, in particular:
(a) to enable the Tribunal to make requests for assistance (see Part 2); and
(b) to provide for persons accused of Tribunal offences to be surrendered to the Tribunal (see Part 3); and
(c) to provide the Tribunal with other forms of assistance in the investigation and prosecution of Tribunal offences (see Part 4); and
(d) to enable the Tribunal to sit in Australia (see Part 5); and
(e) to enable forfeiture orders of the Tribunal to be enforced (see Part 6). 
Australia, International War Crimes Tribunal Act, 1995, Article 3.
Australia’s International War Crimes Tribunals Act (1995), as amended to 2006, which was adopted “to provide for the Commonwealth [of Australia] to help International War Crimes Tribunals [specifically, the ICTY and ICTR] to perform their functions”, 
Australia, International War Crimes Tribunals Act, 1995, as amended to 2006, taking into account amendments up to Act No. 9 of 2006, Full Title, p. 1.
has as its objects:
… to enable the Commonwealth to cooperate with a Tribunal in the investigation and prosecution of persons accused of committing Tribunal offences, and, in particular:
(a) to enable the Tribunal to make requests for assistance (see Part 2); and
(b) to provide for persons accused of Tribunal offences to be surrendered to the Tribunal (see Part 3); and
(c) to provide the Tribunal with other forms of assistance in the investigation and prosecution of Tribunal offences (see Part 4); and
(d) to enable the Tribunal to sit in Australia (see Part 5); and
(e) to enable forfeiture orders of the Tribunal to be enforced (see Part 6). 
Australia, International War Crimes Tribunals Act, 1995, as amended to 2006, taking into account amendments up to Act No. 9 of 2006, Part 1, § 3, p. 1.
Australia’s International Transfer of Prisoners Act (1997), as amended in 2004, has as its objects:
(a) to facilitate the transfer of prisoners between Australia and certain countries with which Australia has entered agreements for the transfer of prisoners so that the prisoners may serve their sentences of imprisonment in their countries of nationality or in countries with which they have community ties; and
(b) to facilitate the transfer of prisoners to Australia from countries in which prisoners are serving sentences of imprisonment imposed by certain war crimes tribunals. 
Australia, International Transfer of Prisoners Act, 1997, as amended on 25 March 2004, taking into account amendments up to Act No. 19 of 2004, § 3, p. 1.
The Act defines “tribunal” as “(a) the Former Yugoslavia Tribunal; or (b) the Rwanda Tribunal”. 
Australia, International Transfer of Prisoners Act, 1997, as amended on 25 March 2004, taking into account amendments up to Act No. 19 of 2004, § 4, p. 6.
Regarding a transfer request from a tribunal, the Act states:
The Attorney-General may consent to a request from a Tribunal for the transfer of a Tribunal prisoner serving a sentence of imprisonment imposed by the Tribunal in a Tribunal country to Australia to complete serving the sentence of imprisonment on terms agreed under this Act if the Attorney-General is satisfied that the transfer can be made in compliance with section 11. 
Australia, International Transfer of Prisoners Act, 1997, as amended on 25 March 2004, taking into account amendments up to Act No. 19 of 2004, § 33, p. 29.
In 1994, in its comments on the report of the Working Group on a draft statute for an international criminal court, Australia stated with regard to the provision on surrender of an accused person to the international tribunal (draft Article 63, now Article 89, of the 1998 ICC Statute):
[The draft provision] obliges States parties which have accepted the court’s jurisdiction to surrender the accused person to the tribunal. This may be seen as cutting across generally accepted rules of extradition law where States retain the discretion not to extradite the person subject to the request. However, as regards the tribunal it may be argued that, by specifically consenting to jurisdiction, States have already agreed to the tribunal hearing the case and have given up the right not to hand over the accused person. The situation may therefore be distinguished from mere requests for extradition where no prior consent has been given to the exercise of jurisdiction by the courts of a foreign country and where, accordingly, it is entirely appropriate that the requested State retains the discretion not to extradite. 
Australia, Comments of 16 February 1994 on the report of the Working Group on a draft statute for an international criminal court, UN Doc. A/CN.4/458, 18 February 1994, p. 16.
The Declaration included in Australia’s Instrument of Ratification to the Rome Statute of the International Criminal Court deposited with the UN Secretary-General in July 2002 states:
The Government of Australia, having considered the Statute, now hereby ratifies the same, for and on behalf of Australia, with the following declaration, the terms of which have full effect in Australian law, and which is not a reservation:
Australia notes that a case will be inadmissible before the International Criminal Court (the Court) where it is being investigated or prosecuted by a State. Australia reaffirms the primacy of its criminal jurisdiction in relation to crimes within the jurisdiction of the Court. To enable Australia to exercise its jurisdiction effectively, and fully adhering to its obligations under the Statute of the Court, no person will be surrendered to the Court by Australia until it has had the full opportunity to investigate or prosecute any alleged crimes. For this purpose, the procedure under Australian law implementing the Statute of the Court provides that no person can be surrendered to the Court unless the Australian Attorney-General issues a certificate allowing surrender. Australian law also provides that no person can be arrested pursuant to an arrest warrant issued by the Court without a certificate from the Attorney-General.
Australia further declares its understanding that the offences in Article 6, 7 and 8 [related to Genocide, Crimes Against Humanity and War Crimes, respectively] will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law. 
Australia, Declaration included in Australia’s Instrument of Ratification to the Rome Statute of the International Criminal Court, 1 July 2002, available at http://www.help.cicr.org/IHL.nsf/NORM/A255319F58A44982412566E100540E5E?OpenDocument (last accessed on 17 February 2010).
Holding perpetrators to account [for] grave violations against children continues to be rare … and yet is a crucial element towards protecting children’s rights … In those cases where national authorities are unwilling or unable to hold perpetrators to account, due to lack of capacity or resources for instance, international justice mechanisms, including through the work of the International Criminal Court, and ad hoc and mixed tribunals, can and should play a complementary role. 
Australia, Statement by the permanent representative of Canada before the UN Security Council during a debate on children and armed conflict, made on behalf of the Friends of Children and Armed Conflict, namely Andorra, Australia, Austria, Belgium, Benin, Canada, Chile, Costa Rica, Croatia, the Czech Republic, Denmark, Estonia, Finland, Germany, Ghana, Guatemala, Hungary, Italy, Japan, Jordan, Liechtenstein, Mali, Mexico, Namibia, Netherlands, New Zealand, Norway, Peru, Portugal, San Marino, Slovenia, Slovakia, South Africa, the Republic of Korea, Sweden, Switzerland, Tanzania and Uruguay, 17 June 2013, p. 2.