Practice Relating to Rule 161. International Cooperation in Criminal Proceedings
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  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.
[emphasis in original]