THE ugly spectre of war criminals in our community is creeping its way back onto the national agenda. A few days ago, Dragan Vasiljkovic (aka ''Captain Dragan'', when he was the leader of the Red Beret paramilitary unit favoured by former Serbian president Slobodan Milosevic - or ''Daniel Snedden'', when he was a golf instructor living in Western Australia) walked free from a Sydney jail. Vasiljkovic had been in custody pending the outcome of an extradition request from Croatia to try him for war crimes allegedly committed in Croatia in 1991 and 1992. The Federal Court upheld his application resisting extradition, convinced that he would not receive a fair trial if deported.

I sat opposite Vasiljkovic in a courtroom in The Hague when he testified for the prosecution against Slobodan Milosevic. Over several days of testimony, he changed his story, wriggling out of pinning any links between paramilitary organisations and Milosevic, not to mention avoiding contempt of court charges and an indictment from the International Criminal Tribunal for the former Yugoslavia for any involvement he might have had in war crimes. It seems Vasiljkovic has once again slipped the net of justice, although he did serve three years on remand fighting the outcome of the extradition request.

Meantime, over in Western Australia, Charles Zentai has become the latest alleged war criminal to contest an extradition request - this time from Hungary. The Hungarian authorities want the 87-year-old to face an allegation of torturing and murdering a Jewish teenager in Budapest in 1944. That matter awaits the outcome of a full Federal Court hearing concluded last week.

Less than two decades ago, Australia endeavoured to weed out and prosecute war criminals who had sought refuge here after WWII. Three elderly Ukrainian men were indicted for the killing of hundreds of Jews, including children. All prosecutions were dismissed or abandoned for a range of reasons typical of trials conducted for offences that were committed decades earlier: evidence is lost, memories fade, witnesses die, are too traumatised to testify or are unable to be located, offenders become old and frail, and all aspects of the reliability of evidence subjected to a criminal standard become attenuated. In war crimes cases, this is accentuated by distance and cross-jurisdictional issues.

There is, however, a disturbing refrain in the story of Australia's involvement in war crimes prosecutions. The fact is that, since trials after WWII of more than 800 Japanese defendants by Australian military tribunals, we have not had a great record of either prosecuting or extraditing war criminals. And there is a sense of dread, following the efforts at prosecution in the late 1980s and early 1990s, at the idea of fronting up to the presence of war criminals in our community, let alone identifying them and working out what to do with them.

Zentai and Vasiljkovic are but two of what may be thousands of potential war criminals taking refuge in Australia. The Lowy Institute recently released a report suggesting that a broad range of potential war crimes suspects from several war-affected countries live here and that little is being done by the Commonwealth Government to investigate these cases. The Government's hesitancy is no doubt motivated, at least in part, by the sheer investigative and legal complexity (not to mention cost) in finding and prosecuting war criminals. The extradition applications of Zentai and Vasiljkovic are recent reminders of this.

Australia has, however, ratified the Rome Statute of the International Criminal Court, indicating its commitment to the trial of war criminals and its dedication to ending impunity for crimes of mass atrocity. We have implemented the statute into domestic legislation and subscribed to the court's jurisdictional structure, which states that we have primary jurisdiction over war criminals found in our territory and that, as a first and preferred option, we should prosecute them. If we are unable or unwilling to prosecute them, we should transfer them to the court.

The alleged crimes of neither Zentai nor Vasiljkovic qualify for prosecution by the International Criminal Court (these crimes were committed before the court's jurisdiction commenced), but that does not prevent Australia fulfilling its obligations under international law. There is a principle, sometimes referred to loosely as universal jurisdiction, which suggests that for crimes such as these, any state on whose territory such an accused resides should either prosecute or extradite. If we cannot extradite, because we cannot be satisfied that an alleged war criminal will receive a fair trial in another country, then we must prosecute them ourselves. The principle is based on a moral imperative: people who commit crimes that offend humanity must be brought to justice and we, like all nations, have a responsibility to honour this simple but profound statement of humanity.

Australia should confront the unpleasant truth about war criminals in our community and move to investigate and prosecute them with dispassion. They must be given a fair and proper trial, and every opportunity to defend their claimed innocence, but they must be tried. The victims of these crimes, some of them refugees in our own country, deserve no less.

Dr Gideon Boas is a senior lecturer in the Monash Law School. He was, until October 2006, a senior legal officer at the International Criminal Tribunal for the former Yugoslavia.

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