Why is there no outrage about war criminals living among us, asks Gideon Boas

COMMENTS last week that terrorists might try to pass themselves off as refugees disgusted Kevin Rudd, and rightly so. Yet, at the same time, the fact Australia may be sheltering thousands of war criminals who entered the country pretending to be refugees orimmigrants has passed largely withoutcomment.

The Lowy Institute recently released a report suggesting a broad range of potential war crimes suspects from war-torn countries were at large in the community, and that little was being done by the commonwealth government to investigate these cases.

Charles Zentai may become the first successful extradition from Australia for war crimes committed during World WarII. While Dragan Vasiljkovic (former leader of the notorious Red Berets, active during the conflict in the former Yugoslavia) last month walked free after the Federal Court accepted his argument that he could not receive a fair trial in Croatia, Zentai has not been able to persuade the court that he awaits the same fate in Hungary. The Hungarian authorities want the 87-year-old extradited to face the allegation of torturing and murdering a Jewish teenager in Budapest in 1944.

Since prosecuting more than 800 Japanese defendants in military tribunals after World War II, Australia's record of prosecuting or extraditing war criminals has not been impressive.

In 1988, the commonwealth government amended the 1945 War Crimes Act and prosecuted three Ukrainian immigrants accused of committing war crimes during World WarII. All of these prosecutions failed, for much the same reason as trials relating to any criminal act that takes place decades before an investigation and trial: 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. All of these factors influenced the failure of the three war crimes prosecutions begun under the amended War Crimes Act in 1988.

One theme that emerges from these failed prosecutions is a persistent concern that prosecuting elderly, and often infirm, men (for they are almost invariably men), many years after the alleged crimes, is an improper imposition on the defendant and a waste of community resources. Indeed, one magistrate early on in the trial of Mikolay Berezowsky in 1992 referred with concern to the fact "the defendant is an old and feeble man". The magistrate effectively scuppered the Berezowsky trial by refusing to allow evidence to be taken of witnesses in Ukraine, instead of in an Australian court, in part because the defendant was unwell and unable to travel and could not confront his accusers face to face. The prosecution of another alleged World War II war criminal in 1992, Henri Wagner, was withdrawn after the defendant suffered a heart attack during the trial.

The government's reticence about prosecuting war criminals 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. An application from Croatia for alleged war criminal Vasiljkovic dragged on for years before the court refused to approve his extradition. The government seems unprepared to try him in Australia and indications that Bosnia might apply for his extradition appear to have gone quiet.

However, there is a deeper and more troubling sentiment that seems to permeate the debate about war crimes prosecutions in this country. There was considerable support at the time for the idea that alleged war criminals such as Berezowsky and Wagner should be left to die in peace, the events with which they were charged being too old. Berezowsky was charged with killing 102 Jews, Wagner with killing about 120, including 19 children. Are these crimes that should be forgotten or forgiven? Zentai's alleged crime is no less heinous for the fact it relates to a single person. If the allegations are true, he killed an innocent teenager for no reason other than that he was a Jew.

While considerable progress has been made in the prosecution of war crimes internationally, Australia has not done enough to bring war criminals to justice. We have an obligation, morally as well as under international law, to prosecute or extradite people alleged to have committed war crimes, crimes against humanity or genocide. It is sufficiently egregious to turn a blind eye to the presence of war criminals in the Australian community because it is a problem in the "too hard" basket. It is unacceptable not to proceed with investigations and prosecutions out of concern that those accused are elderly and-or the crimes alleged may have occurred many years earlier.

Zentai's extradition awaits the decision of Home Affairs Minister Brendan O'Connor and whatever further legal action may be taken thereafter. Zentai must be extradited to face these charges. An arrest warrant was issued for his part in these crimes 60 years ago and he has evaded justice for too long. If he is innocent, let him be tried and acquitted. If he is guilty, he should pay for his crime.

Gideon Boas is a senior lecturer in the Monash University law school. Until October 2006 he was a senior legal officer at the International Criminal Tribunal for the former Yugoslavia.

theaustralian.news.com.au