In 2005, the Australian government and
ALP opposition stated their firm principled position on war
criminals: extradite or prosecute. War criminals are not
welcome to live freely in Australia. As the High Court has
recently blocked a war crimes extradition, it has left the
government with a difficult potential prosecution.
Hungary had requested the Commonwealth government to extradite
Charles Zentai to stand trial for a war crime committed in
1944. Allegedly, while a member of the Hungarian Royal Armed
Forces, Zentai recognised Peter Balazs, an 18-year old-youth,
as a Jew who was out on the street without wearing the yellow
star required to be sewn and displayed on his outer garments.
Hungary already had murder on the statute books but in 1945
also passed retrospective law to recognise such acts by its
armed forces as war crimes so that they could be prosecuted
as part of the post-war rendering of national justice.
The former minister for home affairs, Brendan O'Connor, stood
by Australian bipartisan government principles in 2009 and
decided to extradite Zentai to Hungary. The extradition has
been in the courts since then, until last week. On Wednesday,
the High Court decided not to extradite.
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When Zentai first appealed, a single judge of the Federal
Court held that the minister could extradite. Then, on appeal,
judges of the Full Federal Court held, by a two-to-one majority,
that the minister could not. In the High Court, the five-to-one
majority decision was that extradition is impermissible.
Chief Justice French delivered a separate judgement, while
that of Justices Gummow, Crennan, Kiefel and Bell was a joint
judgement. Justice Heydon dissented. The diversity of opinions
appears to reflect competition between the judges' humanitarian
impulses and respect for the Australian constitutional doctrine
of separation of powers between the executive and judiciary.
Zentai is 90 years old and the minister could decide not
to extradite on humanitarian grounds. It is the minister's
call and not the High Court's. In its decision, the court
found its own way to exercise the minister's role while dressing
this action as an exercise of judicial function. Its problematic
reasoning for preventing the minister from exercising the
power to extradite is actually a cover for the breach of
Australia's constitutional separation of roles. Sadly, the
cloth is perfectly transparent.
The majority of the court interpreted the Australian-Hungarian
extradition treaty as preventing extradition for two reasons:
the war crime was proscribed retrospectively; and a murder
crime was not explicitly specified in the extradition request.
The former issue requires an examination of the relationship
between international law and Hungarian law, such as whether
the war crime already existed in Hungary, through its reception
of customary international law, and whether Hungarian law
allows a retrospective law to be effective. The High Court
majority did not bother to consider these matters but simply
expressed an antipathy to retrospective criminality; this
is remarkable given that Australia has recognised both crimes
under customary international law and also retrospectivity
as being available in Australian law.
In relation to the second argument, asserting insufficient
evidence of intention to murder, Justice Heydon was blunt:
''First, it is wrong. Second, it is immaterial.'' He points
out that Hungary had advised that murder was committed. Further,
the treaty expressly allows extradition for crimes of similar
but not identical kind. Justice Heydon got it right. The
High Court majority's obtuse reasoning around this was artificial.
It rescues an old man from trial in Hungary and maintains
Australia's historic record of inaction against World War
II criminals who migrate here. Yet international law provides
that, for international crimes such as these, the country
with custody over the alleged offender must either extradite
or else itself conduct the prosecution. The Hungarian government
might amend its extradition request to specify a murder charge.
Alternatively, the Commonwealth government has full legal
authority to prosecute Charles Zentai here, if it has the
political will. Back over to you, Attorney-General.
canberratimes.com.au
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