The startling recent admissions of violence in Burma by two Burmese Australians are shocking for their cruelty. But the larger problem is a disturbing gap in Australian law, which gives impunity to some perpetrators of serious violence overseas.
Australian citizen Htoo Htoo Han confessed to being a "war criminal" for personally executing 24 Burmese in the 1988 anti-government protests. As the leader of an undercover military unit, he also claims to have been involved in 100 other murders.
Another Australian, Moon Hsar, says he worked as for the Burmese government as an infiltrator amongst the Karen revolutionary army from 1984 to 1987. He claims that up to 50 people died as a result of his agitation and intelligence activities.
The truth of those confessions is presently unknown and uncorroborated. The Attorney General has ordered the Australian Federal Police to investigate.
From a legal point of view, that investigation is pointless. There are no offences under Australian law with which such persons can be prosecuted.
In the 1980s, the only international law crimes recognised under Australian law were war crimes committed in international armed conflicts. The Geneva Conventions Act of 1957 does not criminalise any offences committed in non-international conflicts, such as the civil war in Burma.
Only in 2002, with legislation implementing the International Criminal Court, did Australian law criminalise war crimes in civil wars. But those offences only apply prospectively to crimes committed from 2002 onwards. Crimes against humanity, which can be committed in war or peace, were also not criminalised under Australian law before 2002. Remarkably, even genocide was not a crime in Australian law until that year.
The confessed executions during the 1988 protests may amount to crimes against humanity under international law, since they are arguably part of a widespread or systematic attack on civilians. They are less likely to amount to war crimes, since there is no obvious connection to an armed conflict. Also, it is debatable whether international law recognised war crimes in civil wars in the 1980s. That only happened following a UN criminal tribunal decision in 1995.
The confession of spying on Karen rebel fighters is hard to view as a crime for the same reason. Even if war crimes did apply in civil wars in the mid-1980s, merely spying is not a war crime. More evidence of participation in killings would be needed.
The Australian Federal Police will struggle in these cases to identify crimes under Australian law. Most of Australian criminal law, such as murder, only applies to conduct committed in Australia, not in other countries. No international court has jurisdiction in these cases either.
What is the solution? In fact, it would be possible for Australia today to pass legislation which criminalises crimes against humanity or genocide abroad between 1945 and 2002, and war crimes in civil wars between 1995 and 2002.
Such a law would fill an acute and dangerous gap in Australian criminal law, which currently gives impunity to members of death squads, genocidaires, and some war criminals. Such a law would of course be retrospective. Criminal laws ordinarily should not be retrospective because it is unfair to an accused, who did not know at the time that their conduct was illegal.
But international law provides an exception to the normal rule where the conduct is a crime under international law. The International Covenant on Civil and Political Rights expressly permits Australia to retrospectively criminalise international crimes, from the date that those crimes came into existence. Australia’s Constitution also does not prohibit retrospectivity.
The logic of the exception is simple. No person anywhere in the world in the 1980s could have seriously believed that summarily executing civilians was lawful. Such liability was reasonably foreseeable. It does not create any genuine unfairness to death squad members.
Passing such a law is the only way that Australia can do justice to the victims of serious crimes by Burma’s military dictatorship. Because both confessors are Australian citizens, and at risk if returned to Burma, they cannot be expelled from Australia.
These cases also raise another troubling issue — the quality of screening by Australian immigration and security agencies. Under international and Australian refugee law, a person must be excluded from refugee status if they are suspected of committing serious international crimes abroad. Our security agencies face a difficult task in piecing together the backgrounds of asylum seekers, and those who commit crimes undoubtedly attempt to conceal them.
But it is little comfort to Australians to know that if violent international criminals slip past our borders, nothing can be done to bring them to justice here or abroad.
Note: On 7 September, the Northside Chronicle reported that Htoo Htoo Han and Moon Hsar had retracted their confessions.
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