The Australian High Court narrowly upheld the government’s war-crimes legislation Wednesday, clearing the way for trials against alleged Nazi war criminals.
The full seven-member bench of the High Court, which sits in Canberra, heard an appeal by lawyers for Ivan Polyukhovich, the only person charged under Australia’s war-crimes legislation.
Chief Justice Anthony Mason pointed to Australia’s Paternal Affairs Powers section of the Constitution, which permits Australia to be involved in legislation based on the country’s participation in World War II.
Thus, reasoned the court, conduct outside of Australia’s territory may be judged and Parliament may pass judgments as to what Australia’s legitimate interests are.
Australia’s second-most senior judge, Justice Gerard Brennan, supported the appeal against the war-crimes legislation, saying that “criminal laws should not operate retrospectively.”
The War Crimes Amendment Act has been controversial since it was passed by Parliament in December 1988.
Passage of the act followed a long campaign by the Executive Council of Australian Jews to amend Australian law so that Nazi war criminals living in Australia could be brought to justice.
Canada adopted a similar act in 1987 and Britain finally passed its own version of the law this year.
Polyukhovich will stand trial in Adelaide.
David Stokes, the lawyer representing him, refused to comment on his client’s fitness to stand trial. Questions have been raised concerning his physical strength and mental state, following a series of incidents which police believe were attempts by the defendant to take his own life.
Polyukhovich, 74, a resident of Adelaide, was formally charged in January by the director of public prosecutions with complicity in the murders of more than 850 people in the Nazi-occupied Ukraine from 1941 to 1942.
He is alleged to have been “knowingly concerned” in the murders of Jews in the Serniki Ghetto and the murders of 24 other people, including five children from the villages of Serniki, Alexandrove and Brodnitsa. He has denied any involvement in the crimes.
Stokes said he believes there will now almost certainly be charges against other alleged war criminals. Government sources indicate there could be as many as six additional arrests of alleged Nazi war criminals made this year.
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