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National Observer Home > No. 44 - Autumn 2000 > Legal Notes


The introduction of controversial war crimes legislation in 1989 took place at the instance of the Australian Jewish community. It was opposed by many leading Australian lawyers, and some of their grounds are as follows:

1. A salutary and long-established principle of the law is that people are not punished in one country for offences taking place in other countries. Any appropriate prosecutions should occur in the relevant foreign countries where the alleged acts took place.

2. It is inherently unsafe to prosecute people for offences that took place fifty years ago. Memories and recollections are commonly unsafe after more than several years, and evidence by wholly or partly senile individuals, after fifty years, is inappropriate.

3. With insignificant exceptions, those who carried out war crimes were acting under superior orders, and could not have acted otherwise.

4. War crimes pursuits in Australia, by the Jewish community against members of other European-derived communities, are likely to cause tensions and hatreds that should be avoided in Australia.

However despite the merit of these and other arguments intense pressure from the Jewish community led to the passing of special legislation for the prosecution in Australia of alleged foreign war crimes.

War Crimes Prosecutions in Australia

The subsequent course of events bore out the objections of lawyers and others opposed to war crimes trials in Australia.

In 1988 the Director of Public Prosecutions, Mr. Ian Temby Q.C., warned that Australia would face the longest and most expensive trials in history if charges were laid. Despite this warning, Jewish pressure led to a number of highly unsatisfactory proceedings.

In January 1990 charges were laid against a very old man, Mr. Ivan Polyukovich. His trial did not commence until March 1993, and he was completely acquitted on all charges in May 1993.

In September 1991 charges were laid against another very old man, Mr. Heinrich Wagner. These charges had to be dropped in October 1993, in view of Mr. Wagners health.

In June 1992 charges were laid against another very old man, Mr. Mikolay Berezowski, but in July 1992 a magistrate ruled that the evidence put forward did not justify putting him on trial.

Meanwhile the Jewish community has been continuing its pressure for the commencement of further prosecutions, and in 1999 the Jewish community was instrumental in having the Australian war crimes legislation amended so as to remove the requirement, where extradition is sought by a foreign country, of proof of a prima facie case that a relevant offence has been committed.

Mr. Konrads Kalejs

Mr. Konrads Kalejs, a Latvian, came to Australia in 1950 and, after becoming an Australian citizen in 1957, moved to the United States in 1959. It has been reported that he became a very wealthy businessman during his stay in America. Subsequently he was deported from the United States. It was held that he had been a member of the Arajs Kommando, a commander of a guard unit in a concentration camp and a commander of an exterior guard unit at the Salaspils and Sauriesi forced labour camps and that he had assisted and participated in acts of persecution. Mr. Kalejs was also subsequently deported from Canada, and he returned to Australia in 1997.

Subsequently Mr. Kalejs settled in Britain, where he was ultimately tracked down and harassed by Jewish investigators. He was required to leave the United Kingdom, and returned to Australia in January 2000.

Interestingly, the Jewish community has to some degree broken ranks, In January 2000 Professor Andrew Ezergailis, described as an American Holocaust expert, stated that Mr. Kalejss membership of the Arajs Kommando was not enough to try him for his alleged activities: Theres no question about him being a member of the Arajs Kommando but the question is, is there any kind of proof (he killed Jews)? You cant just try anyone for membership of a organisation.

It is here significant that in 1992 it was announced by the Australian government that it had abandoned the proposed prosecution of a Melbourne man alleged to have killed hundreds of Jews during the Second World War. The man was described as a Latvian, now 80, who had been part of the Arajs Kommando.

In 1997 Latvian prosecutors re-opened inquiries into Mr. Kalejs, and in May 1998 the Australian Federal Police concluded that there remained insufficient evidence to prosecute him.

Rights of Australian Citizens

From December 1999 pressure was increased by the Jewish community to have Mr. Kalejss Australian citizenship terminated by retrospective legislation. This pressure has been resisted by the Commonwealth government, and rightly so.

Citizenship is an extremely important possession of Australians. Without citizenship a person may be rendered stateless. It is an important principle that citizenship cannot be taken away save in pre-stipulated circumstances, such as when an original condition of citizenship is breached.

If retrospective changes are made to citizenship laws, so that Australians who are Australian citizens are rendered stateless, where will these changes end? Doubtless each proferred retrospective law would be described as special, as is found with the members of the Jewish community who wish to pursue alleged war crimes. But if the principle is accepted that in exceptional cases Australians may be deprived of their citizenship, where will this end?

In these circumstances it is pleasing that the Commonwealth government has acted properly and has not given in to pressure on the citizenship issue. Mr. Philip Ruddock, the Minister for Immigration, was reported on 4 January 2000 as saying that if Australia acceded to Jewish demands it would be criticised internationally for ignoring the rule of law that a person is innocent until proven guilty or for stripping Mr. Kalejs of his citizenship without due process. He stated that he would not change the citizenship law to remove retrospectively Mr. Kalejss right to citizenship.

It is accepted that if sufficient evidence of criminal offences by Mr. Kalejs becomes available, Mr. Kalejs may for example be extradited to Latvia to be tried there. Although extradition treaties amongst states are now common, nonetheless it is unfortunate that in 1999 the Australian war crimes legislation was amended in such a way as to reduce safeguards. Until 1999 a foreign state seeking extradition was, very properly, required to establish a prima facie case. Now that safeguard has been removed, at the instance of the Jewish community, and the possibility arises therefore that improper extradition applications will be acceded to inappropriately. (In attempting to justify the removal of the important requirement of a prima facie case it was argued that because certain countries did not make use of that concept, they would have difficulty in producing substantial evidence. However that argument has no legal merits. Available evidence could be adduced, so as to leave to the appropriate Australian court to decide whether a prima facie case had been presented. This removal of the need for a prima facie case is a matter of grave concern. It appears that there is a significant prospect that persons extradited to Latvia, for example, will not receive a fair trial. Intense political pressure, from Jewish sources particularly, is being placed on Latvia to try and convict Krejus, regardless of legalities. What is being sought is a conviction, not, it appears, a fair trial.)

Attempts to Vilify Australia

One of the more disappointing aspects of the Kalejs case is the preparedness of a small number of Jewish activists to vilify Australia with the intention of placing pressure on Australia in other countries to act in accordance with their wishes.

These members of the Jewish community should recognise that they have been allowed into Australia and granted citizenship and allowed the benefits and privileges of being Australians. It would be sad that, on essentially ethnic grounds (for they do not raise war crimes issues against those who have killed Russians, Chinese, Cambodians or Palestinians, for example) they should attempt to undermine the international reputation of their adopted country. This is especially so when in fact Australia has, doubtless inadvisedly but nonetheless in good faith, spent many millions of dollars in investigations and in war crimes prosecutions which, understandably, have been unsuccessful for reasons that were predicted many years ago.

The Relevance of Superior Orders

One of the most difficult questions relating to war crimes has been the relevance of superior orders.

On the one hand it has been argued that if in the context of war a person has been ordered to carry out illegal acts, including murder, he should not subsequently be prosecuted. After all, if he had refused to obey he might well himself have been executed.

On the other hand it has been argued that certain offences including murder are so heinous that those carrying them out should be prosecuted, even although they acted under superior orders and hence under duress.

This second argument was accepted broadly after the Second World War, and duress through superior orders has not generally been treated as a defence, nor as a ground to refrain from prosecution.

However the experience of the last fifty years calls for a reconsideration of these matters.

The better view is that a distinction must be drawn between (1) those in positions of leadership who have an actual discretion not to carry out offences, and not merely a discretion how particular offences are to be carried out (high level leaders); and (2) those in subordinate positions who are required to carry out orders to commit offences (subordinates).

The question whether high level leaders should be prosecuted is not an easy one. To be balanced against the distastefulness of their actions is the fact that war crimes are, in effect, punished by the winning side. Whichever country or group of countries is successful in a conflict may be induced to prosecute those on the other side, whilst through the turn of events their own war criminals are not prosecuted. However it is not necessary to pursue these questions here, for in practice all relevant cases concern, not high level leaders, but subordinates.

So far as subordinates are concerned, the better view is that prosecution is not a proper course. If in war conditions a person is ordered to perform certain acts, in the knowledge that he may be executed if he does not perform these acts, quite simply prosecution is not appropriate. This is so whether the victims of the acts are Russians, Chinese, Cambodians, Palestinians or Jews. In particular, Jews are not in a special position. They should be treated as having the same rights, but no more, than any other group which has suffered during wars.

A consequence of the foregoing is that because the relevant Australian citizens fall, if anything, into the class of subordinates, and not of high level leaders, on this ground alone, and apart from any other grounds, there should be no war crimes trials in Australia. Nor, indeed, would extradition to any foreign country wishing to prosecute subordinates be appropriate.

Selectiveness amongst War Crimes

One of the distasteful aspects of war crimes agitation is the selectiveness of those urging prosecutions.

In an interesting article in January 2000 in The Weekly Telegraph, Mr. Kevin Myers observed in regard to claims by Lord Janner, a member of the English Jewish community:

What we should do is arrest this man, get the evidence against him, try him, find him guilty and send him to prison for the rest of his wretched life, declared Lord Janner about Konrad Kalejs, the 86-year-old Latvian suspected of war crimes. What interesting legal notions Lord Janner possesses; perhaps we should dispense with the entire process of trial by jury in favour of Le Code Janner, to dispense with whomever he sees fit and in whatever manner.

Mr. Myers went on to compare the allegations against Mr. Kalejs with those that have been made by many other people, in a large range of situations:

I dont know what Mr. Kalejs is personally said to have done. Was it worse than the My Lai massacre in Vietnam 30 years ago? Was it worse than the massacre of the entire male population of a Malayan village by Scots Guards 15 years earlier? Was it worse than the massacre by Jewish terrorists of the Arab population of Deir Yassin in 1947? Was it worse than the incineration of the civilian population of Dresden in their beds in 1945?

I dont know the answer to any of these questions; nor do I equate Dresden with the Holocaust. But the fact that Lt. William Calley, the primary culprit of My Lai, runs a jewellery store in Georgia, and the N.C.O. responsible for the Malayan massacre is alive and well in Edinburgh, and the authors of Dresden and Deir Yassin have been untroubled by the law, might help lower the high moral ground of those who seek vengeance on Konrad Kalejs.

A war crime is not an absolute to be applied impartially across the world. It is conditional; and this first condition, overriding the rules of evidence or the nature of the crime, is that its perpetrator must be on the losing side. If Mr. Kalejs had had the good sense to be with the Soviet forces who massacred the Polish officers in Katyn, he would tonight be going to his bed in Leicestershire. Instead, he is an 86-year-old homeless refugee from Le Code Janner, unconvicted in any court, but a pariah, nonetheless, forlornly shuttling between the airports of the planet. That is not just unedifying: it is a moral outrage.

These considerations underscore the unsatisfactoriness of some of the attempts that are now being made by the Jewish community to pursue persons whose actions took place almost sixty years ago. But in any event, as has been indicated in this note, the fact that a person was a subordinate obeying orders, and under risk of possible execution if he did not obey, is itself a sufficient reason for abstaining from prosecutions or other punishment or retribution.

I.C.F. Spry



National Observer No. 44 - Autumn 2000