(Transcript from SBS World News Radio)
Australia has been considering what would be its first war crimes prosecution for over two decades.
It centres on Daniel Snedden, who Croatia has been trying to extradite over alleged war crimes committed during the 1990s conflict when he was the commander of Serb paramilitary group.
Kristina Kukolja has the story.
(Click on the audio tab above to hear the full report)
The Attorney General's Department has been seeking advice whether Mr Snedden - also known as Dragan Vasiljkovic - could be prosecuted in Australia if he's successful in fighting Croatia's extradition bid.
Documents obtained by SBS under Freedom of Information laws show the Department sought legal advice from its Office of International Law about the potential prosecution of Daniel Snedden in Australia.
Emails dating back to 2009 reveal the Department wanted to know if Australia had jurisdiction to prosecute.
One email from the Department's International Crime Cooperation Authority refers to a defamation case brought by Mr Snedden against Nationwide News Ltd, which publishes The Australian.
The email says: "As you may be aware, on Friday Justice Latham of the NSW Supreme Court handed down her judgment in the defamation case brought by Mr Snedden agianst Nationwide News Ltd for an article published in The Australian (newspaper) in 2005. Her Honour found in favour of Nationwide News. The news has reignited interest in whether Mr Vasiljkovic can be prosecuted in Australia in the event that he is not extradited to Croatia and the Minister's Office is requesting a response. Are you in a position to provide more detailed advice on this matter yet?"
From the released emails, it is evident that in January 2010, the Attorney General's Department was still waiting on final advice from the Office of International Law.
There is no indication of when the final advice was expected.
Associate Professor of Law at Monash University in Melbourne, Gideon Boas, was formerly a lawyer with the prosecution at the International Criminal Tribunal for the former Yugoslavia.
"The allegations made against Snedden, as I understand it, are allegations that he committed certain offences that could be categorised as war crimes. If they can be categorised as what are known as grave breaches of the Geneva Conventions, which are serious war crimes committed in the context of an international armed conflict, then Australia may have the capacity to prosecute him under the Geneva Conventions Act which incorporates the four Geneva Conventions of 1949 and which contain proscriptions for those particular crimes."
All the documents released to SBS have been heavily redacted, with many pages totally or almost totally blacked out.
The most recent document, from March 2010, involves correspondence with the Australian Federal Police.
The Freedom of Information Office within the Attorney General's Department has blacked out all but one line, the letterhead and a legal warning at the bottom.
Daniel Snedden has been fighting extradition in Australian courts for around eight years.
The matter is currently before the full bench of the Federal Court.
Mr Snedden denies the allegations against him.
Associate Professor Gideon Boas explains what would be necessary for a war crimes trial to be held in Australia.
"For there to be a war crimes trial there needs to be an offence that rises to the level of an international crime, so what might be a domestic murder can become a war crime in circumstances where it's committed in the context of an armed conflict and there's a nexus between the murder and the armed conflict and the person committing the murder or someone relevant being prosecuted for it knew that it was committed in the context of an armed conflict. In his case, I doubt that would be difficult. The question here is more whether Australia would have jurisdiction to prosecute Snedden even though he's within their jurisdiction and an Australian citizen, whether they would have jurisdiction in a sense that that war crime, as opposed to the murder, was a crime at the time it was committed."
In a statement to SBS, the Attorney General's Department says Croatia has formally requested Australia to extradite Mr Vasiljkovic in order to prosecute him for three war crimes offences.
It adds that the availability of alternative courses of action, including any domestic investigation, does not displace Australia's obligation to consider Croatia's request.
The Department concludes that it would not be appropriate to comment further regarding any investigative action within Australia.
