Australia is experiencing an unprecedented moment in its relationship with international criminal law. On the one hand, the civilian justice system is investigating former Australian military personnel over alleged war crimes committed in Afghanistan, as well as women who returned to the country after having been linked to Islamic State in Syria \u2014 although these cases do not constitute universal jurisdiction in the strict sense, they may serve as valuable institutional precedents. On the other hand, in recent years, the Australian Federal Police (AFP) has received the first complaints that expressly invoke the principle of universal jurisdiction, concerning crimes committed outside Australia by individuals who are not Australian citizens. None of these proceedings has yet resulted in a final judgment, but taken together they represent a crucial test for a legal system which, unlike several European countries, has limited experience in prosecuting international crimes committed abroad.<\/p>\n\n\n\n
The Legislative Framework: “Absolute” Universal Jurisdiction in the Legal System, but Conditioned in Practice<\/strong><\/p>\n\n\n\n Australia can prosecute international crimes committed abroad under the Commonwealth Criminal Code Act 1995. In addition, the incorporation in 2002 of offences relating to war crimes, crimes against humanity and genocide was complemented by the country’s ratification of the Rome Statute of the International Criminal Court. These offences are subject to the so-called “Category D” geographical jurisdiction, the broadest provided for under Australian law: this means that courts may exercise jurisdiction even where the crime was committed by a person who is not an Australian citizen and outside the country’s territory. Civil society organisations such as the Australian Centre for International Justice (ACIJ) describe this as “absolute” universal jurisdiction, at least on paper, extending to torture, war crimes, crimes against humanity and genocide.<\/strong><\/p>\n\n\n\n However, the exercise of this jurisdiction is subject to several particularities<\/strong> of the domestic legal system that distinguish it from European legal systems with a longer tradition of universal jurisdiction. As a result of an interpretative declaration made by Australia upon ratifying the Rome Statute, international criminal offences must be interpreted in accordance with Australian legislation rather than ICC jurisprudence<\/strong>. Furthermore, trials must be decided by a jury<\/strong> \u2014 the law currently does not allow a single judge to preside over such cases \u2014 and convictions for serious Commonwealth offences must be unanimous<\/strong>, requiring the entire jury to be convinced of the accused’s guilt beyond reasonable doubt.<\/p>\n\n\n\n This is compounded by a political barrier<\/strong>: initiating criminal proceedings for international crimes requires the consent of the Commonwealth Attorney-General<\/strong>. This requirement effectively prevents private criminal prosecutions against individuals suspected of having committed these offences<\/strong> and has repeatedly been identified by human rights organisations as one of the main obstacles<\/strong> to activating universal jurisdiction in the country, even where substantial evidence exists and the person concerned is present on Australian territory.<\/p>\n\n\n\n A significant step in the opposite direction was taken in 2025<\/strong>, when the AFP published its Best Practice Guide for the Investigation of War Crimes, Crimes against Humanity and Genocide<\/strong>, establishing for the first time a clear operational framework for such investigations, including a formal mechanism for submitting complaints.<\/p>\n\n\n\n The Afghanistan and Syria-Linked Terrorism Cases<\/strong><\/p>\n\n\n\n The most visible ongoing judicial proceedings are not, strictly speaking, cases of universal jurisdiction: they concern crimes allegedly committed by Australian citizens, with jurisdiction triggered through the principle of active personality rather than universal jurisdiction as such. Nevertheless, these cases are particularly relevant because they are forcing Australian courts to address, for the first time on a large scale, the same technical and evidentiary challenges that any universal jurisdiction case would face<\/strong>: extraterritorial evidence, witnesses located in conflict zones, the classification of conduct under international criminal law standards, and compatibility with due process guarantees.<\/p>\n\n\n\n Following an extensive investigation by the Inspector-General of the Australian Defence Force (ADF) into allegations of war crimes committed by special forces in Afghanistan, charges have been brought against two former soldiers, while a further ten investigations remain ongoing. The highest-profile case is that of Ben Roberts-Smith, Australia’s most highly decorated living soldier. A 2020 military report revealed serious allegations against elite units deployed against Taliban forces, including torture, summary executions and “body count” competitions. In April 2026, Roberts-Smith was charged with five counts of war crime and murder, relating to a series of unlawful killings of unarmed Afghan prisoners between 2009 and 2012; he was granted bail that same month and, if convicted, could face life imprisonment.<\/p>\n\n\n\n Meanwhile, on 7 May 2026, three Australian nationals who had returned to Australia from Syria after having been linked to Islamic State were charged with various terrorism- and slavery-related offences, followed by a fourth woman who was charged on 28 May. These proceedings, likewise heard before domestic courts and involving juries, raise evidentiary challenges similar to those arising from the Afghanistan cases, particularly in relation to reconstructing events that took place in active conflict zones.<\/p>\n\n\n\n None of these proceedings requires Australia to exercise universal jurisdiction over a foreign suspect with no connection to the country. However, they do require the Australian judicial system to learn how to incorporate tools that are essential for such proceedings and to apply categories of international criminal law within its own procedural framework. In this sense, these trials can be understood as an institutional testing ground: if Australia succeeds in conducting them transparently and in accordance with international standards, even with national security considerations that may lead to some hearings being held behind closed doors, the experience gained<\/strong> in relation to extraterritorial evidence and legal characterisation could later be transferred to universal jurisdiction cases.<\/strong><\/p>\n\n\n\n Complaints that Do Put Universal Jurisdiction to the Test<\/strong><\/p>\n\n\n\n Unlike the cases discussed above, two recent episodes have actually activated \u2014 or sought to activate \u2014 Australian universal jurisdiction in relation to foreign individuals for crimes committed outside Australia against foreign victims.<\/strong><\/p>\n\n\n\n The first is the case of retired Sri Lankan General Jagath Jayasuriya<\/strong>. In 2019, the International Truth and Justice Project \u2013 Sri Lanka (ITJP), together with the ACIJ and the Human Rights Law Centre, submitted a formal request to the AFP to investigate Jayasuriya over serious allegations of torture, war crimes and crimes against humanity committed under his command during the final phase of the Sri Lankan civil war, in the Vanni region, in 2009. The request was submitted with knowledge that Jayasuriya was, at the time, present on Australian territory. The AFP did not pursue the investigation, attributing the delay to an administrative “oversight”. In response to the lack of action, in March 2022 the organisations changed their strategy and called on the Australian Government to sanction Jayasuriya under its new Magnitsky-style human rights sanctions regime. The Jayasuriya case illustrates, in practice, how the requirement for the Attorney-General’s consent and the absence of a permanent specialised unit can neutralise a universal jurisdiction complaint even when the suspect is physically present in the country.<\/strong><\/p>\n\n\n\n The second, more recent episode concerns Myanmar. In October 2025, the organisation Legal Action Worldwide submitted a criminal complaint to the AFP concerning crimes against humanity and war crimes committed by Myanmar’s armed forces since the military coup of February 2021<\/strong>. According to the Independent Investigative Mechanism for Myanmar (IIMM), the AFP is currently assessing the complaint. This is the first time Australia has formally faced a universal jurisdiction request relating to the situation in Myanmar, a country which \u2014 as a non-State Party to the Rome Statute \u2014 relies to a significant extent on such domestic mechanisms to provide victims with access to justice.<\/p>\n\n\n\n Australia in the Regional Asia-Pacific Context<\/strong><\/p>\n\n\n\n The complaint concerning Myanmar is not an isolated development, but rather part of an emerging regional trend<\/strong>. In recent years, similar complaints have been submitted to authorities in Indonesia \u2014 where, in April 2026, Rohingya activist Yasmin Ullah, former Indonesian Attorney-General Marzuki Darusman and a group of human rights defenders filed a complaint against military leader Min Aung Hlaing for genocide \u2014 as well as in the Philippines, Timor-Leste and T\u00fcrkiye. These initiatives reveal growing interest in developing national responses to crimes committed in Myanmar, in a context where international mechanisms face jurisdictional limitations and where only Argentina has issued <\/a>arrest warrants<\/a> against Burmese authorities for crimes against the Rohingya people.<\/p>\n\n\n\n This context represents a major step forward in a region where the application of these mechanisms has traditionally been limited<\/strong>. The strong principles of sovereignty and non-interference that characterise the region \u2014 particularly among ASEAN Member States \u2014 have historically limited the willingness of domestic courts to investigate crimes committed by neighbouring States.<\/p>\n\n\n\n Against this backdrop, the fact that Australia now has an active complaint relating to Myanmar, together with the \u2014 albeit unsuccessful \u2014 precedent of the Jayasuriya case, places it among the first countries in the region to directly confront such requests. In this regard, the question remains open as to whether these initiatives signal the beginning of a genuine shift in regional universal jurisdiction practice.<\/p>\n\n\n\n Conclusions<\/strong><\/p>\n\n\n\n The Australian case illustrates particularly clearly the difference between prosecuting international crimes committed by one’s own nationals and exercising genuine universal jurisdiction over foreign individuals with no connection to the country. The proceedings against former soldiers over Afghanistan and against women linked to Islamic State, although not technically cases of universal jurisdiction, are forcing the Australian judicial system \u2014 with its jury trials, unanimity requirement and own evidentiary rules \u2014 to apply categories of international criminal law on a large scale for the first time. In this sense, they serve as a form of institutional training that could, over time, equip Australian courts with greater technical capacity to handle future cases.<\/p>\n\n\n\n The complaints that do invoke universal jurisdiction in the strict sense \u2014 the Jayasuriya case and the recent complaint concerning Myanmar \u2014 reveal, by contrast, that the main obstacle is not technical but political: the requirement for the Attorney-General’s consent and the absence, until 2025, of a clear investigative protocol have in practice left very little scope for civil society to activate these mechanisms, even when suspects are physically present in the country. The AFP’s recent Best Practice Guide and the complaint concerning Myanmar currently under assessment could mark a turning point, particularly if Australia decides to build on the regional momentum emerging in Indonesia, the Philippines, Timor-Leste and T\u00fcrkiye.<\/p>\n\n\n\n If Australia succeeds in maintaining transparent proceedings in its domestic cases while, at the same time, finding the political will to pursue complaints in the absence of a direct national interest, it could go on to play a much more active role in the fight against impunity in the Asia-Pacific region.<\/p>\n\n\n\n Federica Carnevale, FIBGAR Project Manager.<\/em><\/p>\n\n\n\n REFERENCES:<\/strong><\/p>\n\n\n\n Australian Centre for International Justice (ACIJ). Case against Sri Lankan General Jagath Jayasuriya<\/em>. Available at: <\/a>https:\/\/acij.org.au\/our-work\/international-accountability\/sri-lanka\/accountability-for-crimes-in-sri-lanka\/case-against-sri-lankan-general-jagath-jayasuriya\/<\/a><\/p>\n\n\n\n Australian Centre for International Justice (ACIJ). Universal Jurisdiction<\/em>. Available at: <\/a>https:\/\/acij.org.au\/our-work\/international-accountability\/universal-jurisdiction\/<\/a><\/p>\n\n\n\n BBC Mundo. Prisioneros esposados y ejecutados: los cargos por cr\u00edmenes de guerra contra el soldado australiano m\u00e1s condecorado<\/em>. Available at: <\/a>https:\/\/www.bbc.com\/mundo\/articles\/c393yry81k9o<\/a><\/p>\n\n\n\n El Pa\u00eds (9 May 2026). Juicio por cr\u00edmenes de guerra contra el soldado australiano vivo m\u00e1s condecorado<\/em>. Available at: <\/a>https:\/\/elpais.com\/internacional\/2026-05-09\/juicio-por-crimenes-de-guerra-contra-el-soldado-australiano-vivo-mas-condecorado.html<\/a><\/p>\n\n\n\n Independent Investigative Mechanism for Myanmar (IIMM). Universal Jurisdiction<\/em>. Available at: <\/a>https:\/\/iimm.un.org\/en\/universal-jurisdiction<\/a><\/p>\n\n\n\n Palmer, E. and Wijesinghe, P. (10 August 2026). Symposium on Prosecuting Asia-Pacific Crimes: Introduction \u2013 Asia-Pacific International Crimes in Domestic Courts<\/em>. Opinio Juris. Available at: <\/a>https:\/\/opiniojuris.org\/2026\/08\/10\/symposium-on-prosecuting-asia-pacific-crimes-introduction-asia-pacific-international-crimes-in-domestic-court\/<\/a><\/p>\n\n\n\n SWI swissinfo.ch (17 April 2026). El soldado australiano acusado de cr\u00edmenes de guerra en Afganist\u00e1n obtiene la libertad bajo fianza<\/em>. Available at: <\/a>https:\/\/www.swissinfo.ch\/spa\/el-soldado-australiano-acusado-de-cr%C3%ADmenes-de-guerra-en-afganist%C3%A1n-obtiene-la-libertad-bajo-fianza\/91273960<\/a><\/p>\n\n\n\n Williams, S. and Hodgson, N. (9 July 2026). Australia pone a prueba su sistema de justicia interno ante cr\u00edmenes internacionales<\/em>. East Asia Forum. Available at: <\/a>https:\/\/eastasiaforum.org\/2026\/07\/09\/australia-tests-domestic-justice-for-international-crimes\/<\/a><\/p>\n","protected":false},"excerpt":{"rendered":" Australia is experiencing an unprecedented moment in its relationship with international criminal law. On the one hand, the civilian justice system is investigating former Australian military personnel over alleged war crimes committed in Afghanistan, as well as women who returned to the country after having been linked to Islamic State in Syria \u2014 although these…<\/p>\n","protected":false},"author":1,"featured_media":27447,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[586],"tags":[1297,829,741],"class_list":["post-27446","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-articles","tag-australia-2","tag-international-crimes","tag-universal-jurisdiction"],"acf":[],"yoast_head":"\n