After more than three years of legal argument, the extradition case of ‘Captain Dragan’ – the Australian citizen facing war crimes charges in Croatia – is no closer to finality.

Mr Grant Niemann [pictured] , senior law lecturer at Flinders and former prosecutor at the International Criminal tribunal for the former Yugoslavia at The Hague, said that Dragan Vasiljković’s recent release from custody should not be interpreted as a sign that the issue was moving in his favour.

His release was more a matter of fairness, Mr Niemann said: “It is quite possible that this case may go as far as the High Court, and it was not reasonable to keep Vasiljković in custody pending another appeal that may yet find in his favour.”

Mr Niemann said the difficulties in deciding Vasiljković’s fate have more to do with concerns about due process than any judgment on the validity of the Croatian evidence.

It is unusual, but not unprecedented, for Australia to refuse extradition of people accused of war crimes. For instance Australia will generally not extradite to a country that subscribes to capital punishment without a guarantee that the death penalty will not be imposed, and previously there has also been reluctance to extradite people accused of crimes if there are doubts about the likelihood of a fair trial.

In the 1960s, Attorney-General Garfield Barwick refused to extradite an accused Nazi war criminal to Russia because of a belief that he would not receive a fair trial.

“In that case there was very compelling evidence, but there was a strong, and probably justified, notion that he wouldn’t receive a fair trial, and so he never faced charges of any kind,” Mr Niemann said.

Because Vasiljković is a Serb who allegedly committed crimes against Croats, there are concerns about his treatment by a Croatian court. Australia’s status as a signatory to the Geneva Convention could have some bearing on this.

“As a signatory under the Convention, Australia has a responsibility not to extradite to a country where it believes the accused would not get a fair trial.

That, in itself, could constitute a breach,” Mr Niemann said.

The principle has crystallised since the 2006 ruling by the US Supreme Court in Hamdan v. Rumsfeld that the Guantanamo Bay detentions contravened America’s Geneva Convention obligations.

“This may very much be exercising the minds of the Australian judges,” Mr Niemann said.