Criminal Code Amendment (War Crimes) Bill 2016 Introduced Into Federal Parliament
Thursday 13 October 2016 @ 11.52 a.m. | Crime
Federal Minister for Immigration and Border Protection Peter Dutton has introduced the Criminal Code Amendment (War Crimes) Bill 2016 into the House of Representatives. The Bill amends Division 268 of the Commonwealth Criminal Code to distinguish between civilians and members of an organised armed group, in order to align Australian domestic law with current international humanitarian law. It also inserts a “proportionality” exception to war crimes offences, where collateral civilian deaths occur following an attack on a military objective.
In his second reading speech, Mr Dutton said:
“The amendments will provide the Australian Defence Force (the ADF) with the legal certainty needed to target members of organised armed groups with lethal force, including in the context of current ADF operations against Daesh in Iraq and Syria. They also reflect the reality that such groups are akin to regular armed forces, and their members should therefore receive treatment equivalent to members of regular armed forces under Australian domestic law.”
Organised armed groups
The Bill will specifically exclude members of organised armed groups from protections that are accorded to civilians under international law. According to Mr Dutton's second reading speech, this allows these members to be targeted with “lethal force subject to the ordinary rules of international humanitarian law”, and “will ensure that our military forces are able to conduct more effective operations against members of organised armed groups”.
The second reading speech also outlines key indicia that denotes an “organised armed group”:
- Evidence of a command structure of hierarchy;
- A minimal degree of organisation; and
- A collective purpose involving the use of force.
An “organised armed group” may exist within a larger entity, in which case only the subgroup engaging in hostilities will qualify.
Mr Dutton said the questions of whether a specific individual would be considered a member of an organised armed group and whether a specific group would qualify as an organised armed group would be questions of fact that would be determined in light of the circumstances of the time, as well as the available intelligence and information.
The Bill also states that the exclusions will not apply to members of an organised armed group who are ‘hors de combat’. Mr Dutton said that would include a person who has surrendered or is unconscious or otherwise incapacitated by wounds or sickness.
Proportionality
The Bill also prevents a number of offences in Division 268 from applying where a civilian death or injury is the result of an attack on a military objective, providing the attack is “launched in circumstances where the perpetrator reasonably expects that the attack will be proportionate, and will not cause incidental civilian death or injury that is excessive in relation to the concrete and direct military advantage anticipated” (from the Explanatory Memorandum).
Mr Dutton said:
“The principle of proportionality is codified in article 51(5)(b) of Additional Protocol I to the Geneva Conventions, which applies in international armed conflict, and has also been recognised by the ICTY, for example in Prosecutor v Kupreskc, as a customary rule applicable in non-international armed conflict.”
The Bill is currently being considered by Parliament.
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Sources:
Criminal Code Amendment (War Crimes) Bill 2016, Explanatory Memorandum & Second Reading Speech - available from TimeBase's LawOne service
