Bills Digest no. 43,
2016–17
PDF version [879KB]
Christina Raymond and Juli Tomaras
Law and Bills Digest Section
23
November 2016
Contents
Purpose of the Bill
Background
Operational impetus for the proposed
amendments
Recognition of war crimes under
international humanitarian law
Recognition of war crimes under
Australia’s domestic criminal laws
Structure of the Bill
Committee consideration
Senate Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Parliamentary Joint Committee on
Intelligence and Security
Policy position of non-government
parties/independents
Australian Labor Party
Australian Greens
Independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Part 1—Members of organised armed
groups
Part 2—Proportionality in
non-international armed conflict
Part 3—Amendment to the offence of
using a protected person as a shield—section 268.65
Part 4—Application of proposed
amendments
Ongoing ADF exposure to criminal
liability under other domestic offences
Statutory functions of the
Parliamentary Joint Committee on Intelligence and Security
Concluding comments.
Date introduced: 12
October 2016
House: House of
Representatives
Portfolio: Attorney-General
Commencement: The
day after Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at November 2016.
Purpose of
the Bill
The Criminal Code Amendment (War Crimes) Bill 2016 (the
Bill) proposes to amend the war crimes offences in Division 268 of the Criminal Code Act
1995 (Criminal Code) to address some anomalies in the treatment
of acts done in the course of a ‘non‑international armed conflict’[1]
with the requirements of international humanitarian law (IHL). These anomalies
(detailed below) are said to limit the capability of the Australian Defence
Force (ADF) to undertake international security operations, and may expose
members of the ADF to domestic criminal liability despite acting in compliance
with the requirements of IHL.[2]
Application
of war crimes offences in non-international armed conflicts—actions against members
of organised armed groups taking an active part in hostilities (sections
268.70–72)
The key proposed amendments in the Bill are intended to amend
the application of the war crimes offences in sections 268.70, 268.71 and
268.72 of the Criminal Code (conduct which causes the death of, or
injury to, a person not taking an active part in hostilities in a
non-international armed conflict) in the following ways:
- the
exclusion of criminal liability in relation to the targeting of ‘organised armed
groups’—the amendments propose to exclude the application of the above offences
where the person killed or injured is a member of an ‘organised armed group’
and
- the
explicit recognition of the ‘proportionality principle’—the amendments
propose to insert an exception to the above offences, with respect to acts done
as part of attacks on military objectives, which are not reasonably expected to
cause civilian death or injury that would be excessive in relation to the
concrete and direct military advantage anticipated.
The Explanatory Memorandum indicates that these amendments
are considered necessary to ensure that Australian domestic criminal laws with
respect to war crimes are aligned with the requirements of IHL, suggesting that
domestic criminal laws currently prohibit some conduct that is permissible
under IHL.[3]
Technical
amendment to the offence of using a protected person as a shield (section
268.65)
The Bill also proposes to make a technical amendment to
the offence of using a ‘protected person’ as a shield in section 268.65 of
the Criminal Code. It proposes to amend paragraph 268.65(1)(a) to expressly
exclude military personnel from the ‘protected persons’ in respect of whom the
offence applies.
This is intended to correct an oversight in the original
drafting of the provision as enacted in 2002, which may mean that the offence
could have a broader application than the corresponding offence under
international law.[4]
In particular, the classes of ‘protected persons’ recognised under
international law do not include military personnel generally, but rather civilians,
prisoners of war, medical and religious personnel, and persons who are hors
de combat or ‘out of combat’ and therefore cannot be made the object of an
attack under IHL.[5]
(In broad terms, a person is hors de combat if he or she is a prisoner
of war, or has clearly expressed an intention to surrender, or is unconscious
or otherwise incapacitated.)[6]
Background
Operational impetus for the
proposed amendments
The Government has stated that the proposed amendments are
needed to provide the ADF with legal certainty in relation to its overseas
operations, including those against terrorist groups such as Operation OKRA
against the Islamic State terrorist organisation (otherwise known as Daesh). In particular,
the amendments are said to be necessary to provide:
... 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.[7]
Operation
OKRA
While the proposed amendments are not specific to any
individual operation, it appears that the legal issues sought to be addressed
in the Bill were identified in the course of Operation OKRA—which is the ADF’s
contribution to the international effort to combat Daesh in Iraq and Syria, in
coordination with the Iraqi Government, Gulf nations and a broad coalition of
international partners.[8]
According to the Department of Defence website, as at November
2016, about 780 ADF personnel have deployed to the Middle East in support of this
operation.[9]
These personnel comprise three main groups:
- the
Air Task Group, which conducts air combat and support operations, within a
US-led international coalition to disrupt and degrade Daesh, comprising approximately
400 ADF personnel[10]
- the
Special Operations Task Group, which provides military advice and
assistance to the Counter-Terrorism Service of the Iraqi Security Forces,
comprising approximately 80 ADF personnel,[11]
and
- Task
Group Taji, which is a combined Australia-New Zealand military training
force to train and build the capacity of the regular Iraqi security forces, comprising
approximately 300 ADF personnel.[12]
Revised
government policy on targeting enemy combatants
The Prime Minister foreshadowed the Government’s intention
to introduce the Bill in his national security statement in the House of
Representatives on 1 September 2016.
The Prime Minister outlined the operational need for the
proposed amendments in the following terms, noting in particular that they
would give effect to the Government’s decision to amend Australia’s policy on
targeting enemy combatants:
In January this year, as we were on our way to visit our
troops in Iraq and Afghanistan, the Chief of the Defence Force advised me of a
legal anomaly which meant that we were not empowering the ADF, in particular
our Air Force, to be as effective as they could be. Under international law,
all members of an organised armed group such as Daesh can be targeted with
lethal force, subject of course to the ordinary rules of international
humanitarian law. This is a reasonable and conventional approach adopted by the
armed forces of our key allies across the world.
But there is a legal argument that Australia's domestic law
is more restrictive than international law. This legal risk posed a major
challenge to the effectiveness of our operations. It meant that the ADF's
targeting base in Iraq and Syria was restricted and we could not operate as
freely as our coalition partners. So I can announce that the government has
reviewed its policy on targeting enemy combatants, and earlier this year made
an important decision to ensure our forces are empowered to act against Daesh
in Iraq and Syria to the maximum extent allowed by international law.
We will move quickly to introduce necessary amendments to the
Commonwealth Criminal Code that will bring our domestic laws into line
with international norms. This means that ADF personnel will be supported by
our domestic laws. They will be able to target Daesh at its core, joining with
our coalition partners to target and kill a broader range of Daesh combatants,
which is consistent with international law. This will ensure that our efforts
in Syria and Iraq are resolute and effective, and our forces are fully
empowered to roll back Daesh.[13]
The Prime Minister and the Minister for Defence issued a
joint media release on 1 September 2016, which elaborated on the Government’s
decision to amend its policy on targeting enemy combatants, stating:
The Government has reviewed its policy on targeting enemy
combatants and made an important decision to ensure our forces are empowered to
act against Daesh in Iraq and Syria to the maximum extent allowed by
international law. This now includes targeting those who may not openly take up
arms but are still key to Daesh’s fighting capability.[14]
The Chief of Defence Force, Air Chief Marshal Mark Binskin,
is reported to have provided the following elaboration on the broader types of
targeting activities against Daesh combatants that could be permitted under the
proposed amendments:
The limitation here is that under domestic law, we can only
target those Daesh forces that are taking a direct and active part in
hostilities ... It doesn't allow us to target those supporting elements that are
key to their fighting ability, for example their logistics and support
organisations. And therefore we've not been able to maximise the combat
capability of our deployed forces.[15]
A representative of the Department of Defence provided an
example of the following hypothetical scenario arising from the ADF’s
operations in Iraq and Syria:
[P]resently, we can go after those directly and actively
involved in combat operations: combatants, the sorts of people that you can
imagine are engaged in the intimate business of fighting. What the current
legislation does not permit you to then do is to target the people who are
engaged in support of the combatants.
In our parlance we talk about combatants. We then talk about
combat support—things like providing engineering. Then you have combat service
support, which can include things like logistics and other forms of more
indirect support but still fundamental to the conduct of combat operations. In
our own context in the ADF, we absolutely maintain people who engaged in direct
combat operations across the Army, Navy and Air Force, but in each of the
services we also have uniformed people who provide both the combat support and
combat service support functions. In the context of Iraq and Syria, an example
might be that you could have a Daesh combat formation—let us say a group of
armoured vehicles, tanks, which are very clearly there for one purpose, which
is conducting military-style use-of-force operations. But they are very
dependent on logistics sustainment, such as fuel. Under the current
legislation, if a fuel truck is engaged in the resupply of those vehicles, the
argument can be made that the driver of the logistics sustainment vehicle is
not a direct and active participant in hostilities and, therefore, ambiguity
exists as to whether that individual is targetable. At the moment, because of
the ambiguity we would not target the fuel truck because of the presence of
that individual. Under the amendments, a judgment could be made that that
individual was indeed a member of the organised armed elements of Daesh and
would therefore become targetable ... Our other main coalition partners at the
moment operate to the full extent of international law and would be able to
target that vehicle.[16]
Recognition
of war crimes under international humanitarian law
International
humanitarian law (IHL)
International law regulates military force in two
fundamental ways. The first is the legal regulation of the circumstances in
which resort to military force is justified. The second way is through
International Humanitarian Law (IHL), also known as the Law of War or the Law
of Armed Conflict. IHL seeks to balance military priorities when engaging in
armed conflict with humanitarian concern for those who are impacted by such
operations. Thus IHL seeks to moderate the conduct of military hostilities,
subjecting warfare to the rule of law and limiting the destructive effects of
armed conflict and human suffering by setting out the responsibilities of States
and non-State parties during armed conflict. Those responsibilities are
informed by the necessary and particular categorisation of ‘people’ and
‘buildings’ as this categorisation is instrumental in determining their legal
treatment and rights during conflict. Significantly in this regard, IHL imposes
and demands a distinction between combatants and civilians, imposing limits on
the targeting of military objectives, prohibiting the use of particular weapons
and establishing minimum standards of treatment for prisoners of war and
civilians affected by armed conflict.
Sources of IHL
The sources of IHL are:
1. The four 1949 Geneva Conventions providing protection to
certain categories of vulnerable persons.
- the
wounded and sick in armed forces in the field—Geneva
Convention I
- the
wounded, sick and shipwrecked members of armed forces at sea—Geneva
Convention II
- prisoners
of war—Geneva
Convention III, and
- civilians
in armed conflict, including those living under occupation—Geneva Convention
IV.[17]
The Fourth Geneva Convention is particularly relevant to humanitarian
protection and assistance. It was established to prevent, in future conflicts,
the scale of civilian suffering experienced during the two World Wars.
2. The Protocols Additional to the Geneva Conventions
on the protection of civilians (1977), which are distinguished by the type of
conflict to which they relate: Additional
Protocol I, governs international armed conflict and Additional
Protocol II, governs non-international armed conflict:[18]
- international
armed conflict (IAC) occurs:
... when one or more States have recourse to armed force
against another State, regardless of the reasons or the intensity of this
confrontation ... and even if the state of war is not recognized by one of [the
State parties].[19]
IAC also includes ‘armed conflicts in which peoples are
fighting against colonial domination, alien occupation or racist regimes in the
exercise of their right to self-determination’ (wars of national liberation)[20]
- non-international
armed conflict (NIAC) as the name suggests, must be internal in nature.[21]
‘Depending on the situation, hostilities may occur between governmental armed
forces and non-governmental armed groups or between such groups only.’ [22]
However, IHL remains without a precise definition or
guidance as to how to distinguish between a non‑international armed
conflict and an internal disturbance. A formulation and test for armed conflict
laid down by the International Criminal Tribunal for the former Yugoslavia
(ICTY) has been adopted by other international bodies since then and is
regarded as good law:
... an armed conflict exists whenever there is a resort to
armed force between States or protracted armed violence between governmental
authorities and organized armed groups or between such groups within a State.[23]
This test mandates three key requirements to meet the
threshold of a non-international armed conflict: duration, intensity and
organisation. In terms of the organisational requirement, non-State actors must
be ‘armed’ in so far as they have the capacity to mount attacks. Their level of
organisation is not required to be equivalent to that of a military unit. To
determine whether this threshold has been met, war crimes tribunals have
assessed: the organisation and structure of the armed group; the adoption of internal
regulations, including the adoption of a spokesperson and, or commander;
issuance of commands, bulletins and political statements; the presence of a headquarters;
the capacity for coordinated action between the armed units; the existence of disciplinary
rules; the ability to recruit new members; the capacity to provide military
training; securing weapons supply and their distribution channels; the use of
uniforms and various other equipment; and the participation by members of the
group in political negotiations.[24]
Therefore, excluded from this formulation are acts and
actions that are characterised as mere acts of violence such as riots, isolated
and sporadic acts of violence. Where the requisite threshold test cannot be
met, it will be domestic law and not international humanitarian law that is
applicable.
It is recognised by many legal experts that the
definitions of IAC and NIAC present challenges in accommodating the realities
of modern conflict situations.
3. A variety of associated treaty and customary international law.[25]
In terms of customary
international law, it is notable that the majority of rules enshrined in treaty
law (the four Geneva Conventions) have received near-universal
ratification and have had a wide-reaching effect on practice. Because of this,
the terms of these four Geneva Conventions are thought to have the force
of customary law. Some provisions in the Hague[26]
and Geneva Conventions were reflections of customary law in existence at
the time the Conventions were concluded, whereas other treaty rules have since
developed into customary law.[27]
Customary international law is binding on all States and also on armed
opposition groups in the case of non-international armed conflict.[28]
Treaty laws that relate to
‘non-international armed conflicts’ are considerably less comprehensive than
the laws relating to ‘international armed conflicts’. Thus the existence and
application of customary international law is particularly important in filling
in the gaps in the context of non-international armed conflicts. Significantly
in this regard, the Additional Protocols relating to non-international
armed conflict have yet to achieve near-universal acceptance.[29]
The nature of customary
international law is that unlike treaty law, which is written and in a
generally clear and accessible format, customary international legal rules are
relatively less specific.
Common Article 3 – protection in a non-international
armed conflict (NIAC)
Common Article 3 is the only article in all four Geneva
Conventions which seeks to regulate conduct and provide for protection in a
NIAC, that is ‘armed conflict not of an international character’. No
elaboration or definition was provided for this term because it was thought
that the scope of the application of the Article must be as wide as possible.[30]
Indeed, the Commentary to Common Article 3 lists non-exclusive factors
relevant to this determination.[31]
The development and adoption of common Article 3 reflects an attempt to redress
an imbalance or a shift in emphasis from protecting state sovereignty to
protecting human beings.[32]
Common Article 3 sets out limited but fundamental
guarantees and principles governing all situations of ‘non-international armed
conflict’, whether between a State and a non-State armed group or between non-State
armed groups. These include the absolute prohibition of murder for
‘non-combatants’, and the prohibition of torture, mutilation, taking of
hostages, execution without proper trial, and all cruel and degrading
treatment. In addition, Common Article 3 stipulates that in all circumstances,
persons must be treated humanely and impartially and that the wounded and sick
shall be collected and cared for.
A ‘civilian’ is defined as ‘any person not belonging to
the armed forces’, or taking direct and active part in the conflict including
non-nationals and refugees’.[33]
Non-combatants include:
... persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed ‘hors de
combat’ by sickness, wounds, detention, or any other cause ...[34]
The ambiguity of postmodern conflict – the challenge of
protecting non-combatants in NIAC
As mentioned, the fundamental issue in IHL is making the
distinction between armed forces who conduct the hostilities and civilians, who
are presumed not to be taking part in the hostilities and must be protected.
Traditionally, civilians, armed forces and those taking part in an uprising,
were considered to be exclusive and fairly identifiable categories of persons.
However, the changing nature of war and the ad hoc but significant
participation of civilians has generated ambiguity in terms of legitimate
military targets of attack and persons who must receive protection from attack.
The not uncommon difficulty in identifying a civilian as distinct from a person
taking ‘direct or active part in hostilities’ exposes civilians to heightened
risk of arbitrary attack.[35]
Thus the definition of ‘combatants’ and the notion of
‘direct or active participation in hostilities’ are critical for determining
how a specific person may be treated by an adversary.[36]
This reality and risk of misjudgement has necessitated
guidance and parameters to assist with making a distinction between peaceful
civilians and armed forces, but also and for the purposes of this Bill, a
distinction between those civilians who take direct or active part in
hostilities and those who do not.
Such clear distinctions require consideration of the
meaning of the phrase ‘direct participation in hostilities’. This phrase
originates from similar language in Common Article 3 of the Geneva
Conventions, and has also been used in many other IHL instruments. In
particular, Additional Protocols I and II suspend targeting immunity
from civilians who directly or actively participate in hostilities.[37]
Notwithstanding the operational importance of this phrase, none of the
instruments in which it is used have defined its meaning. The ICRC has published
the Interpretive Guidance on the Notion of Direct Participation in
Hostilities under International Humanitarian Law, with the objective of
providing clarification around the meaning and consequences of direct, active participation
in hostilities under IHL.[38]
The ICRC Guidance borrows from a number of sources including treaty and
customary IHL, jurisprudence and military manuals.[39]
The ICRC Guidance does not aim to displace customary or treaty IHL or to
be legally binding, though it hopes to offer a balanced and practical solution
on the issue and aims to strengthen the implementation of the principle of
distinction in armed conflicts by providing useful criteria that an act must
meet before it is characterised as direct participation in hostilities.[40]
The point of commencement and reference for this
discussion is the definition of a civilian in NIAC. The ICRC Guidance
provides that a civilian is any person who is not: a member of a State armed
force, or another organised armed group (OAG), under a command responsible to a
party to the conflict.[41]
Civilians enjoy the benefit of protection against direct attack ‘unless and for
such time as they take a direct part in hostilities’.[42]
However, these civilians only lose their immunity if and for the time that
‘they take a direct part in hostilities’ [emphasis added].[43]
According to ICRC Guidance, ‘hostilities’ refers to the
collective resort by the parties to a conflict to means and methods of injuring
the enemy.[44]
Membership in other OAGs (that is the dissident and armed
forces of non-State parties to an armed conflict) is potentially a vexed issue
because OAG membership is typically not regulated by domestic law or tied to an
official act of enlistment. More commonly, membership of an OAG is informal,
non-transparent, fluid and can derive from some family or tribal link rather
than an explicit act.[45]
This presents a risk that civilians whose membership/support of a group does
not involve direct or active participation in hostilities, may be incorrectly
targeted. To lessen this risk, the ICRC Guidance suggests that
membership of such groups should include only those individuals performing a
‘continuous combat function’ for that party to the conflict.[46]
A continuous combat function refers to a ‘person assum[ing] a continuous
function for the group involving his or her direct participation in hostilities’.[47]
This approach would exempt political and administrative personnel, as well as
other persons not exercising a combat function. In this regard, recruiters,
trainers, financiers, propagandists, those involved in general weapons
acquisition or manufacture and general intelligence collectors are deemed not to
fall into the category of individuals performing a ‘continuous combat function’.[48]
It is arguable, however, that a disseminator of intelligence to assist in an
operation would constitute being part of a continuous combat function.
The ICRC presents a list of three cumulative acts which
are criteria that must be met in order for an act to qualify as direct
participation in hostilities:
1. the
act must be likely to adversely affect the military operations or military
capacity of a party to an armed conflict or, alternatively, to inflict death,
injury, or destruction on persons or objects protected against direct attack
(threshold of harm), and
2. there
must be a direct causal link between the act and the harm likely to result
either from that act, or from a coordinated military operation of which that
act constitutes an integral part (direct causation), and
3. the
act must be specifically designed to directly cause the required threshold of
harm in support of a party to the conflict and to the detriment of another
(belligerent nexus).[49]
The ICRC Guidance argues that interpreting
‘participation’ beyond specific acts would problematically distort the IHL
distinction between temporary, activity-based loss of protection (arising from
direct participation in hostilities) and continuous status or function-based
loss of protection (due to combatant status or continuous combatant function).
It would also produce significant evidentiary challenges in establishing whether
persons not engaged in a specific act have done so previously on a recurring
basis and whether they have the intent to do so again. This may result in
unwarranted detention and attacks on civilians.[50]
Consequences of Regaining Civilian Protection
ICRC Guidance states that when civilians no longer
directly participate in hostilities or when members of organised armed groups
cease their continuous combat function, they regain their civilian protection
from direct attack. However, this does not exempt them from prosecution for
violation of domestic or international law, which they previously may have
committed.[51]
Concerns about ICRC Guidance
Concern has been raised that the approach of the ICRC
overly limits the scope of targeting by State militaries of irregular forces
and individuals who strategically switch between civilian life and taking
active part in hostilities. In some contexts, such persons can and have presented
a credible military threat and may critically thwart and undermine the
achievement of legitimate military objectives. The ICRC’s interpretation also provides
immunity from attack to irregular but problematic forces, placing the military
at a disadvantage. There has been argument by some commentators that ICRC’s Guidance
is discordant with State practice and offers a misplaced immunity that may undermine
the legitimacy and observance of IHL by State forces.[52]
Proportionality
The principle of proportionality under international law
weighs the necessity of a military action against suffering that the action
might cause to enemy civilians in the proximity:
Under international humanitarian law and the Rome Statute,
the death of civilians during an armed conflict, no matter how grave and
regrettable does not constitute a war crime ... even when it is known that some
civilian deaths or injuries will occur. A crime occurs if there is an
intentional attack directed against civilians (principle of distinction) (Article
8(2)(b)(i)) or an attack is launched on a military objective in the knowledge
that the incidental civilian injuries would be clearly excessive in relation
to the anticipated military advantage (principle of proportionality)
(Article 8(2)(b)(iv).[53]
[emphasis added]
While Additional Protocol II does not contain an
explicit reference to the principle of proportionality in attack, it has been
argued that it is inherent in the principle of humanity which is referred to in
its preamble and that, as a result, the principle of proportionality cannot be
ignored in the application of the Protocol.[54] The
principle has been included in more recent treaty law applicable in non‑international
armed conflicts, namely Amended Protocol II to the Convention on
Certain Conventional Weapons.[55] In
addition, it is included in other instruments pertaining also to non-international
armed conflicts.[56]
Rome Statute
of the International Criminal Court (Rome Statute).
Pursuant to Article 8(2)(b)(iv) of the 1998 Rome Statute,
the following constitutes a war crime in international armed conflicts:
Intentionally launching an attack in the knowledge that such
attack will cause incidental loss of life or injury to civilians or damage to
civilian objects ... which would be clearly excessive in relation to the concrete
and direct overall military advantage anticipated. [emphasis added]
The ICRC stated at the Rome Conference on the Statute of
the International Criminal Court that the addition of the word ‘overall’ to
the definition of the crime could not be interpreted as changing existing law.[57]
ICRC
In Part IX of its Interpretive Guidance on the Notion of
Direct Participation in Hostilities under International Humanitarian Law, the
International Committee of the Red Cross inserted an entire section addressing
restraints on the lawful use of lethal force during armed conflicts. This
section proposed that the ‘kind and degree of force which is permissible
against persons not entitled to protection against direct attack must not
exceed what is actually necessary to accomplish a legitimate military purpose
in the prevailing circumstances.’ This is the narrowest reading of necessity.
[58]
Recognition of war crimes under
Australia’s domestic criminal laws
In brief, Division 268 of the Criminal Code was
enacted in 2002 as part of Australia’s ratification of the Rome Statute
of the International Criminal Court (Rome Statute).[59]
Division 268 contains offences in relation to genocide,[60]
crimes against humanity,[61]
war crimes,[62]
and crimes against the administration of justice of the International Criminal
Court (ICC).[63]
The enactment of these offences in domestic criminal law
means that ‘Australia retains the right and power to prosecute any person
accused of a crime under the [Rome] Statute in Australia rather than surrender
that person for trial in the International Criminal Court’.[64]
Division 268 is said to be based on the principle of
complementarity, meaning that ‘the ICC only has jurisdiction to try a person if
the State or States that also have the right to try that person are unable or
unwilling to genuinely investigate and prosecute’.[65]
The enactment of Division 268 of the Criminal Code is said to mean that
Australia will never be ‘unable’ to prosecute a person.[66]
The Attorney-General’s consent is required to commence a
prosecution for an offence against Division 268.[67]
The Attorney-General’s decision to give or refuse consent may not be challenged
in any court other than the High Court.[68]
It has been reported that no prosecutions have been commenced or conducted for
war crimes offences in the past decade.[69]
In addition to the issue of the potential exposure of members
of the ADF to criminal liability under Division 268 (including in relation to
military operations against foreign terrorist organisations), some commentators
have noted that these offences may also have some application to Australian
‘foreign fighters’. (That is, Australians who travel to overseas conflict zones
to fight with terrorist organisations, or to fight with other organised armed
groups engaged in hostilities against terrorist organisations.)[70]
Structure
of the Bill
The Bill contains a single schedule, Schedule
1—Amendments relating to war crimes, comprising four parts:
- Part
1 (items 1–7) contains the main proposed amendments to exclude acts against
organised armed groups from the offences in sections 268.70, 268.71 and 268.72
of the Criminal Code
- Part
2 (items 8–11) contain the proposed amendments to the above offence provisions,
inserting a new ‘proportionality’ exception
- Part
3 (item 12) contains the minor technical amendment to paragraph
268.65(1)(a) to exclude military personnel from the classes of ‘protected persons’
in the offence of using a protected person as a shield
- Part
4 (items 13–14) contain application provisions, which provide for:
- the
prospective application of the proposed amendments in Part 1 (that is, the
amendments in Part 1 will apply to conduct engaged in from the commencement of
the measures in Part 1 if the Bill is passed), and
- the
retrospective application of the proposed amendments in Parts 2 and 3 (that
is, the amendments in Parts 2 and 3 will apply to conduct engaged in since the
commencement of Division 268 of the Criminal Code on 25 September
2002, if the Bill is passed).
Committee
consideration
Senate
Selection of Bills Committee
On 13 October 2016, the Senate Standing Committee for the
Selection of Bills reported that it had resolved not to refer the Bill to a Senate
legislation committee for inquiry and report.[71]
The Australian Greens moved an amendment to the report in
the Senate to refer the Bill to the Senate Standing Committee on Foreign
Affairs, Defence and Trade for inquiry and report by the first sitting day of
2017. This motion was negatived.[72]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills considered
the Bill in Alert Digest Number 8, tabled on 9 November 2016. The
Committee commented on the proportionality related exceptions (items 8–11) and
noted that they impose an evidential burden on the defendant (meaning that he
or she must adduce or point to evidence suggesting a reasonable possibility
that the matters constituting the exemption exist, and only if the evidential
burden is discharged is the prosecution required to discharge its legal burden
to negate the exemption beyond reasonable doubt).[73]
As the Explanatory Memorandum is silent on the reasons for adopting this
approach, the Committee sought an explanation from the Attorney-General, and reiterated
its expectation that explanatory memoranda will include such justification as a
matter of course.[74]
Parliamentary
Joint Committee on Intelligence and Security
According to the web page of the Parliamentary Joint
Committee on Intelligence and Security Committee (PJCIS), the Attorney-General
referred the Bill to the PJCIS on 10 October 2016. The PJCIS provided its report
on 18 November 2016, recommending that the Bill be passed.[75]
This referral was not mentioned in the Minister’s second
reading speech to the Bill or the Prime Minister’s national security statement,[76]
and was not mentioned by any Senators present during the Australian Greens’
motion to amend the Senate Selection of Bills Committee report on 13 October
2016.[77]
The PJCIS received three submissions (two of which
commented substantively on the Bill) and held a public hearing on 7 November
2016.[78]
The referral of the Bill to the PJCIS two days prior to
its introduction to the Parliament may explain why the Senate Selection of
Bills Committee decided not to refer the Bill to a Senate Committee, and why
the Senate did not agree to the Australian Greens’ motion to amend the Senate Selection
of Bills Committee report in the chamber, to refer the Bill to the Senate
Standing Committee on Foreign Affairs, Defence and Trade.
Is an
inquiry into the Bill within the statutory functions of the PJCIS?
The statutory functions of the PJCIS are prescribed by
section 29 of the Intelligence
Services Act 2001 (IS Act). For the reasons explained
below, the Attorney-General’s referral of the Bill to the PJCIS does not appear
to be supported by the functions conferred by section 29 in two respects. These
relate to the specific review-related functions prescribed by section 29, and
the relevant ‘responsible Minister’ who may refer matters to the PJCIS.
In the event that the referral is not supported by section
29 of the IS Act, it is not certain that the statutory powers conferred
upon the PJCIS under the IS Act, and the obligations, immunities and
other protections conferred upon witnesses and submitters under that Act, are
capable of application in relation to activities of the PJCIS that are in
excess of its statutory functions. As the IS Act does not make express
provision for this contingency, there is arguably some uncertainty in this
respect.
Further, the membership of the PJCIS is prescribed by
section 28 of the IS Act, and Part 3 of Schedule 1 to that Act.
The current membership of the PJCIS does not include, and is not required
to include, any members of the cross-bench.[79]
Given the interest of some members of the cross-bench in participating in a
Parliamentary committee inquiry into the Bill (noted above in relation to the
Senate Selection of Bills Committee report and the proposed chamber amendments
to that report) the merits of a decision to refer the Bill to a committee with
a more limited membership—and whose statutory functions may not extend to a
review of the Bill—may be open to debate.
Do the
statutory functions of the PJCIS in section 29 of the IS Act extend to
consideration of the Bill?
The provisions of section 29 of the IS Act do not
expressly or directly appear to support a review of the Bill by the PJCIS. Subsections
29(1) and (2) prescribe the statutory functions of the PJCIS with respect to
the review of the administration and expenditure of intelligence agencies;
other matters in relation to intelligence agencies; the performance by the AFP
of its functions in relation to Part 5.3 of the Criminal Code
(terrorism); and certain reviews of data retention and citizenship legislation.
Subsections 29(3)–(5) of the IS Act exclude certain operational matters
from the Committee’s review-related functions.
Two potentially relevant functions in subsection 29(1) of
the IS Act are discussed below, however, it seems doubtful that they
could be relied upon to support a review of the present Bill.
Paragraph 29(1)(b)—Matters in
relation to Australian Intelligence Community agencies
Paragraph 29(1)(b) of the IS Act prescribes the
PJCIS’s functions by reference to the activities of the six agencies in the
Australian Intelligence Community (AIC).[80]
In particular, it provides for the relevant responsible Minister for an AIC
agency to refer ‘any matter in relation to’ the relevant AIC agency to the
PJCIS for review.[81]
However, it is not apparent that the present Bill is a ‘matter
in relation to’ the activities of the AIC agencies specified in paragraph 29(1)(b)
of the IS Act. The extrinsic materials to the Bill indicate that the
proposed amendments to the war crimes offences in the Criminal Code are
intended for the benefit of the ADF, which is not among the agencies listed in
paragraph 29(1)(b) or any other provision of section 29 of the IS Act.
It is possible that the war crimes offences in Division
268 of the Criminal Code, as proposed to be amended by the Bill, might
potentially have some indirect connection with the functions and activities AIC
agencies in providing assistance to the ADF in support of military operations
against, or involving, organised armed groups that are participating in
non-international armed conflicts. For example, AIC agencies may provide
intelligence to the ADF, which may enable the ADF to make targeting or other
strategic decisions in relation to its participation in an armed conflict that
is subject to the application of the offences in Division 268 of the Criminal
Code. (Such intelligence might, for example, relate to the organisation,
control structure, actions and membership of a group participating in a
non-international armed conflict. This may enable the ADF to make a decision
about the targeting of the group, including determining whether it is an
‘organised armed group’ under international law, and under the proposed
amendments to the offences in Division 268 of the Criminal Code, if the
Bill is passed.)
However, it is questionable that this would amount to a
sufficient connection to bring the Bill within the scope of paragraph 29(1)(b) of
the IS Act as a ‘matter in relation to’ an AIC agency or agencies.
Arguably, the use which the ADF decides to make of any intelligence provided by
AIC agencies in support of the ADF’s military operations—and any attendant
criminal liability arising from such use—is a separate matter concerning the decision-making
and subsequent actions of the ADF alone.
Paragraphs 29(1)(baa)-(bac)—Matters
connected with the performance by the Australian Federal Police of functions
under Part 5.3 of the Criminal Code (terrorism)
Paragraphs 29(1)(baa)-(bac) provide that the PJCIS’s
functions also include the monitoring and reviewing of the performance by the
Australian Federal Police (AFP) of its functions under Part 5.3 of the Criminal
Code (terrorism) and reporting to both Houses of the Parliament:
... upon any matter appertaining to the AFP or connected with
the performance of its functions under Part 5.3 of the Criminal Code to
which, in the opinion of the Committee, the attention of the Parliament should
be directed.[82]
The present Bill also does not appear to have a connection
to the PJCIS’s functions in relation to the AFP under Part 5.3 of the Criminal
Code. The war crimes offences in Division 268 of the Criminal Code
do not form part of the terrorism provisions in Part 5.3. Although the war
crimes offences may have some application to non-State actors participating in
armed conflicts that are also terrorist organisations as defined in Part
5.3 of the Criminal Code,[83]
they are not specific to such organisations. It is therefore not apparent that
the referral could be supported by the functions of the PJCIS in relation to
the AFP’s functions under Part 5.3 of the Criminal Code.
Is the Attorney-General
the relevant ‘responsible minister’ who may refer the Bill to the PJCIS?
Assuming that the Bill is a ‘matter in relation to’ an AIC
agency under paragraph 29(1)(b) of the IS Act, it is also
questionable whether the Attorney-General is the relevant ‘responsible
Minister’ who is competent to refer the Bill to the PJCIS under that provision.
The IS Act prescribes Ministerial
responsibility—and thus which Minister may refer matters to the PJCIS under
subsection 29(1)—by reference to the Minister’s portfolio responsibility for
the agencies within the PJCIS’s oversight remit, and not the Minister’s administrative
responsibility for legislation.
In particular, the term ‘responsible minister’ is defined
in section 3 of the IS Act by reference to Ministerial portfolio
responsibilities for AIC agencies. Section 3 states:
Responsible Minister means:
(a) in relation to ASIO—the Minister responsible for ASIO;
and
(b) in
relation to an agency—the Minister responsible for the agency; and
[Note: the term ‘agency’ is defined in section 3 of the IS Act as ASIS, AGO
or ASD]
(ba) in relation to DIO—the Minister responsible for DIO; and
(c) in relation to ONA—the Minister responsible for ONA.
The Attorney-General is the Minister responsible for ASIO.[84]
The Minister for Foreign Affairs is responsible for ASIS.[85]
The Defence Minister is responsible for the three defence intelligence
agencies, AGO, ASD and DIO.[86]
The Prime Minister is the Minister responsible for ONA.[87]
Accordingly, it seems that the Attorney-General could only
be the relevant responsible Minister within the meaning of section 3 of the IS
Act, for the purpose of referring the Bill to the PJCIS for inquiry and
report under section 29, if the Bill in some way relates to the activities of
ASIO (being the only AIC agency for which the Attorney-General is the
responsible Minister). Any such connection is not clear on the face of the
provisions of Division 268 of the Criminal Code, nor from the text of
the proposed amendments in the Bill and the extrinsic materials.[88]
The fact that the Attorney-General administers the Criminal Code (including
Division 268) and is responsible for the present Bill is not material to the
meaning of ‘responsible Minister’ in section 3 of the IS Act, including
the referral of matters to the PJCIS under section 29.
Policy
position of non-government parties/independents
At the time of writing, non-government parties and
independent members of Parliament do not appear to have announced a position on
the substantive provisions on the Bill, although the PJCIS (whose membership
comprises members of the Government and Opposition) provided a unanimous report.
In addition, several members have commented on the general policy justification
for the proposed amendments, the arrangements for Parliamentary scrutiny and
debate of the Bill, or complementary measures to those proposed in the Bill.
Australian
Labor Party
The Australian Labor Party has indicated its in-principle
support for the measures. In his reply to the Prime Minister’s national
security statement, the Opposition Leader stated:
[T]he Chief of the Defence Force [CDF] has briefed me about
the proposals on targeting, which the Prime Minister's statement dealt with.
The view of the CDF and the ADF is that it is necessary to update domestic law
to be consistent with international law. International law makes a distinction
between civilians and members of terrorist organisations. The domestic law has
a narrower definition, which has not been updated to deal with the developments
of state-like terrorist organisations, such as Daesh.
Our ADF have a robust targeting policy and protocols. They
have implemented their missions and they have degraded the enemy, with no
civilian casualties to this point. This reflects very well on the leadership
and professionalism of our ADF. What we also recognise, though, is that based
on our operations over nearly two years the ADF have been part of a coalition
response to degrade ISIS, or Daesh, who have had losses in materials, people
and land.
But it must be recognised that Daesh have the capacity to
evolve. They are hierarchical in their leadership. They are a state-like
organisation without a state to administer and they are committed to promoting
warlike and terrorist activities wherever they can. Currently we are able to
target their vehicles and their positions, able to go after the Mad Max style
vehicles which the terrorists use in Iraq. Of course, we have been able to
target the infrastructure and headquarter positions. Always our ADF operates
proportionately with international laws, the Geneva convention and other such
protocols.
But, as I said, it has become clear to our Defence Force that
there may be an ambiguity between international law and our domestic laws. When
we are dealing with Daesh and the factories where they make this equipment,
where they cache their supplies and where they get their fuel trucks and
logistical elements, it is important that we deal with this issue to make sure
that our ADF, by some quirk or anomaly of domestic law, are not subjected to
legal repercussions merely because we did not deal with the issue and update
our laws as our ADF are dealing with a difficult and changing environment.
This issue, though, is not just one which Australia has to
deal with. It is an issue which all Western nations have been grappling with.
Our people in the field make split-second decisions in a dynamic and dangerous
environment. We do not want to put them in harm's way because of our inability
to review and modernise our laws. This is not an ambiguity by design. As
history has evolved, we have not necessarily had to deal with state-like
organisations conducting terrorist activities.
Initially, based on what we heard, I certainly think the
principle of targeting all members of Daesh is a sound principle. Of course, we
will need to see how the law and the drafting works. But, as I said, our CDF
has made it clear that he wants to make sure that, when we ask the young men
and women in our professional ADF to carry out the missions which Australia
deems to be important and in our national interest and the interests of the
people of Iraq, we do not set them up to head into a legal minefield. I am
confident this can be done in a cooperative and bipartisan way. The safety of
Australians but also support for our ADF and the security of our nation are
bigger and more important questions than any of the political differences that
we perhaps spend more of our time on.[89]
Australian
Greens
The Australian Greens have called for thorough Parliamentary
scrutiny and debate of the operational need for the proposed amendments, as
well as their specific provisions. Deputy Leader and Foreign Affairs and
Defence spokesperson Senator Scott Ludlam stated:
These changes seriously alter the governance
of ADF personnel in combat. They change the definition of a war crime. It’s a
highly charged, complex topic in which civilians in war zones on the other side
of the world have no voice.
We’d like to hear from the ADF about why
they feel these changes were needed. What actions are they trying to take that
are being prevented by existing war crimes legislation?
Parliament should have a far greater role in
debating the use of military force, and the implications of those deployments.
These are some of the most important decisions a nation can make, and that is
what parliaments should be for.
Australian forces operate under much more
stringent rules of engagement than many of our allies including the US.
Anything that creates a risk of that changing needs to be carefully
scrutinized.[90]
The Australian Greens have also expressed
concern about a lack of publicly available evidence of operational need for the
proposed amendments, and the potential that they may result in greater civilian
casualties. In an interview with SBS in September 2016, Senator Ludlam is
reported to have made the following comment:
Parliament is sidelined. Committees are
sidelined. There's no real possibility until after the fact of establishing why
these changes are needed.
The main issue we have, really, is that it
potentially opens up greater risks to civilian casualties in a place where it's
already formidably difficult to establish what's going on as a consequence of
the bombing campaign, and we don't really quite see how the case is being made
that this is a necessary change.
Now, it may be that it's entirely
justifiable, but, from our point of view, anything that potentially changes the
definition of war crime involving civilians who might be in the way when bombs
are dropped is due proper scrutiny.[91]
Independents
While not commenting specifically on the proposed measures
in the Bill, Senator Jacqui Lambie has expressed support for legislation that allows
a ‘pre-emptive pardon for any Australian soldier who may be accused of war
crimes or breaches of the Geneva Conventions while fighting against
Islamic extremists’.[92]
Position of
major interest groups
The Bill has been the subject of limited public comment by
non-government stakeholders, primarily by legal academics specialising in
public international law and military law.
Generally, commentators have not expressed objections to
the Bill in-principle or the rationale for the proposed amendments, but have
emphasised the importance of careful scrutiny of the proposed amendments to
ensure that they do not exclude criminal liability in relation to acts that
exceed the constraints imposed on military operations under IHL.[93]
Some submitters to the PJCIS inquiry into the Bill have identified provisions
which may not be aligned with the requirements of IHL or may contain ambiguity.
These matters are discussed below.
For completeness, the International Committee of the Red
Cross (ICRC) declined to comment on the content or substance of the Bill, in
line with its status as a neutral and independent humanitarian organisation.[94]
Part 1 of Schedule 1—Targeting
members of organised armed groups
Professor Ben Saul, in his submission and evidence
to the PJCIS, commented that the proposed amendments in Part 1 are open to an
unduly expansive interpretation, which may be contrary to IHL. In particular,
the proposed amendments may be construed as authorising the targeting of persons
who are not performing a continuous or direct combat function
with an organised armed group, and who are providing indirect support to such a
group.[95]
Professor Saul recommended that the Bill (or alternatively
the Explanatory Memorandum) be amended to make explicit:
... the concept of ‘members of an organised armed group’
includes only those who are continuously and directly participating in
hostilities, and excludes any wider category of ‘members’ who accompany or
indirectly support such groups.[96]
He further identified a potential inaccuracy in the Human
Rights Statement of Compatibility accompanying the Bill, with respect to the impact
of the proposed measures on the right to life (discussed below in relation to
the human rights statement of compatibility).[97]
Part 2 of Schedule
1—Proportionality
Professor Saul recommended amendments to Part
2 of Schedule 1 to make explicit that proportionality requirements under IHL
apply both at the time of launching and the duration of an attack,
noting that the proposed exemptions are limited to the defendant’s expectation
at the time of launching an attack.[98]
Professor Tim McCormack submitted that
the limitation of the proposed amendments in Part 2 of Schedule 1 to offences
in relation to non-international armed conflicts may have unintended
consequences by creating ‘unnecessary inconsistency with similar war crimes in
international armed conflicts’.[99]
In particular, he commented that a future Australian court may interpret ‘the
lack of inclusion of the proportionality exception to the relevant war crimes
in international armed conflicts as indicative of a legislative intent for the
rule on proportionality not to apply’.[100]
He recommended the enactment of ‘comprehensive and consistent’ amendments
across all relevant offences in both international and non-international armed
conflicts.[101]
Other issues
Professor McCormack submitted that the Bill presents
an opportunity to address several further identified shortcomings in Division
268 of the Criminal Code to improve its alignment with the Rome
Statute, or to extend the Division to recognise war crimes offences beyond
those in the Rome Statute.
These suggestions include amendments to enact new war
crimes offences in relation to non-international armed conflicts, said to be
recognised under treaty law or customary IHL, with respect to: attacking
civilian objectives; excessive incidental death, injury or damage; and
starvation as a method of warfare.[102]
Financial
implications
The Explanatory Memorandum states that there are no direct
financial impacts from the Bill.[103]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility
with the human rights and freedoms recognised or declared in the international
instruments listed in section 3 of that Act. The Government considers that the
Bill is compatible.[104]
The Statement of Compatibility emphasises that, as the
Bill will generally operate extraterritorially, the proposed amendments will
only engage Australia’s human rights obligations in ‘very limited circumstances’.[105]
This is said to be because:
It is only in exceptional circumstances that Australia will
owe human rights obligations beyond its territory. Under international
law, a high standard of control would need to be met and substantiated in order
to engage any international human rights obligations for Australia
extraterritorially.[106]
Nonetheless, the statement acknowledges that subject to
this articulation of jurisdiction the proposed measures engage two key rights
in the International
Covenant on Civil and Political Rights (ICCPR).[107]
These are the right to life (Article 6 and Article 1 of the First Optional
Protocol) and the prohibition on the retrospective operation of criminal
laws (Article 15).[108]
Right to life
The Statement of Compatibility argues that the proposed
measures are compatible with the right to life in Article 6 of the ICCPR
on the basis that, in situations of armed conflict, the ICCPR will be
displaced to the extent necessitated by IHL, and the measures proposed in the
Bill are consistent with IHL.[109]
However, as mentioned above, Professor Ben Saul has argued
that ‘this characterisation of the relationship between human rights and IHL is
not accurate, at least in relation to the right to life’.[110]
He referred to the observations of the International Court of Justice in the Nuclear
Weapons Advisory Opinion of 1996,[111]
which he cited as authority for the proposition that IHL ‘did not “displace”
the right to life, but rather was utilized to interpret the meaning of an “arbitrary
deprivation” under human rights law itself, thus harmonizing the relevant norms
in both branches of law’.[112]
Professor Saul concluded:
[W]here extraterritorial jurisdiction is exercised,
Australia’s right to life obligations continue to apply in armed conflict and
are not displaced by IHL. Where a killing is unlawful under IHL, it will likely
constitute an arbitrary deprivation of life under human rights law.[113]
Accordingly, the reasoning in the Statement of
Compatibility may benefit from revision to take into account the above advisory
opinion of the ICJ; or an explanation of how the Government has considered and interpreted
that advisory opinion in reaching its stated position on the ‘displacement’ of
the right to life in Article 6 of the ICCPR.
Retrospectivity
The Statement of Compatibility also argues that the
retrospective application of the measures in Parts 2 and 3 of Schedule 1 to the
Bill is compatible with prohibition on retrospective criminal punishment in
Article 15 of the ICCPR, on the basis that the proposed measures:
... remove the potential for domestic criminal liability in
relation to conduct occurring since the enactment of the relevant offences in
2002, in circumstances where that conduct was consistent with international
humanitarian law.[114]
Parliamentary
Joint Committee on Human Rights
In Report 8 of 2016, the Parliamentary Joint
Committee on Human Rights deferred its consideration of the Bill.[115]
Key issues
and provisions
Part 1—Members
of organised armed groups (items 1–7)
The proposed measures in Part 1, Schedule 1 propose to
amend the elements of the following war crimes offences in relation to
non-international armed conflicts, to exclude their application to actions
taken against persons who are neither taking an active part in the hostilities,
nor are members of an organised armed group:
- section
268.70—murder (punishable by maximum penalty of life imprisonment)
- section
268.71—mutilation (punishable by a maximum penalty of life imprisonment if
the mutilation causes death, or 25 years’ imprisonment if the mutilation
seriously endangers the physical or mental health or integrity of the victim)
- section
268.72—cruel treatment (punishable by a maximum penalty of 25 years’
imprisonment).
The above offences have the following main elements:
- harm—the
perpetrator causes the form of harm specified in each of the offence
provisions, in relation to one or more persons—in particular:
- in
the case of the murder offence in section 268.70, this is causing the
death of the relevant person or persons[116]
- in
the case of the mutilation offences in section 268.71, this is
subjecting the relevant person or persons to mutilation, such as by permanently
disfiguring, disabling them, or removing their organs or appendages;[117]
and either causing their death, or seriously endangering their physical or
mental health or integrity.[118]
(The mutilation offences contain an additional element, that the perpetrator’s
conduct is neither justified by the medical, dental or hospital treatment of
the person or persons, nor carried out in their interests)[119]
- in
the case of the cruel treatment offence in section 268.72, this is
inflicting severe physical or mental pain or suffering upon the relevant person
or persons[120]
- victim’s
non-participation in the hostilities:
- the
person or persons to whom the relevant harm is caused is or are not taking an
active part in the hostilities,[121]
and
- the
perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person is, or the persons are, not taking an active part
in the hostilities[122]
- conflict—the
perpetrator’s conduct takes place in the context of, and is associated with, a
non-international armed conflict.[123]
Each offence provision includes an ‘avoidance of doubt’
clause stating that persons who are not taking an active part in the
hostilities include persons who are hors de combat; and civilians,
medical personnel or religious personnel who are not taking an active part in
the hostilities.[124]
The Criminal Code does not include a definition of
the phrase ‘taking an active part in the hostilities’ beyond the exclusion of
persons who are hors de combat or civilians, medical personnel or religious
personnel who are not taking active part in the hostilities.
Exclusion of acts carried out against
members of organised armed groups, who are taking an active part in the
hostilities
The key proposed amendments are contained in items 1, 3
and 5 of Part 1, Schedule 1 to the Bill. These items amend the elements of the
above offences to effectively exclude their application where:
- the
person or persons to whom the relevant form of harm is caused is, or are,
neither:
- taking
an active part in the hostilities, nor
- members
of an organised armed group,[125]
and
- the
perpetrator knows of, or is reckless as to, the factual circumstances
establishing the circumstances in the above point.[126]
The Explanatory Memorandum indicates that this is intended
to give effect to the position at international law that ‘all members of an
organised armed group can be targeted with lethal force, for so long as they
remain members of that group, subject to the ordinary rules of international
humanitarian law’.[127]
Meaning of ‘organised armed group’
Items 2, 4 and 6 propose to insert a partial
definition of the term ‘organised armed group’ for the purpose of the amended
elements of the offence provisions in sections 268.70–268.72 to be inserted by items
1, 3 and 5. This partial definition provides that the term does not
include members of an organised armed group who are hors de combat.[128]
The Explanatory Memorandum states that ‘this reflects the protected status,
under international law, of all persons who are hors de combat’.[129]
The term ‘organised armed group’ is otherwise undefined in
the Bill. The Explanatory Memorandum states that these matters are questions of
fact to be determined in the context of individual prosecutions, and notes a
number of indicia recognised under international law, which may be relevant to
such an assessment.[130]
In relation to the identification of an ‘organised armed
group’ the Explanatory Memorandum states:
The existence of an ‘organised
armed group’ in a non-international armed conflict will be determined by
reference to the facts in existence at the time. The key indicia are at lease a
minimal degree of organisation, the existence of some kind of commend
structure, and the existence of a collective purpose that is related to the
broader hostilities and involves the use of force. Relevant factors in this
regard may include:
- the issuance of orders;
- the ability to procure, transport and distribute arms;
-
the capacity to launch coordinated actions between units;
-
the ability to recruit new members; and
- the capacity to provide military training.[131]
The Explanatory Memorandum also notes the possibility that
an ‘organised armed group’ may be a sub-group within a larger entity or
group—for example, in the case of an organisation with distinct political,
armed, administrative and religious ‘wings’ or ‘elements’.[132]
It notes that only those ‘wings’ or ‘elements’ that engage in hostilities will
qualify as an ‘organised armed group’ but that individuals who ‘straddle’
multiple sub-groups will ‘remain members of an organised armed group,
notwithstanding their other non-hostile roles’.[133]
The Explanatory Memorandum emphasises that whether or not
the entire entity (or only distinct sub-groups) can be characterised as an
‘organised armed group’ is a question of fact, requiring an assessment of the ‘organisation,
control structure and actions of the entity and of its various parts’.[134]
The second reading speech to the Bill further indicates:
Analogous indicia have been elaborated by international
courts, such as the International Criminal Tribunal for the Former Yugoslavia
(ICTY), which has discussed the issue in a number of judgments, including its
April 2008 decision in Prosecutor
v Haradinaj and its November 2005 decision in Prosecutor v Limaj.[135]
Meaning of ‘membership’ of an
organised armed group
Similarly, the Bill does not define ‘membership’ in
relation to an organised armed group. The Explanatory Memorandum states:
‘Membership’ of an organised armed group is a question of
fact, to be determined on the basis of all reasonably available information and
intelligence. While a person’s function—what the individual does, the role they
play, and the extent of that role in contributing to the military aims or
objectives of the organised armed group—will provide a strong indication as to
whether or not that individual ‘belongs’ to the group, organised armed groups
often have a membership based on more than mere function.
Insofar as function is an
indicator of membership, an assessment as to whether the person is involved in
combat, combat support or combat service support functions similar to those
functions that support a State’s armed forces is appropriate. Indicia of such
functions may include:
- carrying arms openly;
- exercising command of the organised armed group or elements of
it;
- giving or taking orders or acting on instructions from the
organised armed group;
- direct involvement in achieving the military aims or objectives
of the organised armed group; and
- other activities indicative of membership in an organised armed
group which could include intelligence gathering, maintaining communications or
providing engineering or logistics support.[136]
The Explanatory Memorandum cautions that these indicia are
not exhaustive, and that the overriding consideration is an assessment of the
nature and composition of the particular group.[137]
The second reading speech also notes that ‘it is appropriate to consider
whether the person is involved in combat, combat support, or combat support
service functions similar to those functions in a State’s armed forces’.[138]
The second reading speech also refers to case law on the
standard of certainty that the decision-maker must have in relation to a
person’s membership of an organised armed group, indicating that ‘the standard
adopted by international tribunals has been a “reasonable belief”. This was
referred to by the ICTY in Prosecutor
v Galic, for instance’.[139]
Meaning of ‘civilian’
Item 7 proposes to insert new section 268.125 into
Division 268 of the Criminal Code, which contains a partial definition
of the term ‘civilian’ for the purpose of that Division.
Proposed section 268.125 provides that the term ‘civilian’
excludes a person who is a member of an organised armed group. The Explanatory
Memorandum states that this is consistent with the position at international
law that ‘members of an organised armed group are a category of persons
distinct from civilians’.[140]
Importantly, proposed section 268.125 will apply to the
use of the term ‘civilian’ in all offences in Division 268 of the Criminal
Code and is not limited to the offences proposed to be amended by Part 1 of
Schedule 1 to the Bill (in relation to murder, mutilation and cruel
treatment committed in a non-international armed conflict).
The exclusion of members of organised armed groups from
the term ‘civilian’ in proposed new section 268.125 will therefore apply to:
- offences
in Division 268 that criminalise attacks on civilians or attacks directed
against civilian populations in the course of international and
non-international armed conflicts,[141]
and
- offences
in Division 268 in relation to harmful acts committed against persons who are
not taking an active part in hostilities (as these offence provisions contain
‘avoidance of doubt clauses’ indicating that the phrase ‘persons who are not
taking an active part in hostilities’ includes civilians).[142]
Comment on the proposed amendments
in Part 1
Two main issues arise in relation to the proposed
amendments in Part 1. The first issue is whether the proposed amendments may be
open to a broader interpretation than is permissible under IHL in relation to
the identification of an ‘organised armed group’ that may be targeted with
force, including lethal force.
The second issue is an observation on the potential impact
of the proposed amendments on the culpability of non-State actors participating
in non-international armed conflicts, particularly Australian ‘foreign
fighters’.[143]
Identification of an organised
armed group
In the absence of a statutory definition of the term
‘organised armed group’ the proposed amendments will require a factual judgment
as to the group’s status. The references in the extrinsic materials to the Bill
to the relevant decision-making indicia and requisite state of mind under IHL
will be relevant to the interpretation of the proposed provisions in items 2, 4
and 6, to the extent a court sought to confirm the ordinary meaning of the
provisions, or to ascertain their ordinary meaning in the event of ambiguity.[144]
However, as mentioned above, Professor Saul commented:
... in the absence of further definition, there is a risk that
the current language of the Bill could be over-expansively interpreted to
enable the targeting of persons connected with armed groups who are not
actually performing a continuous combat function, contrary to IHL.[145]
Professor Saul noted that many of the indicia in the
Explanatory Memorandum (extracted above) correctly identified ‘combat-related
functions evidencing membership (in the sense of a continuous combat function
consistent with IHL’. However, he expressed a view that the reference to ‘other
activities indicative of membership’ which includes ‘intelligence gathering,
maintaining communications or providing engineering or logistics support’ might
not constitute continuous, direct participation in hostilities.[146]
In his evidence to the PJCIS, Professor Saul provided the
following elaboration:
The way it is often explained is that, on the one hand,
fighters on the front line can be targeted, but that, on the other hand, those
who directly enable military operations—the person who drives the truck, the
person who fuels the truck, the person who loads the bomb on the truck—are, of
course, all members of armed groups which can be targeted. When I am drawing
that distinction about logistics, I do not mean logistics for enabling military
operations. I mean other kinds of logistical support for the group itself,
given that the group is also a de facto governmental authority administering
territory, raising tax, picking up garbage and doing all of those other things,
and there is a lot of intermingling of civilian and military roles between the
same members of that group. You cannot draw a bright line between, as we would,
the civilian administration of Australia, on the one hand, and Australian armed
forces, on the other. There is a lot of movement between them. That is why I
think it is important to make sure you do draw the brightest lines possible in
a very murky area so that you do not go too far and start wiping out civilians.[147]
In response, representatives from the Attorney-General’s
Department stated that the Government did not interpret the term ‘organised
armed group’ by reference to the functions of the wider group—for example,
Daesh as a whole—but rather only those particular elements of the group that
are engaged in hostilities:
This legislation obviously does not deal solely with the
conflict we are fighting now ... but if you were to apply it to our current
conflict ... the organised armed group that the Australian Government is
characterising here is the armed element of Daesh. It is not those elements of
Daesh that are performing those civil functions, the local council type
functions that we understand Daesh is carrying out. The organised armed group
is a military sub-wing, a sub-element of Daesh which is carrying out combat
functions and is progressing an armed conflict ... we are being quite
conservative about the identification of the group.
...
The way in which we would apply the test is to say that
plainly you cannot have an organised armed group that is carrying out all of
those sorts of functions—the civilian functions. An organised armed group must
be something smaller than that. An organised armed group is linked to a conflict;
it is linked to progressing a struggle; it is linked to all of the tests that
are laid down in both the Geneva Conventions and the Additional Protocols to
the Geneva Conventions. So while there is nothing on the face of the
legislation which would limit it in that way in this case, the Government’s
view has been that is the plain application of the test of identification of a
group in the current circumstances. [Emphasis added.][148]
This raises two issues. The first is the question of
whether the Bill or its extrinsic materials make the intended distinction
sufficiently clear, or whether further statutory limitation or interpretive
guidance is required, to ensure that the legislation is open only to the
narrower interpretation outlined by the Government.
The second issue is the question of what, if any,
oversight or visibility the Parliament will have over the application of the
proposed amendments, if enacted; and the degree of oversight it may consider
necessary or appropriate to provide an assurance that the practice of targeting
organised armed groups by the ADF accords with the Government’s intended
interpretation.
Possible need for greater statutory or interpretive
guidance on the meaning of an ‘organised armed group’
Explicit statutory guidance on the meaning of an
‘organised armed group’ may be considered important given that the offences in
Division 268 of the Criminal Code are not limited in their application
to members of the ADF and could, theoretically, extend to persons fighting with
an organised armed group, who may make and implement targeting decisions in
relation to other organised armed groups. A clearer statutory distinction could
potentially ensure that such persons are not unintentionally excluded from the
scope of criminal liability in the event a court interpreted the term in a
different way to that intended by the Government.
A clearer statutory distinction may also provide practical
benefits, in the form of offering stronger guidance to the trier of fact in
individual prosecutions (namely, juries) in determining whether a particular
entity was, or was not, an organised armed group. The practical effectiveness
of requiring a trial court to direct a jury on abstract principles of
international law, and requiring the jury to apply those principles to the
evidence admitted at trial, may be open to some debate.
Members and Senators may wish to consider, for example,
the insertion of an inclusive definition of an ‘organised armed group’ for the
purpose of Division 268 of the Criminal Code, or the inclusion of
statutory notes confirming the intended treatment of groups which perform a
range of civilian and non-civilian functions.
Members and Senators may wish to consider, as an
alternative or complementary measure, requesting the Government to amend the
Explanatory Memorandum to make explicit that the concept of an ‘organised armed
group’ does not include the ‘civilian’ functions that an entity may perform in
connection with its control of territory.
Possible need for greater Parliamentary visibility or
oversight of the application of the proposed amendments
The present Bill represents a call upon the Parliament to
expand the circumstances in which members of the ADF, and others participating
in armed hostilities, may lawfully use force (including lethal force) under
domestic criminal laws. Parliament is called upon to grant this expansion in
the absence of an explicitly defined statutory limitation on the targets of
such force, largely on the basis of an assurance that the proposed amendments
will be applied in practice in a manner consistent with the requirements of
international law.
In addition to considering the desirability of framing the
legislation in this way, Members and Senators may wish to consider whether the
Parliament should have greater visibility or oversight of the practical
application of the proposed amendments, so that it may monitor whether they are
being applied in the manner intended. This might include, for example, the
enactment of statutory reporting or disclosure requirements concerning the
provision of information about the ADF’s operational decision-making processes
and practices for the identification and targeting of organised armed groups,
and how they have been distinguished from civilians. A particular issue of
concern may be the means of identification and treatment of civilians who may
be required, under duress, to support the combat functions of a terrorist
organisation which has occupied their territory.
To balance interests in the preservation of classified or operationally
sensitive information, consideration might be given to the use of private
committee briefing or reporting functions, such as the PJCIS.
Impact of the proposed amendments
on the criminal liability of non-State actors
The proposed amendments in Part 1 of the Bill are not
expressly limited to the ADF’s activities in targeting organised armed groups,
and might potentially serve to limit the exposure of non-State actors to
criminal liability under Division 268 of the Criminal Code.
For example, it is possible that the proposed amendments
to the murder, mutilation and cruel treatment offences in sections 268.70,
268.71 and 268.72 may also serve to limit the culpability of Australian
‘foreign fighters’ who fight with an organised armed group in a
non-international armed conflict, in relation to the targeting of members of
other organised armed groups who are taking an active part in the hostilities.
Such persons may also be able to avail themselves of the proposed
proportionality exemptions in Part 2 of the Bill (discussed below) in relation
to their actions which cause the incidental death of, or injury to, civilians.
If the proposed amendments were capable of application in
this way, such persons would still be culpable if they targeted persons who were
neither taking an active part in hostilities nor were members of an organised
armed group. They may also be separately liable to other domestic criminal
offences in relation to their participation in the conflict. (For example—offences
against the security of the Commonwealth in Chapter 5 of the Criminal Code,
potentially including terrorism offences in Part 5.3, foreign incursions
offences in Part 5.5, and offences for materially assisting the enemy in Part
5.1, if the organised armed group of which the person was a member was also
engaged in armed hostilities against the ADF.)
The Government’s policy justification for the proposed
amendments appears to have focused on addressing the exposure of ADF members to
criminal liability. Accordingly, Members and Senators may wish to seek further
information from the Government, in the course of debating the Bill, about the
potential application of the proposed amendments to non-state actors, in order
to avoid the risk of unintended consequences in this respect.
(As discussed below, the potential availability of the proposed
proportionality exceptions in Part 2 of the Bill to non-State actors might lend
support to a case for some amendments to these provisions.)
Part 2—Proportionality
in non-international armed conflict
Items 8–11 propose to insert a new exception to
each of the war crimes offences in sections 268.70 (murder), 268.71
(mutilation) and 268.72 (cruel treatment) in proposed new subsections
268.70(1A), 268.71(1A), 268.71(2A) and 268.72(1A).
Elements of the proposed exceptions
The exception in each of the above proposed subsections applies
where:
- the
harm constituting the relevant offence (death, serious endangerment, or severe
mental pain or suffering) occurs in the course of, or as a result of, an attack
on a military objective, and
- at
the time the attack was launched:
- the
perpetrator did not expect that the attack would result in the incidental death
of, or injury to, civilians that would have been excessive in relation to the
concrete and direct military advantage anticipated, and
- it
was reasonable in all the circumstances that the perpetrator did not have such
an expectation.
Imposition of the evidential burden
on the defendant
Consistent with the application of general principles of
criminal responsibility in Chapter 2 of the Criminal Code, specifically
subsection 13.3(3), the defendant bears an evidential burden in relation to the
matters in the proposed exceptions. The notes to the proposed provisions in
each of items 8–11 are declaratory of the application of
subsection 13.3(3) of the Criminal Code.
Rationale for the proposed exceptions,
and the interpretation of key terminology
The Explanatory Memorandum indicates that the proposed
exception is intended to give explicit domestic legislative effect to the
concept of proportionality under IHL, with respect to conduct engaged in during
non‑international armed conflicts.[149]
In particular, it indicates that the proposed exception is
intended to give domestic legislative effect to Australia’s Declaration in
relation to Articles 51–58 of Protocol I Additional to the Geneva
Conventions of 1949 (the Declaration), which contains Australia’s
interpretation on matters relevant to the principle of proportionality in
relation to international armed conflict. It is said that the same
interpretation is applicable to non-international armed conflict.[150]
The Explanatory Memorandum draws particular attention to two interpretive
matters in the Declaration—the basis for decision-making, and the meaning of
‘military advantage’.[151]
On the first issue (the basis for decision-making) the
Explanatory Memorandum states that the Declaration:
... clarifies that it is the understanding of Australia
that military commanders and others responsible for planning, deciding upon, or
executing attacks, necessarily have to reach their decisions on the basis of
their assessment of the information available to them from all sources at the
relevant time.[152]
(This appears to be given effect in the proposed
requirement that it must be reasonable ‘in all of the circumstances ... at the
time the attack was launched’ that the perpetrator did not expect that the
death or injury of civilians caused by the attack would have been excessive in
relation to the anticipated military advantage.[153])
On the second issue (the meaning of ‘military advantage’)
the Explanatory Memorandum states that the Declaration:
[C]larifies that it is Australia’s understanding, in an
international armed conflict, that references to ‘military advantage’ are
intended to mean the advantage anticipated from the military attack as a whole
and not only from isolated or particular parts of that attack, and that the
term ‘military advantage’ involves a variety of considerations including the
security of the attacking force. Furthermore, the Declaration clarifies that it
is Australia’s understanding that the term ‘concrete and direct military
advantage anticipated’ means a bona fide expectation that the attack
will make a relevant and proportional contribution to the objective of the
military attack involved.[154]
Comment on the proposed amendments
in Part 2
Possible inconsistency with Protocol
I Additional to the Geneva Conventions and customary IHL
Subject to one exception, the proposed amendments in items
8–11 appear to be drafted consistently with Australia’s interpretation of Protocol
I Additional to the Geneva Conventions and customary IHL.
As Professor Saul commented in his submission and evidence
to the PJCIS, the proposed amendments in items 8–11 expressly
exclude liability on the basis of the perpetrator’s expectation at the time
the attack was launched.[155]
Professor Saul argued that proportionality is ‘a continuing obligation that
endures throughout an attack’ and recommended the amendment of items 8–11
so that proportionally requirements apply both at the time of launching, and for
the duration of, an attack.[156]
Professor Saul commented, for example:
To give a real example: in the Kosovo campaign in 1999, a
NATO pilot was targeting a bridge and, has he released the weapon, a civilian
train packed with refugees unexpectedly came around the corner. In an example
like that, you become aware after an operation has been launched that
continuing with the operation would result in excessive civilian casualties.
The point I am trying to make is that the proportionality requirement continues
for the duration of the operation, whereas the way it is framed in the Bill is
that as long as you satisfied yourself when releasing the weapon, that would
discharge the Bill’s proportionality requirement. My point is that if it is
possible to redirect the missile, neutralise the missile and so on, or discontinue
dropping further missiles on the bridge, that is required by international
humanitarian law. For the duration of the attack, as long as it is continuing,
the proportionality requirement is a continuing one.[157]
The express limitation of the proposed exceptions in items
8–11 to the defendant’s reasonable expectation at the time of launching an
attack suggests that they could technically exculpate a defendant who did not
reasonably expect than an attack would result in incidental death or injury at
the time the attack was launched, but subsequently formed an expectation in the
course of the attack, could have ceased or diverted the attack away from the
relevant civilians, but rather chose to continue to engage in the conduct which
caused death or injury.
The Explanatory Memorandum does not specifically address
why it is considered appropriate that the exceptions should technically be
available in these circumstances. The reference to Australia’s Declaration
on its interpretation of Articles 51–58 of Protocol I Additional to the
Geneva Conventions (quoted above) also seems ambiguous in this respect.
That is, it states that persons planning, deciding or executing attacks must
reach their decisions on the basis of the information available to them at
the relevant time, without explaining what is meant by ‘the relevant
time’ or why Australia’s interpretation of that phrase is considered to be
consistent with IHL.
In evidence at a public hearing of the PJCIS on 7 November
2016, officials from the Department of Defence and the Attorney-General’s
Department indicated that the amendments were not intended to be interpreted in
this way. The Attorney-General’s Department explained that the drafting of the
provision was designed to reflect the language used in the Rome Statute
to describe the requirements of proportionality, which refers expressly to the
time of launching the attack. However, the Departmental official acknowledged:
... it is undoubtedly true that as an attack is continued, if
any elements or aspects of that attack changed, that would alter the
proportionality of balance. The way that the ADF and our forces deal with that
is not through this legislation, but through other things about ensuring that
an attack remains proportional.[158]
An official from the Department of Defence described the
ADF’s practices in relation to proportionality in the following terms:
We observe proportionality throughout all stages of an
operation. The example that [Professor Saul] gave before was of a bridge and
then a bus carrying civilians moving onto the bridge. We would make an
assessment that the bridge was an important military objective. We would
monitor the bridge for a period of time. We would authorise a strike on the
bridge and, right up to the moment of weapon release, we would continue to
monitor it. If the bus appeared before the weapon was released, the pilot would
not release the weapon. The example given was that the weapon had already been
released and then the bus appeared. That is just an unfortunate circumstance
that is portrayed there, but we certainly observe proportionality at all
times—including through an operation as it unfolds.[159]
While this may be the ADF’s practice, this commentary does
not appear to address the reason that an exemption from domestic criminal
liability should be available in the event that these practices are not
complied with. Further, the exemption may be available to entities other than
the ADF participating in a non-international armed conflict (for example,
Australian persons fighting with other organised armed groups or non-tate
actors). Such groups may not have comparable practices to those of the ADF as
detailed above, and may seek to avail themselves of the exception in
circumstances in which they ceased to hold a reasonable expectation that an
attack would not comply with the requirements of proportionality, could have
ceased or diverted the attack to comply with those requirements, but chose not
to do so. There is nothing apparent on the face of the proposed proportionality
exceptions, as presently drafted, which would preclude their application in
these circumstances. Members and Senators may wish to consider moving
amendments to these provisions to make explicit that they are not available in
these circumstances.
Possible unintended consequences—Interpretation
of war crimes offences in international armed conflicts
The reference in the Explanatory Memorandum to the Declaration
will help ensure that Australia’s interpretation of proportionality
requirements relevant to international armed conflict (with respect to
Articles 51–58 of Protocol I Additional to the Geneva Conventions) forms
part of the extrinsic materials which may inform the interpretation of proposed
subsections 268.70(1A), 268.71(1A), 268.71(2A) and 268.72(1A).[160]
However, as Professor McCormack observed in his submission
to the PJCIS, the express statutory recognition of proportionality in relation
to the war crimes offences with respect to non-international armed
conflict (sections 268.70-268.72) may have unintended consequences for the
interpretation of similar war crimes offences applying to the causation of
death or injury in an international armed conflict.[161]
That is, the express inclusion of a proportionality requirement in relation to
sections 268.70-268.72 might be interpreted as evincing Parliament’s intention
that the requirements of proportionality should not apply to the similar
war crimes offences with respect to the causation of death or injury in
international armed conflicts in Subdivisions D and E of Division 268.[162]
Members and Senators may wish to seek an explanation from
the Government as to why an express proportionality requirement is proposed
only in relation to the offences in sections 268.70–268.72, to the apparent exclusion
of a proportionality exception to comparable war crimes offences with respect to
international armed conflicts in Subdivisions D and E of Division 268.
Various options are open to manage the risk of unintended
interpretive consequences identified by Professor McCormack. The Bill may
benefit from the inclusion of a further amending provision, making clear that
the insertion of proposed new subsections 268.70(1A), 268.71(1A), 268.71(2A)
and 268.72(1A) are not intended to affect the interpretation of any
other offence provisions in Division 268. Alternatively, consideration could be
given to amending the Explanatory Memorandum to include a statement to this
effect. A further alternative (as proposed by Professor McCormack) is the
enactment of proportionality exceptions to the war crimes offences with respect
to international armed conflicts in Subdivisions D and E of Division 268.[163]
The PJCIS, in its advisory report on the Bill, expressed a
view that any potential unintended consequences of the Bill should be addressed
and considered that ‘the Attorney-General’s Department should examine whether
it would be appropriate to make additional amendments to the Criminal Code’.[164]
Imposition of the evidential burden
on the defendant
Commonwealth criminal law policy is that the imposition of
an evidential burden on the defendant is generally appropriate where the
relevant matters are peculiarly within his or her knowledge; or if proof by the
prosecution of the particular matter would be extremely difficult or expensive,
whereas evidence sufficient to discharge an evidential burden could be more readily
and cheaply provided by the defendant.[165]
The Explanatory Memorandum does not address why the
matters constituting the proposed proportionality exception would satisfy these
requirements. However, to the extent that the focus of the proposed exception
is the defendant’s state of mind, and the highly specialised military
environment in which he or she is operating, evidence of these matters might
reasonably be considered to be peculiarly or more readily within the
defendant’s knowledge. Nonetheless, as the Senate Scrutiny of Bills Committee
has commented, the Explanatory Memorandum would have benefited from the
inclusion of a justification for this position.[166]
Part
3—Amendment of the offence of using a protected person as a shield—section
268.65
Item 12 proposes to amend the offence of using
civilians and other protected persons as shields in an international armed
conflict in section 268.65. It proposes to alter the classes of ‘protected
persons’ in relation to whom the offence applies, as prescribed in paragraph
268.65(1)(a).[167]
Currently, paragraph 268.65(1)(a) provides that the offence applies to the use
of the following classes of persons as shields—one or more civilians, prisoners
of war, military, medical or religious personnel or persons who are hors de
combat.
The proposed amendment would remove the reference to
military personnel. The Explanatory Memorandum notes that the offence is
intended to implement the corresponding offence in Article 8(2)(b)(xxiii) of
the Rome Statute, which in turn applies to ‘protected persons’ within
the meaning of that term under IHL. [168]
The Geneva Conventions and Additional Protocols define ‘other
protected persons’ as including all of the persons in paragraph 268.65(1)(a)
other than military personnel.[169]
Importantly, the retention of protected persons who are hors
de combat will ensure that the offences apply in relation to the use of
military personnel as shields, where those personnel are ‘out of combat’ by
reason of being taken prisoner of war, or having clearly expressed an intention
to surrender, or being unconscious or otherwise incapacitated.[170]
Accordingly, this proposed amendment is fairly described
as minor and technical in nature, addressing an unintended anomaly with the
requirements of international law.
Part 4—Application
of the proposed amendments
Item 13 provides for the prospective commencement
of the amendments in Part 1 (acts done in relation to members of organised
armed groups, with respect to the offences in sections 268.70–268.72). These amendments
will only apply to conduct occurring on, or after, commencement (being the day
after Royal Assent).
Item 14 provides for the retrospective amendment of
the proposed amendments in Part 2 (proportionality exceptions to the offences
in sections 268.70–268.72) and Part 3 (the minor and technical amendment to the
offence of using a protected person as a shield in section 268.65). These
amendments will apply to conduct occurring before, on, or after the
commencement (being the day after Royal Assent).
The Explanatory Memorandum states that retrospective
application of the proposed amendments in Parts 2 and 3 is considered
appropriate because these measures are said to reflect the position at
international law when the relevant provisions of Division 268 of the Criminal
Code were enacted on 25 September 2002, and, therefore, do not ‘entail the
retrospective criminalisation of conduct not hitherto constituting an offence’.[171]
The Explanatory Memorandum also notes that there are no existing or
completed prosecutions that would be affected by the proposed amendments in
Parts 2 and 3.[172]
Comment—retrospective application
of Part 3 (minor amendment to the ‘shield offence’, section 268.65)
The retrospective application of the proposed amendment in
Part 3 is non-controversial, given its clearly technical nature in view of the
unequivocal exclusion under IHL of ‘military personnel’ from the classes of ‘protected
persons’ who must not be used as shields in international armed conflicts.
Comment—retrospective application
of Part 2 (proportionality exceptions to sections 268.70-268.72)
However, the proposed retrospective application of Part 2
may be more controversial in view of the suggestion (discussed above) that
the proportionality exemptions in the Bill may deviate from the requirements of
IHL.
That is, the proposed amendments require proof that
the defendant held a reasonable expectation—at the time of launching the
attack—that the attack would not result in the incidental death of, or
injury to civilians that would have been excessive in relation to the concrete
and direct military advantage anticipated. However, the exception does not
require the person to continue holding that expectation throughout the duration
of the attack, and may technically be available to a person who ceases to
hold the expectation that the attack met the requirements of proportionally
during the course of an attack, but nonetheless continues to engage in it.
If the interpretation advanced by Professor Saul is
accepted—namely, that the concept of proportionality under IHL applies
throughout the entire duration of an attack, and not merely at the time of
launching—then the retrospective application of Part 2 to the above scenario may
operate to confer an immunity under domestic criminal law that would not have
been available (under domestic law or IHL) at the time the relevant conduct was
engaged in.
Ongoing ADF
exposure to criminal liability under other domestic offences
The proposed amendments in the Bill seek to ensure that
ADF personnel are not exposed to criminal liability in relation to conduct that
is compliant with the requirements of IHL. However, the proposed amendments
will only remove the potential exposure of ADF personnel to criminal liability
to certain of the war crimes offences in Division 268 of the Criminal
Code, in respect of conduct said to be compliant with IHL.
The proposed amendments do not address the potential
exposure of ADF personnel to liability under other domestic offences that may
potentially apply to IHL-compliant actions undertaken in the course of, and as
part of, their duties in relation to the security and defence of Australia. Accordingly,
the proposed amendments may only provide for legal certainty in a limited
respect (that is, in relation to the offences in Division 268 only). ADF members
may continue to be reliant upon the discretion of law enforcement agencies in
relation to their potential exposure to liability to other offences,
notwithstanding that their conduct was compliant with IHL.
It is worth noting that some, but not all, offences
against the security of the Commonwealth expressly exclude their application to
members of the ADF acting in connection with the defence or security of
Australia. Examples include section 38A of the Nuclear
Non-Proliferation (Safeguards) Act 1987 (exemption from offences
relating to nuclear terrorism) and section 72.2 of the Criminal Code (exemption
from offences relating to international terrorist activities using explosive or
lethal devices).
In 2013, the Council of Australian Governments Review
of Counter-Terrorism Legislation (COAG Review) recommended that a similar
exemption should be enacted in relation to the terrorism offences in Part 5.3
of the Criminal Code.[173]
COAG supported this recommendation, but it has not been implemented.[174]
Further, the COAG Review endorsed a recommendation of the
(then) Independent National Security Legislation Monitor (INSLM), Bret Walker
SC, that the definition of a ‘terrorist act’ in Part 5.3 of the Criminal
Code should exclude conduct that is governed by the law of armed conflict. The
COAG Review Committee explained its intention in the following terms:
When the law of armed conflict
applies, conduct that might, in other circumstances, violate terrorism laws, is
regulated in order to protect civilians. Regulation, in this sense, is the
law’s ordering of war to ensure that parties to armed conflict are restrained
by basic proscriptions which include, for example, observance of the principle
of distinction between civilian and military targets, and the principle of
proportionality in attack. If crimes are committed in the context of an armed
conflict, the proper avenue for criminal prosecution is for war crimes,
criminalised in Division 268 of the Criminal Code.
...
The Committee considers that principles of the law of armed
conflict generate strong incentives capable of compelling parties to an armed
conflict to obedience. We accept that acts of terrorism may still occur in the
context of armed conflict if carried out by non-parties, or in the earlier
stages of a burgeoning conflict where fighting is not yet sufficiently organised
or intense to constitute, in legal terms, an ‘armed conflict’. However the
Committee considers there is value in removing the prosecutorial discretion
attending the duplication of terrorism offences and war crime offences in
situations of armed conflict. Equally, there is also value in signalling a
transition between the operation of ordinary criminal law and the law of armed
conflict in guiding the parties to a conflict to a basic standard of conduct in
their operations. The interaction between the two areas of law is complex, but
not, the Committee considers, an impossible task for the Parliamentary Counsel.[175]
COAG did not support this recommendation on the basis that
it may complicate terrorism prosecutions. However, COAG indicated it was ‘preferable
that the Commonwealth continues to monitor relevant international developments
on this issue and re-assess this position if necessary’.[176]
The circumstances of the ADF’s current operations against Daesh in Iraq and
Syria, and the policy intent underlying the proposed amendments in the present
Bill, may provide a timely opportunity for such re-assessment.
Statutory
functions of the Parliamentary Joint Committee on Intelligence and Security
The referral of the Bill to the PJCIS reflects an apparent
preference to utilise this committee—rather than the general purpose committees
of either House of Parliament—for the review of security related Bills,
notwithstanding the apparent limitations in its statutory functions in section
29 of the IS Act.
In the absence of express or direct support for the
referral and review of the Bill in the PJCIS’s existing statutory functions in
section 29 of the IS Act, it may be desirable to consider amending this
provision to expand the Committee’s functions.
Alternatively (or additionally) consideration could be
given to amending Part 4 and Schedule 1 to the IS Act to ensure that the
procedural provisions and protections in relations to the PJCIS’s inquiry and
review-related activities are capable of applying to activities done in the
course of inquiries or reviews that are not within its statutory functions.
There may also be benefit in considering the scope of the
PJCIS’s present statutory functions as part of a more systematic examination of
Part 4 of the IS Act, with a view to ensuring that the arrangements for
the Parliamentary scrutiny and oversight of security legislation and related
matters by the PJCIS are adequate and appropriate in contemporary
circumstances.[177]
In particular, the referral of the present Bill to the
PJCIS highlights that the use of this Committee to scrutinise proposed national
security legislation limits the ability of non-Government and non-Opposition
members of Parliament to participate in such inquiries. (Noting, in particular,
that the membership of the Committee does not include, and is not required
under section 28 of the IS Act to include, members of the cross-bench.)[178]
It is acknowledged that the expertise of the PJCIS—together
with the facility to take classified evidence and the protections accorded to
such evidence under the IS Act—may be salient features in relation to
the use of this Committee to conduct scrutiny of proposed amendments to
national security legislation.
However, if the PJCIS is to be utilised to scrutinise such
Bills in preference to general purpose committees of either House with broader
memberships, it may be desirable to re-consider the provisions governing its
membership and composition in section 28 of the IS Act with a view to
ensuring that such inquiries are conducted in a more participatory manner.
Concluding comments
On balance, the measures proposed in the Bill appear to be
directed to a reasonable policy objective in the sense of improving alignment
between domestic criminal law and the requirements of IHL. However, this Bills
Digest has identified four main issues relevant to the technical details of the
provisions, their practical application, and oversight arrangements.
First, international law experts have raised
concerns about the potential that some proposed amendments may go further than
what is authorised under IHL, or may have unintended consequences for the
interpretation of other war crimes offences in the Criminal Code with
respect to international armed conflicts. The interpretation of the term
‘organised armed group’ and the proposed ‘proportionality’ exceptions have been
identified as particular concerns. While the Government has indicated that it
does not intend to interpret the proposed provisions in a manner inconsistent
with the requirements of international law,[179]
Members and Senators may wish to consider the inclusion of more explicit
statutory safeguards to give effect to this policy intent. (For example,
the insertion of an exclusion to the proposed proportionality exemption,
providing that the exemption does not apply to persons who cease to hold
a reasonable expectation of proportionality after launching an attack,
who could have ceased or diverted the attack, but did not do so.)
Secondly, some members of the Parliament have
indicated that there is insufficient evidence about the operational need for
the proposed amendments that would enable them to make an informed decision on
the Bill.[180]
This may also identify a broader need or interest in improving Parliamentary
visibility or oversight of the application of the proposed amendments, if
enacted. (For example, visibility or oversight of targeting decisions in
relation to organised armed groups, and internal decision-making processes and
safeguards). Members and Senators may wish to consider options for improved
oversight, potentially including an extension of the statutory functions of the
PJCIS under section 29 of the IS Act, or more detailed annual reporting
requirements under Division 268 of the Criminal Code with respect to the
use of force against organised armed groups.
Thirdly, the general objective of the proposed
amendments (to ensure that ADF personnel are not exposed to domestic criminal liability
in relation to conduct which is compliant with IHL) raises a broader legal
policy question about the interaction of domestic and international criminal
laws. Namely, it raises the question of whether there is a need to make
analogous amendments to other domestic offences with extra-territorial
application that may technically expose ADF members to criminal liability in
relation to acts done in the course of, and as part of, international security
operations.
For example, independent reviews of counter-terrorism
legislation have recommended that the terrorism offences in Part 5.3 of the Criminal
Code should be subject to an express exclusion of conduct that is governed
by the law of armed conflict.[181]
The desired effect of the proposed amendments in the Bill may not be
realised fully if members of the ADF remain liable to prosecution for offences
under Part 5.3 of the Criminal Code, in relation to conduct involving
the targeting of members of organised armed groups that would no longer
constitute an offence against sections 268.70-268.72 if the Bill is passed.
Finally, the Bill arguably highlights a broader need
to reconsider existing legislative and practical arrangements for the Parliamentary
scrutiny of proposed security legislation. In particular, the task of
conducting a review of the Bill does not appear to be supported expressly or
directly by the PJCIS’s statutory functions in section 29 of the IS Act,
and the membership of the PJCIS does not include (and is not required to include)
non-Government or non-Opposition members of the Parliament.
[1]. International
humanitarian law distinguishes between two types of armed conflicts—‘international
armed conflicts’ (which refer to the resort to armed force between States)
and ‘non-international armed conflicts’ (which, in broad terms, refer
to armed conflicts in which one or more non-governmental armed groups are
involved. Hostilities may occur between governmental armed forces and
non-governmental armed groups, or between non-governmental armed groups only).
See further: International Committee of the Red Cross (ICRC), How
is the term “armed conflict” defined in international humanitarian law? Opinion paper,
ICRC, [Geneva], 17 March 2008.
[2]. M
Turnbull (Prime Minister) and M Payne (Minister for Defence), Australian
Defence Force targeting of Daesh, joint media release, 1 September
2016.
[3]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, p. 2
(general outline), p. 8 (members of organised armed groups) and
pp. 11–12 (proportionality).
[4]. Ibid.,
pp 3–4 (overview), p. 12 (discussion of amending item 12).
[5]. Ibid.,
p. 12.
[6]. Ibid.,
p. 9. See also: ICRC, ‘Protocol
additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I),
8 June 1977’, pp. 479–490. Commentary of 1987 on Article 41(2)—Safeguard of
an enemy hors de combat). More specifically, the Dictionary to the Criminal
Code contains a definition of the term hors de combat for the
purpose of domestic criminal offences in that enactment (namely, those in
Division 268). It provides that a person is hors de combat if ‘(a) the person
is in the power of an adverse party; and (b) the person: (i) clearly expresses
an intention to surrender; or (ii) has been rendered unconscious or is
otherwise incapacitated by wounds or sickness and is therefore incapable of
defending himself or herself; and (c) the person abstains from any hostile act
and does not attempt to escape’.
[7]. P
Dutton, ‘Second
reading speech, Criminal Code Amendment (War Crimes) Bill 2016’, House of
Representatives, Debates, 12 October 2016, p. 1668.
[8]. Department
of Defence (DoD), ‘OKRA
home’, DoD website.
[9]. Ibid.
[10]. Ibid.;
See also, DoD, ‘Air
Task Group (ATG)’, DoD website.
[11]. Ibid.;
See also, DoD, ‘Special
Operations Task Group (SOTG)’, DoD website.
[12]. Ibid.;
See also, DoD, ‘Task
Group TAJI’, DoD website.
[13]. M
Turnbull, ‘Ministerial
statement: national security’, House of Representatives, Debates, 1
September 2016, p. 235.
[14]. Turnbull
and Payne, Australian Defence Force targeting of Daesh, op. cit.
[15]. S
Benson, ‘War
crimes laws amended to protect military from prosecution over air strikes,’
Herald Sun, (online edition), 1 September 2016.
[16]. Major-General
J Frewen (Department of Defence), Evidence
to Parliamentary Joint Committee on Intelligence and Security, Inquiry into
the Criminal Code Amendment (War Crimes Bill) 2016, 7 November 2016,
pp. 5–6.
[17]. Geneva Convention
Relative to the Protection of Civilian Persons in Time of War, 12
August 1949, 75 UNTS 287 [hereinafter Fourth Geneva Convention].
[18]. A
third Additional Protocol, adopted in 2005, relates to an additional
emblem for use by Governments and the International Red Cross and Red Crescent
Movement.
[19]. International
Committee of the Red Cross (ICRC), ‘How
is the term "armed conflict" defined in international humanitarian law?’,
Opinion Paper, March 2008, p. 1.
[20]. Additional
Protocol I, Art. 1, para. 4.
[21]. The
two sources for this definition are Common Article 3 to the Geneva
Conventions of 1949 and Article 1 of Additional Protocol II.
[22]. ICRC,
‘How is the term "armed conflict" defined in international
humanitarian law?’, op. cit., p.3.
[23]. International
Criminal Tribunal for the Former Yugoslavia (ICTY), The Prosecutor v. Dusko Tadic,
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
IT-94-1-A, 2
October 1995, para. 70.
[24]. ICTY,
Prosecutor v. Fatmir Limaj, Haradin
Bala and Isak Musliu, IT-03-66-T, 30 November 2005, paras 94–129.
[25]. Customary
international law results from a general and consistent practice of States undertaken
from a sense of legal obligation. For a practice of States to become a rule of
customary international law it must appear that the States follow the practice
out of a sense of legal obligation (opinio juris sive necessitatis).
Explicit evidence of a sense of legal obligation (for example by official
statements) is not necessary; opinio juris may be inferred from acts or
omissions. International agreements create law for the State parties thereto
and may lead to the creation of customary international law when such
agreements are intended for adherence by States generally and are in fact
widely accepted.
[26]. Hague Convention No. IV
of 18 October 1907, Respecting the Laws and Customs of War on Land, 36
Stat. 2227, T.S. No. 539 and the annex thereto, embodying the Regulations
Respecting the Laws and Customs of War on Land, 36 Stat. 2295; Hague
Convention No. V of 18 October 1907, Respecting the Rights
and Duties of Neutral Powers and Persons in Case of War on Land, 36 Stat.
2310, T.S. No. 540 ; Hague
Convention No. IX of 18 October 1907, Respecting Bombardment by
Naval Forces in Time of War, 36 Stat. 2351.T.S. No. 542. Geneva
Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field of 12 August 1949, 6 U.S.T. 3114, T.I.A.S. No.
3362, 75 UNTS 31 [Geneva
Convention I]; Geneva Convention for the Amelioration of the
Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea
of 12 August 1949, 6 U.S.T. 3217, T.I.A.S. No. 3363, 75 UNTS 85 [Geneva
Convention II], Geneva Convention Relative to the Treatment of
Prisoners of War of 12 August 1949, 6 U.S.T. 3316, T.I.A.S. No. 3364, 75
UNTS 135 [Geneva
Convention III]; Geneva Convention Relative to the Protection of
Civilian Persons in Time of War of 12 August 1949, 6 U.S.T. 3516, T.I.A.S.
No. 3365, 75 UNTS 287 [Geneva
Convention IV].
[27]. See
for example, Articles 51(4)–51(5) of Additional Protocol I which
re-affirmed existing customary international law prohibiting attacks against
civilians. However, it also stated that civilians may lose such protection in
the event of direct participation in hostilities with the intent to cause harm
to enemy personnel and objects. Articles 51 and 57 of Additional Protocol I
contain the first codification of customary international law dealing with the
rules of proportionality. The rule prohibits attacks that may be expected to cause
incidental civilian casualties or property damage which would be excessive in
relation to the concrete and direct military advantage anticipated. Article 57
also codifies the requirement for precautionary measures intended to avoid or
minimise civilian casualties. Commanders and their planning staff are required
to take all feasible measures to verify that targets of an attack are military
objectives.
[28]. M
Henckaerts and L Doswald-Beck, Customary
international humanitarian law, vol. I: Rules, rule 5, Cambridge
University Press, Cambridge, 2005, p. 19.
[29]. The
United States and several other significant military powers (for example India,
Iran, Israel, and Pakistan) are not parties to these Protocols.
[30]. ICRC,
‘Convention
(IV) Relative to the Protection of Civilian Persons in Time of War. Geneva, 12
August 1949’. Commentary of 1958 – conflicts not of an international
character [the fourth Geneva Convention].
[31]. Ibid.
[32]. ICTY,
The Prosecutor v. Dusko Tadic,
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction,
IT-94-1-A, 2
October 1995, para. 97.
[33]. Geneva
Convention, Additional
Protocol I, Article 50(1).
[34]. Geneva
Convention, Common
Article 3(1).
[35]. N
Melzer, Interpretive
guidance on the notion of direct participation in hostilities under
international humanitarian law, ICRC, Geneva, 2009.
[36]. At
IHL, ‘active’ and ‘direct’ have been interpreted synonymously, most frequently
according to the principle of distinction between combatants and civilians. See
for example, The Prosecutor v Jean-Paul Akayesu (Judgment) ICTR-96-4-T
(2 September 1998) para 629, cited in Melzer, Interpretive guidance on the
notion of direct participation in hostilities under international humanitarian
law, op. cit., p. 43
[37]. See
the Protocol Additional to the Geneva Conventions and Relating to the
Protection of Victims of International Armed Conflicts (Additional Protocol I),
Art. 51(3) and the Protocol Additional to the Geneva Conventions and
Relating to the Protection of Victims of Non-International Armed Conflicts 1977
(Additional Protocol II), Art. 13(3). The phrase is also used in the Additional
Protocol I, Arts. 43(2), 45(1), 45(3), 47(2)(b)–(c), 67(1)(e) and 77(2)–(3)
and in Additional Protocol II, Arts. 4(1) and (3)(c) and (d). The phrase
has been declared to be customary international law by the Israeli High Court
of Justice in Public
Committee Against Torture in Israel v Israel (2006) (the Targeted
Killing Case) p. 472.
[38]. Melzer,
Interpretive guidance on the notion of direct participation in hostilities
under international humanitarian law, op. cit.
[39]. Ibid.,
p. 9.
[40]. Ibid.,
pp. 5 and 9–10; A Clapham and P Gaeta (eds.), The
Oxford handbook of international law in armed conflict, Oxford
University Press, Oxford, 2014, p. 296.
[41]. Melzer,
Interpretive guidance on the notion of direct participation in hostilities
under international humanitarian law, op. cit., p. 16.
[42]. Henckaerts
and Doswald-Beck, Customary international humanitarian law, op. cit., p.
19.
[43]. ‘Unprotected
civilians’, Art. 51 (3) Protocol I. Art 13(3) Protocol II.
[44]. Melzer,
Interpretive guidance on the notion of direct participation in hostilities
under international humanitarian law, op. cit., p. 43.
[45]. Ibid.,
p. 33.
[46]. Ibid.
[47]. Ibid.
[48]. Ibid.,
pp. 34–35.
[49]. Ibid.,
p. 46.
[50]. Ibid.,
pp. 44–45.
[51]. Ibid.,
p. 83.
[52]. See
for example, MN Schmitt, ‘Humanitarian
law and direct participation in hostilities by private contractors or civilian
employees’ Chicago Journal of International Law, 5(2), 2005, pp.
511, 535.
[53]. Luis
Moreno-Ocampo (Chief Prosecutor: International Criminal Court), ‘Letter
to senders concerning the situation in Iraq’, 9 February 2006.
[54]. Protocol Additional to the Geneva Conventions of 12 August 1949, and
relating to the Protection of Victims of Non-International Armed Conflicts, 8
June 1977 (Additional
Protocol II).
[55]. Amended
Protocol II to the Convention on Certain Conventional Weapons, Article
3(8)(c).
[56]. For
example, UN, ‘Observance
by United Nations forces of international humanitarian law’, Secretary-General’s
Bulletin, 13, 1999, section 5.5.
[57]. ICRC,
Paper submitted to the Working Group on Elements of Crimes of the Preparatory
Commission for the International Criminal Court.
[58]. Melzer, Interpretive guidance on the notion of
direct participation in hostilities under international humanitarian law, op.
cit.,
[59]. Rome
Statute of the International Criminal Court 1998, opened for signature
17 July 1998, [2002] ATS 15 (entered into force 1 July 2002). The relevant
package of amending legislation comprises: the International
Criminal Court Act 2002 (which established a procedure to enable
Australia to cooperate with the International Criminal Court and to enforce its
sentences) and the International
Criminal Court (Consequential Amendments) Act 2002 (which
enacted Division 268 of the Criminal Code to create equivalent offences
under Australian domestic laws to the crimes set out in the Rome Statute).
See further: G Triggs, ‘Implementation
of the Rome Statute for the International Criminal Court: a quiet revolution in
Australian Law’, Sydney Law Review, 25(4), December 2003, pp.
507–534; and Attorney-General's Department (AGD), ‘Support
for the International Criminal Court’, AGD website.
[60]. Subdivision
B (sections 268.3–268.7). Genocide offences cover different forms of
conduct committed with the intention of destroying a national, ethnical, racial
or religious group to which the victim belongs. This includes killing, causing
serious harm, inflicting conditions of life calculated to bring about physical
destruction, preventing births and forcibly transferring children. Genocide
offences are punishable by a maximum penalty of life imprisonment.
[61]. Subdivision
C (sections 268.8–268.23). Crimes against humanity include murder,
extermination, enslavement, deportation or forcible transfer of population,
severe deprivation of physical liberty, torture, offences relating to sexual violence
and servitude, persecution, enforced disappearance, apartheid and other
inhumane acts. These offences are punishable by gradated maximum penalties
ranging from 17 years’ imprisonment to life imprisonment.
[62]. Subdivisions
D-H. These offences are classified according to war crimes that are ‘grave
breaches’ of the Geneva Conventions and Protocol I to the Geneva
Conventions, including wilful killing, torture, inhumane treatment and
hostage taking (Subdivision D, sections 268.24–268.34 and Subdivision
H, sections 268.95–268.101); other serious war crimes committed in the
course of an international armed conflict including attacking civilians,
excessive incidental death, killing or injuring a person who is hors de
combat (‘out of combat’), attacking undefended places, mutilation and
various other violent and sexual offences, using protected persons as shields,
and using, conscripting or enlisting children (Subdivision E, sections
268.35–268.68); and war crimes that are committed in the course of a non-international
armed conflict, including murder, mutilation, cruel treatment, outrages upon
personal dignity, hostage-taking, sentencing or execution without due process,
attacking civilians, sexual violence and other sexual offences, medical or
scientific experiments and attacking protected objects (Subdivisions F
and G, sections 268.69–268.94). War crimes offences are punishable by
gradated maximum penalties ranging from ten years’ imprisonment to life
imprisonment.
[63]. Subdivision
J (sections 268.102–268.114). These offences cover perjury, falsifying,
destroying or concealing or preventing the production of evidence, interfering
with witnesses, perverting the course of justice, or engaging in reprisals
against witnesses or court officials. They are punishable by gradated maximum
penalties ranging from five years’ imprisonment to ten years’ imprisonment.
[64]. Explanatory
Memorandum, International Criminal Court (Consequential Amendments) Bill
2002, p. 2.
[65]. Ibid.,
p. 3.
[66]. Ibid.
[67]. Criminal
Code, section 268.121.
[68]. Criminal
Code, section 268.122.
[69]. G
Boas and P Chifflet, ‘Suspected
war criminals in Australia: law and policy’, Melbourne University Law
Review, 40(1), 2016, 46 at p. 56. (referencing correspondence
with the Commonwealth Director of Public Prosecutions and a case history
search).
[70]. Ibid.,
pp. 56–59. The authors also comment (at p. 59) that it is ‘regrettable
that the potential commission of war crimes in this context is entirely absent
from public discourse’. (However, one potential consequence of the proposed
amendments in the Bill is that they may reduce the likelihood that the war
crimes offences in Division 268 could be enforced against so-called ‘foreign
fighters’. This is discussed below.)
[71]. Senate
Standing Committee for the Selection of Bills, Report,
7, 2016, The Senate, 13 October 2016.
[72]. Australia,
Senate, Journals,
11, 2016–17, 13 October 2016, p. 327. See also, R Siewert, ‘Motion
to amend the Report of the Senate Standing Committee for the Selection of Bills’,
Senate, Debates, 13 October 2016, pp. 1752–1753.
[73]. Criminal
Code, subsection 13.3(3).
[74]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 8, 2016, The Senate, 9 November 2016, pp. 11–12.
[75]. Parliamentary
Joint Committee on Intelligence and Security (PJCIS), ‘Review
of the Criminal Code Amendment (War Crimes) Bill 2016’, Inquiry homepage.
[76]. Dutton,
‘Second reading speech, Criminal Code Amendment (War Crimes) Bill 2016’, op.
cit.; and Turnbull, ‘Statement on national security’, op. cit.
[77]. Siewert,
‘Motion to amend the Report of the Senate Standing Committee for the Selection
of Bills’, op. cit.
[78]. Submissions
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes) Bill,
2016. (Submissions were published from: Professor Ben Saul, Professor Tim
McCormack and the International Committee of the Red Cross, Mission in
Australia, the latter submission declining to comment substantively on the
Bill). See also: Evidence
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes) Bill 2016,
7 November 2016 (evidence of Professor Saul and witnesses from the
Attorney-General’s Department and the Department of Defence).
[79]. Section
28 of the IS Act provides that the Committee is to consist of 11 members
(five Senators and six members of the House of Representatives) and a majority
of members must be Government members. Part 3 of Schedule 1 (item 14) requires
the Prime Minister and the Leader of the Government in the Senate to consult
with each recognised non-government political party in the relevant House in
nominating members for appointment, and to have regard to the desirability of
ensuring that the composition of the PJCIS reflects the representation of
recognised political parties in the Parliament. However, the IS Act does
not require the membership to be representative.
[80]. The
relevant AIC agencies are, as listed in the provision: the Australian Security
Intelligence Organisation (ASIO), the Australian Secret Intelligence Service
(ASIS), the Australian Geospatial Intelligence Organisation (AGO), the
Australian Signals Directorate (ASD), the Defence Intelligence Organisation
(DIO) and the Office of National Assessments (ONA).
[81]. IS
Act, subparagraph 29(1)(b)(i) (referral by the ‘responsible Minister’ of
any matter in relation to an AIC agency, being ASIO, ASIS, AGO, DIO, ASD or
ONA).
[82]. IS
Act, paragraphs 29(1)(baa)-(bac).
[83]. Criminal
Code, section 102.1 (definition of ‘terrorist organisation’).
[84]. Administrative Arrangements
Order, 1 September 2016, p. 5 (responsible Minister for the Australian
Security Intelligence Organisation Act 1979).
[85]. Ibid.,
p. 20 (responsible Minister for the Intelligence Services Act p. 20
except to the extent administered by the Prime Minister, Attorney‑General
and Minister for Defence).
[86]. Ibid.,
p. 10 (responsible Minister for the IS Act insofar as it relates to
AGO, ASD and DIO).
[87]. Ibid.,
p. 32. (The Administrative Arrangements Order also provides that the Prime
Minister a has responsibility for administering provisions of the IS Act insofar
as they relate to powers or functions of the Prime Minister with respect to the
provision of Ministerial authorisations in circumstances of emergency, and
consultation with the Prime Minister in relation to certain matters: p.
32.)
[88]. A
further possibility is that the referral of the Bill might, in some way, be
interpreted as being a ‘matter ... connected with the performance [by the AFP]
of its functions under Part 5.3 of the Criminal Code’ for the purpose of
paragraph 29(1)(bab) of the IS Act. Given that the war crimes offences
in Division 268 are not part of the terrorism provisions of Part 5.3 of the Criminal
Code, such a connection is not apparent on the face of the provisions of
the Bill, nor its extrinsic materials. (In the event that paragraph 29(1)(bab)
was interpreted as a supporting an inquiry into the Bill, this provision does
not appear to require a Ministerial referral.)
[89]. B
Shorten, ‘Ministerial
statement: national security’, House of Representatives, Debates, 1
September 2016, pp. 240–241.
[90]. S
Ludlam (Australian Greens Deputy Leader), Greens
call for caution and scrutiny on war crimes changes, media release, 1
September 2016.
[91]. O
Dabbagh, ‘Fears
changes to Australia's Criminal Code could be a licence to kill civilians in
Syria, Iraq’, SBS News, (online edition), 7 September 2016.
[92]. J
Lambie (Independent Jacqui Lambie Network Senator), Liberals
reject Lambie’s call for a pre-emptive war crimes pardon, media
release, 19 October 2016. See also: Senate Standing Committee on Foreign
Affairs, Defence and Trade, Official
Committee Hansard, 19 October 2016, p. 16.
[93]. Dabbagh,
‘Fears changes to Australia's Criminal Code could be a licence to kill
civilians in Syria, Iraq’, op. cit., (quoting Dr Gideon Boas, Monash
University, and Dr Kevin Boreham and Associate Professor David Letts,
Australian National University). See also: K Boreham, ‘Australia's
proposed war crimes amendments demand careful scrutiny’, The
Conversation, 29 September 2016.
[94]. ICRC
(Mission in Australia), Submission
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes) Bill 2016,
1 November 2016, p. 1.
(See also: ICRC, ‘The
ICRC’s mandate and mission’, ICRC website; and the Statutes
of the International Committee of the Red Cross.)
[95]. B
Saul, Submission
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes) Bill 2016,
18 October 2016, pp. 1–2.
See also: B Saul (Professor), Evidence
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes Bill) 2016,
7 November 2016, pp. 1–3.
[96]. Ibid.,
p. 2.
[97]. Ibid.,
p. 3.
[98]. Ibid.;
See also: Saul, Evidence to PJCIS, op. cit., pp. 3–4.
[99]. T
McCormack, Submission
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes) Bill 2016,
2 November 2016, p. 4.
[100]. Ibid.
[101]. Ibid.
[102]. Ibid.,
pp. 5–7. (The PJCIS, in its advisory report on the Bill, noted evidence that
the Attorney-General's Department provided at a private hearing, to the effect
that it was not currently considering introducing such new offences, but that
if a more holistic review of Division 268 was undertaken, it would examine
whether or not there was a need to enact additional offences to those in the
Rome Statute, such as offences sourced in customary IHL: PJCIS, op. cit., pp.
27–28.)
[103]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, p. 2.
[104]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
[105]. Ibid.,
pp. 4, 6.
[106]. Ibid.,
p. 4.
[107]. International
Covenant on Civil and Political Rights (ICCPR).
[108]. Ibid.
[109]. Ibid.,
p. 5.
[110]. Saul,
Submission to PJCIS, op. cit., p. 3.
[111]. International
Court of Justice (ICJ), Legality
of the threat or use of nuclear weapons, Advisory opinion, ICJ,
[Hague], 8 July 1996, p. 226.
[112]. Saul,
Submission to PJCIS, op. cit., p. 3.
[113]. Ibid.
[114]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill, p. 6.
[115]. Parliamentary
Joint Committee on Human Rights, Report
8 of 2016, 9 November 2016, p. 93.
[116]. Criminal
Code, paragraph 268.70(1)(a). The general principles of criminal responsibility
in Chapter 2 of the Criminal Code will operate to apply the following
fault elements—the person must intend to engage in the conduct causing death,
and the person must be reckless that death is the result of that conduct:
section 5.6 and subsections 5.2(1) and 5.4(2).
[117]. Criminal
Code, paragraphs 268.71(1)(a) (mutilation causing death) and 268.71(2)(a)
(mutilation causing serious endangerment). Under the general principles of
criminal responsibility in the Criminal Code, the person must intend to
engage in the conduct constituting mutilation: subsections 5.6(1) and 5.2(1).
[118]. Criminal
Code, paragraphs 268.71(1)(b) (mutilation causing death) and 268.71(2)(b)
(mutilation causing serious endangerment).
Under the general principles of criminal responsibility in Chapter 2 of the Criminal
Code, the person must be reckless that their conduct would result in the
death or serious endangerment of the victim or victims: subsections 5.6(2) and
5.4(2).
[119]. Criminal
Code, paragraphs 268.71(1)(c) (mutilation causing death) and 268.71(2)(c)
(mutilation causing serious endangerment). Under the general principles of
criminal responsibility in Chapter 2 of the Criminal Code, the person
must be reckless as to the circumstance that his or her conduct was not
justified by reason of the matters specified in paragraphs 268.71(1)(c) and
(2)(c): subsections 5.6(2) and 5.4(1).
[120]. Criminal
Code, paragraph 268.72(1)(a). Under the general principles of criminal
responsibility in Chapter 2 of the Criminal Code, the person must intend
to engage in the conduct constituting the infliction of pain or suffering:
subsections 5.6(1) and 5.2(1).
[121]. Criminal
Code, paragraphs 268.70(1)(b) (murder offence), 268.71(1)(d) (mutilation
causing death offence), 268.71(2)(d) (mutilation causing serious endangerment
offence) and 268.72(1)(b) (cruel treatment offence). (Note that the relevant
fault element is specified expressly in the subsequent paragraph in each
provision.)
[122]. Criminal
Code, paragraphs 268.70(1)(c) (murder offence), 268.71(1)(e) (mutilation
causing death offence), 268.71(2)(e) (mutilation causing serious endangerment
offence) and 268.72(1)(c) (cruel treatment offence). The general principles of
criminal responsibility in Chapter 2 of the Criminal Code define
‘knowledge’ and ‘recklessness’ in relation to circumstances in which conduct
occurs. See section 5.3 (a person has knowledge of a circumstance if he or she
is aware that it exists or will exist in the ordinary course of events) and
subsection 5.4(1) (a person is reckless as to a circumstance if he or she is
aware of a substantial risk that the circumstance exists or will exist, and having
regard to the circumstances known to him or her at the time, it is
unjustifiable to take the risk).
[123]. Criminal
Code, paragraphs 268.70(1)(d) (murder offence), 268.71(1)(f) (mutilation
causing death offence), 268.71(2)(f) (mutilation causing serious endangerment
offence), and 268.72(1)(d) (cruel treatment offence). Under the general
principles of criminal responsibility in Chapter 2 of the Criminal Code,
the person must be reckless as to this circumstance: subsections 5.6(2) and
5.4(1).
[124]. Criminal
Code, subsections 268.70(2) (murder offence), 268.71(3) (mutilation
offences) and 268.72(2) (cruel treatment offence).
(As noted above, the Dictionary to the Criminal Code contains a
definition of the term ‘hors de combat’ for the purpose of the Criminal
Code, which is applicable to the offences in Division 268.)
[125]. Proposed
new paragraphs 268.70(1)(b) (murder offence) (item 1); 268.71(1)(d) and 268.71(2)(d)
(mutilation offences) (item 3); and 268.72(1)(b) (cruel treatment
offence) (item 5).
[126]. Proposed
new paragraphs 268.70(1)(c) (murder offence) (item 1); 268.71(1)(e) and
268.71(2)(e) (mutilation offences) (item 3); and 268.72(1)(c) (cruel
treatment offence) (item 5).
[127]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, op. cit., p. 8. See
also: P Dutton, ‘Second
reading speech, Criminal Code Amendment (War Crimes) Bill 2016’, House of
Representatives, Debates, 12 October 2016, p. 1668. (The second reading
speech to the Bill refers to the ICRC Interpretive
guidance on the notion of direct participation in hostilities, which
indicates that ‘all persons who are not members of State armed forces or
organised armed groups ... are civilians’. It also refers to the ICRC’s Commentary
to Article 13 of Protocol II Additional to the Geneva Conventions,
which indicates that those who belong to armed forces and armed groups may be
attacked at any time.)
[128]. These
items propose to insert new subsections 268.70(3) (murder offence), 268.71(4)
(mutilation offences) and 268.72(3) (cruel treatment offence).
[129]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, op. cit.,
pp. 9 (item 2), 10 (item 4) and 11 (item 6).
[130]. Ibid.,
pp. 8–9.
[131]. Ibid., p.
8.
[132]. Ibid.
[133]. Ibid.
[134]. Ibid.;
See also: Dutton, ‘Second reading speech, Criminal Code Amendment (War Crimes)
Bill 2016’, op. cit., p. 1669
[135]. Dutton, ‘Second reading speech, Criminal Code
Amendment (War Crimes) Bill 2016’, op. cit., p. 1669.
[136]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, op. cit., pp. 8–9.
[137]. Ibid.
[138]. Dutton,
‘Second reading speech, Criminal Code Amendment (War Crimes) Bill 2016’, op.
cit., p. 1669.
[139]. Ibid.
[140]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, op. cit., p. 11.
[141]. See,
for example: Subdivision C (crimes against humanity, which criminalise
various acts of violence in the course of an international armed conflict,
where the perpetrator’s conduct is committed intentionally or knowingly as part
of a widespread or systematic attack directed against a civilian population); Subdivision
E, sections 268.35, 268.36 and 268.38, 268.45, 268.65, 268.67 (war crimes
offences in relation to an international armed conflict for attacking civilians
or civilian objects; causing excessive incidental death or injury to civilians
in an international armed conflict; transfer of civilian population in an
international armed conflict; using protected persons as shields; starvation of
civilians as a method of warfare); and Subdivision G, sections 268.77
and 268.89 (war crimes offences in relation to a non-international armed
conflict for attacking civilians, displacing civilians).
[142]. See,
for example, Subdivision F, subsections 268.73(2). 268.74(2), 268.75(2),
268.76(4) (certain offences in non-international armed conflicts, including
murder, mutilation, cruel treatment, torture, outrages upon personal dignity,
taking hostages, and sentencing or execution without due process). (In addition,
as noted above, the Bill will amend the offences in subsections 268.70(2)
268.71(3), 268.72(2) to include a corresponding ‘avoidance of doubt’ clause).
[143]. As
is discussed below, this issue is not necessarily problematic, but is
worth acknowledging given that the object of and policy justification provided
in support of the proposed amendments (as documented in the extrinsic materials
to the Bill and other public commentary) appears to have focused exclusively on
the exposure of ADF personnel to criminal liability under Division 268 of the Criminal
Code.
[144]. Acts Interpretation
Act 1901, subsection 15AB(1) and paragraphs 15AB(2)(e) and (f).
[145]. B
Saul, Submission
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes) Bill 2016,
18 October 2016, p. 1.
[146]. Ibid.,
p. 2.
[147]. B
Saul (Professor), Evidence
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes Bill) 2016,
7 November 2016, pp. 2–3.
[148]. J
Reid (Attorney-General’s Department), Evidence
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes Bill)
2016, 7 November 2016, p. 6.
[149]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, op. cit., p. 11,
especially paragraphs 27–28.
[150]. Ibid.,
p. 12. Australia’s declarations in relation to Articles 51–58 are
reproduced at footnote 7 to the Protocol additional to the Geneva
Conventions of 12 August 1949, and relating to the protection of victims of
international armed conflicts (Protocol I), done at Geneva, 8 June 1977,
[1991] ATS 29 ,entered
into force for Australia, 21 December 1991. Note that a ‘declaration’ in this
context refers to declaration made by a State party which aims to clarify the
meaning or scope attributed by that party to the relevant treaty provision,
rather than modify its meaning or exclude its application. See further: J
Gaudreau, ‘The
reservations to the Protocols additional to the Geneva Conventions for the
protection of war victims’, International Review of the Red Cross, 849,
March 2003, pp. 143–184.)
[151]. Ibid.,
pp. 11–12.
[152]. Ibid.,
p. 11. (This reproduces verbatim the text of the Declaration
in footnote 7.)
[153]. Items
8–11, proposed subparagraphs 268.70(1A)(b)(ii), 268.71(1A)(b)(ii),
268.71(2A)(b)(ii) and 268.72(1A)(b)(ii).
[154]. Ibid.,
pp. 11–12. (This is a paraphrase of the corresponding text of the Declaration,
which includes an additional clarification of Australia’s interpretation of the
requirement in Article 52(2) of Protocol I that ‘attacks shall be
limited strictly to military objectives’. The Declaration states that it
is Australia’s understanding that this provision ‘is not intended to, nor does
it, deal with the question of incidental or collateral damage resulting from an
attack directed against a military objective’.)
[155]. Saul,
Submission to PJCIS, op. cit., p. 2. See also: items 8–11, proposed new
paragraphs 268.70(1A)(b), 268.71(1A)(b), 268.71(2A)(b) and 268.72(1A)(b).
[156]. Ibid.
See also: B Saul (Professor), Evidence
to PJCIS, Inquiry into the Criminal Code Amendment (War Crimes) Bill 2016,
7 November 2016, pp. 3–4.
[157]. Ibid.,
p. 4.
[158]. Reid,
Evidence to PJCIS, op. cit., p. 7.
[159]. Frewen,
Evidence to PJCIS, op. cit., p. 7.
[160]. Acts Interpretation
Act 1901, paragraph 15AB(2)(e).
[161]. McCormack,
Submission to PJCIS, op. cit., p. 4. Professor McCormack identified the
following war crimes offences with respect to international armed conflicts in
Subdivisions D and E of Division 268 as attracting ‘precisely the same
rationale’ for the enactment of an express proportionality provision: wilful
killing (section 268.24), inhumane treatment (section 268.26), wilfully causing
great suffering (section 268.28), killing or injuring a person who is hors de
combat (section 268.40), and mutilation (section 268.47). See further: R
McLaughlin and B Oswald, ‘Wilful
killing during armed conflict: is there a defence of proportionality in
Australia?’ Criminal Law Forum, 18(1), 2007, at pp. 3–4, 31–33. (The
authors argue that the offence of wilful killing in section 268.24 of the Criminal
Code imperfectly enacts the corresponding offence under international law,
including because section 268.24 does not include a proportionality exception).
[162]. Ibid.
(This risk was also identified by McLaughlin and Oswald, ‘Wilful killing during
armed conflict’, op. cit., especially at pp. 33–35.)
[163]. Ibid.
[164]. PJCIS,
Advisory Report on the Criminal Code Amendment (War Crimes) Bill 2016, The Senate, Canberra, November 2016, op. cit., p. 24.
[165]. AGD,
A
guide to framing Commonwealth offences, infringement notices and enforcement
powers, AGD, Canberra, September 2011, p. 51.
[166]. Senate
Standing Committee for the Scrutiny of Bills, Alert digest, 8, 2016, op.
cit., pp. 11–12.
[167]. Under
subsection 268.65(1) the elements of the offence are that: (a) the
defendant intentionally used the protected person as a shield; (b) the
defendant did so with the intention of rendering a military objective immune
from attack or to favour or impede military operations; and (c) the defendant’s
conduct took place in the context of, and was associated with, an international
armed conflict (and the defendant was reckless as to this circumstance). The
offence is punishable by a maximum penalty of life imprisonment if the conduct
results in the death of the protected person or persons, or otherwise a maximum
penalty of seventeen years’ imprisonment.
[168]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, op. cit., p. 12.
[169]. Ibid.
[170]. Ibid.,
p. 4.
[171]. Explanatory
Memorandum, Criminal Code Amendment (War Crimes) Bill 2016, op. cit.,
p. 12.
[172]. Ibid.,
p. 4.
[173]. Council
of Australian Governments (COAG), Council
of Australian Governments review of counter-terrorism legislation,
COAG, Canberra, 2013, p. 11 (recommendation 7). (This Review was conducted by a
committee of eminent persons, chaired by former judge of the New South Wales
Court of Appeal, the Hon Anthony Whealy QC.)
[174]. COAG,
Response
to the COAG review of counter-terrorism legislation, COAG, Canberra,
October 2014, p. 3 (response to recommendation 7).
[175]. COAG,
Council of Australian Governments review of counter-terrorism legislation,
op. cit., pp. 10–11. See also: B Walker, Declassified
annual report, Independent National Security Legislation Monitor,
Canberra, 20 December 2012, pp. 122–124 and recommendation VI-3.
[176]. COAG,
Response to the COAG review of counter-terrorism legislation, op. cit., p. 3
(response to recommendation 6).
[177]. In
this regard, it is worth noting the Private Senator’s Bill introduced by the
Australian Labor Party, the Parliamentary
Joint Committee on Intelligence and Security Amendment Bill 2015. Item 5 of
Schedule 1 to the Bill relevantly proposes to amend the membership requirements
in section 28 of the IS Act to mandate four of the 11 members to be
Government and Opposition members of the House of Representatives and the
Senate, with the remainder of the Committee members to be either Senators or
members of the House of Representatives (with no requirements or limitations on
their political affiliation). The Australian Greens have circulated proposed
amendments to be moved during the debate of the Bill, which would require
the PJCIS’s membership to include a Senator who is not a Government or
Opposition Senator.
[178]. IS
Act, section 28 and Schedule 1, Part 3 (especially item 14).
[179]. See,
for example: Reid, Evidence to PJCIS, op. cit., p. 7; Frewen, Evidence to
PJCIS, op. cit., p. 7 (evidence with respect to the intended application of the
proportionality exception).
[180]. As
mentioned above, the Australian Greens have suggested that further information
is required about the types of targeting activities the ADF wishes to undertake
that are currently prohibited by Division 268 of the Criminal Code, and
have argued that greater Parliamentary scrutiny is required to assess the
potential impact of the proposed amendments on civilians who may be killed or
injured, incidental to attacks on organised armed groups. See especially:
Ludlam, Greens call for caution and scrutiny on war crimes changes, op.
cit.
[181]. COAG,
Review of counter-terrorism legislation, op. cit., recommendations 6 and
7, and Walker, Declassified annual report, 2012, op. cit., recommendation VI-3.
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