The Bill and its referral
On 12 October 2016, the Minister for Immigration and Border Protection, the Hon Peter Dutton MP, introduced the Criminal Code Amendment (War Crimes) Bill 2016 (the Bill) into the House of Representatives.
The Minister stated that the Bill will amend Division 268 of the Criminal Code to align Australian domestic law with international law in relation to the treatment of members of organised armed groups in non-international armed conflict.
Division 268 of the Criminal Code gives effect to Australia’s obligations as a party to the Rome Statute of the International Criminal Court (the Rome Statute).
Schedule 1 of the Bill contains four parts. Part 1 will amend the war crime offences in sections 268.70, 268.71 and 268.72 of the Criminal Code relating to murder, mutilation and cruel treatment of persons in the context of a non-international armed conflict so that the offences apply only if
the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group, and
the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group.
Part 2 will also amend sections 268.70, 268.71 and 268.72 to apply the international humanitarian law principle of proportionality in relation to attacks on military objectives in non-international armed conflicts. The offences in these sections would not apply if the death or injury of a person or persons 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.
Part 3 contains a minor technical amendment to remove the term ‘military’ from paragraph 268.65(1)(a) of the Criminal Code, which makes it an offence to use protected persons as shields. The amendment corrects an unintended oversight and will bring this paragraph in line with international humanitarian law.
Part 4 outlines application of the amendments. Part 1 will apply to conduct engaged in on or after the commencement of this item, being the day after the Act receives Royal Assent. Parts 2 and 3 will apply to conduct engaged in before, on or after the commencement of this item.
In his second reading speech, the Minister summarised the intent of the Bill:
The amendments will provide the Australian Defence Force (the ADF) with the legal certainty needed to target members of organised armed groups with lethal force, including in the context of current ADF operations against Daesh in Syria and Iraq. 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.
The Attorney-General, Senator the Hon George Brandis QC, wrote to the Committee on 12 October 2016 to refer the provisions of the Bill for inquiry and report. He requested that the Committee, so far as possible, conduct its inquiry in public and that it report to Parliament by 18 November 2016.
Conduct of the inquiry
The Chair of the Committee, Mr Michael Sukkar MP, announced the inquiry by media release on 14 October 2016 and invited submissions from interested members of the public. Submissions were requested by 2 November 2016.
The Committee received 3 submissions, which are listed at Appendix A.
The Committee held one public hearing and one private hearing in Canberra on 7 November 2016. Details of the hearings are included at Appendix B.
Copies of submissions and the transcript of the public hearing can be accessed on the Committee’s website at www.aph.gov.au/pjcis. Links to the Bill and Explanatory Memorandum are also available on the Committee’s website.
Rationale for the Bill
The Bill was foreshadowed by the Prime Minister, the Hon Malcolm Turnbull MP, in a statement to the Parliament on 1 September 2016. The Prime Minister stated that amendments to the Criminal Code were required to address ‘a legal anomaly’ and bring domestic laws into line with international norms. The Prime Minister explained:
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.
The Leader of the Opposition, the Hon Bill Shorten MP also addressed the Parliament, stating that
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.
The Bill therefore amends Division 268 of the Criminal Code
to expressly recognise the distinction that exists at international law between civilians and members of organised armed groups.
In evidence to the Committee, representatives of the Department of Defence and Attorney-General’s Department explained the need to recognise organised armed groups in Australian law:
Under international humanitarian law, different categories of actors in armed conflict exist. One of those categories are members of organised armed groups. The existence of organised armed groups is acknowledged in the conventions and the additional protocols to the Geneva conventions, and they are dealt with differently from civilians in an armed conflict. It is important then to identify an organised armed group in a non-international armed conflict in order to make appropriate targeting decisions and in order to protect the civilian population but to distinguish the civilian population from the members of the organised armed group. Currently Australian domestic law does not have provision for the targeting of members of organised armed groups. This amendment is intended to introduce that category of actor into a non-international armed conflict and to make those persons targetable on the basis of their membership of an organised armed group.
When asked to provide examples of circumstances where the existing law has precluded Australia from undertaking a particular activity, Major General John Frewen, Head of Military Strategic Commitments at the Department of Defence, pointed to operations in Iraq and Syria:
[We are] dealing with an entity the likes of which we have not had to deal with before, which is: Daesh operates as a state-like entity and maintains conventional military forces the likes of which other state entities do. The current legislation does not take into account that we can be confronting a conventional military force that does not belong to a state. Therefore it gets treated as a non-international armed conflict as opposed to the international law that would apply around an international armed conflict. Where this becomes problematic for us in a targeting sense is that—I will give you a generic style of example—presently we can go after those directly and actively engaged 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 do then is to target the people who are engaged in support of the combatants. …
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 that fuel truck because of the presence of that individual. Under the amendments, a judgement could be made that that individual was indeed a member of the organised armed elements of Daesh and would therefore become targetable.
The Committee was informed that the amendments reflect Australia’s experience with non-international armed conflicts and organised armed groups, obtained since the existing Criminal Code provisions were enacted in 2002. Representatives of the Attorney-General’s Department considered that while State practice has developed since that time, international law has not changed.
The Department noted that the policy intent of the proposed amendments is not solely for the purpose of current conflicts, but ‘is intended to be a principled piece of legislation that will go forward’.
The remainder of this report will discuss specific issues raised by participants in the inquiry about elements of the Bill.