House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

General Outline

1. The Bill amends Division 268 of the Criminal Code Act 1995 (Cth) to ensure consistency between Australian domestic law and international law with respect to the treatment of members of organised armed groups in non-international armed conflicts.

2. Members of organised armed groups are recognised as a category distinct from civilians under international humanitarian law. The Bill amends Division 268 to provide express recognition of this distinction in Australian domestic law.

3. The Bill clarifies that the war crimes offences in sections 268.70, 268.71 and 268.72, engaged by conduct which causes the death of, or injury to, a person not taking an active part in hostilities in a non-international armed conflict, will not apply where the person is a member of an organised armed group. These amendments recognise that members of an organised armed group do not benefit from the protections accorded to civilians (and other protected persons such as medical and religious personnel) under international humanitarian law, and ensure that members of organised armed groups receive treatment equivalent to members of regular armed forces under the law.

4. The Bill will also align Australian domestic law with the requirements of the international humanitarian law principle of proportionality. Consistent with this principle, the Bill clarifies that sections 268.70, 268.71 and 268.72 will not apply to 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.

5. The Bill also makes a minor technical amendment to section 268.65.

Financial Impact

6. There are no direct financial impacts from this Bill.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Criminal Code Amendment (War Crimes) Bill 2016

7. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

8. The Bill amends Division 268 of the Criminal Code Act 1995 (Cth) (Code) to reflect the distinction that exists at international law between civilians and members of an organised armed group. It will also align Australian domestic law with the position at international law in relation to the incidental death of, or injury to, civilians in non-international armed conflict.

9. A non-international armed conflict is an armed conflict which involves one or more non-State organised armed groups. Hostilities in such a conflict may occur between government forces and organised armed groups, or between such groups only, depending on the circumstances.

10. 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 least a minimal degree of organisation, some kind of command structure or hierarchy, and the existence of a collective purpose that is related to the broader hostilities and involves the use of force. It is also necessary that the group be 'armed' and utilising force to achieve its purposes, and that the group have sufficient connection to the non-international armed conflict. An organised armed group may exist within a larger entity; only those elements that engage in hostilities qualify as an organised armed group.

11. Under international law, members of organised armed groups are recognised as a category distinct from civilians, such that they do not benefit from the protections afforded to civilians. All members of such an organised armed group can be targeted with lethal force at any time, subject to the ordinary rules of international humanitarian law.

12. Accordingly, this Bill amends Division 268 to clarify that the war crimes offences in sections 268.70, 268.71 and 268.72 will not apply where the person targeted is a member of an organised armed group.

13. The Bill also clarifies that these offences will not apply where the relevant death or injury results from an attack on a military objective, launched in circumstances where the perpetrator reasonably expects that the attack will be proportionate, and will not cause incidental civilian death or injury that is excessive in relation to the concrete and direct military advantage anticipated. This will align the Australian domestic law position with the position at international law in non-international armed conflict.

14. The Bill also makes a minor technical amendment to exclude military personnel from the scope of paragraph 268.65(1)(a), on the basis that the inclusion of this class of persons does not reflect the position at international law and was not intended when this offence was enacted on 25 September 2002. Section 268.65 was enacted to give effect to Article 8(2)(b)(xxiii) of the Rome Statute of the International Criminal Court (Rome Statute), which prohibits the use of civilians or other persons protected under international humanitarian law ('protected persons') to shield a military objective from attack in an international armed conflict. Military personnel (as opposed to persons who are hors de combat or prisoners of war) are not protected persons under international humanitarian law. This technical amendment does not have any human rights implications.

15. There are no existing or completed prosecutions which would be affected by these amendments.

Human rights implications

Extraterritorial application of human rights

16. The Bill amends Division 268 of the Code. The purpose of that Division is to create offences in Australian law that are the equivalent of the international crimes of genocide, crimes against humanity and war crimes in the Rome Statute. Accordingly, the crimes amended by the Bill are inherently international in nature.

17. 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.

18. Accordingly, because the amendments made by the Bill will generally only operate extraterritorially, they will only engage Australia's human rights obligations in very limited circumstances (considered below).

19. Subject to this articulation of jurisdiction, this Bill engages:

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the right to life, in article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) and article 1 of the Second Optional Protocol to the ICCPR

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the prohibition on the retrospective operation of criminal laws in article 15 of the ICCPR

Schedule 1 - Amendments relating to war crimes

The right not to be arbitrarily deprived of life under Article 6 of the ICCPR

20. Article 6 of the ICCPR provides that no one shall be arbitrarily deprived of life.

21. However, in situations of armed conflict the scope and content of rights under international human rights law may be affected as a result of the application of international humanitarian law. The specific interrelationship between international human rights law and international humanitarian law is not settled as a matter of international law. The protection of international human rights law does not cease in situations of armed conflict. Human rights obligations will continue to apply in situations of armed conflict, although they may be displaced to the extent necessitated by international humanitarian law. This will depend on the particular circumstances and obligations involved.

22. Thus, in situations of armed conflict, the prohibition against the arbitrary deprivation of life contained in article 6 of the ICCPR will be displaced to the extent necessitated by international humanitarian law.

23. International humanitarian law provides protections for civilians during the conduct of hostilities. For example, it prohibits deliberate attacks against civilians not directly participating in hostilities, indiscriminate attacks, and attacks against military objectives causing excessive injury or loss of life among civilians.

24. However, under international humanitarian law, all members of organised armed groups are targetable, for so long as they remain members of that group. Accordingly, the amendments in Part 1 of the Schedule to the Bill clarify that members of organised armed groups may be targeted with lethal force in a non-international armed conflict without engaging relevant war crimes offences that apply to protect civilians and other protected persons (such as religious and medical personnel) that are not directly participating in hostilities. These amendments do not affect the existing prohibitions on targeting civilians and other protected persons.

25. The amendments in Part 2 of the Schedule to the Bill also recognise the possibility of incidental civilian loss of life during the conduct of hostilities in a non-international armed conflict. These amendments reflect the international humanitarian law principle of proportionality, which requires that attacks on military objectives must not be expected to result in civilian death or injury that would be excessive in relation to the concrete and direct military advantage anticipated.

Prohibition on the retrospective operation of criminal laws in Article 15 of the ICCPR

26. Article 15 of the ICCPR provides that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time it was committed. The article also prohibits the imposition of a heavier penalty than the one that was applicable at the time when the criminal offence was committed.

27. The amendments in Part 2 of the Schedule to the Bill introduce a defence to the offences in sections 268.70, 268.71 and 268.72 (causing the death of, or injury to, one or more persons not taking an active part in hostilities). The defence will apply where the relevant death or injury results from an attack against a military objective, launched in circumstances where the perpetrator reasonably expects that the attack will not result in civilian death or injury that would be excessive in relation to the concrete and direct military advantage anticipated. That defence will apply to conduct engaged in prior to the enactment of the amendments.

28. The amendments in Part 3 of the Schedule to the Bill will also apply to conduct which occurred prior to the enactment of the amendments. Part 3 makes a minor technical amendment to exclude military personnel from the scope of paragraph 268.65(1)(a), on the basis that the inclusion of this class of persons does not reflect the position at international law, and was not intended when section 268.65 was enacted on 25 September 2002.

29. These amendments do not impose retrospective criminal liability or greater punishment for the relevant conduct. Rather, they 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.

30. The determination of criminal liability under the relevant offences remains a matter for judicial consideration in the course of a prosecution. The Attorney-General's consent is also required for any relevant prosecution.

Conclusion

31. As the amendments contained in the Bill will generally only operate extraterritorially, they will only engage human rights in very limited circumstances. The Bill is compatible with human rights because the amendments are in accordance with international humanitarian law and human rights law to the extent that it applies.

Notes on Clauses

Preliminary

List of Abbreviations

Clause 1 - Short title

1. This clause provides for the short title of the Act to be the Criminal Code Amendment (War Crimes) Act 2016.

Clause 2 - Commencement

2. This clause provides for the commencement of each provision in the Act, as set out in the table. Item 1 in the table provides that the whole of the Act will commence on the day on which the Act receives Royal Assent.

Clause 3 - Schedules

3. This clause provides that legislation that is specified in a Schedule to this Act is amended as set out in the applicable items in the Schedule.

4. Schedule 1 provides for amendments to the Code.

Schedule 1 - Amendments relating to war crimes

Criminal Code Act 1995

Overview

5. The Bill amends Division 268 of the Code to reflect the distinction that exists at international law between civilians and members of an organised armed group. It also aligns Australian domestic law with the position at international law in relation to incidental civilian death or injury in non-international armed conflict.

Part 1 - Members of organised armed groups

6. Division 268 contains a number of war crimes offences that apply in a non-international armed conflict. Relevantly, sections 268.70, 268.71 and 268.72 apply where the perpetrator causes the death of, seriously endangers the health of, or inflicts severe pain or suffering upon one or more persons not taking an active part in hostilities. Part I of the Bill clarifies that these offences will not be engaged where the person or persons affected are members of an organised armed group.

7. Under international humanitarian law, members of organised armed groups are recognised as a category distinct from civilians, such that they do not benefit from the protections afforded to civilians. 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.

8. 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 least a minimal degree of organisation, the existence of some kind of command 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:

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the issuance of orders;

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the ability to procure, transport and distribute arms;

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the capacity to launch coordinated actions between units;

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the ability to recruit new members; and

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the capacity to provide military training.

9. An organised armed group may exist within a larger entity or group. For example, an entity may have a political wing, an armed wing, an administrative wing and/or a religious wing. Whether or not the entire entity can be considered an organised armed group will depend on the organisation, control structure and actions of the entity and of its various parts. When the entity in question is composed of distinct elements, only those that engage in hostilities qualify as organised armed groups. Individuals who are members of an armed subgroup but who also straddle other distinct subgroups remain members of an organised armed group, notwithstanding their other non-hostile roles.

10. '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 that 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 structure based on more than mere function.

11. 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:

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carrying arms openly;

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exercising command of the organised armed group or elements of it;

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giving or taking orders or acting on instructions from the organised armed group;

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direct involvement in achieving the military aims or objectives of the organised armed group; and

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other activities indicative of membership in an organised armed group which could include intelligence gathering, maintaining communications or providing engineering or logistics support.

These indicia are not exhaustive. Their relevance or otherwise to a particular organised armed group may be dependent on factors such as the nature and makeup of the group.

Item 1 - Paragraphs 268.70(1)(b) and (c) of the Criminal Code

12. This item repeals and replaces paragraphs 268.70(1)(b) and (c).

13. Paragraph 268.70(1)(b) currently provides that the perpetrator commits an offence under section 268.70 where he or she causes the death of a person or persons not taking an active part in hostilities. Item 1 clarifies that, consistent with international law, this offence will not be engaged where the person or persons killed are members of an organised armed group. As a result, the perpetrator will commit an offence under section 268.70 where they cause the death of one or more persons who are neither taking an active part in hostilities nor are members of an organised armed group.

14. This item retains the mental element of recklessness currently specified in paragraph 268.70(1)(c). Item 1 clarifies that the perpetrator must know of, or be reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in hostilities nor are members of an organised armed group.

Item 2 - At the end of section 268.70 of the Criminal Code

15. This item inserts a new subsection 268.70(3), which clarifies that it is an offence to cause the death of a member of an organised armed group who is hors de combat.

16. Under international law, a person is hors de combat where they are a prisoner of war, where they have clearly expressed an intention to surrender, or where they are unconscious, or otherwise incapacitated by wounds or sickness and therefore incapable of defending themselves. All persons who are hors de combat are afforded a protected status under international law, along with civilians, medical personnel and religious personnel. This item will extend that protection to members of an organised armed group who are hors de combat, consistent with international law.

Item 3 - Paragraphs 268.71(1)(d) and (e) and (2)(d) and (e) of the Criminal Code

17. Item 3 repeals and replaces paragraphs 268.71(1)(d) and (e), and (2)(d) and (e).

18. Paragraph 268.71(1)(d) currently provides that the perpetrator commits an offence where his or her conduct causes the death of a person or persons not taking an active part in hostilities. This item clarifies that this offence will not be engaged where the relevant person or persons are members of an organised armed group. As a result, a perpetrator will commit an offence under subsection 268.71(1) where he or she causes the death of one or more persons who are neither taking an active part in hostilities nor are members of an organised armed group.

19. Paragraph 268.71(2)(d) currently provides that the perpetrator commits an offence where his or her conduct seriously endangers the health or integrity of a person or persons not taking an active part in hostilities. This item clarifies that this offence will not be engaged where the relevant person or persons are members of an organised armed group. As a result, a perpetrator will commit an offence under subsection 268.71(2) where he or she seriously endangers the health or integrity of one or more persons who are neither taking an active part in hostilities nor are members of an organised armed group.

20. Item 3 retains the mental element of recklessness currently specified in paragraphs 268.71(1)(e) and (2)(e). Item 3 clarifies that the perpetrator must know of, or be reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in hostilities nor are members of an organised armed group.

Item 4 - At the end of section 268.71 of the Criminal Code

21. Item 4 inserts a new subsection 268.71(4) which clarifies that it is an offence to cause the death of, or seriously endanger the physical or mental health, or the integrity of, a member of an organised armed group who is hors de combat. This reflects the protected status, under international law, of all persons who are hors de combat.

Item 5 - Paragraphs 268.72(1)(b) and (c) of the Criminal Code

22. Item 5 repeals and replaces paragraphs 268.72(1)(b) and (c).

23. Paragraph 268.72(1)(b) currently provides that the perpetrator commits an offence where he or she inflicts severe physical or mental pain or suffering on a person or persons not taking an active part in hostilities. This item clarifies that the offence in subsection 268.72 will not be engaged where the relevant person or persons are members of an organised armed group. As a result, the perpetrator will commit an offence under section 268.72 where he or she inflicts severe physical or mental pain or suffering on one or more persons who are neither taking an active part in hostilities nor are members of an organised armed group.

24. Item 5 retains the mental element of recklessness currently specified in paragraph 268.72(1)(c), such that the perpetrator must know of, or be reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in hostilities nor are members of an organised armed group.

Item 6 - At the end of section 268.72 of the Criminal Code

25. Item 6 inserts a new subsection 268.72(3) which clarifies that it is an offence to inflict severe physical or mental pain or suffering on a member of an organised armed group who is hors de combat. This reflects the protected status, under international law, of all persons who are hors de combat.

Item 7 - At the end of Subdivision K of Division 268 of Chapter 8 of the Criminal Code

26. Item 7 inserts a new section 268.125, which clarifies that, consistent with the position at international law, members of an organised armed group are a category of persons distinct from civilians.

Part 2 -Proportionality in non-international armed conflict

27. International humanitarian law contemplates some incidental loss of life or injury to civilians as a result of hostilities, prohibiting those attacks which might be expected to cause incidental loss of civilian life or injury to civilians, or damage to civilian objects, that would be excessive in relation to the concrete and direct military advantage anticipated. This is known as the principle of 'proportionality'.

28. Part 2 aligns Australian domestic law with this international humanitarian law principle, as applied to non-international armed conflict.

Items 8 - 11 - After subsections 268.70(1), 268.71(1), 268.71(2) and 268.72(1) of the Criminal Code

29. Items 8, 9, 10 and 11 insert a defence to subsections 268.70(1), 268.71(1), 268.71(2) and 268.72(1). These items provide that, consistent with the international humanitarian law principle of proportionality, the relevant offences will not have been committed where the relevant death or injury results from an attack on a military objective, launched in circumstances where the perpetrator reasonably did not expect that the attack would cause incidental civilian death or injury that is excessive in relation to the concrete and direct military advantage anticipated.

30. For this defence to be made out, the perpetrator must make an assessment at the time the attack is launched that he or she reasonably expects that attack will not cause incidental civilian death or injury that is excessive in relation to the concrete and direct military advantage anticipated. Australia's Declaration in relation to Articles 51-58 of Protocol I Additional to the Geneva Conventions of 1949, which addresses the same issue in the context of an international armed conflict, 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 from all sources that are available to them at the relevant time.

31. This Declaration also clarifies 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 considered 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.

32. Australia made this Declaration in interpreting the requirements of a proportionality assessment in an international armed conflict, but the same interpretation would apply to interpreting the requirements of such an assessment in a non-international armed conflict.

Part 3 - Minor technical amendment

Item 12 - Paragraph 268.65(1)(a) of the Criminal Code

33. This item makes a minor technical amendment to exclude military personnel from the scope of paragraph 268.65(1)(a), which makes it an offence to use protected persons as shields. The inclusion of this class of persons does not reflect the position at international law, and was not intended when this provision was enacted on 25 September 2002. Item 12 will correct this oversight.

34. Section 268.65 was enacted to create an offence in Australian law that mirrors article 8(2)(b)(xxiii) of the Rome Statute. That article prohibits using civilians or 'other protected persons' to shield a military objective from attack. Under the Geneva Conventions and the Additional Protocols, 'other protected persons' are prisoners of war, medical personnel, religious personnel and persons who are hors de combat; military personnel are not included.

Part 4 - Application of amendments

Item 13 - Application of amendments made by Part 1

35. This item provides that the amendments made by Part 1 of the Schedule will apply to conduct engaged in on or after the commencement of this item, being the day after the Act receives Royal Assent.

Item 14 - Application of amendments made by Parts 2 and 3

36. This item provides that the amendments made by Parts 2 and 3 of the Schedule will apply to conduct engaged in before, on or after the commencement of this item.

37. The application of the amendment made by Part 2 of the Schedule to conduct engaged in before the commencement of this item is appropriate on the basis that those amendments reflect the position at international law when sections 268.70, 268.71 and 268.72 were enacted on 25 September 2002. The position at international law with respect to the principle of proportionality in non-international armed conflict has not changed in any relevant respect since that time. As a result, it is appropriate that the amendments apply to any conduct that has occurred since the commencement of the offences on 25 September 2002. It should be emphasised that this does not entail the retrospective criminalisation of conduct not hitherto constituting an offence.

38. The application of Part 3 of the Schedule to conduct engaged in before the commencement of this item is appropriate on the basis that the inclusion of military personnel within the scope of paragraph 268.65(1)(a) does not reflect the position at international law and was not intended when this section was enacted on 25 September 2002. It should again be emphasised that this does not entail the retrospective criminalisation of conduct not hitherto constituting an offence.

39. There are no existing or completed prosecutions that would be affected by the application of the amendments made by Parts 2 or 3 of the Schedule.