Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 8 - OFFENCES AGAINST HUMANITY AND RELATED OFFENCES  

Division 268 - Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court  

Subdivision F - War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict  

SECTION 268.76   War crime - sentencing or execution without due process  

(1)  
A person (the perpetrator ) commits an offence if:


(a) the perpetrator passes a sentence on one or more persons; and


(b) the person or persons are not taking an active part in the hostilities; and


(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and


(d) either of the following applies:


(i) there was no previous judgment pronounced by a court;

(ii) the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and


(e) if the court did not afford other judicial guarantees - those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and


(f) the perpetrator knows of:


(i) if subparagraph (d)(i) applies - the absence of a previous judgment; or

(ii) if subparagraph (d)(ii) applies - the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and


(g) the perpetrator ' s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty: Imprisonment for 10 years.

(2)  
A person (the perpetrator ) commits an offence if:


(a) the perpetrator executes one or more persons; and


(b) the person or persons are not taking an active part in the hostilities; and


(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and


(d) either of the following applies:


(i) there was no previous judgment pronounced by a court;

(ii) the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and


(e) if the court did not afford other judicial guarantees - those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and


(f) the perpetrator knows of:


(i) if subparagraph (d)(i) applies - the absence of a previous judgment; or

(ii) if subparagraph (d)(ii) applies - the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and


(g) the perpetrator ' s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty: Imprisonment for life.

(3)  
Strict liability applies to paragraphs (1)(e) and (2)(e) .

(4)  
To avoid doubt, a reference in subsection (1) or (2) to a person or persons who are not taking an active part in the hostilities includes a reference to:


(a) a person or persons who are hors de combat ; or


(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.


This information is provided by CCH Australia Limited Link opens in new window. View the disclaimer and notice of copyright.