BILLS DIGEST NO. 43, 2016–17              23 November 2016

Criminal Code Amendment (War Crimes) Bill 2016

Christina Raymond and Juli Tomaras
Law and Bills Digest Section

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.

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[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.