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Australia: Amendments to War Crimes Provisions Relate to Fight Against Islamic State

(Oct. 17, 2016) On October 12, 2016, the Australian government introduced a bill into the Parliament to amend provisions related to war crimes contained in the Criminal Code Act 1995 (Cth).  (Criminal Code Amendment (War Crimes) Bill 2016, PARLIAMENT OF AUSTRALIA (last visited Oct. 13, 2016).)

The proposed changes were first announced by the Prime Minister and Minister for Defence in September in the context of outlining Australia’s involvement in the fight against the Islamic State of Iraq and the Levant (ISIL, also known as the Islamic State of Iraq and Syria, or ISIS, and as Daesh, the Arabic-language acronym  for the militant group).  (Press Release, Prime Minister & Minister for Defence, Australian Defence Force Targeting of Daesh (Sept. 1, 2016).)  The Prime Minister stated that he had been advised of a “legal anomaly” that means the Australian Defence Force (ADF), and particularly the Air Force, is not empowered to be as effective as possible in targeting the group.  (Speech, Malcolm Turnbull, National Security Statement on Counter-Terrorism (Sept. 1, 2016).)  This is because while international law allows members of an organized armed group such as the Islamic State to be targeted with lethal force, subject to the ordinary rules of international humanitarian law, “there is a legal argument that Australia’s domestic law is more restrictive.”  (Id.)

Therefore, the Prime Minister said, the government would “move quickly to introduce the necessary amendments to the Commonwealth Criminal Code that will bring our domestic laws into line with international norms.”  (Id.) According to the statement released by the government, the amendments will mean that the ADF “will be able to target Daesh at its core – joining with our coalition partners to target a broader range of Daesh combatants – consistent with international law.”  (Australian Defence Force Targeting of Daesh, supra.)

The Amendments

The bill amends division 268 of the Criminal Code Act which contains provisions on war crimes, crimes against humanity, and genocide.  (Criminal Code Act 1995 (Cth), div 268, Federal Register of Legislation website.)  The amendments are divided into two parts: the first provides express recognition of the distinction between civilians and members of an organized armed group, and the second provides for a proportionality exception to war crimes offenses.  (Criminal Code Amendment (War Crimes) Bill 2016 (Cth), Federal Register of Legislation website; Explanatory Memorandum: Criminal Code Amendment (War Crimes) Bill 2016, Parliament of Australia website.)  The explanatory memorandum that accompanies the bill states:

[t]he Bill clarifies that the war crimes offences in sections 268.70, 268.71 and 268.72, engaged by conduct which causes the death of, or injury to, a person not taking an active part in hostilities in a non-international armed conflict, will not apply where the person is a member of an organised armed group. These amendments recognise that members of an organised armed group do not benefit from the protections accorded to civilians (and other protected persons such as medical and religious personnel) under international humanitarian law, and ensure that members of organised armed groups receive treatment equivalent to members of regular armed forces under the law.  (Explanatory Memorandum, supra, at 2.)

The second part of the amendments “will also align Australian domestic law with the requirements of the international humanitarian law principle of proportionality.”  (Id.)  The explanatory memorandum states that, consistent with this principle, “the Bill clarifies that sections 268.70, 268.71 and 268.72 will not apply to attacks on military objectives which are not reasonably expected to cause civilian death or injury that would be excessive in relation to the concrete and direct military advantage anticipated.”  (Id.)  Sections 268.70, 268.71, and 268.72 of the Criminal Code Act relate to the war crimes offenses of murder, mutilation, and cruel treatment.

The amendments were further explained by Peter Dutton, Minister for Immigration and Border Protection, in his second reading speech in the Parliament.  (Speech, Peter Dutton, Criminal Code Amendment (War Crimes) Bill 2016: Second Reading, Parliamentary Debates 11 (House of Representatives, Oct. 12, 2016), Parliament of Australia website.)  For example, he stated:

[k]ey indicia that a particular group is an ‘organised armed group’ will include: evidence of a command structure or hierarchy; at least a minimal degree of organisation; and a collective purpose that is related to the broader hostilities and involves the use of force.  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 judgment in Prosecutor v Haradinaj and its November 2005 judgment in Prosecutor v Limaj.  (Id. at 12.)

Reactions

Prior to the introduction of the bill, following the announcements of the changes by the Prime Minister and Minister of Defence, some Australian academics commented on the relevant issues.  Gideon Boas, an international law expert at Monash University, said the changes, which would protect ADF members from being charged with war crimes for bombing Islamic State militants not directly involved in fighting, could potentially lead to “excessive civilian damage.”  (Omar Dabbagh, Fears Changes to Australia’s Criminal Code Could Be a Licence to Kill Civilians in Syria, Iraq, SBS (Sept. 7, 2016).)  However, he considered that the reasons for the changes were legitimate and stated that “I think we need to see the detail of the law that’s proposed. If what’s being proposed here is simply encapsulating the principles of international humanitarian law, there are built-in safeguards there.”  (Id.)

A military law expert from the Australian National University, David Letts, was not concerned about the changes, stating, “[i]t certainly is not a broad, sweeping announcement that Australia is going to amend its domestic law so that targeting can be of such a width that, as a matter of course, there would be civilian casualties involved in Australian military operations.  There’s no suggestion of that at all.”  (Id.)

Another international law expert at the Australian National University, Kevin Boreham, wrote an article about the potential changes and expressed the view that “[t]hese proposed amendments, when released, should be examined carefully. They must maintain the constraints on military operations imposed by international humanitarian law, which are carefully observed by the Australian Defence Force.”  (Kevin Boreham, Australia’s Proposed War Crimes Amendments Demand Careful Scrutiny, THE CONVERSATION (Sept. 28, 2016).)

The leader of the main opposition party in the Parliament, the Labor Party, has indicated that the Party will support the proposed amendments.  (Speech, Bill Shorten, Statement on National Security (Sept. 1, 2016), Labor Party website.)