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2002
THE PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
HOUSE OF
REPRESENTATIVES
INTERNATIONAL CRIMINAL COURT (CONSEQUENTIAL
AMENDMENTS) BILL 2002
EXPLANATORY
MEMORANDUM
(Circulated by authority of the Attorney-General,
the Honourable Daryl Williams AM QC MP)
INTERNATIONAL CRIMINAL
COURT (CONSEQUENTIAL AMENDMENTS) BILL 2002
OUTLINE
This Bill amends the Criminal Code Act 1995 (Criminal Code) to:
• create offences in Australia that are the equivalent of the
crimes of genocide, crimes against humanity and war crimes in the International
Criminal Court Statute, so that Australia retains the right and power to
prosecute any person accused of a crime under the Statute in Australia rather
than surrender that person for trial in the International Criminal
Court;
• create offences in Australia relating to crimes against the
administration of justice of the International Criminal Court;
and
• establish various legal principals to be applied in prosecuting
these offences, such as command responsibility, the defence of superior orders,
jurisdiction and Parliament’s intention that the jurisdiction of the
International Criminal Court is to be complementary to
Australia’s.
The Bill also makes consequential amendments to the
Director of Public Prosecutions Act 1983, the Geneva Conventions Act
1957, the Migration Act 1958, the Telecommunications
(Interceptions) Act 1979 and the Witness Protection Act
1994.
FINANCIAL IMPACT STATEMENT
There are no direct financial impacts from this Bill.
NOTES ON CLAUSES
List of Abbreviations
|
Code
|
Criminal Code
|
|
Covenant
|
International Covenant on Civil and Political Rights
|
|
ICC
|
International Criminal Court
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|
ICC Act
|
International Criminal Court Act 2002
|
|
Statute
|
Rome Statute of the International Criminal Court
|
Clause 1: Short title
The short title of this Act
is the International Criminal Court (Consequential Amendments) Act 2002.
Clause 2: Commencement
This clause provides that sections
1, 2 and 3 of this Act commence on the day on which the Act receives Royal
Assent.
Schedules 1 to 7 of this Act commence on the day on which the
operative parts (Parts 2 to 14) of the ICC Act commence.
Section 2 of
the ICC Act states that Parts 2 to 14 of that Act commence on a day to be fixed
by Proclamation, but that such a date shall not be prior to the day on which the
Statute enters into force in Australia. If Parts 2 to 14 of the ICC Act have
not commenced within 1 month of the Statute entering into force in Australia,
then they commence on the first day after the end of the 1-month period.
The amendments in the Schedules to this Act and the provisions in the
ICC Act must come into force promptly after the entry into force of the Statute
in Australia to ensure Australia’s compliance with its obligations under
the Statute and its ability to take full advantage of the principle of
complementarity.
Clause 3: Schedule(s)
This clause provides
that, subject to the commencement provision, each Act that is specified in a
Schedule is amended as set out in that Schedule.
Schedule 1- Criminal Code Act
1995
The purpose of this Schedule is to amend the Criminal Code to ensure that
all offences under the Statute are offences under Australian law. The Statute
is based on the principle of complementarity. This means that the ICC only has
the 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. By ensuring that the crimes in the Statute are crimes against
Australian law, Australia ensures that it will always be in a position to
investigate and, if appropriate, prosecute a person who is accused of a crime
under the Statute – we will never be “unable” to. Australia
will therefore maintain the right to prosecute a person in Australia rather than
surrender that person for trial in the ICC. The proposed new provisions will:
• create a series of new offences called genocide, crimes against
humanity and war crimes;
• create a series of new offences that
constitute crimes against the administration of justice of the ICC;
• set out the legal principles to be applied when interpreting the new
offences;
• insert relevant definitions into the Dictionary of the
Criminal Code;
• provide that proceedings under the Division may not
be brought without the consent of the Attorney-General and that the
Attorney-General’s decision to give consent or refuse to do so may not be
challenged in any court other than the High Court; and
• deal with a
number of miscellaneous matters
The crimes in this schedule are based
closely on the way that the ICC crimes are defined in the draft text of the
Elements of Crimes. These crimes have been formulated consistent with
Commonwealth criminal law policy, with a focus on detailing the precise conduct
which is prohibited in express terms, and the mental elements that are required.
Where there is already an analogous crime in the Criminal Code, or where a
similar crime has been considered by the Model Criminal Code Officers’
Committee, then these existing definitions have been used to ensure
consistency.
Because of the international nature of the crimes that are
set out in this Division, and the nature of the international obligations that
they reflect, it has been necessary to define some of these crimes by referring
to standards set in the relevant international instruments. The intention of
this Division is not that the perpetrator must have had any knowledge of the
international instrument, or of the standards that it contained. If the
perpetrator has violated the standard, then this satisfies that element of the
crime.
Each of the crimes also sets out the penalty that applies to the
specific offence. These penalties represent the maximum penalty that can be
imposed, and the court can impose any penalty not exceeding the penalty
prescribed (s. 4D(1) Crimes Act 1914)
Item 1
This Item
alters the heading of Chapter 8 of the Criminal Code, inserting
“and related offences”, to reflect the addition of new
offences under Division 268 (see Item 2).
Item 2
This Item
inserts a new Division 268 into Chapter 8 of the Criminal Code. This Division
is divided into Subdivisions A to K, which set out the purpose of the new
Division (A), define the new offences that constitute Genocide (B), Crimes
Against Humanity (C), War Crimes (D to H), the crimes against the administration
of justice of the ICC (J) and other miscellaneous provisions (K).
This proposed section sets out the purpose of Division 268. In particular,
it makes it explicit that it is Parliament’s intent that the jurisdiction
of the ICC is complementary to the jurisdiction of Australia over the crimes
that are set out in Subdivisions B to J. By creating crimes in Australian law
that mirror the crimes in the Statute, Australia will always be able to
prosecute a person accused of a crime under the Statute in Australia rather than
surrender that person for trial in the ICC.
Proposed Section 268.2:
Outline of offences
This proposed section sets out the contents of the
various Subdivisions that create the crimes:
Subdivision B creates the
offences of “genocide”;
Subdivision C creates the offences of “crimes against humanity”;
Subdivisions D, E, F, G and H create the offences of “war
crimes”; and
Subdivision J creates the “offences against the
administration of justice of the ICC”.
The purpose of Subdivision B, proposed sections 268.3 to 268.7, is to
create offences in Australian law which reflect each form of the crime of
Genocide set out in Article 6 of the Statute.
The crimes consist of
various acts, when they are committed with the intent to destroy, in whole or in
part, a particular national, ethnical, racial or religious group, as such. This
definition of genocide is drawn from the Convention for the Prevention and
Punishment of the Crime of Genocide 1948, to which Australia is a party.
The following acts constitute genocide when they are committed with the
intent to destroy particular national, ethnical, racial or religious group, in
whole or in part:
• Killing (proposed section
268.3);
• Causing serious bodily or mental harm, including torture,
rape, sexual violence or inhuman or degrading treatment (proposed section
268.4);
• Deliberately inflicting conditions of life calculated to
bring about physical destruction. This includes depriving people of essential
resources such as food or medical services, or systematic expulsion from homes
(proposed section 268.5);
• Imposing measures to prevent births
(proposed section 268.6); or
• Forcibly transferring children to a
different national, ethnic, racial or religious group (proposed section
268.7).
In each case the maximum penalty is life imprisonment.
The purpose of this Subdivision C, proposed sections 268.8 to 268.23, is
to create offences in Australian law that mirror each form of Crimes Against
Humanity identified in Article 7 of the Statute.
These crimes are various
acts when they are committed as part of a widespread and systematic attack
against a civilian population. The crimes must also be a result of either a
state or organisation’s policy to commit that attack. In addition, the
perpetrator must know that the act is part of a larger attack on a civilian
population, or intend it to be part of such an attack.
The various acts
do not constitute crimes against humanity if they are committed in isolation, or
by an individual with no link to a state or organisational policy.
The
acts that can constitute crimes against humanity in these circumstances are:
• Murder (proposed section 268.8);
• Extermination,
namely causing death by indirect methods such as depriving people of access to
food and medicine (proposed section 268.9);
• Enslavement (proposed
section 268.10). The definition of “exercises any or all of the powers
attaching to the right of ownership” also includes situations where that
exercise results from a debt or contract made by the person, to maintain
consistency with the definition of “slavery” in section 270.1 of the
Criminal Code;
• Deportation or forcible transfer of
populations, where the perpetrator knows the facts that give the people the
legal right to remain where they are (proposed section
268.11);
• Imprisonment or other severe deprivation of physical liberty
in violation of the relevant principles of the Covenant (proposed section
268.12);
• Torture, namely the inflicting of severe physical or mental
pain on a person in custody. Any pain or suffering that is solely a result of,
inherent in or incidental to lawful punishment does not constitute torture
(proposed section 268.13);
• Rape, including any form of sexual
penetration (proposed section 268.14). This offence has been based on the Model
Criminal Code Officers’ Committee report definition of sexual penetration.
The definition of “consent” has expanded the circumstances in which
a person does not consent to the act to ensure that it will cover all of the
circumstances set out in the Elements of Crimes paper;
• Sexual slavery
(proposed section 268.15). This is based on the definition of “sexual
servitude” (section 270.4 of the Criminal Code), however because of
the circumstances in which this crime may occur the provision of the sexual
service does not have to be of a commercial nature;
• Enforced
prostitution, namely where the perpetrator causes a person (or more than one
person) to engage in sexual acts without the person’s consent, and
intending that the perpetrator or a third person will gain an advantage, such as
financial benefit, from the provision of the service. The definition of
“consent” is the same as the definition in the offence of
“rape”, and the crime also applies where the perpetrator is reckless
as to whether there is consent (proposed section 268.16);
• Forced
pregnancy, where the perpetrator confines a woman who was forcibly made pregnant
with the intention of affecting the ethnic composition of a group (proposed
section 268.17). This proposed section cannot affect the law of any Australian
State or Territory, such as any law relating to abortion or contraception
(proposed section 268.17(3));
• Enforced sterilisation, where the
perpetrator permanently prevents a persons from being able to reproduce without
either that person’s consent or medical justification (proposed section
268.18);
• Sexual violence. The purpose of this crime is to cover
sexual crimes, or the perpetrator causing people to engage in sexual acts
without their consent, that are equally as serious as the crimes in proposed
sections 268.14 to 268.18, but do not fall within those proposed sections. The
definition of “consent” is the same as the definition in the offence
of “rape”, and the crime also applies where the perpetrator is
reckless as to whether there is consent (proposed section
268.19);
• Persecution. This is only a crime if it is committed in
conjunction with genocide, a war crime or one of the other acts that could
constitute a crime against humanity. Persecution is the severe deprivation of a
fundamental right, contrary to international law, based on that person’s
membership of a certain political, racial, national, ethnic, cultural, religious
or gender group. If it is universally recognised under the relevant provisions
of the Covenant that other categories of groups also require this protection,
they are also included (proposed section 268.20);
• Enforced
disappearance of persons. This is where a person is abducted or detained for a
long period without legal protections with the authorisation or acquiescence of
a government or political group, and that government or political group refuses
to acknowledge or give information about the person. This crime can be
committed where the perpetrator abducts or detains the victim, or where the
perpetrator knowingly or recklessly refuses to acknowledge or give information
about a detained person with the authorisation or acquiescence of the government
or political group (proposed section 268.21);
• Apartheid, namely where
the perpetrator commits an act that could constitute a crime against humanity,
or an act of similar gravity, against a person in the context of an
institutionalised regime of systematic racial oppression with the intent to
maintaining that system (proposed section 268.22); or
• Other inhumane
acts which cause great suffering or serious injury to mental or physical health
and are similar in character to one of the acts that could constitute a crime
against humanity (proposed section 268.23).
Subdivision D – War crimes that are grave breaches of
the Geneva Conventions and of Protocol I to the Geneva Conventions
The purpose of Subdivision D, proposed sections 268.24 to 268.34, is to
create offences in Australian law that mirror the various War Crimes that are
grave breaches of the Geneva Conventions and are identified in Article 8(2)(a)
of the Statute.
The crimes consist of various acts when they are
committed in the context of an international armed conflict against a person or
property protected under one or more of the Geneva Conventions or the Additional
Protocol I to the Geneva Conventions. The perpetrator must know facts that give
the person or property the protected status under one of the Conventions or the
Protocol however the prosecution does not need to prove that perpetrator
actually knew of the relevant provision of the Geneva Convention or the First
Protocol that sets out that protection.
Previously the acts that are
categorised as war crimes in this Subdivision were crimes against Australian
law, regardless of whether they are committed in or outside Australia, under
Part 2 of the Geneva Conventions Act 1957. Part 2 of the Geneva
Conventions Act 1957 will be repealed by this Act (Schedule 3, Item 1) and
the crimes that it created are now contained in this Subdivision and in
Subdivisions E and H of this Act.
The acts that can constitute war crimes
in this Subdivision in these circumstances are:
• Wilful killing
of a protected person (proposed section 268.24);
• Torture of a
protected person for the purpose of obtaining information or a confession or for
punishment, intimidation, coercion or discrimination (proposed section
268.25);
• Inhumane treatment of a protected person, namely the
infliction of severe physical or mental pain or suffering (proposed section
268.26);
• Biological experiments on a protected person which seriously
endanger the physical or mental health of that person and are not medically
justified and carried out in that person’s best interests (proposed
section 268.27);
• Wilfully causing great physical or mental pain or
suffering, or serious injury to, a protected person (proposed section
268.28);
• Destruction and appropriation of property that is protected
under one of the Conventions or the Protocol and is not justified by military
necessity. The destruction or appropriation must be extensive, unlawful and
wanton (proposed section 268.29);
• Compelling a protected person to
serve in the armed forces of an enemy or otherwise fight against their own
country or forces (proposed section 268.30);
• Denying a protected
person a fair trial (proposed section 268.31). Paragraph (1)(b) sets out the
articles of the Third and Fourth Geneva Conventions that contain the judicial
guarantees that are required for a fair trial. If the perpetrator denies the
victim these judicial guarantees and protections, it does not matter whether the
perpetrator knew that he or she was violating the Geneva Conventions by doing
so;
• Unlawful deportation or transfer of a protected person to another
location or country (proposed section 268.32);
• Unlawful confinement
of a protected person (proposed section 268.33);
• Taking a protected
person hostage and threatening to kill, injure or continue to detain that person
in an effort to compel a government, organisation, person or group to act (or
refrain from acting) in return for the protected persons’ release
(proposed section 268.34).
Subdivision E – Other serious war crimes that are
committed in the course of an international armed conflict
The purpose of Subdivision E, proposed sections 268.35 to 268.68, is to
create offences in Australian law that mirror the serious War Crimes that are
committed during international armed conflicts and are identified in Article
8(2)(b) of the Statute.
These crimes are not grave breaches of the Geneva
Conventions (see Subdivision D), but they are considered to be serious
violations of the customary international law of armed conflict. Many of these
are drawn from Additional Protocol I to the Geneva Conventions, to which
Australia is a party, and therefore many of the crimes in this Subdivision are
already crimes in Australian law under Part II of the Geneva Conventions Act
1957 (which will be repealed by Schedule 3 of this Act).
The crimes
consist of various acts when they are committed in the context of, and are
associated with, an international armed conflict. These acts
are:
• Directing an attack against civilians (either individuals or
as a population) (proposed section 268.35) or targets that are not military
objectives (proposed section 268.36);
• Directing an attack against
people or facilities that are either providing humanitarian assistance or are
involved in a United Nations peacekeeping mission (proposed section
268.37);
• Launching an attack knowing that it will cause excessive
death or injury to civilians or civilian facilities, or serious long-term
environmental damage, when compared with the military advantage to be gained
from the attack (proposed section 268.38);
• Attacking an undefended
town or building that isn’t a military objective (proposed section 268.39)
or a person that is “hors de combat” (proposed section
268.40). A definition of “hors de combat” is inserted into
the Dictionary of the Criminal Code by item 16 of this Schedule –
it means a person who is in the power of the enemy, has surrendered or is unable
to defend himself or herself because of sickness or injury, and who does not
attempt to escape or injure the enemy;
• Illegally using the flag or
uniform of the enemy, the United Nations, the distinctive emblems of the Geneva
Conventions or the truce flag, to cause death or serious injury to the enemy
(proposed sections 268.41 to 268.44);
• Transferring parts of the
perpetrator’s civilian population into occupied territory, or transferring
all or part of the population of an occupied territory either within or outside
that territory (proposed section 268.45);
• Directing an attack against
protected objects (such as religious, charitable, educational, historic
buildings or hospitals) (proposed section 268.46);
• Subjecting a
person who is in the power of the enemy to mutilation or medical or scientific
experiments that are not medically justified and in the interests of the person
and that kill or seriously endanger the health of the person (proposed section
268.47 and 268.48);
• Attacking a person after the perpetrator had lead
that person to believe that they were entitled to protection (proposed section
268.49);
• Ordering that no survivors are to be taken (proposed section
268.50);
• Seizing and destroying certain protected property of the
enemy without military justification (proposed section
268.51);
• Depriving enemy citizens of their legal rights (proposed
section 268.52);
• Forcing enemy citizens to fight against their
country (proposed section 268.53);
• Pillaging, namely taking property
for personal use (proposed section 268.54);
• Using poison or gases
that cause death or serious injury as a weapon or certain bullets that are
prohibited by the Hague Convention (proposed sections 268.55 to
268.57);
• Severely humiliating, degrading or otherwise violating a
person or the bodies of the dead (proposed section 268.58);
• Rape,
including any form of sexual penetration (proposed section 268.59). This
offence has been based on the Model Criminal Code Officers’ Committee
report definition of sexual penetration. The definition of
“consent” has expanded the circumstances in which a person does not
consent to the act to ensure that it will cover all of the circumstances set out
in the Elements of Crimes paper;
• Sexual slavery (proposed section
268.60). This is based on the definition of “sexual servitude”
(section 270.4 of the Criminal Code), however because of the
circumstances in which this crime may occur the provision of the sexual service
does not have to be of a commercial nature;
• Enforced prostitution,
namely where the perpetrator causes a person (or more than one person) to engage
in sexual acts without the person’s consent, and intending that the
perpetrator or a third person will gain an advantage, such as financial benefit,
from the provision of the service. The definition of “consent” is
the same as the definition in the offence of “rape”, and the crime
also applies where the perpetrator is reckless as to whether there is consent
(proposed section 268.61);
• Forced pregnancy, where the perpetrator
confines a woman who was forcibly made pregnant with the intention of affecting
the ethnic composition of a group (proposed section 268.62). This proposed
section cannot affect the law of any Australian State or Territory, such as any
law relating to abortion or contraception (proposed section
268.62(3));
• Enforced sterilisation, where the perpetrator permanently
prevents a persons from being able to reproduce without either that
person’s consent or medical justification (proposed section
268.63);
• Sexual violence. The purpose of this crime is to cover
sexual crimes, or the perpetrator causing people to engage in sexual acts
without their consent, that are equally as serious as the crimes in proposed
sections 268.59 to 268.63, but do not fall within those proposed sections
(proposed section 268.64);
• Using civilians, or other protected
persons to shield a military objective from attack (proposed section 268.65).
The other protected persons are prisoners of war, medical personnel, religious
personnel and persons who are hors de combat;
• Intentionally
attacking a person, building or other object that is using the distinctive
emblems of the Geneva Conventions (proposed section 268.66). A definition of
“distinctive emblems of the Geneva Conventions” is inserted into the
Dictionary of the Criminal Code by item 9 of this
Schedule;
• Starving civilians as a method of warfare (proposed section
268.67). This includes preventing relief supplies provided for under the Geneva
Conventions. In such a case, the perpetrator must know or be reckless about
preventing the relief supplies, but they do not need to know that the supplies
were provided for under the Geneva Conventions;
• Using children who
are under 15 years old in combat or conscripting or enlisting children who are
under 15 years old (proposed section 268.68). The perpetrator must have known,
or been reckless about, the fact that the children were under 15 years old.
Subdivision F – War crimes that are serious
violations of article 3 common to the Geneva Conventions and are committed in
the course of an armed conflict that is not an international armed
conflict
The purpose of Subdivision F, proposed sections 268.69 to 268.76, is to
create offences in Australian law that mirror the War Crimes that are serious
violations of common article 3 of the Geneva Conventions, committed during
internal or domestic armed conflicts and are identified in Article 8(2)(c) of
the Statute.
The crimes in this Subdivision consist of various acts when
they are committed during a non-international armed conflict against a person
who is not taking an active part in hostilities.
The perpetrator must
know the facts that establish that the person is not taking part in hostilities.
A person who is not taking an active part in hostilities specifically includes a
person who is “hors de combat” (defined in the Dictionary,
see item 16 of this Schedule below), civilians, medical and religious personnel
(defined in proposed section 268.69 to include non-confessional, non-combatant
military personnel carrying out similar duties to religious personnel).
The acts that are war crimes under this Subdivision when committed
against a person who is not taking an active part in hostilities
are:
• Murder (proposed section 268.70);
• Mutilation
(proposed section 268.71);
• Torture (proposed section 268.73) or
otherwise inflicting severe mental or physical pain (proposed section
268.72);
• Severely humiliating, degrading or otherwise violating a
person or the bodies of the dead (proposed section 268.74);
• Taking
such a person hostage and threatening to kill, injure or continue to detain that
person in an effort to compel a government, organisation, person or group to act
(or refrain from acting) in return for the protected person’s release
(proposed section 268.75);
• Sentencing or executing such a person
without a fair trial (proposed section 268.76).
Subdivision G – War crimes that are other serious
violations of the laws and customs applicable in an armed conflict that is not
an international armed conflict
The purpose of Subdivision G, proposed sections 268.77 to 268.92, is to
create offences in Australian law that mirror the War Crimes set out in Article
8(2)(e) of the Statute. These are the war crimes that are serious violations of
the laws and customs of war, even when committed during internal or domestic
armed conflicts, but that are not contained in Article 3 of the Geneva
Conventions (those war crimes are set out in Subdivision F, above).
Most
of the crimes created in this Subdivision are taken from the Second Protocol to
the Geneva Conventions. The acts that can constitute war crimes under this
Subdivision if they are committed during a non-international armed conflict
are:
• Directing an attack against civilians (either individuals or
as a population) (proposed section 268.77);
• Intentionally attacking a
person, building or other object that is using the distinctive emblems of the
Geneva Conventions (proposed section 268.78). “[D]istinctive emblems of
the Geneva Conventions” is defined in the Dictionary (see item 9 of this
Schedule, below);
• Directing an attack against people or facilities
that are providing humanitarian assistance or are engaged in United Nations
approved peacekeeping missions (proposed section 268.79);
• Directing
an attack against protected objects (such as religious, charitable, educational,
historic buildings or hospitals) (proposed section
268.80);
• Pillaging, namely taking property for personal use (proposed
section 268.81);
• Rape, including any form of sexual penetration
(proposed section 268.82). This offence has been based on the Model Criminal
Code Officers’ Committee report definition of sexual penetration. The
definition of “consent” has expanded the circumstances in which a
person does not consent to the act to ensure that it will cover all of the
circumstances set out in the Elements of Crimes paper;
• Sexual slavery
(proposed section 268.83). This is based on the definition of “sexual
servitude” (section 270.4 of the Criminal Code), however because of
the circumstances in which this crime may occur the provision of the sexual
service does not have to be of a commercial nature;
• Enforced
prostitution, namely where the perpetrator causes a person (or more than one
person) to engage in sexual acts without the person’s consent, and
intending that the perpetrator or a third person will gain an advantage, such as
financial benefit, from the provision of the service. The definition of
“consent” is the same as the definition in the offence of
“rape”, and the crime also applies where the perpetrator is reckless
as to whether there is consent (proposed section 268.84);
• Forced
pregnancy, where the perpetrator confines a woman who was forcibly made pregnant
with the intention of affecting the ethnic composition of a group (proposed
section 268.85). This proposed section cannot affect the law of any Australian
State or Territory, such as any law relating to abortion or contraception
(proposed section 268.85(3));
• Enforced sterilisation, where the
perpetrator permanently prevents a persons from being able to reproduce without
either that person’s consent or medical justification (proposed section
268.86);
• Sexual violence. The purpose of this crime is to cover
sexual crimes, or the perpetrator causing people to engage in sexual acts
without their consent, that are equally as serious as the crimes in proposed
sections 268.82 to 268.86, but do not fall within those proposed sections
(proposed section 268.87);
• Using children who are under 15 years old
in combat or conscripting or enlisting children who are under 15 years old
(proposed section 268.88). The perpetrator must have known, or been reckless
about, the fact that the children were under 15 years old;
• Ordering
that civilians be displaced, unless the displacement is required for the
security of the civilians or imperative military necessity (proposed section
268.89);
• Attacking a person after the perpetrator had lead that
person to believe that they were entitled to protection (proposed section
268.90);
• Ordering that no survivors are to be taken (proposed section
268.91);
• Subjecting a person to mutilation or medical or scientific
experiments that are not medically justified and in the interests of the person
and that kill or seriously endanger the health of the person (proposed sections
268.92 and 268.93);
• Seizing and destroying certain protected property
of the enemy without military justification (proposed section
268.94).
Subdivision H – War crimes that are grave breaches of
Protocol I to the Geneva Conventions
The purpose of Subdivision H, proposed sections 268.95 to 268.101, is to
create offences in Australian law to cover grave breaches of Protocol I to the
Geneva Conventions. The crimes set out in this Subdivision are not crimes under
the Statute. These crimes had previously been crimes in Australian law under
the Geneva Conventions Act 1957. The relevant Part of the Geneva
Conventions Act 1957 is repealed by this Act (see Schedule 3 Item 1), and
therefore the crimes contained in the Geneva Conventions Act 1957
that are not also crimes under the Statute are created as crimes under
Australian law in this Subdivision.
The following acts constitute war
crimes under this Subdivision when they are committed against a person who is in
the power of, or detained by, the enemy as a result of an international armed
conflict:
• Subjecting a person to an unjustified medical procedure
that endangers the person’s health (proposed section
268.95);
• Removing blood, tissue or organs from a person (unless for
transfusion or skin graft with the person’s consent) (proposed section
268.96);
• Attacking a site that contains “dangerous
forces” (for example a dam) if it results in death or serious injury to
civilians (proposed section 268.97);
• Attacking a demilitarised zone
or an undefended town or building if it results in death or serious injury to
civilians (proposed section 268.98);
• Unjustifiably delaying the
repatriation of civilians or prisoners of war deprived of their liberty, once
there is an obligation to repatriate those people (proposed section
268.99);
• Apartheid (proposed section 268.100);
and
• Directing an attack against recognised historical monument, work
of art or place of worship. The target must be part of the heritage of the
people, and must have been recognised and protected as such (for example by a
competent international organisation) (proposed section 268.101).
Subdivision J – Crimes against the administration of the justice of the International Criminal Court
Subdivision J, proposed sections 268.102 to 268.114, creates a series of
offences in Australian law that constitute crimes against the administration of
the justice of the ICC. Article 70 of the Statute sets out the crimes against
the administration of justice that the ICC has jurisdiction over, and paragraph
4(a) of that article obliges Parties to the Statute to create parallel crimes in
their own law.
The crimes created by this Subdivision
are:
Proposed Section 268.102: Perjury, namely where a person
makes a false sworn statement in a proceeding before the ICC (“an ICC
proceeding”) and is reckless as to whether or not the statement is true.
The crime also extends to interpreters where they give a sworn interpretation of
a statement which is false or misleading.
Proposed Section 268.103:
Falsifying evidence. This includes:
• creating false evidence to
influence the decision to commence an ICC proceeding or the outcome of an ICC
proceeding; or
• knowingly using false evidence where the person is
reckless as to whether or not the evidence will influence the commencement or
outcome of the ICC proceeding.
Proposed Section 268.104: Destroying
or concealing evidence, with the intention to influence the decision to
commence an ICC proceeding or the outcome of an ICC proceeding.
• not attend the ICC proceedings as a witness or
interpreter;
• give false evidence;
• withhold evidence;
or
• give a false or misleading interpretation.
A person also
must not ask for, receive or agree to receive a benefit (for themselves or for
any other person) with the intention that either that person or another person
will:
• not attend the ICC proceedings as a witness;
• give
false evidence; or
• withhold evidence.
A person must not cause, or threaten to cause, a detriment to a witness or
interpreter because of something that the witness or interpreter has done, or
that the perpetrator believes that they have done. Causing the detriment must
itself be illegal for it to constitute an offence under this proposed section.
This proposed section does not apply if the witness or interpreter committed
perjury.
A person must not cause, or threaten to cause, a detriment to an official of
the ICC because of something that either that official or any other official of
the ICC has done, or that the perpetrator believes that the relevant official
has done.
Proposed Section 268.112: Perverting the course of
justice, which does not include the publication of material. The person
must intend to pervert the course of justice in respect of the
ICC.
Proposed Section 268.113: Receipt of a corrupting benefit by an
official of the ICC.
An official of the ICC may not receive or agree to
receive a benefit, or ask for a benefit for themselves or for someone else, with
the intention of influencing their official duties.
Proposed Section
268.114: Subdivision not to apply to certain conduct
Sections 22 and 29
of the ICC Act provide that the Attorney-General must issue a certificate before
the arrest or surrender a person in response to a request from the ICC. This
proposed section ensures that a person whose conduct results in a refusal or
failure to issue such a certificate (including an Attorney-General who refuses
to issue the certificate) or who acts or fails to act based on the absence of a
certificate has not committed any crime against the administration of justice
under Australian law.
Subdivision K – Miscellaneous
Subdivision K, proposed sections 268.115 to 268.124, establishes a series
of legal principles that are to be used when interpreting and prosecuting
offences under Division 268, and other miscellaneous provisions to facilitate
the application of this Division.
This proposed section sets out the principles by which people in command of
the perpetrators of offences can be held criminally responsible for the acts of
their subordinates. It is important to ensure that the persons ultimately
responsible for the commission of the crimes under the Statute and this Division
do not escape punishment because they did not directly commit the offences. It
is also important to ensure that a commander whose subordinates have committed,
or are suspected of having committed, such crimes takes steps to have those
crimes investigated and the perpetrators punished.
The proposed section
implements the principals of command responsibility established in Article 28 of
the Statute.
The proposed section states that a military commander is
criminally responsible for genocide, crimes against humanity or war crimes that
are committed by people under their control where the
commander:
• knew, or should have known, that their forces were
committing or about to commit the crimes; and
• did not take all
reasonable and necessary steps to prevent the crimes being committed or hand the
matter to the proper authorities for investigation and prosecution of the
offenders.
If a superior is not a military commander, or effectively a
military commander, they will be criminally responsible for genocide, crimes
against humanity or war crimes that are committed by people under their
authority and control where:
• the superior knew that the crimes were
being or about to be committed by their subordinates, or ignored that
information;
• the acts that constituted the crimes were within the
superior’s authority and control; and
• the superior did not take
all reasonable and necessary steps to prevent the crimes being committed or hand
the matter to the proper authorities for investigation and prosecution of the
offenders.
This proposed section establishes the limits on the circumstances in which a
person accused of a crime under this Division can claim that they were ordered
to perform the relevant acts and that this constitutes a defence to the criminal
charge. The proposed section implements the principles of this defence in
Article 34 of the Statute.
Under this proposed section, a person who is
charged with genocide or crimes against humanity (i.e. charged with an offence
under Subdivisions B or C) cannot claim that they were ordered to commit the
acts by a superior in order to avoid criminal responsibility.
If a person
is charged with war crimes (i.e. charged with an offence under Subdivisions D to
H), then the fact that they were ordered to commit the act will only protect
them from criminal responsibility if they were under a legal obligation to obey
the person giving the order, they did not know that the order was unlawful and
the order was not manifestly unlawful.
This proposed section provides that the offences in this Division apply to
all conduct, regardless of whether the conduct or the effect is within or
outside of Australia.
If a person is charged with a crime against the
administration of justice of the ICC (Subdivision J) then that person has a
defence if they are not Australian, the conduct occurred completely outside of
Australia and the conduct does not constitute an offence where it
occurred.
This proposed section ensures that a person who has been tried in the ICC
cannot be tried in Australia for the same offence or for the same
conduct.
This proposed section makes it an offence to contravene an order of the ICC
while it is sitting in Australia or intentionally hinder the ICC while it is
performing its functions in Australia.
This proposed section provides that this Division is not intended to exclude
or limit any other Commonwealth, State or Territory law.
Proposed subsection (1) provides that proceedings under this Division can
only be commenced with the Attorney-General’s written consent, and
proposed subsection (2) provides that any such proceedings can only be carried
out in the name of the Attorney-General.
Proposed subsection (3) provides
that a person may be arrested, charged and remanded in custody or released on
bail for an offence under this Division before the consent has been given. This
is to ensure that any delay in obtaining written consent from the
Attorney-General will not delay the arrest of a person or allow a person to
escape, and that it also will not result in a person being unduly held on
remand.
This clause prevents any review of or challenge to a decision by the Attorney-General to give consent to initiate a prosecution, or refuse consent to prosecute, in any court other than the High Court through the prerogative writ provisions in section 75 of the Constitution.
This proposed section provides a person accused of a crime under this
Division with the same rights to legal representation as a protected prisoner of
war has under the Geneva Conventions Act 1957. The accused has the right
to legal representation, and if the accused has had legal representation for
less than 14 days the court must adjourn the trial to ensure that 14 days has
elapsed since the lawyer was instructed. If the accused does not have a lawyer,
the court must assign a counsel and/or solicitor to represent the
accused’s interests.
Proposed Section 268.124: Proof of
application of Geneva Conventions or Protocol I to the Geneva
Conventions
This proposed section allows the Minister for Foreign Affairs
to issue a certificate if a question arises as to whether any of the Geneva
Conventions or Protocol I applies in proceeding under this Division. Such a
certificate is prima facie evidence of any matter relevant to whether the
Convention or the Protocol applies. These questions may involve matters of
foreign policy and will often have political or international implications. In
such cases, the Government will be able to provide evidence of these matters in
the form of a certificate, but that evidence can still be
disproved.
Item 3
This Item inserts a definition
of the term attack directed against a civilian population into the
Dictionary of the Code and provides that an attack against a civilian population
means a course of conduct involving the multiple commission of any one or more
proscribed inhumane acts (see Item 18) against any civilian population pursuant
to, or in furtherance of, a state or organisational policy to engage in that
course of conduct, consistent with the definition in article 7(2)(a) of the
Statute.
Item 4
This Item inserts a definition of the term
benefit into the Dictionary of the Code and provides that a
benefit includes any advantage and is not limited to property.
This item inserts a definition of the term Covenant into the
Dictionary of the Code and provides that a reference to the Covenant means the
International Covenant on Civil and Political Rights. A copy of the Covenant is
in Schedule 2 to the Human Rights and Equal Opportunity Commission Act
1986.
Item 6
This Item inserts a definition of crime
against humanity into the Dictionary of the Code and provides that a
crime against humanity means an offence under Subdivision C of Division 268 of
the Code.
This Item inserts a definition of crime against the administration of
justice of the International Criminal Court into the Dictionary of the
Code and provides that a crime against the administration of justice of the
International Criminal Court means an offence under Subdivision J of Division
268 of the Code.
Item 8
This Item inserts a definition of the
term detriment into the Dictionary of the Code and provides that a
detriment includes any disadvantage and is not limited to personal injury or to
loss of or damage to property.
This Item inserts a definition of the term distinctive emblems of the
Geneva Conventions into the Dictionary of the Code and provides that
distinctive emblems of the Geneva Conventions means the emblems, identity cards,
signs, signals, insignia or uniforms to which subsection 15(1) of the Geneva
Conventions Act 1957 applies.
Item 10
This Item inserts a
definition of the term evidence into the Dictionary of the Code
and provides that evidence includes anything that may be used as evidence.
This Item inserts a definition of the term First Geneva Convention into the Dictionary of the Code and provides that the First Geneva Convention means the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, adopted at Geneva on 12 August 1949, a copy of the English text of which (not including the annexes) is set out in Schedule 1 of the Geneva Conventions Act 1957.
This Item inserts a definition of the term Fourth Geneva
Convention into the Dictionary of the Code and provides that the Fourth
Geneva Convention means the Geneva Convention relative to the Protection of
Civilian Persons in Time of War, adopted at Geneva on 12 August 1949, a copy of
the English text of which (not including the annexes) is set out in Schedule 4
of the Geneva Conventions Act 1957.
This Item inserts a definition of the term Geneva Conventions
into the Dictionary of the Code and provides that Geneva Conventions means the
First Geneva Convention, the Second Geneva Convention, the Third Geneva
Convention and the Fourth Geneva Convention.
This Item inserts a definition of genocide into the Dictionary
of the Code and provides that genocide means an offence under Subdivision B of
Division 268 of the Code.
This Item inserts a definition of Hague Declaration into the
Dictionary of the Code and provides that the Hague Declaration means the Hague
Declarations Concerning the Prohibition of Using Bullets which Expand or Flatten
Easily in the Human Body, and was adopted at the Hague on
29 July
1899.
Item 16
This Item inserts a definition of hors de
combat into the Dictionary of the Code and provides that a person is
hors de combat if they are in the power of the enemy, they have
surrendered or are unable to defend themselves because of sickness or injury,
and they do not attempt to escape or injure the enemy.
Item
17
This Item inserts a definition of ICC Statute into the
Dictionary of the Code and provides that the ICC Statute means the Statute of
the International Criminal Court done at Rome on
17 July 1998, a copy of the
English text of which is set out in Schedule 1 to the International Criminal
Court Act 2001.
This Item inserts a definition of international armed conflict
into the Dictionary of the Code and provides that international armed conflict
includes military occupation.
This Item inserts a definition of International Criminal Court
into the Dictionary of the Code and provides that International Criminal Court
means the International Criminal Court established under the ICC
Statute.
This Item inserts a definition of interpreter into the
Dictionary of the Code and provides that an interpreter includes a person who
interprets, signs or other things made or done by a person who cannot speak
adequately for the purpose of giving evidence in a proceedings before the
ICC.
This Item inserts a definition of proscribed inhumane act into
the Dictionary of the Code and provides that a proscribed inhumane act means any
act as described in a number of provisions in Division 268.
This Item inserts a definition of the term Protocol I to the Geneva
Conventions into the Dictionary of the Code and provides that Protocol I
to the Geneva Conventions means 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 on 10 June 1977, a
copy of the English text of which is set out in Schedule 5 of the Geneva
Conventions Act 1957.
This Item inserts a definition of the term Protocol II to the Geneva Conventions into the Dictionary of the Code and provides that Protocol II to the Geneva Conventions means the Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the protection of victims of non-international armed conflicts, done at Geneva on 10 June 1977.
This Item inserts a definition of the term Protocols to the Geneva Conventions into the Dictionary of the Code and provides that Protocols to the Geneva Conventions means Protocol I to the Geneva Conventions and Protocol II to the Geneva Conventions.
This Item inserts a definition of the term Second Geneva
Convention into the Dictionary of the Code and provides that the Second
Geneva Convention means the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at
Sea, adopted at Geneva on 12 August 1949, a copy of the English text of which
(not including the annexes) is set out in Schedule 2 of the Geneva
Conventions Act 1957.
This Item inserts a definition of the term sworn statement into
the Dictionary of the Code and provides that a sworn statement means an oral
statement made on oath or affirmation or a statement in a document verified on
oath or affirmation.
This Item inserts a definition of the term Third Geneva
Convention into the Dictionary of the Code and provides that the Third
Geneva Convention means the Geneva Convention relative to the Protection of
Prisoners of War, adopted at Geneva on 12 August 1949, a copy of the English
text of which (not including the annexes) is set out in Schedule 3 of the
Geneva Conventions Act 1957.
This Item inserts a definition of the term threat into the
Dictionary of the Code and provides that a threat includes a threat made by any
conduct, whether explicit or implicit and whether conditional or
unconditional.
This Item inserts a definition of war crime into the Dictionary
of the Code and provides that a war crime means an offence under Subdivision D,
E, F, G or H of Division 268 of the Code.
Schedule 2 – Director of Public Prosecutions Act 1983
Item 1
The purpose of this Item is to amend the Director of
Public Prosecutions Act 1983 (s. 6(1)(k)) to enable the Director of Public
Prosecutions to appear in hearings under the ICC Act.
Schedule 3 – Geneva Conventions Act 1957
Item 1
The purpose of this Item is to delete the Part of the
Geneva Conventions Act 1957 that makes a grave breach of any of the
Geneva Conventions or Protocol I a crime in Australia. These crimes are now set
out in greater detail in Subdivisions D and H of Division 268 of the Criminal
Code.
Although this item deletes the Part of the Geneva
Conventions Act 1957 that made the various grave breaches crimes under
Australian law, any grave breach of the Geneva Conventions or of Protocol I can
still be prosecuted in Australia regardless of when the alleged breach took
place.
From the date of the commencement of this Act, the crimes are
covered by the new Division 268 of the Criminal Code. Therefore any acts
that are committed after that commencement date can be prosecuted under the
Criminal Code. Even though Part II of the Geneva Conventions Act
1957 will be repealed once this Act commences, if a person has committed a
crime under that Part prior to its repeal they can still be prosecuted under the
Geneva Conventions Act 1957 (see section 8 of the Acts Interpretation
Act 1901).
Schedule 4 – Migration Act 1958
Items 1 and 2
The purpose of these Items is to allow the
Attorney-General to issue a certificate to allow a person who is not a citizen
of Australia to enter Australia, or to remain in Australia, if they are required
for the purposes of the ICC Act.
Schedule 5 – Mutual Assistance in Criminal Matters Act 1987
Items 1 and 2
The purpose of these Items is to allow the
Attorney-General to obtain information on financial transactions in Australia
from the Australian Transaction Reports Analysis Centre if the ICC requests it,
and to provide such information to the ICC, in the same manner that such a
request from another country is currently dealt with under the Mutual
Assistance in Criminal Matters Act 1987.
Schedule 6 – Telecommunications (Interception) Act 1979
Item 1
This Item includes proceedings under Division 5 of Part
4 of the ICC Act (Taking Evidence or Producing Documents or Articles) and
proceedings of the ICC held in Australia under Part 5 of the ICC Act within the
definition of “exempt proceedings” under the Telecommunications
(Interception) Act 1979. The purpose of this is to allow evidence gathered
under the Telecommunications (Interception) Act 1979 to be given as
evidence in those proceedings.
Schedule 7 – Witness Protection Act 1994
Items 1, 2 and 3
The purpose of these Items is to insert a new
s. 10A in the Witness Protection Act 1994 to allow the Attorney-General
and the Commissioner of the Australian Federal Police to consider, and arrange
for, the inclusion of a person in the National Witness Protection Program at the
request of the ICC in the same manner as any other person in the NWPP.