James McGrath (Queensland, Liberal National Party, Assistant Minister to the Prime Minister) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Criminal Code Amendment (War Crimes) Bill aligns Australian domestic law with international law in relation to the treatment of members of organised armed groups in non-international armed conflict.

Crucially, these amendments do not alter the protections from attack afforded to civilians and other protected persons under international humanitarian law, including medical and religious personnel, and persons who are hors de combat.

The amendments will provide the Australian Defence Force (ADF) with 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.

Summary of amendments

Members of organised armed groups do not benefit from the protections accorded to civilians and other protected persons under international humanitarian law. The Bill amends Division 268 of the Criminal Code Act to provide express recognition of this fact under Australian domestic law.

The Bill will also align Australian domestic law with the requirements of the international humanitarian law principle of proportionality in relation to attacks on military objectives in non-international armed conflict.

Finally, the Bill makes a minor technical amendment (to section 268.65) to exclude military personnel from the list of protected persons who may not be used to shield or impede military operations.

This minor correction reflects the position at international humanitarian law, under which military personnel are not protected persons. It reflects the intent of the provision at the time it was enacted in 2002.

Members of organised armed groups – Schedule 1, Part 1

Members of organised armed groups are recognised as a category distinct from civilians under international law. As stated by the International Committee of the Red Cross (ICRC) in its Interpretive Guidance on the Notion of Direct Participation in Hostilities, 'all persons who are not members of State armed forces or organised armed groups… are civilians.'

Once a person is identified as a member of an organised armed group, he or she may be targeted with lethal force subject to the ordinary rules of international humanitarian law.

This is recognised in the ICRC's Commentary to article 13 of Protocol II Additional to the Geneva Conventions, which expressly confirms that those who belong to armed forces or armed groups may be attacked at any time.

Aligning Australia's domestic legislation with international law in this respect will ensure that our military forces are able to conduct more effective operations against members of organised armed groups.

Accordingly, Part 1 of Schedule 1 of the Bill contains amendments to clarify that certain war crimes offences applicable in non-international armed conflict (sections 268.70, 268.71 and 268.72) do not apply to protect members of organised armed groups.

Consistent with the principles outlined in article 41 of Additional Protocol I, a member of an organised armed group will not be targetable when they are hors de combat. According to paragraph 2 of article 41, a person is hors de combat where he or she has clearly expressed an intention to surrender, or is unconscious or otherwise incapacitated by wounds or sickness, and therefore incapable of defending himself or herself.

Whether a particular non-State armed group qualifies as an 'organised armed group' for the purposes of international humanitarian law, such that its members may lawfully be targeted in a non-international armed conflict, is a question of fact to be determined in light of the circumstances prevailing at the time.

Key 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.

Importantly, under international humanitarian law, an organised armed group may exist within a larger entity. For example, an entity may have a political wing, an armed wing, an administrative wing and/or a religious wing. In that case, only a subgroup that actually engages in hostilities will qualify as an 'organised armed group'.

The question of whether a particular individual is a 'member' of an organised armed group such that he or she may lawfully be targeted will also be a question of fact, to be answered on the basis of available information and intelligence. As to the degree of certainty that a decision-maker must have, the standard adopted by international tribunals has been a 'reasonable belief'. This was referred to by the ICTY in Prosecutor v Galić, for instance.

The functions a person carries out can be a strong indicator as to whether or not that individual is a 'member' of the relevant group. In this respect, it is appropriate to consider whether the person is involved in combat, combat support, or combat service support functions similar to those functions in a State's armed forces.

Proportionality in non-international armed conflict – Schedule 1, Part 2

Separately, Part 2 of Schedule 1 of the Bill also amends Division 268 of the Criminal Code to reflect the requirements of the international law principle of proportionality in relation to attacks on military objectives in non-international armed conflict.

The principle of proportionality is codified in article 51(5) (b) of Additional Protocol I to the Geneva Conventions, which applies in international armed conflict, and has also been recognised by the ICTY, for example in Prosecutor v Kupreśkič, as a customary rule applicable in non-international armed conflict.

The principle prohibits attacks which are expected to cause incidental loss of life or injury to civilians that would be excessive in relation to the concrete and direct military advantage anticipated.

Accordingly, the Bill will amend sections 268.70, 268.71 and 268.72 to make it clear that it is not an offence under those provisions for a person to conduct a proportionate attack against a military objective. This is consistent with the protections afforded to civilians under international humanitarian law.

Conclusion

This Bill will align Australian domestic law with the position at international law in relation to targeting operations against members of organised armed groups in non-international armed conflict.

These amendments will ensure that ADF personnel are empowered to target organised armed groups at their core, to the extent permitted by international law, and that they will be supported by our domestic laws in doing so.

Debate adjourned.