Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
Section A. Release and return without delay
Australia’s Defence Force Manual (1994) provides: “PWs [prisoners of war] are to be repatriated immediately to their own country at the conclusion of the hostilities.”
Australia’s LOAC Manual (2006) states: “PW [prisoners of war] are to be repatriated immediately to their own country at the conclusion of hostilities.”
The manual also states:
G. P. I [1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts, when committed wilfully and in violation of the Conventions or the Protocol:
• unjustifiable delay in the repatriation of PW or civilians.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence.”
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act 1995.
Australia’s Criminal Code Act (1995), as amended in 2007, states with respect to war crimes that are grave breaches of the 1977 Additional Protocol I:
War crime – unjustifiable delay in the repatriation of prisoners of war or civilians
(1) A person (the perpetrator) commits an offence if:
(a) one or more persons are in the power of, or are interned, detained or otherwise deprived of liberty by, an adverse party as a result of an international armed conflict; and
(b) the perpetrator unjustifiably delays the repatriation of the person or persons to the person’s own country or the persons’ own countries; and
(c) the delay is in violation of Part IV of the Third Geneva Convention or Chapter XII of Section IV of Part III of the Fourth Geneva Convention.
Penalty: Imprisonment for 10 years.
(2) Strict liability applies to paragraph (1)(c).
Australia’s ICC (Consequential Amendments) Act (2002) incorporates grave breaches of the 1977 Additional Protocol I in the list of war crimes in the Criminal Code, including “unjustifiable delay in the repatriation of prisoners of war or civilians”.