Practice Relating to Rule 129. The Act of Displacement
Section A. Forced displacement
Australia’s Commanders’ Guide (1994) provides: “Civilians should not be relocated.”
The Guide further provides that “unlawfully deporting, transferring … a protected person” constitute “grave breaches or serious war crimes likely to warrant institution of criminal proceedings”.
Australia’s Defence Force Manual (1994) provides that “unlawfully deporting, transferring … a protected person” constitute “grave breaches or serious war crimes likely to warrant institution of criminal proceedings”.
Australia’s LOAC Manual (2006) states: “Measures for the control of the population [in occupied territory] which are prohibited include … deportations.”
The manual further states:
13.25 Grave breaches under the Geneva Conventions consist of any of the following acts against persons or property protected under the provisions of the relevant Convention:
• unlawful deportation or transfer …
13.26 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:
• … the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s War Crimes Act (1945), as amended in 2001, provides:
The deportation of a person to, or the internment of a person in, a death camp, a slave labour camp, or a place where persons are subjected to treatment similar to that undergone in a death camp or slave labour camp, is a serious [war] crime.
Australia’s Geneva Conventions Act (1957), as amended in 1991, provides: “A person who, in Australia or elsewhere, commits a grave breach of any of the [1949 Geneva] Conventions or 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 to 2007, states with respect to war crimes that are grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I:
268.32 War crime – unlawful deportation or transfer
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully deports or transfers one or more persons to another country or to another location; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b).
The Criminal Code Act also states with respect to war crimes that are serious violations of the laws and customs of war applicable in a non-international armed conflict:
268.89 War crime – displacing civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator orders a displacement of a civilian population; and
(b) the order is not justified by the security of the civilians involved or by imperative military necessity; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the crimes defined in the 1998 ICC Statute, including “genocide by forcibly transferring children”; crimes against humanity, including “deportation or forcible transfer of population”; and war crimes, including “unlawful deportation or transfer” and “transfer of population” in international armed conflicts and “displacing civilians” in non-international armed conflicts.