Practice Relating to Rule 139. Respect for International Humanitarian Law
Section B. Orders and instructions to ensure respect for international humanitarian law
Australia’s Defence Force Manual (1994) provides: “Rules of Engagement (ROE) provide authoritative guidance on the use of military force by the ADF [Australian Defence Forces] … ROE will include legal considerations and so will comply with the law of armed conflict.”
Australia’s LOAC Manual (2006) states:
2.12 ROE [Rules of Engagement] provide authoritative guidance on the use of military force by the ADF [Australian Defence Forces] …. ROE will take into account legal considerations and so will comply with LOAC.
13.4 States are under a general obligation to issue orders and instructions requiring compliance with the LOAC and to take steps to see that those orders and instructions are observed … [T]he first step to enforcement of the LOAC is to ensure as wide a knowledge of its provisions as possible both within and outside the armed forces.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
At an Australian Army media briefing on 16 April 2003, called to promulgate the results of an investigation into allegations made against certain Australian soldiers who were part of the UN-mandated INTERFET (International Force for East Timor) operations in East Timor, 1999–2000, the Chief of Army stated the following in response to a question on the treatment of detainees, particularly in relation to allegations concerning the deprivation of food, water and sleep:
We apprehended some militia, we apprehended some people who turned out to be civilians. We needed information from them.
At all times that information was acquired using the Geneva Convention. At all times that information was acquired by people who were thoroughly well-trained, who were well-supervised and used very high professional standards.
But this was not meant to be a four star resort. They had information that could go to the safety and the protection of the civilian population, the safety and protection of our own people. And we have rights and obligations, but also the authority under the Geneva Convention, to interrogate people. And that’s what happened.
Some of that meant that they probably didn’t get the sort of food that they might have liked. Our soldiers were on ration packs. Some have meant that they were treated in a robust manner, but all of the time they were treated properly and correctly under the Geneva Convention.
At a later point during the briefing, the Director of Personnel Operations, Army, added to the Chief of Army’s response:
Now, some of the allegations that we’re talking about here relate to activity in an interrogation centre. And further information in relation to your previous question, there were allegations that the detainees were deprived of hygiene and sleep and food. There was no evidence at all that any of the detainees were deprived of any hygiene facilities or food. But certainly we found that they were deprived of some sleep.
And, as you’ve heard from the Chief of the Army, that this in itself in no way contradicted any of our international obligations, particularly in relation to the law of armed conflict or in relation to the Geneva Convention.
But what we did find, and a lesson that we’ve learnt from this, is some of our guidance that we provide to our practitioners is very general. And what we have found that we need to do is make that more definitive. Make it more black and white. This is what we can do under our international obligations and this is what we cannot do.
So in the general comments you heard about some of our procedural amendments that we intend to make. These are policy changes that we intend to make to make it far more definitive for our practitioners.