Related Rule
Practice Relating to Rule 149. Responsibility for Violations of International Humanitarian Law
Australia’s LOAC Manual (2006) states: “A violation of the LOAC by the armed forces of a nation involves the international responsibility of that nation.” 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 1.13.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
In 2010, in the Habib case, the Full Court of Australia’s Federal Court unanimously held that the “act of state doctrine” did not bar a claim for damages based on the alleged complicity of Australian officials in the alleged acts of torture committed on the applicant by officials of the governments of the United States, Egypt and Pakistan. Jagot J, with whom her co-judges, Black CJ and Perram J agreed, stated:
[51] The act of state doctrine has been described as “a common law principle of uncertain application which prevents the [forum] court from examining the legality of certain acts performed in the exercise of sovereign authority within a foreign country or, occasionally, outside it”: R v Bow St Metropolitan Stipendiary Magistrate; Ex parte Pinochet Ugarte [2000] 1 AC 61 at 106; [1998] 4 All ER 897 at 937 (Pinochet (No 1)).
[112] … As submitted for Mr Habib, if proved, his allegations would constitute grave violations of international human rights law. The weight of authority discussed above does not support the protection of such conduct from judicial scrutiny other than in the face of a valid claim for sovereign immunity.
[113] Mr Habib’s claim is against the Commonwealth. He alleges that the Commonwealth is liable for acts committed by its own officers, albeit in aiding and abetting agents of foreign states. The Commonwealth has no claim for sovereign immunity in respect of a claim brought against it in an Australian court. …
[114] … The cases on which the Commonwealth relied do not support a conclusion that the act of state doctrine prevents an Australian court from scrutinising the alleged acts of Australian officials overseas in breach of peremptory norms of international law to which effect has been given by Australian laws having extra-territorial application. The case law indicates to the contrary.
[115] … Australia’s “national nerves”, as the Commonwealth intimated, might be attuned to the sensibilities of its coalition partners but this has to be weighed in a context where the prohibition on torture forms part of customary international law and those partners themselves are signatories to an international treaty denouncing torture. Moreover, the claim is by an Australian citizen against the Commonwealth of Australia. Findings will be necessary as facts along the way but no declaration with respect to the conduct of foreign officials is required. Those officials will not be subject to the jurisdiction of an Australian court (or, for that matter, any international court by reason of this proceeding). It is the Commonwealth alone which is the respondent to this proceeding. In so far as the Commonwealth suggested some unfairness to the (unidentified) foreign officials in question by reason of the foreign states not being parties to the proceeding, it is common ground that those states would have a valid claim for sovereign immunity if sued in an Australian court. Such unfairness as might arise, in any event, is a matter for the trial, not the reserved question. …
[118] … The case involves an Australian court considering and determining whether, as alleged, officials of its own government aided, abetted and counselled foreign officials to inflict torture upon an Australian citizen in circumstances where the acts of those foreign officials, if proved as alleged, would themselves be unlawful under Australian laws having extra-territorial effect. …
[131] Ultimately, the central submission for Mr Habib is compelling. If accepted, the Commonwealth’s submissions would exclude judicial scrutiny of the conduct of Australian officials alleged to have involved serious breaches of the inviolable human rights of an Australian citizen in an overseas jurisdiction, even though the alleged conduct, if proved, would contravene Australian law at the time and in the place where the conduct is said to have been committed. …
[132] From this analysis it follows that this court has both the power, and indeed the constitutional obligation, to determine Mr Habib’s claim.
[134] Neither of the considerations upon which the Commonwealth relied – the development of the common law jurisprudence and the factors informing the content of the act of state doctrine (international comity and the separation of powers) – support the conclusion that an Australian court may not determine Mr Habib’s claim in so far as that claim alleges that the Commonwealth is liable for the acts of its officials constituting the torts of misfeasance in public office or the action of intentional but indirect infliction of harm by the aiding, abetting and counselling of agents of foreign states to subject Mr Habib to torture while he was detained in Pakistan, Egypt, Afghanistan and Guantánamo Bay.
[135] To the contrary the development of Anglo-American jurisprudence indicates that the act of state doctrine does not exclude judicial determination of Mr Habib’s claim as it involves alleged acts of torture constituting grave breaches of human rights, serious violations of international law and conduct made illegal by Australian laws having extra-territorial effect. 
Australia, Federal Court, Habib case, Judgment, 25 February 2010, §§ 51, 112–115, 118, 131–132 and 134–135.