Practice Relating to Rule 151. Individual Responsibility
Australia’s Defence Force Manual (1994) provides:
ADF [Australian Defence Force] members are open to prosecution for breaches of LOAC. Individual responsibility for compliance cannot be avoided and ignorance is not a justifiable excuse. ADF members will be held to account for any unlawful action that leads to a serious breach of LOAC.
Australia’s Defence Training Manual (1994) states that members of the Australian Defence Force “are to be aware of the rules which, if violated, make an individual personally liable for breaches of LOAC”.
Australia’s LOAC Manual (2006) states:
1.12 The LOAC, being part of international law, is binding on nations but it also regulates the conduct of individuals. The Criminal Code Act 1995 (Criminal Code) makes the offences of genocide, crimes against humanity, and war crimes that are grave breaches of the Geneva Conventions and G. P. I [1977 Additional Protocol I], as well as other serious violations of the LOAC, offences under Commonwealth law. A member of the ADF [Australian Defence Force] who is in breach of the LOAC would also be liable to be charged under the DFDA [Defence Force Discipline Act 1982] for corresponding service offences.
1.13 A violation of the LOAC by the armed forces of a nation involves the international responsibility of that nation. A violation may also lead to the prosecution of the individuals concerned for war crimes …
1.14 … The International Military Tribunal at Nuremberg rejected the assertion that the LOAC applies only to nations. Since that time, decisions in many war crimes trials have reinforced the principle of individual criminal responsibility of members of the armed forces or others who violate the LOAC …
13.7 ADF members are open to prosecution for breaches of LOAC. Individual responsibility for compliance cannot be avoided and ignorance is not a justifiable excuse. ADF members will be held to account for any unlawful action that leads to a serious breach of LOAC …
13.39 Individuals are responsible for the war crimes that they commit themselves or which they order or assist others to commit.
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:
A person who:
(a) on or after 1 September 1939 and on or before 8 May 1945; and
(b) whether as an individual or as a member of an organisation;
committed a war crime is guilty of an indictable offence against this Act.
A “serious crime” constitutes a “war crime” when committed “in the course of hostilities in a war”, “in the course of an occupation”, “in pursuing a policy associated with the conduct of a war or with an occupation” or, “on behalf of, or in the interests of, a power conducting a war or engaged in an occupation”.
War itself is defined as “(a) a war, whether declared or not; (b) any other armed conflict between countries; or (c) a civil war or similar armed conflict (whether or not involving Australia or a country allied or associated with Australia) in so far as it occurred in Europe in the period beginning on 1 September 1939 and ending on 8 May 1945”.
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides:
A person who, in Australia or elsewhere, commits, or aids, abets or procures the commission by another person of, 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 ICC (Consequential Amendments) Act (2002) contains a list of acts qualified as “Genocide” (Sections 268.3–268.7), “Crimes against humanity” (Sections 268.8–268.23), “War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions” (Sections 268.24–268.34), “Other serious war crimes that are committed in the course of an international armed conflict” (Sections 268.35–268.68), “War crimes that are serious violations of article 3 common to the Geneva Conventions and are committed in the course of an armed conflict that is not an international armed conflict” (Sections 268.69–268.76), “War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict” (Sections 268.77–268.94), “War crimes that are grave breaches of Protocol I to the Geneva Conventions” (Sections 268.95–268.101). The Act also includes the penalty to be imposed for each of these crimes.
In 2000, in the SRNN case, Australia’s Administrative Appeals Tribunal stated:
The actions committed by Mr SRNN amount, in the Tribunal’s view, to war crimes within the terms of Article 3 of the Geneva Conventions of 1949 as contended by the respondent. Mr SRNN was well aware of the purpose of the torture that he inflicted during his various interrogations, and he shared that purpose and was prepared to refer persons for more severe torture if they failed to provide satisfactory responses to his own form of questioning. Mr SRNN was also well aware of the nature of the Sri Lankan Army’s methods of handling LTTE [Liberation Tigers of Tamil Eelam] and other suspects including, during his second tour of duty, knowledge of the existence of special torture chambers in Colombo where persons were routinely killed. In the circumstances there are no reasons why he should not be found to be fully responsible for his actions, even though he was part of a military and political regime that encouraged and supported the war crimes that he committed.
In 2002, in the SAH case, Australia’s Administrative Appeals Tribunal stated:
58. There is no question that the applicant was a member of the Iraqi Army at the time such war crimes and crimes against humanity were committed. He admits that he knew about atrocities and events such as those to which I have referred in the course of these reasons. He denies, however, that he played any part in them and that, at all times, he was an administrative officer engaged solely in the distribution of supplies such as food, clothing and shoes and in the payment of salaries …
59. In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime. Apart from being a member of, and indeed an officer of, the Iraqi Army at all relevant times, there is no evidence pointing to the applicant’s having played such a role … The applicant has admitted knowledge of the activities of the Iraqi Army but knowledge of itself does not mean that he was a part of the common purpose or aided or abetted those activities. There is no evidence that he acquired knowledge of the activities before they were carried out and so became part of their planning or a key element in their being carried out or whether he acquired knowledge at some later stage. There is no evidence that he acquired his knowledge while he played some role in carrying them out. Indeed, there is no evidence that he played any role at all.
In 2002, in the AXOIB case, Australia’s Administrative Appeals Tribunal stated:
Article 6 of the … [Nuremberg Charter] provides that “leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan
”. Article 25 of the Rome Statute provides an even broader definition of criminal complicity. By any standard of criminal complicity or accessorial liability applicable in this country, the applicant would be beyond the protection of the Convention if there are serious reasons for considering that he aided and abetted either war crimes or crimes against humanity by reporting individuals to Perera or the security forces if he knew the outcome of his impugned conduct was likely to be torture or murder of those individuals. In the circumstances his intent to achieve such outcome could and should be inferred in my opinion.
In 2002, in the SAL case, Australia’s Administrative Appeals Tribunal stated:
In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.
In 2002, in the VAG case, the Administrative Appeals Tribunal stated:
66. In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.
75. In the absence of any evidence that the killing of the two prisoners was carried out according to a judicial order properly obtained, it does amount to a war crime or a crime against humanity. Do VAG’s actions in sending them on mean that was part of the common purpose in carrying out those activities. He participated in the ultimate result by sending the prisoners on to the headquarters. He was part of the PUK [Patriotic Union of Kurdistan], some of whose members killed two of those prisoners, but he was not present at the time and disclaimed knowledge of what would happen. In that sense, VAG was at arm’s length from the killings that ultimately occurred and there is no evidence to suggest that he was able to prevent their occurring. Unlike an informer who may be able to choose whether or not he passes on information, this was not a case in which VAG could choose not to send the prisoners as he had been directed to do without consequence to himself. In that case and given his distance from the killings themselves, I do not consider that he can be said to have been part of any common purpose in carrying out the killings. As they are the only specific crimes that are crimes against humanity or war crimes, I do not consider that VAG was part of a common purpose and so was not an accessory to them.
76. With regard to the wider war crimes and crimes against humanity committed by the PUK, I do not consider that the evidence supports a finding that there are serious reasons for considering that VAG was in a position where he could influence the course of events. Certainly, he was a long standing member of the PUK and a member who drew a number of people into the PUK but there is no evidence that he participated in acts of atrocity, was present at any as a bystander or instigated or directed any. There is no evidence that he initiated events that led to any such acts.
In 2003, in the SHCB case, the Federal Court of Australia, in hearing an appeal of an Australian Administrative Appeals Tribunal (AAT) decision regarding an application refused on the grounds that the 1951 Refugee Convention did not apply to the appellant by reasons of the operation of Article 1F of the Convention, noted:
13. The AAT characterised the focus of the case before it as being whether the appellant had any part to play, whether directly or indirectly, in acts of atrocity committed by KHAD [an Afghani state information agency] and, if so, whether his part leads to the conclusion that he had committed a war crime or a crime against humanity. The AAT stated the relevant legal principle as follows:
“In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.”
There has been no suggestion that that statement of principle is wrong.
23. It is not necessary, for a finding that the appellant committed a war crime or a crime against humanity, that there be a finding with respect to a specific incident, if there are findings of many such incidents and a finding that the appellant took steps as an officer of KHAD knowing that such acts would be the consequence of his steps. It was open to the AAT, on the material before it, to conclude that the appellant aided, abetted or otherwise assisted the commission or attempted commission of such acts. The AAT made findings that KHAD was involved in crimes against humanity and war crimes at a time when the appellant, in the course of his duties as a reasonably high ranking officer, passed on information that was likely to lead to the commission of such acts.
In 2004, in the SRDDDD case, Australia’s Administrative Appeals Tribunal stated:
58. The Tribunal is satisfied that there are serious reasons for considering that the Applicant did commit, and was within the meaning of the Rome Statute, criminally responsible for, committing crimes against humanity and war crimes. The evidence against the Applicant in this regard is strong. However, the Tribunal is also satisfied that there are serious reasons for considering that the Applicant committed the relevant crimes as a consequence of his political motivation. That is, the Applicant’s motives for committing the crimes were significantly political in nature. It is not a minority motivation that was political. The conduct engaged in by the Applicant would not have been committed in the absence of political motivation.
59. However, as earlier indicated in these reasons, Article 1F [of the 1951 Refugee Convention] requires only one of the enumerated subparagraphs to be considered. The paragraphs are to be taken as independent the one from the other, the political flavour of Article 1F(b) not being relevant to a construction of Article 1F (a) or 1F (c). As earlier found in these reasons, each sub-article is intended to embrace a distinct factual situation; the “serious non-political crime” in (b) being a different offence comprised of a different factual situation to the crime against peace, “the war crime” or “crime against humanity” in (a). Thus consistent with this construction of the Article, if the factual situation leads a decision-maker to the opinion that there exists serious reasons for considering that a war crime or a crime against humanity has been committed by an Applicant, it is of no defence to that Applicant for the Tribunal of fact to also be satisfied that there are serious reasons for considering that he has committed a serious non-political crime, and thereby that the crimes committed by him were politically motivated.
60. The Tribunal being satisfied that there are serious reasons for considering that the Applicant has committed war crimes and crimes against humanity Article 1F applies so as to preclude the Applicant from protection under the Refugees Convention.
In 2005, in the SRYYY case, the Federal Court of Australia noted:
36 The extension of individual criminal responsibility for war crimes to internal armed conflicts under international customary law, as well as under international conventional law, was recognised in 1995 by the decision of the ICTY Appeals Chamber in Tadic. The Chamber held (at –) that although grave breaches of the 1949 Geneva Conventions could occur only in the context of an international armed conflict, Art 3 of the ICTY Statute (violations of the laws and customs of war) incorporates customary international law, which includes a concept of individual criminal responsibility for war crimes even when committed in the context of an internal armed conflict (see ).
49 Perhaps the most significant change in terms of scope and content of individual criminal responsibility since the Second World War has been the recent acceptance that war crimes for which an individual may be criminally responsible may be committed in situations of internal armed conflict. As recently as 1994, the Commission of Experts established pursuant to Security Council Resolution 780 to report on questions relating to breaches of humanitarian law in the former Yugoslavia concluded that “there does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes” and, consequently, “the violations of the laws or customs of war referred to in article 3 of the statute of the International Tribunal are offences when committed in international, but not in internal armed conflicts” (Annexure to the Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992)
, UN Doc. S/1994/674 at  and ). The situation under customary law was also reflected in the international instruments which dealt with war crimes up to and including the Statute of the ICTY. That changed in 1994 with the Statute of the ICTR and in 1995 with the ICTY’s decision in Tadic
. In Tadic
the ICTY held at  that customary international law did
contain an offence of war crimes committed during internal armed conflict, and imported such an offence into Art 3 of the ICTY Statute. However, war crimes are defined so as to include conduct occurring in an internal armed conflict under the Statutes of the ICTY and the ICTR, the Draft Code of Crimes and the Rome Statute, but were not so defined in the earlier instruments.
In 2006, in the SZCWP case, J. Downes, in a majority decision of the full bench of the Federal Court of Australia, stated that, with respect to war crimes:
Internal disturbances and tensions are excluded. There must be an armed conflict although it need not be of an international character. Criminal responsibility attaches to aiding, abetting and assisting or in any other way contributing to the commission or attempted commission of such a crime where there is a group acting with a common purpose and the contribution is intentional and with at least knowledge of the intention to commit the crime. (See paragraph 2(f) of Article 8 and Article 25 of the Rome Statute).
In 2006, in the WBR case, Australia’s Administrative Appeals Tribunal stated:
29. The Tribunal also notes the following statement of principle which was implicitly accepted by the Federal Court of Australia (Full Court) in SHCB v Minister for Immigration and Multicultural Affairs (2003) 133 FCR 561 at 564 [since re-designated as FCAFC 308, at § 13]:
“In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.”
31. The Tribunal accepts that the applicant, as a member of the Wahdat party, shared the broad common purpose of members of that party to promote the civil, religious and political rights of the Shias in general and the Hazaras in particular. The Tribunal, however, is not satisfied that the applicant shared a common purpose with other members of the Wahdat party that torture or any other form of inhumane treatment or abuse be inflicted on prisoners in Katei Ganai prison or on any other persons. More specifically, although the Tribunal is satisfied that the applicant on 2 occasions intentionally escorted a prisoner to an interrogation room at Katei Ganai prison for the purpose of interrogation, the Tribunal is not satisfied that on either occasion he did so with a shared common purpose with the interrogators that torture or any other physical or mental abuse be inflicted on the prisoner in order to extract information from him. The Tribunal, furthermore, accepts the applicant’s evidence that the reason he commenced working at the prison, and continued to work there for almost 3 years even though he was aware that prisoners were being tortured, was in order to avoid combat fighting in the civil war, and, in the Tribunal’s opinion, it cannot reasonably be inferred from his continuing to work at the prison in those circumstances that he thereby necessarily shared a common purpose with persons in authority at the prison that prisoners be tortured.
32. Accordingly, the tribunal finds that the applicant lacked the requisite mental element for accessorial liability for war crimes and the crimes against humanity constituted by the acts of torture and other abuse inflicted on prisoners by certain members of the Wahdat party in the course of interrogation sessions at Katei Ganai prison in the period 1992–1994:
Re W97/164 and Minister for Immigration and Multicultural Affairs
(above) at 449, 450.
216. … The act of confinement and torture indisputably is the outcome of act of abduction. Confinement and torture would not have taken place if there was no act of abduction. Since accused Mir Quasem Ali is found to have had ‘concern’ with the commission of confinement and torture of the detainees at the camp, it is lawfully presumed that the act of abduction too occurred on his approval and endorsement and within his knowledge.
. On rational and integrated evaluation of evidence and relevant facts and context it stands proved beyond reasonable doubt that the criminal activities were carried out on substantial inducement and assistance of the accused Mir Quasem Ali , that the accused and the AB men at the torture camp worked together in furtherance of common purpose of causing deprivation of civilians’ physical liberty by keeping them under stretched and illegal captivity at the AB camp aiming to obtain information about the freedom fighters and as such the act and conduct of the accused forming part of attack directing civilian population coupled with his significant influence and domination over the AB torture camp as depicted provided substantial abetment and assistance to the accomplishment of offence of ‘confinement’ and degrading ‘torture’. Accused Mir Quasem Ali is thus found guilty of offence of ‘abduction’, ‘confinement’ and ‘torture’ as crimes against humanity as enumerated in section 3(2)(a)(g)(h) of the International Crimes Tribunal Act of 1973 for which he is held liable under section 4(1) and 4(2) of the Act of 1973.
230. [The victim] was… abducted by a group of AB members and the criminal activities constituting the offences alleged were carried out at the ‘instance’ of the accused—the charge framed alleges. The act of ‘instance’ encompasses ‘signal’, providing ‘moral support’, ‘encouragement’, approval to the accomplishment of the actual crime. Thus, the act of ‘instance’ being an intangible act is not required to be proved by direct evidence. It is to be inferred from circumstances and relevant facts divulged.
231. We have already found that there had been culpable alliance of ICS leaders with the camp and activities carried out there. Be that as it may, the accused who was a significantly potential leader of ICS of course was concerned with the common plan and design. Context, purpose of bringing non[-]combatant freedom fighters and pro-liberation civilians to the AB camp on capture and inevitable culpable association of accused Mir Quasem Ali with the camp allow even a man of reasonable prudence that he was deliberately concerned with the entire course of criminal conduct.
238. [The a]ccused’s potential and leading position in the ICS fanned the flames of his domination and inducement even over the AB force at the camp at Dalim Hotel in Chittagong. By choosing to be present at the AB camp where the civilian detainees were subjected to torture and tortured to death the accused Mir Quasem Ali took a[n] encouraging step which substantially facilitated and contributed to the commission of crimes.
239. The above crucial facts all together offer an unambiguous conclusion that accused Mir Quasem Ali had culpable and effective association with the camp and had a significant position of authority on it and activities carried out there and that he was quite ‘aware’ of criminal acts perpetrated by AB men at the torture camp by bringing and keeping the pro-liberation civilians captive there on forcible capture. The Tribunal notes that ‘abetting’ encompasses the act of facilitation, encouragement or instigation to the commission of the principal crime.
The criminal activities constituting the offences alleged were carried out at the ‘instance’ of the accused – the charge framed alleges. The act of ‘instance’ encompasses ‘signal’, providing ‘moral support’, ‘encouragement’, ‘approval’, ‘guidance’ to the accomplishment of the actual crime. Thus, the act of ‘instance’ being an intangible act is not required to be proved by direct evidence. It is to be inferred from circumstances and relevant facts divulged.
359. On totality of evidence and circumstances disabused above, it has been proved that accused Mir Quasem Ali accompanied the gang of armed of AB men in accomplishing the act of violent capture of non[-]combatant civilians by launching attack. The series of criminal activities including the act of forcible capture carried out was of course in furtherance of common plan and purpose. Accused’s act of ‘accompanying’ by itself denotes that he was a part of common plan and design and had ‘participation’ to the act of confinement and torture too as the integrated chain of his acts and conduct, amid and subsequent to act of abduction, formed part of attack that in fact substantially contributed and facilitated the whole system transaction of the criminal acts constituting the offences of abduction, confinement and torture perpetrated by the AB members of the camp.
. At the same time, accused’s control and substantial influence on the AB camp and its members that has already been revealed in the preceding deliberation on other charges coupled with his admitted potential status in the Chittagong ICS directs to the conclusion that not only he accompanied the perpetrators but also ‘guided’, ‘influenced’ and ‘induced’ them to accomplish the actual commission of the act of capture of selected civilians that eventually resulted in their confinement and torture at the AB camp at Dalim Hotel. Considering the context and relationship of accused with the AB men and the AB camp, as found from evidence of P.W.18 and P.W.19 it would be quite logical to be with the inference that such ‘influence’, ‘guidance’ and ‘inducement’ rather directed the perpetrators in committing the series of criminal acts including the act of ‘abduction’.
In 1994, in a report to UNESCO on measures to implement the 1954 Hague Convention for the Protection of Cultural Property, Australia noted that at the most elementary level of training provided for all members of the armed forces, it was emphasized that: “Individual officers and soldiers will be held accountable for any violations [of the rules of the LOAC].”
In 2000, during a debate in the UN Security Council regarding the protection of UN personnel, associated personnel and humanitarian personnel in conflict zones, Australia stated:
Governments must also denounce – and denounce strongly – attacks against United Nations personnel and humanitarian workers and take all measures to bring perpetrators of violence to justice. Impunity, as so many of my colleagues have emphasized in this discussion, cannot be allowed.
The enforcement of international humanitarian law must also be strengthened in order to bring those responsible to justice and to send a clear message of the international community’s intolerance of this violence.