Practice Relating to Rule 88. Non-Discrimination
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 to 2007, states with respect to war crimes that are grave breaches of the 1977 Additional Protocol I:
War crime – apartheid
A person (the perpetrator) commits an offence if:
(a) the perpetrator commits against one or more persons an act that is a proscribed inhumane act or is of a nature and gravity similar to any proscribed inhumane act; and
(b) the perpetrator knows of, or is reckless as to, the factual circumstances that establish the character of the act; and
(c) the perpetrator’s conduct is committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups; and
(d) the perpetrator intends to maintain the regime by the conduct; and
(e) the conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates into the Criminal Code the crimes against humanity defined in the 1998 ICC Statute, including apartheid.
In addition, the Act incorporates into the Criminal Code the war crimes that are grave breaches of the 1977 Additional Protocol I, including apartheid.