Related Rule
Australia
Practice Relating to Rule 89. Violence to Life
Australia’s Commanders’ Guide (1994) states that wilful killing is a war crime which warrants the institution of criminal proceedings. 
Australia, Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(a).
Australia’s Defence Force Manual (1994) provides: “Attempts upon the lives [of the wounded and sick and shipwrecked], and violence against them is prohibited. They shall not be murdered.” It further states that “wilful killing” is a grave breach of the 1949 Geneva Conventions which warrants institution of criminal proceedings. 
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, §§ 990 and 1315(a) and (n); see also § 945.
Australia’s LOAC Manual (2006) states:
The following acts are prohibited at any time and in any place whatsoever:
• Violence to the life, health or physical or mental well-being of persons, in particular:
– murder; and
• threats to commit any of the foregoing acts. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.46.
The manual also states that, with regard to the general treatment of protected persons in both their own territory and occupied territory, “[v]iolence … [is] forbidden”. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.58.
In its chapter on “Prisoners of War and Detained Persons”, the manual states:
Killing prisoners of war is prohibited. PW [prisoners of war] cannot be put to death for any reason including:
• because the captors are unable to provide the necessary facilities or personnel to restrict their movements;
• because they will have to be fed, thus reducing the supplies available to the captors; or
• because they may gain their liberty as a result of an early success by the forces to which they belong. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.23.
In its chapter on “Occupation”, the manual states with regard to inhabitants of occupied territory:
12.37 Any measure of such a character as to cause the physical suffering or extermination of protected persons … is prohibited. That prohibition [includes] … murder …
12.39 Measures for the control of the population which are prohibited include:
• violence. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 12.37 and 12.39.
In its chapter on “Compliance”, the manual 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:
• wilful killing
13.29 Provisions of the Hague Regulations 1907 are now recognised as part of customary law. Those regulations provide that the following acts are “especially forbidden”:
• to kill or wound treacherously individuals belonging to the hostile nation or army. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 13.25 and 13.29.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commander’s Manual (1994).
Australia’s War Crimes Act (1945) provides that “murder and massacres” and “putting hostages to death” are war crimes. 
Australia, War Crimes Act, 1945, Section 3.
Australia’s War Crimes Act (1945), as amended in 2001, identifies murder and manslaughter as “serious war crimes”. 
Australia, War Crimes Act, 1945, as amended in 2001, Sections 6(1) and 7(1).
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach of any of the [1949 Geneva] Conventions … is guilty of an indictable offence.” 
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
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:
268.24 War crime – wilful killing
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; 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 life.
(2) Strict liability applies to paragraph (1)(b). 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.24, p. 320.
The Criminal Code Act states with respect to other serious war crimes that are committed in the course of an international armed conflict:
268.40 War crime – killing or injuring a person who is hors de combat
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator kills one or more persons; and
(b) the person or persons are hors de combat; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are hors de combat; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator injures one or more persons; and
(b) the person or persons are hors de combat; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are hors de combat; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years. 
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, § 268.40, pp. 328–329.
The Criminal Code Act also states with respect to war crimes that are serious violations of Article 3 common to the 1949 Geneva Conventions and are committed in the course of a non-international armed conflict:
268.70 War crime – murder
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) 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 life.
(2) To avoid doubt, a reference in subsection (1) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities. 
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, § 268.70, p. 347.
268.76 War crime – sentencing or execution without due process
(2) A person (the perpetrator) commits an offence if:
(a) the perpetrator executes one or more persons; and
(b) the person or persons are not taking an active part in the hostilities; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and
(d) either of the following applies:
(i) there was no previous judgment pronounced by a court;
(ii) the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and
(e) if the court did not afford other judicial guarantees – those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and
(f) the perpetrator knows of:
(i) if subparagraph (d)(i) applies – the absence of a previous judgment; or
(ii) if subparagraph (d)(ii) applies – the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and
(g) 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 life.
(3) Strict liability applies to paragraphs … (2)(e).
(4) To avoid doubt, a reference in subsection … (2) to a person or persons who are not taking an active part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat; or
(b) civilians, medical personnel or religious personnel who are not taking an active part in the hostilities. 
Australia, Criminal Code Act, 1995, as amended on 1 November 2007, taking into account amendments up to Act No. 177 of 2007, Chapter 8, § 268.76, pp. 353–354.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the crimes defined in the 1998 ICC Statute: “genocide by killing”; crimes against humanity, including murder when committed “as part of a widespread or systematic attack directed against a civilian population”; and war crimes, including “wilful killing” of a person protected under the 1949 Geneva Conventions or the 1977 Additional Protocol I in international armed conflicts, and in non-international armed conflicts, murder of persons who are hors de combat and “execution without due process”. 
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, §§ 268.3, 268.8, 268.24, 268.70 and 268.76.
In its judgment in the Baba Masao case in 1947, Australia’s Military Court at Rabaul sentenced the Commanding General of the Japanese 27th Army in Borneo to death. He was held responsible for the deaths and ill-treatment of a large number of Allied prisoners of war under his control. The accused, aware of the precarious health conditions of the prisoners of war, ordered their evacuation, which proved to be fatal for many of them. Moreover, the accused was also found responsible for the murder of the remaining prisoners of war who were executed on the orders of an officer under the command of the accused. 
Australia, Military Court at Rabaul, Baba Masao case, Judgment, 2 June 1947.
All these crimes were perpetrated against [the] civilian population during the war of liberation … There is no doubt that the murders … were perpetrated in a planned and concerted manner … {F]our [minors] died on the spot … Therefore, there is no gainsaying the fact that all the ingredients of [the] offences of crimes against [h]umanity are present in this case. 
Bangladesh, Supreme Court, Molla case, Judgment, 17 September 2013, pp. 236–237. Held by majority of 3:2.
On 8 February 2005, in response to a Question in Writing in the House of Representatives regarding the future trial of Australian citizen David Hicks before a US Military Commission for his alleged role in the armed conflict in Afghanistan, Australia’s Attorney-General stated that the United States had assured Australia that “the death penalty will not be sought in either Mr Hicks’ or Mr Habib’s case”. 
Australia, House of Representatives, Attorney-General, Question in Writing: Military Detention – Mr David Hicks, Hansard, 8 February 2005, p. 160.
On 7 November 2005, in response to a Question on Notice in the Senate regarding the impending trial of Australian citizen David Hicks before a US Military Commission for his alleged role in the armed conflict in Afghanistan, the Minister representing the Attorney-General responded:
The Australian Government has discussed the Military Commission procedures with the United States. As a result of those discussions, the Government secured several additional commitments relating to Australian detainees, which include the following:
• Based upon the specific facts of his case, the United States has assured Australia that it will not seek the death penalty in Mr Hicks’ case. 
Australia, Senate, Minister representing the Attorney-General, Question on Notice: Mr David Hicks, Hansard, 7 November 2005, pp. 202–203.
On 27 February 2006, in response to a Question in Writing in the House of Representatives regarding the trial of Australian citizen David Hicks before a US Military Commission for his alleged role in the armed conflict in Afghanistan, Australia’s Attorney-General stated:
The Government has had discussions with the United States administration regarding the Military Commission system. The Government obtained additional commitments relating to Australian detainees which will apply to Mr Hicks’ case. Those commitments include the following:
- Based upon the specific facts of his case, the United States has assured Australia that it will not seek the death penalty in Mr Hicks’ case. 
Australia, House of Representatives, Attorney-General, Question in Writing: Military Detention – Mr David Hicks, Hansard, 27 February 2006, p. 150.
On 29 November 2006, in response to a Question in Writing in the House of Representatives regarding the trial of Australian citizen David Hicks before a US Military Commission for his alleged role in the armed conflict in Afghanistan, Australia’s Attorney-General stated:
I have held several discussions with US Attorney-General Gonzales, in which I … reiterated the Government’s expectation that additional safeguards negotiated previously to apply to Mr Hicks’ case will apply to any new military commission trial of Mr Hicks. A number of issues which were the focus of those safeguards have been taken up in the new legislation. The additional safeguards previously negotiated included:
• Based upon the specific facts of his case, the United States has assured Australia that it will not seek the death penalty in Mr Hicks’ case. 
Australia, House of Representatives, Attorney-General, Question in Writing: Mr David Hicks, Hansard, 29 November 2006, p. 210.