Practice Relating to Rule 99. Deprivation of Liberty
Australia’s Commanders’ Guide (1994) states that unlawful confinement of a protected person is a grave breach of the 1949 Geneva Conventions and warrants the institution of criminal proceedings.
Australia’s LOAC Manual (2006) states:
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:
• … unlawful confinement.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Under Australia’s War Crimes Act (1945), as amended in 2001, the internment of a person in a death camp or a slave labour camp is a serious war crime.
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.”
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:
War crime – unlawful confinement
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines or continues to confine one or more persons to a certain location; 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 17 years.
(2) Strict liability applies to paragraph (1)(b).
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “unlawful confinement” in international armed conflicts.
On 4 October 2005, in response to a Question on Notice in the Senate regarding Australia’s policy on rendition: “Does the Government approve or disapprove of the United States of America’s policy of rendition, that is, kidnapping people for transfer to, and interrogation in, third countries which permit torture”, the Minister representing the Attorney-General responded: “The Government’s policy is that persons should only be transferred to another country through recognised legal means or where legal authority exists, such as extradition.”