Practice Relating to Rule 158. Prosecution of War Crimes
Australia’s Commanders’ Guide (1994) states:
Nations are required to search out, prosecute, and if necessary, extradite individuals who are suspected of breaches of LOAC. Other war crimes may be so serious as to warrant or justify instituting criminal prosecutions. In some cases serious war crimes will result in a formal war crimes trial.
The manual further states:
Notwithstanding the practical difficulties that may be experienced in bringing enemy war criminals to trial, ADF [Australian Defence Force] members should not underestimate the resolve of the Australian Government to vigorously prosecute war criminals. Given Australia’s demonstrated support for human rights, ADF members can expect that appropriate action will be taken should they violate LOAC. An international fact-finding commission has been established to investigate LOAC breaches. Australia has accepted the operation of this commission.
Australia’s War Crimes Act (1945), as amended in 2001, gives Australian courts jurisdiction over individuals accused of war crimes committed during the Second World War. The Act defines a war crime as a serious crime 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 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 for the punishment of grave breaches of the 1949 Geneva Conventions and the 1977 Additional Protocol I. It states:
(1) 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.
(3) This section applies to persons regardless of their nationality or citizenship.
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); and “War crimes that are grave breaches of Protocol I to the Geneva Conventions” (Sections 268.95–268.101). The Act includes the penalty to be imposed by Australian courts for each of these crimes.
In the Polyukhovich case before Australia’s High Court in 1991, in which the accused, charged with crimes committed during the Second World War, challenged the validity of the War Crimes Act to the imputed crimes, the Australian government argued that the War Crimes Act expressed an obligation
to search out, bring to trial and, if found guilty, to punish war criminals”. In satisfying that obligation, it was said, Australia may itself prosecute and punish or it may extradite the offender to the country where the offence is alleged to have been committed.
In his judgment, Judge Brennan found that “[i]n the present case, there is no evidence of widespread State practice which suggests that States are under a legal obligation to seek out Axis war criminals and to bring them to trial. There is no opinio juris supportive of such a rule”.
In his judgment, Judge Toohey agreed with Judge Brennan’s conclusion that there was no evidence of a customary international law that States are under a legal obligation to seek out Axis war criminals and bring them to trial.
In 2000, during a debate in the UN Security Council on the protection of UN personnel, associated personnel and humanitarian personnel in conflict zones, the representative of 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.
In 2009, in a ministerial statement on Afghanistan before the Senate, Australia’s Minister for Defence stated:
[Australia] will continue to make every effort to reduce the risks posed to civilians by our military activities. We are also committed, publicly, to investigating all claims of Australian involvement in civilian casualties in an open and transparent manner. All civilian deaths are a tragedy and our forces work very hard to avoid them.
In 2009, in a statement before the UN Human Rights Council, the ambassador and permanent representative of Australia stated:
We listened carefully to Justice Goldstone this morning on the results of the Fact-Finding Mission on the Gaza conflict. Australia again calls on the parties to undertake the proper investigation of any allegations of violations of human rights and international humanitarian law.
In 2009, in a response to a question without notice on Sri Lanka in the House of Representatives, Australia’s Minister for Foreign Affairs stated:
I made the point [to the government of Sri Lanka] that Australia has made publicly in the past, that at the end of the conflict there are very many allegations of atrocities and breaches of human rights. We expect that these atrocities will be independently and credibly investigated. We welcome the fact that Sri Lanka has responded to the report of the United States Department of State by establishing a commission of inquiry. We will watch that very closely and we hope that that will be a credible and independent investigation of these allegations made on both sides of the conflict.
In 2010, in a ministerial statement on Sri Lanka before the House of Representatives, Australia’s Minister for Foreign Affairs stated: “Australia has called on the Sri Lankan government to investigate allegations of human rights violations and violations of international law. Proper and transparent investigation of these allegations is an important step towards reconciliation.”
In 2010, in a statement before the UN Human Rights Council on the situation of human rights in Sudan, the permanent representative of Australia stated:
Australia calls on Sudan to ensure that all human rights abuses and international humanitarian law violations are duly investigated. Perpetrators should be brought to justice promptly, particularly individuals with command responsibility.
Australia’s Defence Force Manual (1994) provides:
Where an individual seeking asylum in a neutral state is alleged to have committed grave breaches of LOAC, and a prima facie case can be established, the neutral state is obligated either to place the individual on trial or hand them over to another party to the Geneva Conventions for trial.
Australia’s LOAC Manual (2006) states:
Where an individual seeking asylum in a neutral state is alleged to have committed grave breaches of the LOAC, and a prima facie case can be established, the neutral state is obligated either to place the individual on trial or hand them over to another party to the Geneva Conventions for trial.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).