Соответствующая норма
Australia
Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Australia’s Defence Force Manual (1994) states that the law of armed conflict “establishes a requirement to distinguish between combatants and civilians, and between military objectives and civilian objects”. This requirement imposes obligations on all parties to a conflict to establish and maintain the distinction.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 504.
Australia’s LOAC Manual (2006) states:
The LOAC establishes a requirement to distinguish between combatants and civilians, and between military objectives and civilian objects. This requirement imposes obligations on all parties to a conflict to establish and maintain the distinction.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 5.4; see also §§ 2.11 and 9.13.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Defence Force Manual (1994) states: “Military operations must only be conducted against enemy armed forces and military objects.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 210.
Australia’s LOAC Manual (2006) states: “Military operations must only be conducted against military objectives, including combatants”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 2.11; see also § 5.16.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Upon ratification of the 1977 Additional Protocol I, Australia stated:
It is the understanding of Australia that the first sentence of paragraph 2 of Article 52 is not intended to, nor does it, deal with the question of incidental or collateral damage resulting from an attack directed against a military objective.
Australia, Declarations made upon ratification of the 1977 Additional Protocol I, 21 June 1991, § 5.
According to Australia’s Commanders’ Guide (1994), “making the civilian population or individual civilians the object of attack” is an example of acts which constitute “grave breaches or serious war crimes likely to warrant 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(g).
Australia’s Defence Force Manual (1994) states: “Attacks directed against the civilian population or civilian objects are prohibited.”
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 503; see also Law of Armed Conflict, Commanders’ Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 405.
The manual also states that “making the civilian population or individual civilians the object of attack” is an example of acts which constitute grave breaches or serious war crimes likely to warrant institution of criminal proceedings”.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1315(g).
Australia’s LOAC Manual (2006) states:
Targeting principles
5.3 Targeting is premised on the basic principles set out in chapter 2.– “Principles of the law of armed conflict”. These principles lead to the following rules:
…
• attacks directed against the civilian population or civilian objects are prohibited; and
• distinction must be drawn between combatants and non-combatants, with every effort being made to avoid involving non-combatants in the conflict.
…
Non-combatants
5.18 Non-combatants may not be attacked, although the LOAC recognises that, in certain circumstances, unavoidable non-combatant casualties may occur during operations.
…
5.21 Civilians. Civilians must be protected from the dangers of military operations. They must not be the object of attack …
5.22 Refugees and displaced persons … Refugees and displaced persons are civilians and as such are protected persons and must be afforded corresponding protection.
…
Protection of civilians and civilian objects
5.35 There is a fundamental rule that parties to a conflict must direct their operations only against military objectives. G. P. I [1977 Additional Protocol I] expressly provides that the civilian population and civilian objects are to be protected against attack.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, §§ 5.3, 5.18, 5.21–5.22 and 5.35; see also §§ 2.8, 2.11, 4.30, 9.17 and 9.18
The manual also states:
[The 1977 Additional Protocol I] extends the definition of grave breaches to include the following … acts when committed wilfully, in violation of the relevant provisions of the protocol, and causing death or serious injury to body or health:
• making the civilian population or individual civilians the object of attack.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.26.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Geneva Conventions Act (1957), as amended in 1991, provides: “A person who, in Australia or elsewhere, commits a grave breach … of [the 1977 Additional Protocol I] is guilty of an indictable offence”.
Australia, Geneva Conventions Act, 1957, as amended in 1991, 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 serious war crimes committed in an international armed conflict:
268.35 War crime – attacking civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is a civilian population as such or individual civilians not taking direct part in hostilities; and
(c) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.35, p. 326.
The Act also states with respect to war crimes committed in a non-international armed conflict:
268.77 War crime – attacking civilians
A person (the perpetrator) commits an offence if:
(a) the perpetrator directs an attack; and
(b) the object of the attack is a civilian population as such or individual civilians not taking direct part in hostilities; and
(c) 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.
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.77, p. 354.
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “attacking civilians” in international and non-international armed conflicts.
Australia, ICC (Consequential Amendments) Act
, 2002, Schedule 1, §§ 268.35 and 268.77.
In 2004, in the SZAOG case, Australia’s Federal Court stated:
Targeting a civilian population in civil conflict is a breach of humanitarian standards. For instance, the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts [Additional Protocol II], opened for signature Dec. 12, 1977, art. 13, 1124 U.N.T.S. 609, 16 I.L.M. 1442 (1977) art 13. (entered into force 8 June 1977) provides that the civilian population shall enjoy general protection against the dangers arising from military operations and shall not be the object of attack.
Australia, Federal Court, SZAOG case, Judgment, 26 November 2004, § 17.
In 1996, during a debate in the UN General Assembly following the shelling of the UN compound at Qana, Australia stated that all attacks against civilians were totally unacceptable and contrary to the norms of international law.
Australia, Statement before the UN General Assembly, UN Doc. A/50/PV.116, 25 April 1996, p. 6.
In 2009, in a ministerial statement before the House of Representatives on the humanitarian crisis in Sri Lanka, Australia’s Minister for Foreign Affairs stated: “We again condemn the LTTE’s [Liberation Tigers of Tamil Eelam’s] targeting of civilians in or departing the conflict zone.”
Australia, House of Representatives, Minister for Foreign Affairs, Ministerial statement: Humanitarian Crisis in Sri Lanka, Hansard, 12 May 2009, p. 3502.
