Practice Relating to Rule 156. Definition of War Crimes
Australia’s Defence Force Manual (1994) states:
War crimes are illegal actions relating to the inception or conduct of armed conflict. They may be viewed as any violation of LOAC (either customary or treaty law which is committed by any person).
The manual adds:
War crimes which are directed against protected persons or facilities under the Geneva Conventions or the Additional Protocols fall within two main categories. The more serious violations are termed grave breaches and the less serious are simple breaches.
Australia’s LOAC Manual (2006) states:
13.24 The Geneva Conventions introduced a new concept, that of “grave breaches”. These are war crimes of such seriousness as to invoke universal jurisdiction … [The 1977 Additional Protocol I] extended the definition of grave breaches. Other serious offences against “the laws and customs of war” whether proscribed by treaty or by customary law remain war crimes and are punishable as such.
13.27 Aside from grave breaches of the Conventions and Protocols, other serious violations of the LOAC constitute war crimes and are punishable as such.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s War Crimes Act (1945) considers that:
Unless the contrary intention appears, …
“war crime” means –
(a) a violation of the laws and usages of war; or
(b) any war crime within the instrument of appointment of the Board of Inquiry [set up to investigate war crimes committed by enemy subjects]
committed in any place whatsoever, whether within or beyond Australia, during any war.
Australia’s War Crimes Act (1945), as amended in 2001, under the heading “War crimes”, states:
(1) A serious crime is a war crime if it was committed:
(a) in the course of hostilities in a war;
(b) in the course of an occupation;
(c) in pursuing a policy associated with the conduct of a war or with an occupation; or
(d) on behalf of, or in the interests of, a power conducting a war or engaged in an occupation.
(2) For the purposes of subsection (1), a serious crime was not committed:
(a) in the course of hostilities in a war; or
(b) in the course of an occupation;
merely because the serious crime had with the hostilities or occupation a connection (whether in time, in time and place, or otherwise) that was only incidental or remote.
(3) A serious crime is a war crime if it was:
(i) in the course of political, racial or religious persecution; or
(ii) with intent to destroy in whole or in part a national, ethnic, racial or religious group, as such; and
(b) committed in the territory of a country when the country was involved in a war or when territory of the country was subject to an occupation.
(4) Two or more serious crimes together constitute a war crime if:
(a) they are of the same or a similar character;
(b) they form, or are part of, a single transaction or event; and
(c) each of them is also a war crime by virtue of either or both of subsections (1) and (3).
In the Polyukhovich case before Australia’s High Court in 1991, in which the accused was charged with crimes committed during the Second World War, certain judges addressed the nature of war crimes. Judge Brennan stated:
A war crime in international law consists in a violation of those laws and customs of war … which oblige belligerents to abstain from prescribed anti-humanitarian acts in the waging of armed conflicts. The laws and customs of war are prohibitory in nature; they do not authorize the use of force.
Judge Toohey stated: “War crimes in international law are contraventions of the laws and customs of war recorded in such documents as the Hague Conventions of 1907 and in military manuals.”
Judge Toohey added: “There is no doubt that war crimes were crimes in international law during World War II.”
In 2000, in the SRNN case, Australia’s Administrative Appeals Tribunal stated:
63. … There would seem to be no reason why grave breaches of the Geneva Conventions of 1949 should amount to war crimes only within the confines of international conflicts. The clear implication of the recent developments that have occurred with the establishment of both the specialist tribunals for dealing with war-related atrocities in the former Yugoslavia and in Rwanda, as well as the more recent Statute of Rome, all point to a broader definition of such crimes.
71. The actions committed by Mr SRNN amount, in the Tribunal’s view, to war crimes within the terms of Article 3 of the Geneva Conventions of 1949 as contended by the respondent. Mr SRNN was well aware of the purpose of the torture that he inflicted during his various interrogations, and he shared that purpose and was prepared to refer persons for more severe torture if they failed to provide satisfactory responses to his own form of questioning. Mr SRNN was also well aware of the nature of the Sri Lankan Army’s methods of handling LTTE [Liberation Tigers of Tamil Eelam] and other suspects including, during his second tour of duty, knowledge of the existence of special torture chambers in Colombo where persons were routinely killed. In the circumstances there are no reasons why he should not be found to be fully responsible for his actions, even though he was part of a military and political regime that encouraged and supported the war crimes that he committed.
In 2002, in the SAH case, Australia’s Administrative Appeals Tribunal stated:
58. There is no question that the applicant was a member of the Iraqi Army at the time such war crimes and crimes against humanity were committed. He admits that he knew about atrocities and events such as those to which I have referred in the course of these reasons. He denies, however, that he played any part in them and that, at all times, he was an administrative officer engaged solely in the distribution of supplies such as food, clothing and shoes and in the payment of salaries. …
59. In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime. Apart from being a member of, and indeed an officer of, the Iraqi Army at all relevant times, there is no evidence pointing to the applicant’s having played such a role. … The applicant has admitted knowledge of the activities of the Iraqi Army but knowledge of itself does not mean that he was a part of the common purpose or aided or abetted those activities. There is no evidence that he acquired knowledge of the activities before they were carried out and so became part of their planning or a key element in their being carried out or whether he acquired knowledge at some later stage. There is no evidence that he acquired his knowledge while he played some role in carrying them out. Indeed, there is no evidence that he played any role at all.
In 2002, in the AXOIB case, Australia’s Administrative Appeals Tribunal stated:
27. Violations of the laws or customs of war may amount to “war crimes”. Such violations may include murder, ill treatment or deportation to slave labour or for any other purpose of members of the civilian population of or in an occupied territory, murder or ill treatment of prisoners-of-war, or persons on the seas.
32. I also accept the correctness of the view of Deputy President Chappell in SRNN v DIMA (supra) where he observed that there is no reason “why grave breaches of the Geneva Convention of 1949 should amount to war only within the confines of international conflict”.
33. Article 6 of the … [Nuremberg Charter] provides that “leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan
”. Article 25 of the Rome Statute provides an even broader definition of criminal complicity. By any standard of criminal complicity or accessorial liability applicable in this country, the applicant would be beyond the protection of the Convention if there are serious reasons for considering that he aided and abetted either war crimes or crimes against humanity by reporting individuals to Perera or the security forces if he knew the outcome of his impugned conduct was likely to be torture or murder of those individuals. In the circumstances his intent to achieve such outcome could and should be inferred in my opinion.
In 2002, in the SAL case, Australia’s Administrative Appeals Tribunal stated:
In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.
In 2002, in the VAG case, Australia’s Administrative Appeals Tribunal stated:
66. In order to bear criminal responsibility for an act under the Rome Statute, a person need not have directly committed that act him or herself. He or she must, however, have aided, abetted or otherwise assisted in its commission or attempted commission or have contributed to its commission or attempted commission by persons acting with a common purpose. The person must act intentionally and must have knowledge of the intention of the group to commit the crime.
75. In the absence of any evidence that the killing of the two prisoners was carried out according to a judicial order properly obtained, it does amount to a war crime or a crime against humanity. Do VAG’s actions in sending them on mean that was part of the common purpose in carrying out those activities. He participated in the ultimate result by sending the prisoners on to the headquarters. He was part of the PUK [Patriotic Union of Kurdistan], some of whose members killed two of those prisoners, but he was not present at the time and disclaimed knowledge of what would happen. In that sense, VAG was at arm’s length from the killings that ultimately occurred and there is no evidence to suggest that he was able to prevent their occurring. Unlike an informer who may be able to choose whether or not he passes on information, this was not a case in which VAG could choose not to send the prisoners as he had been directed to do without consequence to himself. In that case and given his distance from the killings themselves, I do not consider that he can be said to have been part of any common purpose in carrying out the killings. As they are the only specific crimes that are crimes against humanity or war crimes, I do not consider that VAG was part of a common purpose and so was not an accessory to them.
76. With regard to the wider war crimes and crimes against humanity committed by the PUK, I do not consider that the evidence supports a finding that there are serious reasons for considering that VAG was in a position where he could influence the course of events. Certainly, he was a long standing member of the PUK and a member who drew a number of people into the PUK but there is no evidence that he participated in acts of atrocity, was present at any as a bystander or instigated or directed any. There is no evidence that he initiated events that led to any such acts.
In 2004, in the SRDDDD case, Australia’s Administrative Appeals Tribunal stated:
58. The Tribunal is satisfied that there are serious reasons for considering that the Applicant did commit, and was within the meaning of the Rome Statute, criminally responsible for, committing crimes against humanity and war crimes. The evidence against the Applicant in this regard is strong. However, the Tribunal is also satisfied that there are serious reasons for considering that the Applicant committed the relevant crimes as a consequence of his political motivation. That is, the Applicant’s motives for committing the crimes were significantly political in nature. It is not a minority motivation that was political. The conduct engaged in by the Applicant would not have been committed in the absence of political motivation.
59. However, as earlier indicated in these reasons, Article 1F [of the 1951 Refugee Convention] requires only one of the enumerated subparagraphs to be considered. The paragraphs are to be taken as independent the one from the other, the political flavour of Article 1F(b) not being relevant to a construction of Article 1F (a) or 1F (c). As earlier found in these reasons, each sub-article is intended to embrace a distinct factual situation; the “serious non-political crime” in (b) being a different offence comprised of a different factual situation to the crime against peace, “the war crime” or “crime against humanity” in (a). Thus consistent with this construction of the Article, if the factual situation leads a decision-maker to the opinion that there exists serious reasons for considering that a war crime or a crime against humanity has been committed by an Applicant, it is of no defence to that Applicant for the Tribunal of fact to also be satisfied that there are serious reasons for considering that he has committed a serious non-political crime, and thereby that the crimes committed by him were politically motivated.
60. The Tribunal being satisfied that there are serious reasons for considering that the Applicant has committed war crimes and crimes against humanity Article 1F applies so as to preclude the Applicant from protection under the Refugees Convention.
In 2005, in the SRYYY case, the Federal Court of Australia noted:
49 Perhaps the most significant change in terms of scope and content of individual criminal responsibility since the Second World War has been the recent acceptance that war crimes for which an individual may be criminally responsible may be committed in situations of internal armed conflict. As recently as 1994, the Commission of Experts established pursuant to Security Council Resolution 780 to report on questions relating to breaches of humanitarian law in the former Yugoslavia concluded that “there does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes” and, consequently, “the violations of the laws or customs of war referred to in article 3 of the statute of the International Tribunal are offences when committed in international, but not in internal armed conflicts” (Annexure to the Final Report of the Commission of Experts established pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674 at  and ). The situation under customary law was also reflected in the international instruments which dealt with war crimes up to and including the Statute of the ICTY. That changed in 1994 with the Statute of the ICTR and in 1995 with the ICTY’s decision in Tadic. In Tadic the ICTY held at  that customary international law did contain an offence of war crimes committed during internal armed conflict, and imported such an offence into Art 3 of the ICTY Statute. However, war crimes are defined so as to include conduct occurring in an internal armed conflict under the Statutes of the ICTY and the ICTR, the Draft Code of Crimes and the Rome Statute, but were not so defined in the earlier instruments.
75 In our view the Rome Statute was drawn up to provide for the crimes it defined and purported to define those crimes as crimes that had crystallised into crimes in international law as at the date of the Statute, notwithstanding that the Statute was to come into force, and the ICC was to be established, at a later date.
76 For the above reasons we are of the view that the definitions of crimes against humanity and war crimes contained in Arts 7 and 8(2)(c) of the Rome Statute respectively were appropriate definitions for the AAT [Administrative Appeals Tribunal] to apply and that the AAT did not err in law in applying those definitions. It is therefore unnecessary to consider whether, by his conduct in relying on the definitions in the Rome Statute before the AAT, the appellant was precluded in any event from asserting that the AAT had fallen into jurisdictional error when applying those definitions.
[emphasis in original]
In 2006, in the SZCWP case, Justice Downes, in a majority decision of the full bench of the Federal Court of Australia, stated:
107. In SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs  FCAFC 42 … a Full Court of the Federal Court held that it was appropriate to refer to Articles 7 and 8 of the Rome Statute of the International Criminal Court for definitions of “Crimes against humanity” and “War crimes”.
114. … Internal disturbances and tensions are excluded. There must be an armed conflict although it need not be of an international character. Criminal responsibility attaches to aiding, abetting and assisting or in any other way contributing to the commission or attempted commission of such a crime where there is a group acting with a common purpose and the contribution is intentional and with at least knowledge of the intention to commit the crime. (See paragraph 2(f) of Article 8 and Article 25 of the Rome Statute).
In its declaration upon ratification of the 1998 ICC Statute in 2002, Australia stated:
Australia further declares its understanding that the offences in Article 6, 7 and 8 [related to Genocide, Crimes Against Humanity and War Crimes, respectively] will be interpreted and applied in a way that accords with the way they are implemented in Australian domestic law.