What is a war crime?
A “war crime” is conduct that constitutes a serious violation of international humanitarian law (IHL).
IHL is the law that regulates armed conflict. IHL seeks to limit the effects of armed conflicts through measures such as prohibiting intentionally killing civilians, causing unnecessary suffering, and causing excessive destruction.
Examples of war crimes include intentionally targeting civilians, torturing prisoners, committing sexual violence, and using banned weapons.
War crimes can be prosecuted under both international law and domestic Australian criminal law.
International Criminal Court (ICC)
The International Criminal Court (ICC) investigates and prosecutes grave crimes of international concern, such as war crimes.
The ICC was established by the Rome Statute. 123 countries (including Australia) are States Parties to the Rome Statute and are consequently State Parties to the ICC.
Under the Rome Statute, the ICC can exercise jurisdiction over four core categories of international crimes: war crimes, genocide, crimes against humanity, and the crime of aggression.
The ICC can only prosecute individuals, in circumstances where it views that the relevant country is “unwilling or unable” to prosecute domestically.
The ICC could therefore prosecute Australian citizens for offences such as war crimes if it believed that the Australian government was failing to properly investigate the alleged offences.
War crimes under Australian law
War crimes are offences under Australian criminal law and are criminalised under Division 268 of the Criminal Code Act 1995 (Cth). Division 268 lists 78 different war crimes offences, including:
- Wilful killing, torture, mutilation, or inhumane treatment.
- Attacking civilians or civilian objects or other protected persons or objects.
- Destruction and appropriation of property.
- Compelling service in hostile forces.
- Unlawful deportation, transfer, or confinement.
- Employing prohibited weapons, poison, prohibited gases, liquids, materials, or devices.
- Rape, sexual slavery or enforced prostitution.
- The use of child soldiers.
While some of these offences, such a wilful killing, can be prosecuted as an ordinary domestic offence, they will be considered a war crime if the offence took place during an armed conflict.
Division 268 has extended geographic jurisdiction; also known as universal jurisdiction. The provision means that Australia can prosecute an alleged offender regardless of their nationality or whether the alleged conduct occurred in Australia or another country.
Under Division 268, figures of military authority, such as a General or Chief, can be held criminally responsible for the actions of their subordinates. This is referred to as “command responsibility” in international law.
Penalties
The maximum penalty a person can receive for a war crime is life imprisonment. However, the offences generally carry maximum penalties of between 15-25 years imprisonment.
Corporations may also be found liable for war crimes under Division 12 of the Criminal Code Act. Corporations can face fines between $666,000 to $2,230,000 for each conviction of a war crime.
Investigation and prosecution of war crimes in Australia
As commonwealth offences, war crimes are typically investigated by the Australian Federal Police (AFP) and prosecuted by the Commonwealth Department of Public Prosecutions (CDPP).
In January 2021 the Australian Government established the Office of the Special Investigator (OSI), an independent Commonwealth agency to investigate specific allegations of criminal misconduct that took place in Afghanistan, that might amount to war crimes.
Australian Federal Police (AFP)
As the commonwealth agency responsible for investigating any breaches of the Criminal Code Act, the AFP not only works with the OSI but also carries out its own investigations into war crimes.
The AFP previously investigated war crimes arising from the conflicts in the Former Yugoslavia and the Democratic Republic of the Congo.
In 2023, the AFP set up a new joint taskforce to carry out “Operation Emerald”, which will investigate Ben Roberts-Smith’s alleged involvement in the execution of three Afghan captives. The new joint taskforce will be staffed by officials from the OSI, and AFP investigators.
Commonwealth Department of Public Prosecutions (CDPP)
The CDPP is an independent prosecution service established by Parliament to prosecute alleged offences against the Commonwealth Criminal Code.
The CDPP can receive referrals from the AFP and will receive referrals from the OSI. The CDPP decides whether to prosecute the referrals. In making this decision, the CDPP will consider the strength of the evidence and whether prosecution is in the public interest.
The Brereton Report and the Office of the Special Investigator (OSI)
In March 2016, the Inspector-General of the Australian Defence Force was asked by the Chief of the Army to inquire into rumours of serious misconduct by Australia’s Special Forces in Afghanistan between 2005 to 2016. Some of the rumours potentially disclosed war crimes.
Major General the Honourable Paul Brereton AM RFD investigated the allegations, using the specialist powers of the Inspector-General’s office, and in November 2020 the Inspector-General released the results of the Afghanistan Inquiry to the public (the “Brereton Report”).
The Brereton Report found credible information relating to 23 incidents of alleged unlawful killing, and recommended that 40 matters be referred for criminal investigation by the AFP.
The Office of the Special Investigator (OSI) was subsequently established to further investigate the incidents identified in the Brereton Report.
The OSI now works with the AFP to investigate the allegations of criminal offences under Australian law arising from or related to any breaches of IHL, by members of the Australian Defence Force in Afghanistan from 2005 to 2016.
The OSI develops briefs of evidence in respect of any offences that are established, for referral to the CDPP.
Defences to war crimes
There are two types of defences to war crimes under Division 268 of the Criminal Code Act:
- General defences: These are defences that can be relied on for most offences in the Criminal Code Act. Examples of these defences include mistake or ignorance of fact.
- Superior order defence: Specific to Division 268, the defendant may argue that the crime was committed under the order of the government or a superior officer, and as such the defendant was under a legal obligation to obey the order.
How can we help you?
Nyman Gibson Miralis provides expert advice and representation in complex international criminal investigations and prosecutions, including cases of alleged war crimes.
Contact us if you require assistance.
