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The International Law of Armed Conflict: The Australian Application
The Mayo Lecture for 2021
8 October 2021
Major General the Honourable Justice Paul Brereton, AM, RFD[1]*
May I begin by acknowledging the traditional custodians, those of the lands where you who are listening are, the Bindal and Wulgurukaba People, and those of the lands from which I address you, the Darug and GuriNgai People. I pay my respects to their elders, past, present, and emerging, and acknowledge First Nations people in attendance today.
The Mayo Lecture was instituted in 1991 by the James Cook University Law Students’ Society, as a tribute to Marylyn Mayo’s contribution to the teaching of law at your University, and in particular the establishment there of a full law degree course. It is my privilege to follow a distinguished line of Mayo lecturers since then, to honour the memory of a remarkable woman. I am only sorry that the present circumstances prevent me from doing so in person in your beautiful city, and from enjoying a stroll along the Strand. Those same circumstances explain my somewhat scruffy appearance, for which I also apologise. But I congratulate the Law Students’ Society for deciding to proceed: it is too easy in these times to allow the pandemic to disrupt the ceremonies and rituals that are central to our civic life, and it is better to maintain them virtually than not at all, lest they fall off the calendar for the future. And, as a sometime student politician, I am delighted to support an activity sponsored by a student society
I should also like to acknowledge the assistance of Emeritus Professor Stephen Graw, who has provided background information about Marylyn of which I have made extensive use, and of my great indebtedness to the contribution of Professor Robert McLaughlin of the Australian National University, whose work has provided a great deal of my material.
Marylyn Eve Mayo (born Mason) was a New Zealander. She was one of a small group of women who graduated in law from the University of Auckland in the early 1960s – in her case, in Arts and Law, with a major in History. She was admitted as a Barrister and Solicitor of the Supreme Court of New Zealand, and worked in private practice for a while before joining the Ministry of Works as its Auckland District Solicitor. But in 1969, she crossed the ditch to take up a position as a law lecturer at what was then the Townsville University College of the University of Queensland; it would become the James Cook University of North Queensland the following year. At that time, only the first year of the LLB degree was taught at JCU, and after completing their first year, students had to transfer elsewhere to complete their degrees. Law then resided in the Department of History.
Marylyn set about promoting the establishment of a Faculty of Law and securing support for it both inside and outside the University, including of the then Vice-Chancellor, Professor Ray Golding, and of Justice Kerry Cullinane. Her goal was achieved in 1989, when a second year was added, with third- and fourth-year subjects following over the next two years. The first graduates had their degrees conferred in May 1992.
Marylyn was the inaugural Head of the new Department, until Professor Ken Sutton arrived to assume the position of Foundation Professor of Law and Dean in 1990. Securing someone of such stature was the University’s aim, but advertisements did not attract applications from a suitably eminent candidate. Marylyn knew Sutton from his time at the University of Queensland, and was aware that he was less than happy about having to retire at the compulsory retiring age. She suggested to Golding that Sutton might be amenable to taking up the chair if he were approached, but that he would not ‘apply’ for it – he would have to be offered it. And so it happened, and Sutton became the Foundation Professor, in a faculty which Marylyn had up and running by the time of his arrival.
Marylyn remained as Deputy Dean until 1993. She taught Elements of Law, Criminal Law, Contract Law, Family Law, and Jurisprudence. Her contribution to the University was not confined to Law; she was an active and enthusiastic member of the University community, a member of Council, and served on many committees. She was also President of the James Cook University Staff Association, and of the JCU Branch of the National Tertiary Education Union. Beyond the University, Marylyn was Chair of the Northern Regional Health Authority Institutional Ethics Committee for several years, often delivered presentations to government departments and community groups, and advised the Townsville Hospital Board and the Northern Regional Health Authority.
Marylyn retired from the University in 1996 – though she returned to teach for a semester in 1999 – and died in 2002. As well as by this lecture, she is remembered in the University by the Marylyn Mayo Medal, awarded annually to the student who attains the highest pass in the Bachelor of Laws with Honours. Elsewhere, her alma mater, the University of Auckland, awards a Marylyn Eve Mayo Endowment Scholarship, and houses in its law library the Marylyn Mayo Rare Book Room, donated by her husband John after her death. John also provided the capital for the establishment of the Marylyn Mayo Lodge in Cairns, which opened in 2011 and provides accommodation for patients who have to travel from Far North Queensland for cancer treatment. John, a former staff member in the Department of Economics, has been a most generous benefactor and continues a close association with the University.
My purpose in this lecture is to describe how, since 1900, in law and in practice, Australia has implemented and enforced what I will call the International Law of Armed Conflict – in earlier times it was called the Customs or Law of War, and more recently it has become an aspect of International Humanitarian Law.
In the course of doing so, I will refer to some allegations of war crimes by Australians, and suggestions of Australian reticence to report or investigate such allegations. It is not my purpose to endorse or give credence to every such allegation or suggestion. While some are supported by evidence, others may be the result of confusion, flawed recollections, and reconstructions. Many of them may well be impossible ever to resolve.
The account that follows is not an exhaustive one. It touches on only four of the conflicts in which Australia has been involved since 1900, and then incompletely. For reasons that I trust are obvious, it does not specifically address Afghanistan. And it tends to be focussed on the land, rather than the maritime or air, environment.
Between 1899 and 1902, more than 10,000 Australians served in the Second Anglo-Boer War in South Africa. They did so in formed Colonial, and later Australian, units, and as individuals in other British units. As would be the case for Australian service personnel on active service for the ensuing 85 years, the arrangements for their governance and discipline were essentially those applicable to the British Army, under the Army Act 1881 (UK) (‘the Army Act’).
Prior to Federation, contingents were raised by each of the six colonies. Four of the colonies enacted legislation applying the Army Act to their contingents in South Africa, while the other two appear to have assumed its application. In any event, s 177 of the Army Act provided that where a force raised in a colony was serving with part of Her Majesty’s regular forces, the Army Act would apply to the force to the extent that the colonial law had not made provision for its government and discipline.[1]
As the Commonwealth Parliament did not legislate with respect to defence until 1903, State laws with respect to defence continued to apply after federation.[2] So when the Commonwealth sought to raise new contingents for service in South Africa, it relied on the Army Act,[3] and the Commonwealth contingents likewise were subject to the Army Act.[4] Importantly, s 41(2) of the Army Act provided that offences punishable under the ordinary law of England, when committed on active service, could be dealt with by court martial.
The law of armed conflict applicable at this time was comprised in ‘the customs of war’, as distilled in 1899 in Chapter XIV (‘Customs of War’) of the fourth edition of the United Kingdom’s Manual of Military Law. The sources cited in it are generally classic treatises on the law of war and international law, with few references to formal instruments other than the Geneva Convention of 1864.[5] It did not refer to the 1899 Hague Conventions and Declarations, no doubt because it was finalised prior to 29 July 1899 (when the latter instruments were signed), let alone 4 September 1900 (when they came into force).[6]
Relevantly, the Customs included that ‘The right of killing an armed man exists only so long as he resists; as soon as he submits he is entitled to be treated as a prisoner of war’;[7] and that ‘The general population of the enemy’s country who form no part of the armed forces cannot justly be exposed so long as they abstain from acts of hostility, to any description of violence’.[8] However, in a practice which would also endure for many decades, breaches of the Customs of War (other than by adversaries) were to be charged and prosecuted as ‘standard’ breaches of provisions of the Army Act, or as an ‘ordinary’ crime punishable under the law of England, rather than as breaches of the relevant ‘custom’ of itself, although the custom might provide the context. Offences which were employable in relation to breaches of the Customs of War included the military offence of ‘Wilful damage to or destruction of property without orders’ (Army Act, s 5(2)), and, through the vehicle of s 41(2), the ‘ordinary’ offence of murder, on active service.
In 1901 there was less clarity than now, at least in some respects, as to whether the label ‘breach of the customs of war’, and even more so criminal responsibility, attached to some acts that would today clearly be war crimes.[9] The British ‘scorched earth’ strategy, which involved destroying or seizing Boer civilian property and crops, confiscation of Boer horses, cattle, and wagons, and evicting Boer civilians from their homes and farms, is one example. This policy, implementation of which many of the Australians found distasteful,[10] was officially sanctioned.[11] The legal ambiguity associated with such policies persisted for many years.[12] At the time it was borderline, but as part of the campaign plan was not considered to be clearly unlawful. However, in the Boer War as elsewhere, such treatment of the local population, while intended to undermine morale, in fact had the opposite effect,[13] a lesson which has not always been remembered.
There were many reports of breaches of the customs of war, on both sides of the conflict, including mistreatment and killing of prisoners and civilians. In the Peace Treaty of Vereeniging (31 May 1902), an exception to the general amnesty in Article 4 in respect of ‘any Acts in connection with the prosecution of the War’ was reserved for ‘certain Acts contrary to the usage of War ... which shall be tried by Court Martial immediately after the close of hostilities’,[14] pursuant to which the British tried a number of Boers for murder.[15]
One author wrote that by late 1901, the guerrilla war was fast brutalising both adversaries, and that ‘The worst scandals on the British side concerned colonial irregulars – Australians, Canadians and South Africans – whose official contingents, ironically, had won a reputation for gallantry in so many set-piece battles’.[16] Of these, the ‘most notorious case involved a special anti-commando unit, raised by Australians to fight in the wild northern Transvaal, and called the Bush Veldt Carbineers’.[17]
The BVC was not in fact raised by Australia, but it had a significant Australian component. The ‘Breaker Morant’ case has long been the subject of controversy;[18] it is often referred to as Britain’s first war crimes trial. Following the killing of a German missionary and prisoners at Fort Edward, one BVC trooper, Robert Cochrane, who had been a Justice of the Peace in Western Australia, wrote a letter, co-signed by another fifteen troopers, calling for ‘an exhaustive and impartial inquiry into the following disgraceful incidents which have occurred in the Spelonken district in order that the exact truth may be elicited and the blame attributed to those responsible’. The ‘disgraceful incidents’ described were ‘the shooting of six surrendered Boer prisoners who had been entirely disarmed and who offered no resistance whatsoever .... The shooting of Trooper van Buren BVC by Lt Handcock BVC ... the shooting of a surrendered and wounded Boer prisoner, Visser ... shooting eight surrendered Boer prisoners and one German missionary ... Lt Hannam BVC and party fired on wagons containing women and children ... killing 2 children of tender years and wounding one little girl ... shooting 2 men and a boy who were coming in to surrender’. The letter was smuggled by two troopers to a superior commander.[19] A board of inquiry ensued, following which Lieutenants Handcock, Morant, and Witton, amongst others, were tried by court martial for what today could be classified as the war crime of wilful killing of civilians or prisoners. However, conformably with the practice of charging war crimes other than by an adversary as a ‘standard offence’, they were charged with the offence of murder whilst on active service, as distinct from unlawfully killing prisoners or civilians contrary to the customs of war. In relation to some of the charges, the accused did not dispute that they had killed certain prisoners, but argued that they were following an order to take no prisoners. Such an order (if given, which may be doubted) would clearly have been in breach of the customs of war as explained in the 1899 Manual of Military Law. Morant – who had lived in Australia for ten years before the war and had achieved minor celebrity and notoriety for his horsemanship, poetry, and confidence trickery[20] – and Handcock, a Bathurst blacksmith, were executed. Witton was sentenced to life imprisonment, but was released in 1904. Major Robert Lenehan, the Sydney lawyer who commanded the BVC, was not court-martialled, but was sent back to Australia in disgrace and not permitted to re-join his regiment, until political intervention, including by Sir Edmund Barton, saw him reinstated in 1913, whereupon he was promoted Lieutenant Colonel, and he served through the First World War.[21]
That Morant and Handcock not only committed the crimes of which they were convicted, but probably many more, has been convincingly demonstrated in Peter Fitzsimons’ recent book.[22] And although by far the best known, the misdeeds of the BVC are unlikely to have been unique. Craig Wilcox notes, for example, that ‘Local circumstances, and a wildness that had marked the Tasmanians since their contingent was formed, had also led them to kill a few of their enemies outside the codes of war that were accepted in parlours and pubs across the empire. Many other mounted units probably did the same’.[23]
By the outbreak of the Great War in 1914, Australia had become, directly or indirectly through the United Kingdom, party to fourteen treaties relevant to the law of armed conflict, including the Hague Conventions of 1899 and 1907,[24] and most relevantly the 1899 Hague (II) Convention with respect to the Laws and Customs of War on Land (which came into force for the colonies in 1899 and for Australia, via the UK, in 1900); and subsequently the 1907 Hague (IV) Convention concerning the Laws and Customs of War on Land (which came into force for Australia in 1910) (‘1907 Hague (IV)’). In the updated 1914 sixth edition of the Manual of Military Law, Chapter XIV (‘The laws and usages of war on land’) listed ‘the existing written agreements which affect the military forces’, including relevantly the 1907 Hague (III) Convention relating to the Opening of Hostilities; 1907 Hague (IV); and the 1907 Hague (V) Convention relative to the Rights and Duties of Neutral Powers and Persons in case of War on Land,[25] and added that the 1907 Hague (IV) Convention ‘does not pretend to provide a complete code, and cases beyond its scope therefore still remain the subject of customary rules and of usage’.[26]
Thus the applicable content of the law of armed conflict, in relation to, inter alia, treatment of prisoners, sick, wounded, and dead, and the principle that ‘the ordinary citizens of the contending States, who do not take up arms and who abstain from hostile acts, must be treated leniently, must not be injured in their lives or liberty, except for cause or after due trial, and must not as a rule be deprived of their private property’ was generally to be found in the relevant treaty – most particularly 1907 Hague (IV) and its annex. It was not generally specifically enacted in domestic UK or Australian legislation. Notably, the 1914 Manual of Military Law employed the term ‘war crimes’ as ‘the technical expression for such an act of enemy soldiers and enemy civilians as may be visited by punishment or capture of offenders’.[27]
The legal arrangements for governance and discipline of Australian forces between 1904 and 1985 were complex, but essentially involved the application, when on active service, of the Army Act. As a result of a political compromise made in debate on the Defence Bill in in 1903,[28] in war (that is, on active service) Australian military forces were, by s 55 of the Defence Act 1909 (Cth) (‘Defence Act’), subject to the Army Act, while in peace (that is, not on active service) they were subject to a modified regime made by regulation. In addition, in 1909, s 54A was inserted in the Defence Act to apply the Army Act to the military forces when serving with Imperial forces outside Australia, and while travelling from and returning to Australia for the same purpose. In April 1915, in the context of imminent trials by court martial of members of the Australian Naval and Military Expeditionary Force arising from allegations of looting in German New Guinea, to which we shall come – where s 54A was of no avail, because the Expeditionary Force was not serving with Imperial Forces – the Commonwealth’s legal adviser, Robert Garran, acknowledged that there was doubt whether s 55 (applying the Army Act to Australian military forces while on active service) had extra-territorial effect, on the basis that it did not demonstrate an intention to apply beyond the limits of the Commonwealth; as a result, s 55 was amended to provide expressly that it should have extra-territorial effect, back-dated to 1 August 1914.[29]
As has already been noted in the context of the Boer War, s 41 of the Army Act provided for trial by court martial for ‘any offence not before in this section particularly specified, which when committed in England is punishable by the law of England’, so long as it was in the context of war service. In such a case, ‘if by reason of war or other circumstances, it is not possible to bring a military offender before the law courts, courts martial must in a proper case, apply the rules of the ordinary criminal law’.[30] The effect was that an Australian service member on war service could be tried by court martial for conduct that would have been an offence in England – such as murder. In the 1941 Manual of Military Law: Australian Edition, the commentary on s 41 of the Army Act included: ‘It should be noted that the accused can be charged under this section with a civil offence, wherever committed, provided that the offence would, if committed in England, be punishable by the law of England. Local laws and ordinances abroad are not part of the law of England. Consequently contraventions of their provisions cannot properly be laid as offences under this section’. [31] In essence, the effect of this scheme was that if an Australian service member on war service was to be charged with murder in a factual context that involved a breach of the laws and customs of war (such as killing a prisoner, or killing a wounded combatant who was hors de combat [‘out of the fight’, and thus entitled to protection from attack], or killing a civilian), it would have been charged and dealt with as the ‘ordinary’ crime of murder, and the applicable law was that of England, not Australia. In those days, however, in practice that would not have appeared to present any practical problem.
Australia was not involved in the post-war war crimes prosecutions, in Germany and Turkey respectively, when the Weimar Republic in 1921 conducted a limited series of trials known as the Leipzig War Crimes Trials of a small number of German servicemen in relation to acts against Allied forces and vessels, and when the Turkish government in the Allied occupied area based on European Turkey in 1919-1920 conducted a series of trials known as the Istanbul Special Court Martial against perpetrators ‘responsible for the mass killing of the Armenians’.[32]
A number of incidents involving Australian service personnel during that conflict warrant mention.
Upon the outbreak of war, the Australian Naval and Military Expeditionary Force (‘AN&MEF’) was quickly assembled and despatched to capture German possessions in New Guinea.[33] On 11 September 1914, the AN&MEF landed a shore party and proceeded to find and seize the wireless telegraphy station at Bita Paka.[34] During the initial stages of the engagement, an injured German soldier was used to draw out other German forces, who were then surrounded and captured. The Official History observes that ‘In the employment of a prisoner in this manner, under a threat, a breach of the rules of war appears to have been unwittingly committed. This was more liable to happen, through ignorance, in the early days of the war than later, when the Australian military authorities had supplied officers with pamphlets defining the rules with regard to prisoners, etc...’.[35]
In 1914-15, there were a number of trials by court martial, in German New Guinea and at Victoria Barracks, Sydney, of allegations that members of the AN&MEF had looted the property of civilians in German New Guinea. Five soldiers were court-martialled in German New Guinea (by then an occupied territory) on charges of robbery of German nationals. They were convicted, and sentenced to periods of imprisonment. Once back in Australia, these men alleged that their officers had engaged in much the same conduct, and a Court of Inquiry sat for several weeks gathering evidence. Subsequently, a Colonel, a Captain, two Lieutenants, and a Sergeant were court-martialled in Sydney, for property offences arising from the capture of a German ship and entry to abandoned German premises. Some of the behaviour alleged appears to equate to pillage, though the charges were not drafted by reference to the prohibition of pillage in the 1907 Hague Regulations respecting the Laws and Customs of War on Land.[36]
The incidents, and the trials, became a domestic political issue in Australia, with statements made in the Commonwealth Parliament, including by the then Attorney-General, Billy Hughes, who later became Prime Minister.[37] It appears from his statement that the trials of the soldiers in German New Guinea were essentially sound (although technical defects in sentencing had to be corrected); but some of the acquittals of officers in Sydney were regarded as unsatisfactory.
On the Western Front, the killing of German soldiers hors de combat – either as wounded who had given up the fight or were no longer capable of fighting, or as prisoners of war – was widely rumoured. The sources tend to be tangential or personal, rather than official.[38] Many accounts refer to days on which prisoners were not being taken. One justification sometimes advanced for this was the conservation of combat power to repel counter-attacks, since guarding and moving prisoners to the rear consumed significant resources. In Goodbye to All That, Robert Graves recounts:
For true atrocities, meaning personal rather than military violations of the code of war, few opportunities occurred – except in the interval between the surrender of prisoners and their arrival (or non-arrival) at headquarters. Advantage was only too often taken of this opportunity. Nearly every instructor in the mess could quote specific instances of prisoners having been murdered on the way back. The commonest motives were, it seems, revenge for the death of friends or relatives, jealousy of the prisoner’s trip to a comfortable prison camp in England, military enthusiasm, fear of being suddenly overpowered by the prisoners, or, more simply, impatience with the escorting job. In any of these cases the conductors would report on arrival at headquarters that a German shell had killed the prisoners; and no questions would be asked.[39]
He continues, ‘The troops that had the worst reputation for acts of violence against prisoners were the Canadians (and later the Australians)’, although he is uncertain ‘how far this reputation for atrocities was deserved’. However he recounts one experience of meeting an Australian soldier, who told him that:
Well the biggest lark I had was at Morlancourt, when we took it the first time. There were a lot of Jerries in a cellar, and I said to ‘em: ‘Come out, you Camarades!’ So out they came, a dozen of ‘em, with their hands up. ‘Turn out your pockets,’ I told ‘em. They turned ‘em out. Watches and gold and stuff, all dinkum. Then I said: ‘Now back to your cellar, you sons of bitches!’ For I couldn’t be bothered with ‘em. When they were all safely down I threw half a dozen Mills bombs in after ‘em. I’d got the stuff all right, and we weren’t taking prisoners that day.[40]
So there are indications of instances in which wounded and prisoners were killed in contravention of the law of armed conflict, including by elements of Australian forces. That is not to say that this was widespread. There are also indications of an unofficial policy on some occasions that no prisoners would be taken.
After the armistice, in December 1918 at Surafend in Palestine, the killing of a NZ trooper by an Arab thief sparked an atrocity. Approximately 200 New Zealand, Australian, and Scottish troops[41] followed the murderer-thief to his village, killed many of the inhabitants, and burned the village and a neighbouring Bedouin encampment. Estimates of the numbers killed range from twenty to 137.[42]
According to the Official History, ‘General Headquarters demanded the men who had led the attack and had been guilty of the killing. The Anzacs stood firm; not a single individual could definitely be charged.’[43] The British commander, General Allenby, is reported to have mustered the entire Anzac Mounted Division and addressed them, calling them murderers.[44] But ‘Allenby’s outburst left the division sore but unpunished’.[45] A Board of Inquiry obtained no relevant evidence from any witness. Numerous witnesses gave similar accounts, denying knowledge of anything relevant; as Paul Daley wrote having reviewed the transcripts: ‘The loyalty and deception with which the Australians covered for one another and comprehensively blamed the New Zealanders is breath-taking and farcical’, ‘the inquiry reeks of cover-up, so uniformly consistent are the statements’,[46] and ‘It seems that members of the 1st Australian Light Horse Brigade kept their mouths shut because that is exactly what they were ordered to do by their beloved commander’.[47] Official reports obfuscated.[48] Although compensation was paid, no soldier was ever charged.[49] It is reported that in 1919 the 3rd Light Horse Regiment were told by their commander that ‘We will speak of this incident no more’,[50] and they did not, until one veteran spoke of it seven decades later.[51]
By the outbreak of the Second World War in 1939, Australia had become party to three more law of armed conflict related treaties.[52] The legal arrangements governing Australian service personnel on active service did not materially differ from those which applied a quarter of a century earlier. Arndell Lewis, in Australian Military Law (1936), explained: ‘The Australian Army is governed in war time by a disciplinary code almost identical with that which applies to the Imperial Army and, in time of peace, the provisions of the Defence Act and Australian Military Regulations concerning discipline are an adaptation of the provisions then applying to the army in England’.[53] Lewis also explained that the international law of armed conflict was incorporated into national law:
To prevent damage to the national cause by the conduct of individuals ... the British Empire imposes on its soldiers certain rules of conduct in war... A code of rules has been prescribed by authority. It does not matter to the soldier whence they are derived. They exist as national law the breach of which constitutes an offence and as such they must be learnt and observed.[54]
Lewis observed, ‘The injury of a person, even an enemy combatant, otherwise than as allowed by the law of war is a crime (murder, assault, etc, as the case may be).’[55] Thus, as before, a breach by an Australian service member of the laws and customs of war was liable to be charged as an ‘ordinary law’ offence under the law of England.
I will mention two incidents of this conflict involving Australian forces.
The first is the Battle of the Bismark Sea, an aerial attack on a Japanese convoy.[56] Between 2 and 5 March 1943, in a brilliantly conceived and executed operation, for the loss of a handful of aircraft, the Allied Air Forces sunk twelve ships – all eight of the convoy’s troop transports and four of its eight destroyers – and killed 3,000 enemy soldiers, destroying Japanese hopes of regaining the initiative in New Guinea and removing any possibility that Australia might be invaded.[57] However, the immediate aftermath of the battle involved extensive killing of survivors from the convoy, some of whom would properly have been classified as ‘shipwrecked’. ‘Over the course of the day approximately 24 barges were attacked and 350 Japanese killed.’[58] One author describes:
On the 5th, and for several days thereafter, there was the terrible yet essential finale: Beaufighters, Bostons and Mitchells swept to and fro over the waters of the Huon Gulf seeking out and destroying barges and rafts crowded with survivors from the sunken enemy ships. It was grim and bloody work for which the crews had little stomach. Some of the men in Beaufighter crews confessed to experiencing acute nausea. The realistic and grimly objective comment from one of their flight leaders was that every one of these troops was an enemy pledged to kill his opponents and so every one the Beaufighters’ guns prevented from getting ashore was ‘one Jap’ less for the Army to kill.[59]
The official exculpatory rationale was that: ‘During 4 and 5 March, with the convoy destroyed, orders were issued for the aircrews to strafe survivors in the water, in lifeboats, on rafts and any rescue vessels that might appear. No survivor must be allowed to reach land to fight Allied troops. Once ashore those survivors who were still armed would fight.’[60] At least some of these attacks were undoubtedly legitimate – for example, non-life raft vessels such as barges, and the personnel in them, still attempted to fire on Allied aircraft.[61] However, it may be doubted whether the strafing of survivors in the water who had not attempted to continue the fight[62] was in compliance with Article 16 of 1907 Hague (X) Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, in relation to the sick, wounded, and shipwrecked.[63] Still, in light of the fanatical resistance that Australian forces encountered at Buna and Gona, it is difficult to criticise the judgment that every Japanese soldier who was allowed to reach the shore would fight on. The operations were approved by command at the highest level, the justification was formally recorded, and although some aspects might not accord with current standards, the air war in 1939-1945 involved a wide range of conduct – such as the bombing of cities and civilian population centres – which was then officially sanctioned, though today it would not be regarded as lawful.
The source for the second incident is impeccable – the then commanding officer of the 2/1st Australian Infantry Battalion, later Major General Paul Cullen, who received a Distinguished Service Order for his part in a number of Allied campaigns in the war. He told an ABC programme in 2001 that Australian soldiers under his command had bayoneted to death a number of unarmed Japanese prisoners of war at Gorari, on the Kokoda Track. Between five and seven Japanese soldiers had been captured by one platoon, and were killed by the next platoon that came through the position. Cullen said: ‘I did not see the killings but they were reported to me later and I believe the report. I thought it was bad but we were already moving on to another battle’.[64] He continued:
You might say that’s nothing compared to what the Japanese did to our POWs but, for that reason, I refused to give evidence to the War Crimes trial. It was understandable but I felt it was my battalion, my soldiers. I felt pretty guilty about that.[65]
Such reports are not unique – similarly, for example, Philip Dwyer recounts the following:
Take the 1943 diary entry of Eddie Stanton, an Australian posted to Goodenough Island off Papua New Guinea. ‘Japanese are still being shot all over the place,’ he wrote. ‘The necessity for capturing them has ceased to worry anyone. From now on, Nippo survivors are just so much machine-gun practice. Too many of our soldiers are tied up guarding them’.[66]
Post-war, Australia was involved in prosecutions of Japanese war criminals in international and Australian forums. An Australian judge – Justice William Webb of the High Court of Australia – was the president of the International Military Tribunal Far East, which conducted the major trials of 28 ‘A Class’ war criminals in Tokyo.[67] Two died during trial, one was found unfit to stand trial, seven were sentenced to death, sixteen to life imprisonment, and two to lesser terms of imprisonment.[68]
In addition, across the Asia Pacific, there were extensive series of trials of B and C class war criminals under national jurisdictions.[69] Hundreds of prisoners of war wrote statements describing what they had seen and endured, and many Japanese guards were charged with war crimes committed against prisoners and civilians.
The Australian approach was to establish jurisdiction over these offenders and crimes.[70] The War Crimes Act 1945 (Cth) (‘1945 Act’), s 3, defined ‘war crimes’ as ‘a violation of the laws and usages of war or any war crime within the meaning of the instrument of appointment’ of the Australian War Crimes Board of Inquiry.[71] That instrument made clear that it was concerned only with crimes committed by adversaries, not Australians or allies; the terms of reference were:
Whether any war crimes have been committed by any subjects of any State with which His Majesty has been engaged in war since the second day of September, One thousand nine hundred thirty-nine, against any persons who were resident in Australia prior to the commencement of any such war whether members of the Defence Force or not, or against any British subject or against any citizen of an allied nation.[72]
Between 1945 and 1951, Australian Military Courts convened in Morotai, Wewak, Labuan, Rabaul, Darwin, Singapore, Hong Kong, and Manus Island heard 300 war crimes trials, for a variety of war crimes committed against Allied civilians or military personnel, including ill-treatment, murder and massacre, and other violations of the laws and usages of war.[73] In Australian trials, 922 men were tried and 641 were found guilty; 148 were sentenced to death and 137 actually executed.[74] In 1953, convicted Japanese war criminals still in Australian custody were returned to Japan to serve the remainder of their sentences.[75]
While Australia’s record in the conduct of these war crimes trials has not been without criticism, by and large, they were conducted with considerable fairness, in an environment and atmosphere where it would have been easy to be less than fair. My father,[76] who as War Crimes Officer for the 9th Division investigated the Sandakan death marches and prosecuted the first trial on Labuan, was invited by the Japanese defending officer (whom he educated in the ways of an Australian court) to visit Japan; he politely declined. And in my chambers hangs an ornate piece of calligraphy presented to him in appreciation of his fairness by the Japanese Commanding General, Lieutenant General Masao Baba, who as we shall see was later convicted and suffered death for command responsibility for the death marches; translated, it reads, ‘True Heart is the Core of Everything’.
In 1961, Australia officially announced that it would ‘close the chapter’ on war crimes prosecutions. This followed a request from the Soviet Union for the extradition of a suspected war criminal, which was rejected; the then acting Minister for External Affairs, one Sir Garfield Barwick, considered that the sentiment in Australia was consistent with the view that, while the community was outraged by such crimes, it was time to move on.[77] However, in 1986, the war crimes debate in Australia was reignited by an ABC radio series, ‘Nazis in Australia’, which attracted large audiences and considerable controversy.[78] As a result, in 1988, the 1945 Act was amended, to make it an indictable offence to have committed a war crime between 1 September 1939 and 8 May 1945. Now, a ‘war crime’ was defined as a serious crime which, if done in Australia, would have been, under Australian law, a specified offence, for example, murder, manslaughter, wounding, or rape; which was committed during hostilities or religious persecution in the course of the war in Europe from 1 September 1939 to 8 May 1945. Only an Australian citizen or resident was liable to be charged with having committed a war crime.[79] Thus to be susceptible to prosecution, the alleged crime had to have been committed in Europe during WWII; by a person who was then an adversary; and who now had a relevant connection with Australia. The Act survived a constitutional challenge.[80] However, there was no successful prosecution.
A Special Investigations Unit was established and conducted 841 investigations, from which it identified 27 suspected war criminals, but due to insufficient evidence only four cases were referred to the Commonwealth Director of Public Prosecutions.[81] The seventy-five-year-old Ukrainian born Ivan Polyukhovich, accused of having participated in the liquidation of the small Jewish community of Serniki,[82] was acquitted by a jury in May 1993 in the South Australian Supreme Court, ‘due to lack of sufficient evidence to prosecute the case’.[83] The case against the seventy-eight-year-old Mikolay Berezovsky, a former Ukrainian policeman, charged with the murder of one hundred and two Jews in the village of Gnivan, was ‘dismissed by a magistrate due to contradictory evidence given by witnesses and historical experts’.[84] The sixty-nine-year-old Heinrich Wagner, an ethnic German alleged to have served in the Ukrainian auxiliary police force and to have participated in the killing of one hundred and four Jews, including nineteen children, was declared unfit to be tried.[85] An investigation into Karlis Ozols, ‘a Latvian SS officer and a chess champion of international stature, [who was alleged to have] served as a Lieutenant with the Arajs Kommando, Latvia’s infamous killing squad’, was abandoned in 1992.[86]
These post-1980 war crimes prosecutions were criticised, on account of the combination of a failure to secure convictions and the $30 million cost of the investigations and prosecutions. The unavailability or unreliability of eyewitness evidence in light of the passage of time since the alleged crimes proved an insuperable hurdle.[87]
In 1949, Australia gave effect to the Convention on the Prevention and Punishment of the Crime of Genocide 1948.[88] Subsequently, the Geneva Conventions of 1949, which form the basis of much of the current international law of armed conflict – being the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;[89] the Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;[90] the Geneva Convention relative to the Treatment of Prisoners of War;[91] and the Geneva Convention relative to the Protection of Civilian Persons in Time of War,[92] – were given effect in Australia by the Geneva Conventions Act 1957 (Cth), s 7 of which provided that 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 Conventions, is guilty of an indictable offence.
During the Vietnam War, the legal arrangements for governance and discipline of Australian forces remained essentially as they had been since 1900.[93]
The Geneva Conventions Act 1957 (UK) contained a provision to the same effect as s 7 of the corresponding Commonwealth Act, just mentioned. As a result, it seems that a grave breach of one of the Conventions committed by an Australian on active service in Vietnam might have been prosecuted before a court martial as a military offence in reliance on the UK Act and s 41 of the Army Act, or in a civilian court in reliance on the Australian Act.[94]
More than 50 years later, rumours and allegations of Australian misconduct during the Vietnam conflict remain controversial. One Vietnamese historian states that Australian troops were involved in ‘savage beatings, rapes, arbitrary arrests, beheadings, the plucking out of people’s livers, the exposure of corpses for deterrent purposes, wanton shootings – these were common practices’.[95] Stuart Rintoul, in the preface to Ashes of Vietnam: Australian Voices (1987) asserts that Australians in Vietnam were guilty of acts of barbarity: there were Australians whose morality was so eroded that they murdered villagers, raped women, tortured and killed wounded enemy soldiers, and mutilated corpses.[96] Some of these allegations have identifiable origins – for example, the mistreatment of the dead. Others may have been generalised from a specific incident – for example, that there was a single instance of water torture is clear; that it was common practice is not. Many allegations are contested, and some are difficult to credit. Given the challenges posed by reliance on recollection, the difficulties of evidence collection in relation to historical offences, in the context of a foreign war half a century ago, there is little prospect that any of the allegations will ever proceed beyond initial investigation.
The allegations include the killing of non-combatants; the mistreatment and killing of enemy wounded and captured; the mistreatment of corpses; and the use of ‘throw downs’.
In general, Australian forces went to great lengths to ensure that civilians were clear of the battlefield prior to a planned engagement. Nevertheless, there are allegations of killing of civilians. In 1985, a series of ABC reports raised allegations regarding Binh Ba in June 1969. That some civilians were killed is not generally disputed; however, the circumstances are contested, and these allegations have sparked long-lived ‘bitter battles’ amongst veterans.[97] An analysis of contacts reported by Australian forces in Vietnam identified five (involving five civilian deaths and a further five civilian woundings) in which it appeared that rules of engagement ‘were forgotten or ignored’, including for example engagements in which local nationals who were otherwise undertaking apparently innocuous activities were engaged and killed because they hid when aircraft flew overhead.[98] These cases are indicative of the emergence of a liberal approach to the identification of when someone might be regarded as participating in hostilities.
Again, the general record of Australian conduct is good. In most cases, wounded enemy, no longer able to fight, would be captured, their wounds treated, and evacuation organised. Some soldiers went to extraordinary lengths, including at risk to their own safety, to recover wounded enemy, or to get civilians trapped in the middle of a fire-fight, to safety. Most sought to treat wounded enemy as they would like to have been treated themselves were the position reversed. But on a few occasions, the reality may have fallen short of this ideal.[99] There are contentious debates about allegations that Australians shot wounded enemy after the Battle of Long Tan.[100] From another tour, one author records that a platoon commander said that a few days after a mine incident that had killed two members of his platoon, one of his soldiers had deliberately killed a wounded enemy and had hauled the body out of the jungle and dropped it at his feet, like a dog retrieving a stick.[101] Other incidents were reported and investigated: the ‘so-called water torture incident’ (of a captured Vietcong female fighter), which took place in October 1966, was subject to swift inquiry and the responsible NCO dealt with, although it was not reported in the Australian press until 1968, when ‘the story of the “war crime” occupied more column inches of newsprint than the Tet Offensive and Long Tan’.[102]
There have also been persisting allegations of interference with, looting, and arranging offensive photographs of, the bodies of killed enemy and civilians.[103]
There are also accounts of the use of planted weapons to ‘fit up’ local nationals who were found to be unarmed after they had been engaged and killed, in order to legitimise the engagement. [104] Hall and Ross state:
On clearing the battlefield and finding that they had killed persons who were not carrying weapons, 1ATF soldiers sometimes ‘fitted up’ the corpses with M-26 grenades. On checking the 1ATF Vietnam Contact Database 1966-1971, four contacts can be found where one enemy was killed and curiously, in each case he was armed with a single M-26 grenade. In one of these, a query about the Lot number of a grenade supposedly ‘found’ with the ‘enemy’ body revealed that the grenade was from the same lot that had been issued to the battalion at the start of the operation.[105]
Another source of allegations regarding throwdowns – from a participant, but provided in an academic context with corroborating accounts – was reported in 2014 by the Daily Telegraph.
Vietnam War Diggers killed civilian bamboo pickers in an ambush and were told they should have put enemy weapons on the bodies to make them look like Viet Cong combatants, the platoon’s commander claims.[106]
Some of these allegations have been referred to the AFP in the 50 years since the conflict, but there is a paucity of contemporaneous documentary evidence. Probably both poor record-keeping and preservation, and an unstated policy of silence and non-reporting, played a role. It is likely that some of the allegations relate to actual incidents which were not considered to be of dubious legality at the time, but which in later recollections may have become interpreted as ‘war crimes’. Recollection and memory can be faulty, and incidents that were tragic, but not unlawful, can be reconceptualised into war crimes. Unquestionably, however, the failure to gather evidence at the time has meant that subsequent investigations and inquiries have been hampered. The consequence, at any rate, has been the long-term and corrosive persistence of primarily oral reports and allegations circulated decades after the events.
In 1985, the Defence Force Discipline Act 1982 (Cth) (‘DFDA’) commenced, at last replacing the earlier disciplinary schemes, and applying to all three services, both on active service and otherwise. Section 61 imported into the disciplinary code offences that were crimes under the law of the Australian Capital Territory, as s 41 of the Army Act had imported offences punishable under the law if England; but unlike s 41, s 61 was not confined to such offences when committed on active service. More recent amendments now use the Jervis Bay Territory, and such offences are called ‘Territory offences’. The High Court has recently resolved doubts as to the constitutional validity of DFDA s 61(3), holding that this provision of the Act, in obliging defence members to obey the law of the land, is, in all its applications, a valid exercise of the defence power.[107]
By 1991, Australia had become party to six additional international conventions related to the law of armed conflict,[108] and in 1991 the Geneva Conventions Act 1957 (Cth) was amended,[109] to include ‘Protocol additional to those Conventions done at Geneva on 10 June 1977’.[110] However, the predominant current treaty dealing with war crimes is the Rome Statute of the International Criminal Court 1998 (‘Rome Statute’),[111] which Australia ratified on 7 January 2002.[112] It provided for establishment of the International Criminal Court (‘ICC’), and codified the crimes that were within the jurisdiction of that Court, which are essentially based on the Geneva Conventions.
Australia implemented the Rome Statute in domestic legislation by inserting Division 268 into the Criminal Code Act 1995 (Cth) (‘Criminal Code’). This was effected by Schedule 1 of the International Criminal Court (Consequential Amendments) Act 2002 (Cth) (‘Consequential Amendments Act’),[113] commencing on 26 September 2002.[114] The principal object was stated to be to facilitate compliance with Australia’s obligations under the Statute, without affecting the primacy of Australia’s right to exercise its jurisdiction with respect to crimes within the jurisdiction of the ICC.[115]
As explained by the then Attorney-General, Mr Williams QC, in the second reading speech for the International Criminal Court Bill 2002 and the International Criminal Court (Consequential Amendments) Bill 2002:[116]
Australia's support of the International Criminal Court is based on the many checks and balances contained in the International Criminal Court statute. Its functions and role have been carefully articulated and its powers circumscribed to protect the sovereignty of the countries which support its establishment. However, these bills before us today provide safeguards additional to those in the International Criminal Court statute to ensure the primacy of Australia's right to exercise its jurisdiction over crimes in the International Criminal Court statute to protect our national interests. The International Criminal Court Bill 2002 will establish procedures in our domestic law to fulfil Australia's obligations under the International Criminal Court statute. The offences inserted into the criminal code by the International Criminal Court (Consequential Amendments) Bill 2002 will apply to all conduct, regardless of whether it occurs or its effects occur within or outside Australia. The offences apply to all persons regardless of nationality and apply equally to members of the Australian Defence Force.
The ICC can exercise jurisdiction in respect of a particular case only if a State with jurisdiction fails genuinely to investigate and prosecute it.[117] Under Article 17 of the Rome Statute, the ICC must determine that a case is inadmissible – that is, that it cannot exercise jurisdiction – if it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution; and if the case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute. This is the principle of complementarity, which is fundamental to the Rome Statute, and to Australia’s ratification of it. As Professor Gillian Triggs observed in an article written in 2003, Parliament’s Joint Standing Committee on Treaties reviewed the Rome Statute and implementing legislation and considered their impact on Australian sovereignty, the legal system, current international obligations, and the defence forces, before recommending that Australia should ratify the Rome Statute on the basis that the Consequential Amendments Act should not affect the primacy of Australia’s right to exercise jurisdiction.[118] The National Interest Analysis noted: [119]
The Statute emphasises that the Court will be complementary to national criminal jurisdictions, recognising that it is the duty first and foremost of every State to exercise its national criminal jurisdiction over those responsible for international crimes. The Court will operate where a national jurisdiction is unwilling or unable genuinely to carry out the investigation or prosecution of persons alleged to have committed crimes. It will be the Court which determines whether a national jurisdiction is unwilling or unable to deal genuinely with alleged crimes by way of investigation or prosecution (Article 17).
Similarly, the Joint Standing Committee on Treaties observed that the principle of complementarity underpinned the concerns expressed in a range of submissions relating to issues of ‘sovereignty’ and the capacity of the ICC to reach – uninvited, so to speak – into Australian legal processes.[120] At paragraph 3.16 of the Report, the Committee assessed that:[121]
Under the principle of complementary national and international criminal jurisdictions (which is the cornerstone of the ICC Statute) will create an obligation upon States Parties to investigate and, where appropriate, prosecute allegations that their nationals have committed crimes within the jurisdiction of the ICC. The ICC will only prosecute as a court of last resort where the State is unwilling or genuinely unable to carry out the investigation or prosecution. Inability to prosecute presumably would mean that the judicial processes in a State Party have collapsed and are no longer functioning. The ICC could also prosecute where the domestic prosecution has been conducted in a manner clearly intended to shield an accused person from the ICC.
The Committee thus concluded that ‘The ICC Statute confirms the primacy of national jurisdictions and provides that the ICC can act only if the State is unable or unwilling to prosecute’.[122]
As added assurance in this respect, the International Criminal Court Act 2002 (Cth) contains additional procedural requirements that further entrench complementarity, particularly with respect to the requirement for an Attorney-General’s certificate prior to surrender to the ICC of a person within Australia’s control.[123] There are further provisions that deal with situations such as requests from other ICC Member States, and situations where an ICC request for surrender of a person has been made, but an Australian process remains on foot.[124] The practical consequence of this scheme is that there will be no extradition to the ICC, unless Australia’s Attorney-General considers that Australia ‘is unwilling or unable genuinely to carry out the investigation or prosecution’ under Article 17 of the Rome Statute. As Professor Triggs has observed:[125]
In these ways, the implementing legislation makes it clear, not only that Australia has primacy of jurisdiction, but also that any decision to allow a prosecution will lie exclusively with the unimpeachable ‘political’ judgment of the Attorney-General ...
While these provisions appear to be valid under the Constitution, it remains open to the judgment of the ICC itself whether a State party ‘is unwilling or unable genuinely to carry out the investigation or prosecution’ under Article 17 of the Rome Statute. If a State were to be unwilling or unable to do so, the ICC may assert a secondary jurisdiction over the offences... however, the ICC may not be able to obtain physical control of the alleged perpetrator for a trial because, if they are present in Australia, the Attorney-General could refuse to surrender the accused under the new International Criminal Court Act 2002 (ICC Act).’
Thus not only does the ICC lack jurisdiction, but the Australian Attorney-General is not to surrender a person within Australia’s control to the ICC’s jurisdiction, until Australia has had the full opportunity to investigate or prosecute any alleged crimes within its jurisdiction.
There remains some debate as to the way in which contested complementarity – that is, situations where the national jurisdiction claims an effective process is on foot or has been completed, but where the ICC may not agree with this assessment – will be dealt with, both by national courts and by the ICC.[126] The ICC Prosecutor is entitled to make his or her own assessment as to the adequacy of any national process cited as an admissibility bar to ICC jurisdiction. In discussing the manner by which a series of cases arising out of election-related communal violence in Kenya between 2007 and 2008 came to be admissible before the ICC, Chandra Lekha Sriram and Stephen Brown observed that: [127]
Considerations of complementarity and gravity should be examined together because each is a pillar of admissibility: under Article 53(1)(b) of the Rome Statute, in initiating a case the prosecutor must take into consideration whether the potential case is or would be admissible under Article 17, the provisions of which include complementarity and gravity. These considerations are also potentially intertwined because in situations where national proceedings are taking place, the ICC may need to examine closely whether the same conduct by the same person is being prosecuted by a national jurisdiction before deciding if it will take action.
The crimes within the jurisdiction of the ICC are set out as crimes in Australia in Division 268 of the Criminal Code. The offences contained in Division 268 are thus a ‘domestication’ of the corresponding offences contained in the Rome Statute. The war crimes offences having been ‘domesticised’ through Division 268, they are offences under Australian law and as such involve the application of Chapter 2 of the Code to the Rome Statute’s offences, so as to be coherent with the general scheme of Commonwealth criminal law.[128] The offences under Division 268 are subject to what the Code calls extended geographical jurisdiction (Category D jurisdiction), which is the most extensive scheme of geographical jurisdiction available under the Code.[129] That means that the offence applies whether or not the conduct constituting the alleged offence occurs in Australia; and whether or not a result of the conduct constituting the alleged offence occurs in Australia.[130]
Conformably with the Rome Statute, Division 268, entitled ‘Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court’, comprehends a number of categories of offence: Genocide (Subdivision B); Crimes against humanity (Subdivision C); War crimes that are grave breaches of the Geneva Conventions and of Protocol I to the Geneva Conventions (Subdivision D); Other serious war crimes that are committed in the course of an international armed conflict (Subdivision E); 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 (Subdivision F); War crimes that are other serious violations of the laws and customs applicable in an armed conflict that is not an international armed conflict (Subdivision G); War crimes that are grave breaches of Protocol I to the Geneva Conventions (Subdivision H); and Crimes against the administration of the justice of the International Criminal Court (Subdivision J). Subdivision K (Miscellaneous) contains a range of miscellaneous provisions including liability for command responsibility,[131] the defence of superior orders,[132] and the requirement for the Attorney-General’s consent for a prosecution.[133]
War crimes committed in the course of an international armed conflict, and war crimes committed in the course of an armed conflict that is not an international armed conflict, are dealt with separately in Division 268, as they are in the Rome Statute. For example, the conflict in Afghanistan was not an international armed conflict, but one between the sovereign Afghan Government on the one hand and insurgents, foreign fighters, and remnants or supporters of the former Taliban regime on the other.
Because the war crimes offences contained in Division 268 reflect the more generally expressed corresponding offences contained in Articles 8(2)(c) and (e) of the Rome Statute, guidance is provided by authorities and learning on the corresponding provisions of the Rome Statute.
To take the most obvious examples, in the context of international armed conflict, s 268.24 provides for the war crime of ‘wilful killing’, the elements of which are:
• the perpetrator causes the death of one or more persons. This is a physical element of conduct, attracting the default fault element of intention;[134]
• the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions. These include non-combatants, prisoners, and persons who are hors de combat by reason of being wounded or captured; and
• the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected.
In the context of non-international armed conflict, s 268.70 provides for the war crime of murder, which is concerned with the killing of a person who is not taking an active part in hostilities, with knowledge or reckless indifference as to whether the person is not taking an active part in hostilities. The relevant elements of the offence are:
• the perpetrator causes the death of one or more persons. Again, this is a physical element of conduct, attracting the default fault element of intention;
• the person or persons are neither taking an active part in the hostilities nor are members of an organised armed group. The reference to a person or persons who are not taking an active part in the hostilities includes a reference to a person or persons who are hors de combat; and civilians, medical personnel, or religious personnel who are not taking an active part in the hostilities; and
• the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are neither taking an active part in the hostilities nor members of an organised armed group.[135] This embraces actual knowledge (that is, awareness of factual circumstances that established that the deceased person was not taking an active part in hostilities),[136] or recklessness (that is, awareness of a substantial risk that there were factual circumstances that might establish that the deceased person was not taking an active part in hostilities, and having regard to those circumstances as known to perpetrator, it was unjustifiable to assume the risk of killing that person on the basis that they were taking an active part in hostilities).[137] It might be reckless to fail to employ standard ‘fact checking’ processes to determine whether a person was indeed taking an active part in hostilities. It might also be reckless to engage with lethal force a person who is not self-evidently taking an active part in the hostilities (such as a local national, apparently unarmed, who flees from the scene).
However, the offence is not committed if the death occurs in the course of, or as a result of, an attack on a military objective; and at the time the attack was launched, the perpetrator did not expect that the attack would result in the incidental death of, or injury to, civilians that would have been excessive in relation to the concrete and direct military advantage anticipated; and it was reasonable in all the circumstances that the perpetrator did not have such an expectation.
Even apart from Division 268, certain provisions of the Geneva Conventions are applicable as a matter of customary international law. Thus in 2005, in Hamdan v Rumsfeld, the United States Supreme Court accepted that Common Article 3 was applicable in Afghanistan, stating:[138]
... there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories. Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a ‘conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,’ certain provisions protecting ‘[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by ... detention’.
Division 268 offences are subject to two types of potential extensions of criminal responsibility. First, they are subject to the general extensions of criminal responsibility to accessories found in Chapter 2 of the Code, such as attempt,[139] complicity and common purpose,[140] commission by proxy,[141] and incitement.[142] Further, in connection with the concealment or ‘covering up’ of criminal acts, Crimes Act 1914 (Cth), s 6 (Accessory after the fact) provides that any person who assists another person, who has, to his or her knowledge, committed any offence against a law of the Commonwealth, in order to enable him or her to escape punishment, commits an offence.
Secondly, there is a Division 268-specific extension of criminal responsibility, generally known in the law of armed conflict as ‘command responsibility’. This reflects the principle that commanders, because of their positions of trust and authority – and in particular their ability to control the behaviour of their subordinates – can be held responsible for the misdeeds of their subordinates. That concept has been around at least since 1439, when Charles VII of France decreed that officers were responsible for offences committed by members of their company. During the American Civil War, the Lieber Code spoke (in Article 71) of the responsibility of commanders who ‘ordered or encouraged attacks on disabled enemies’. More widespread recognition came with the Hague Conventions of 1899 and 1907, which imposed duties on superior officers to exercise control of subordinates, and to ensure ‘public order and safety’ in occupied areas.
The modern doctrine of command responsibility was established by the War Crimes Tribunals which followed World War II. The Japanese General Yamashita was the first to be charged with liability based on omission, before a United States Military Commission in 1945.[143] He had been the Japanese commander in the Philippines from October 1944, and during his command there were a number of atrocities – including the rape of 500 civilians in Manila, and the killing of 25,000 civilians in Batangas Province.[144] Yamashita was charged that he ‘unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes’. He was found guilty and sentenced to death, and his liability was founded on the principle that ‘[where] there is no effective attempt by a commander to discover and control the criminal acts, such a commander may be held responsible, even criminally liable, for the lawless acts of his troops.’[145]
In Europe, in the High Command Case (heard in Nuremberg between 1947 and 1948), a number of German officers, including Field Marshal Von Leeb, were charged in relation to the killing of civilians by their subordinates. It was held that to be guilty a commander must engage in personal dereliction ‘where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part’.[146]
In the Hostage Case[147] in 1949, senior German officers were charged with the murder and deportation of thousands of Greek, Yugoslavian, Norwegian, and Albanian civilians. Hitler ordered Field Marshal List to supress insurgents, and suggested that fifty to a hundred prisoners might be executed as a reprisal in respect of each German soldier killed. List forwarded the direction to his subordinates, and issued his own orders for the shooting of men who were suspected of having taken part in combat or having supported partisans. Although List claimed he knew nothing of the crimes, he was convicted and sentenced to life imprisonment, on the basis that he ought to have known of the crimes, and failed to take steps to prevent them.
The Australian Military Courts applied a similar approach. Major General Hirota, the General Officer Commanding supply depots in Rabaul, was charged with command responsibility for the ill-treatment of Indian and Chinese POWs, and Lieutenant General Masao Baba, the Corps commander in North Borneo, with command responsibility for the Sandakan-Ranau death marches. In each case, the wording of the charge was identical with that on which General Yamashita had been arraigned: ‘While a commander ... unlawfully disregarded and failed to discharge his duty as such Commander to control the conduct of the members of his command whereby they committed brutal atrocities and other high crimes ...’.
On the question of a commander's responsibility to prevent the commission of war crimes by subordinates there had been two schools of thought among international lawyers. According to one view, the commander was responsible only when the commander 'ordered or, with knowledge thereof and with power to intervene, abstained from preventing or taking measures to prevent ... violations of the laws or customs of war'. According to the other, responsibility went further, and included a duty to take steps to determine whether offences were being committed. The Australian Courts convicted each of the commanders. Baba was sentenced to death, and Hirota to seven years’ imprisonment. It appears that the Courts subscribed to the latter doctrine; on review, the Judge Advocate General accepted the wide responsibility doctrine, reporting that 'the laws and usages of war impose a responsibility upon commanding officers to take all possible measures to prevent violations of those laws by troops in their command'. Some months later, the International Military Tribunal for the Far East arrived at a similar result, holding: 'An Army Commander must be at the same pains to ensure obedience to his orders in this respect as he would in respect of other orders he has issued on matters of the first importance'.[148]
In 1977, the doctrine of command responsibility was recognised in the Additional Protocol No 1 to the Geneva Conventions.[149] Article 86(2) provides:
The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from ... responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.
Article 87 requires commanders to ‘prevent and, where necessary, to supress and to report to competent authorities’ any violations of the Conventions and of Additional Protocol 1.
Since 1998, the principle of command responsibility has been further codified in Article 28 of the Rome Statute, and in Division 268 of the Criminal Code. Section 268.115 provides that military commanders and superiors are criminally responsible for offences committed by forces or subordinates under their effective command or authority and control, as a result of their failure to exercise control properly, where the commander or superior knew that. or was reckless as to whether, the forces or subordinates were committing or were about to commit the offences, and failed to take all necessary and reasonable measures to prevent or repress their commission, or to submit the matters to competent authorities for investigation and prosecution.
Essentially, there are three elements to establishing liability:[150]
• The existence of a superior-subordinate relationship, involving actual control, whether direct or indirect;[151]
• Knowledge of, or reckless indifference to, the actual or imminent commission of the offences; and
• Failure to act to prevent the crimes, which may be satisfied by failing to make proper inquiries, or to cause there to be a proper investigation after the event.[152]
Thus a failure to cause there to be a proper investigation after the event attracts liability.[153] However, criminal liability is in every case confined by the second element to cases in which the commander actually knows, or is recklessly indifferent as to whether, crimes are being or about to be committed by subordinates.
The general defences provided by Chapter 2 of the Code – most relevantly those in Divisions 9 and 10, and in particular mistake of fact,[154] intervening conduct or event,[155] sudden or extraordinary emergency,[156] self-defence,[157] and lawful authority[158] – are applicable to offences under Division 268.
Of these, self-defence is the most potentially relevant. Under s 10.4, a person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self-defence. A person carries out conduct in self-defence involving use of lethal force if and only if he or she believes the conduct is necessary to defend himself or herself or another person, or to prevent or terminate the unlawful imprisonment of himself or herself or another person, and the conduct is a reasonable response in the circumstances as he or she perceives them.
Additionally, there is a Division 268-specific defence of ‘superior orders’. Under s 268.116, it is a defence to a war crime that the war crime was committed by a person pursuant to an order of a government or of a superior, whether military or civilian; and the person was under a legal obligation to obey the order; and the person did not know that the order was unlawful; and the order was not manifestly unlawful. In that respect, it is generally accepted – although not the subject of recent judicial decision in Australia – that any order to kill persons not taking an active part in hostilities, outside of the accepted bounds of the law of armed conflict,[159] is by definition a manifestly unlawful order.[160] In other jurisdictions, the killing of people who may at one stage have been actively participating in hostilities, but at the time of death were hors de combat due to injury, has been prosecuted as a serious criminal offence in grave contravention of the law of armed conflict, and of criminal and military law.[161]
There is an interesting question as to whether the statutory defence of diminished responsibility would be available in a case of war crime murder. It was ultimately successfully invoked in the R v Blackman (‘Blackman’) case in the UK, where Sergeant Blackman was charged with the ordinary offence of murder, to which the defence applied.[162] However, it is not a defence provided by the Criminal Code, and it may be doubted that it applies to war crime murder in Division 268.
A prosecution for an offence under Division 268 may only be commenced with the Attorney-General’s written consent, and must be prosecuted in his or her name.[163]
As has been seen, historically belligerents have tried members of their own armed forces for violations of the laws of war using their own military offences, including ordinary offences incorporated into the military law, such as looting, murder, rape, assault, theft, and arson, rather than as a contravention of the international law. This practice has continued, even in recent times: in the UK in Blackman,[164] the accused were charged with the ‘ordinary’ crime of murder in respect of the killing of an hors de combat insurgent in Afghanistan; in the Canadian case of R v Semrau,[165] the charge preferred, in respect of the killing of a wounded fighter, was the military offence of ‘behaving in a disgraceful manner’; in Australia, in Re Civilian Casualty Court Martial,[166] soldiers who killed non-combatants had been charged with manslaughter by negligence – which was ultimately held not to be available.
However, resort in the future to prosecuting such crimes as ‘ordinary crimes’ may be problematic in the light of the international obligations associated with the Rome Statute. Jann Kleffner, writing in 2003, explained why: [167]
[The] ‘ordinary crimes approach’ raises the question whether the ICC Statute accepts prosecution for offences classified as ‘ordinary’ rather than as the specific international crimes within the ICC jurisdiction, in order to consider a national jurisdiction to satisfy the complementarity requirements...
[W]hen States opt for the ‘ordinary-crimes approach, a number of issues are likely to arise, some of which may have a bearing on whether cases are declared admissible. First, it may be difficult to find a 'matching' ordinary crime for certain ICC crimes...
Secondly, the characterization of an ICC crime as an ordinary crime under domestic law will regularly entail that in determining the adequate sentence, recourse will be made to the sentencing framework for such an ordinary crime. Yet, the sentence must match the gravity of conduct constituting a crime that belongs to the ‘most serious crimes of international concern’.
Jurisdiction in respect of offences under Division 268 of the Criminal Code, like other Commonwealth criminal offences, is vested in the ordinary courts of the country exercising federal criminal jurisdiction. One might ordinarily expect any such prosecution to be brought by the Commonwealth DPP in an appropriate State court, conventionally though not necessarily the State in which the defendant resides.
Some such prosecutions might be brought as ‘Territory offences’ under s 61 of the DFDA. The DFDA applies to defence members outside, as well as within, Australia.[168] However, jurisdiction under the DFDA is confined to defence members, and lapses six months after they ceased to be defence members.[169] Thus it does not provide a vehicle for the prosecution of historical crimes against those who have long since been discharged from the services.
When the DFDA was introduced in 1982, it was envisaged as a potential vehicle, should the need ever arise, for the prosecution of war crimes either as service offences, or via other legislation such as the Geneva Conventions Act 1957 (Cth).[170] It is debatable whether resort to mere service offences (for example, s 33A [Assault occasioning actual bodily harm]), to prosecute conduct that could come within the scope of a Division 268 offence (for example, s 268.74 [War crime –S outrages upon personal dignity]), would meet the requirements of the principle of complementarity.[171] However, use of the DFDA s 61 territory offences mechanism, incorporating the substantive offences in Division 268, would appear to be sound.
Australia espouses adherence to the laws of armed conflict, and support for the institutions that monitor them. Australia has been an overt and enthusiastic supporter of, and advocate for, most international treaties applicable to the law of armed conflict, and an ‘early adopter’ of them. Australia has firmly, but fairly, investigated and prosecuted the war crimes of our adversaries.
While Australia’s record of compliance with the law of armed conflict is a good one, there are, from the Boer War through to the Vietnam War, indications that, on rare occasions, Australian service members may have been involved in serious breaches of the laws of armed conflict, including the killing of non-combatants, prisoners, and persons hors de combat. The case of the BVC illustrates an irregular or unconventional unit, operating with a considerable degree of autonomy and limited supervision, under the influence of a flawed but charismatic leader, in which practices and policies for the treatment of prisoners that were inconsistent with formal and legal obligations became accepted by some, and in which the reporting of contraventions of the customs of war was deterred. But it also illustrates the courage of Australians who were not prepared to tolerate this, and who by reporting their concerns to higher authorities triggered the inquiry that led to the courts-martial. The Rabaul looting cases demonstrate a willingness to investigate and prosecute conduct contrary to the law of armed conflict. However, the Surafend incident represents an abject failure to hold Australian forces to account, not least by reason of the ability of a closely-bonded unit to maintain a code of silence and rebuff attempts to elicit evidence. The operations against Japanese lifeboats and survivors in the water after the Battle of the Bismark Sea, like the British ‘scorched earth’ policy in South Africa, is an illustration of strategic purpose being accepted as prevailing over any ambiguity attaching to the legality of the conduct. However, there was no ambiguity about the killing of prisoners in New Guinea; yet informal reports of such went uninvestigated, although Australia was at the forefront of holding the Japanese to account, albeit for much more extensive and wanton misconduct. There remain unresolved allegations of the killing of hors de combat personnel by Australians in Vietnam. There are indications of the development, in the Vietnam era, of a liberal approach to the assessment of whether a person was participating in hostilities, and of the use of ‘throwdowns’ to provide retrospective justification for some engagements. And there are enduring themes, associated with these incidents, of disconnects between the law and formal orders on the one hand, and local practices on the other; of the influence of revenge and excessive zeal; and of a culture of non-inquiry, non-reporting, and silence. It is clear is that the failure to deal with allegations and indicators as they begin to emerge and circulate is corrosive – it gives spurious allegations life, and serious allegations a degree of impunity. The consequences of not addressing such allegations as and when they eventually arise are measured in decades.
If Australia’s record in response to reports or allegations of war crimes by Australian personnel is more ambivalent than the record in respect of the prosecution of adversaries, that is consistent with the enduring view that states have traditionally been reluctant to prosecute violations of international humanitarian law committed by their own nationals,[172] and that when they do so, it is common practice to charge alleged war criminals who are a state’s own nationals with ordinary crimes rather than with the more specific war crimes offences.[173] Historically, as for many nations, there has been a reluctance to characterise misconduct by the nation’s own forces as ‘war crimes’. On the other hand, just as nations have historically been less reluctant to label and prosecute the conduct of adversaries as war crimes, so in the post-WWII Australian trials of Japanese and European accused, offences by adversaries were explicitly characterised and charged as war crimes, not as ‘ordinary’ offences – but the enabling legislation, both in 1945 and in 1988, excluded allegations of war crimes by Australians from their scope.
I conclude with two observations.
The first is, why do these allegations so often emerge belatedly? One cause is the imperative of ongoing operations, when investigations are a distraction from the mission and poor for morale. In the context of ongoing operations, there is a not unnatural tendency to discount allegations made by those who are seen to be associated with the enemy. Battlefield conditions can make it difficult to obtain evidence: it may be challenging to conduct forensic examinations, and to access local national victims and witnesses, who are often traumatised and disillusioned, and who may be reluctant to speak to an occupying force. Another cause is the bond of brotherhood, forged in the setting of combat, which brings an enduring loyalty and commitment, and with it a compact of solidarity and silence. The witnesses are often complicit or compromised. Typically, incidents come to light by chance, as happened for example in the Blackman case, when someone stumbled across a video; or when witnesses, after years of being torn between loyalty to their comrades and their legal and moral obligation to speak out, and fearful of the consequences if they do so, have a crisis of conscience, and, long after the event, seek atonement. And even then, they often remain deeply conflicted.
The second is, why is the investigation and prosecution of serious war crimes, regardless of when they come to light, important? It is not only because of the international law obligation to do so. Fundamentally, laws are useless if they are not enforced, and a law which is not enforced soon becomes a dead letter. War crimes differ from other crimes, in that they affect not only the individuals concerned, but also the nation’s reputation and standing. War crimes undermine the national intent in prosecuting a war. War crimes undermine morale: bystanders, whether implicated or mere witnesses, become debilitated by the internal conflict between disclosing what they know, and the temptation and pressure to let it go. A nation’s preparedness to investigate war crimes by its own is a mark of a mature civilisation, and one way in which it can remedy the stain on its reputation occasioned by the commission of a crime in its name by one of its service personnel.
* Judge of Appeal of the Supreme Court of New South Wales; Deputy President of the Defence Force Discipline Appeals Tribunal; Assistant Inspector-General of the Australian Defence Force; Deputy Chair of the New South Wales Law Reform Commission. This lecture was delivered virtually on 8 October 202[1].
[1] Bruce Oswald and Jim Waddell (eds), Justice in Arms: Military Lawyers in the Australian Army’s First Hundred Years (Big Sky Publishing, 2014) 4–5.
[2] Ibid 2–3.
[3] With the curious result that the Commonwealth contingents had the legal character of the King’s regular forces – albeit raised in Australia for the limited purpose of service in South Africa – rather than of the military forces of the Commonwealth: ibid 8.
[4] Ibid 10.
[5] Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (‘Geneva Convention for Wounded in the Field 1949’).
[6] The 4th Edition was published in August 1899: Manual of Military Law (War Office, 4th ed,1899) 285–302.
[7] Ibid 288 [14].
[8] Ibid 290 [26].
[9] See for example Criminal Code Act 1995 (Cth) (‘Criminal Code’) ss 268.29 (War crime—destruction and appropriation of property) and 268.45 (War crime—transfer of population).
[10] Robert L Wallace, The Australians at the Boer War (Australian War Memorial/Australian Government Publishing Service, 1976) 302–3, 352.
[11] Peter Dennis et al, Oxford Companion to Australian Military History (Oxford University Press, 1st ed, 1995) 107–8; ‘Instructions to General Officers, 21 December 1900’, in L S Amery (gen ed) and Erskine Childers (ed), The Times History of the War in South Africa 1899-1902: Vol V (Sampson Low, Marston and Co Ltd, 1907) 86–7 (‘The Times History’).
[12] As at 1914, the Manual of Military Law still stated that ‘Private property must be respected; it may not be confiscated or pillaged, even if found in a town or place taken by assault... The rule that private property must be respected has, however, exceptions necessitated by the exigencies of war. In the first instance, every operation, movement, or combat occasions damage to private property. Further, the right of an army to make use of and to requisition certain property is fully admitted. What is forbidden is such damage, destruction, improper seizure or taking of property as is not required in the interests of the army, and as would, therefore, increase the sufferings of the population in war.’: Manual of Military Law (War Office, 6th ed, 1914) 295–6 [407]. Yet, as the Manual elsewhere noted, ‘The custom of war permits as an act of reprisals the destruction of a house, by burning or otherwise, whose inmates, without possessing the rights of combatants, have fired on the troops. Care must, however, be taken to limit the destruction to the property of the guilty.’: Manual of Military Law (War Office, 6th ed, 1914) 297–8 [414]. In 1936, Arndell Lewis, in Australian Military Law, stated ‘Enemy property may be seized and confiscated wherever it may be found and any property may be destroyed in pursuit of a definite military object.’: Arndell Lewis, Australian Military Law (Cox Kay Pty Ltd, 1936) 208.
[13] Deneys Reitz, Commando: A Boer Journal of the Boer War (Penguin, 1929) 148–9; The Times History (n 11) 87–8.
[14] Peace Treaty of Vereeniging, Great Britain–South African Republic–Orange Free State, signed 31 May 1902.
[15] Robin Smith, ‘Amnesty Denied: Salmon van As, Barend Celliers and Josef Muller’ (2016) 17(1) Military History Journal (South African Military History Society), available at http://samilitaryhistory.org/vol171rs.html.
[16] Thomas Pakenham, The Boer War (Weidenfeld & Nicolson, 1979) [1999 Folio reprint] 671.
[17] Ibid.
[18] See for example Craig Wilcox, Australia’s Boer War: The War in South Africa, 1899-1902 (Oxford University Press, 2002) 276–96, 334–6, 357–8; LM Field, The Forgotten War: Australian Involvement in the South African Conflict of 1899-1902 (Melbourne University Press, 1979) 171–5; Diane Heriot, ‘Justice Beyond Law: Clemency and the Royal Prerogative of Mercy’, Flag Post (Research Paper, Flag Post, Parliamentary Library, Parliament of Australia, 18 September 2012).
[19] Peter Fitzsimons, Breaker Morant (Hachette, 2020) 377–80.
[20] An account of his life is contained in Fitzsimons (n 19).
[21] Wallace (n 10) 376; Fitzsimons (n 19) 487.
[22] Fitzsimons (n 19).
[23] Wilcox (n 18) 260.
[24] 1868 St Petersburg Declaration renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grams Weight, opened for signature 11 December 1868 (entered into force for the colonies 1869, and for Australia 1901 via the UK) (‘1868 St Petersburg Declaration’); 1899 Hague (IV, 2) Declaration concerning the Prohibition of the Use of Projectiles with the Sole Object to Spread Asphyxiating Poisonous Gases, opened for signature 29 July 1899 (entered into force for the colonies 1899, into force for Australia 1907) (‘1899 Hague (IV, 2)’); 1899 Hague (IV, 3) Declaration concerning the Prohibition of the Use of Bullets which can Easily Expand or Change their Form inside the Human Body such as Bullets with a Hard Covering which does not Completely Cover the Core, or containing Indentations, opened for signature 29 July 1899 (entered into force for the colonies 1899, into force for Australia 1907) (‘1899 Hague (IV, 3)’); 1899 Hague (II) Convention with respect to the Laws and Customs of War on Land, opened for signature 29 July 1899 (entered into force for the colonies 1899, into force for Australia, via UK, 1900) (‘1899 Hague (II)’); 1899 Hague (III) International Convention for Adaptation to Maritime Warfare of the Principles of the Geneva Convention of 22 August 1864, opened for signature 29 July 1899 (entered into force for the colonies 1899, into force for Australia, via UK, 1900) (‘1899 Hague (III)’); 1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, opened for signature 6 July 1906 (entered into force for Australia 1907) (‘1906 Geneva Convention’); 1907 Hague (XIV) Declaration Prohibiting the Discharge of Projectiles and Explosives from Balloons, opened for signature 18 October 1907 (entered into force for Australia 1909) (‘1907 Hague (XIV)’); 1907 Hague (III) Convention relative to the Opening of Hostilities, opened for signature 18 October 1907 (entered into force for Australia 1910) (‘1907 Hague (III)’); 1907 Hague (IV) Convention concerning the Laws and Customs of War on Land, opened for signature 18 October 1907 (entered into force for Australia 1910) (‘1907 Hague (IV)’); 1907 Hague (VI) Convention relative to the Status of Enemy Merchant Ships at the Start of Hostilities, opened for signature 18 October 1907 (entered into force for Australia 1910); 1907 Hague (VII) Convention relative to the Conversion of Merchant Ships into War-ships, opened for signature 18 October 1907 (entered into force for Australia 1910); 1907 Hague (VIII) Convention relative to the Laying of Automatic Submarine Contact Mines, opened for signature 18 October 1907 (entered into force for Australia 1910); 1907 Hague (IX) Convention concerning Bombardment by Naval Forces in Time of War, opened for signature 18 October 1907 (entered into force for Australia 1910) (‘1907 Hague (IX)’); 1907 Hague (XI) Convention relative to Certain Restrictions on the Exercise of the Right of Capture in Naval War, opened for signature 18 October 1907, (entered into force for Australia 1910).
[25] The full list was 1868 St Petersburg Declaration (n 24); 1899 Hague (II) (n 24); 1899 Hague (III) (n 24); 1906 Geneva Convention(n 24); 1907 Hague (III) (n 24); 1907 Hague (IV) (n 24); 1907 Hague (IX) (n 24); 1907 Hague (XIV) (n 24); and 1907 Hague (V) Convention relative to the Rights and Duties of Neutral Powers and Persons in case of War on Land, opened for signature 18 October 1907: Manual of Military Law (n 12) 234–5 [4].
[26] Manual of Military Law (n 12) 235 [5].
[27] Ibid 302 [441] (emphasis added).
[28] The Bill had proposed that the Army Act 1881 (UK) (‘Army Act’) should be applied to the Australian military forces at all times – that is, in both war and in peace – but this proposal had enlivened opposition to the possibility of using Australian troops for Imperial, rather than for national, defence. So strong was opposition on this ground that the scheme had to yield, first, so that military service beyond Australia or its territories should not be compulsory; and secondly, so that the military forces should be subject to the Army Act only while on active service: Oswald and Waddell (n 1) 14.
[29] Defence Act 1915 (Cth) (‘Defence Act’); Oswald and Waddell (n 1) 17, 19.
[30] Lewis (n 12) 120.
[31] Manual of Military Law: Australian Edition (Military Board/Commonwealth Government Printer, 1941) 428–9; the jurisdictional and policy rationale is set out in Chapter VII (‘Offences Punishable by Ordinary Law’) at 114–15.
[32] Alan Kramer, ‘The First Wave of International War Crimes Trials: Istanbul and Leipzig’ (2006) 14(4) European Review 441.
[33] Arthur W Jose, Official History of Australia in the War of 1914-1918: Vol. IX – The Royal Australian Navy (Angus & Robertson,1928) 82–91; Bruce Gaunson, Fighting the Kaiserreich: Australia’s Epic Within the Great War (Hybrid Publishers, 2018) ch 1; Kevin Meade, Heroes Before Gallipoli: Bita Paka and that One Day in September (John Wiley & Sons, 2005) chs 7–9.
[34] Seaforth Simpson Mackenzie, The Official History of Australia in the War of 1914-1918: Vol X – The Australians at Rabaul: The Capture and Administration of the German Possessions in the Southern Pacific (Angus & Robertson, 1942) 53.
[35] Ibid 55.
[36] The annex to 1907 Hague (IV) (n 24).
[37] ‘Rabaul Charges’, Sydney Morning Herald (Sydney, Friday 23 July 1915) 10.
[38] Tim Cook’s 2006 study of Canadian killings of German PWs during WWI ‘unearth[ed] dozens of accounts of Canadians executing surrendering Germans out of rage, vengeance or expediency’: Tristan Hopper, ‘The forgotten ruthlessness of Canada’s Great War soldiers’, National Post (Toronto, 12 November 2018), available at https://nationalpost.com/news/canada/the-forgotten-ferocity-of-canadas-soldiers-in-the-great-war. His 2007 monograph At the Sharp End: Canadians Fighting the Great War 1914-1916, and its companion 2008 Shock Troops: Canadians Fighting the Great War 1917-1918 recount a range of such incidents – some indicating official sanction, and others tolerance, of the policy: Tim Cook, At the Sharp End: Canadians Fighting the Great War 1914-1916 (Penguin, 2007) 127, 308, 451, 480; Tim Cook, Shock Troops: Canadians Fighting the Great War 1917-1918 (Penguin, 2008) 139, 487.
[39] Robert Graves, Goodbye to All That (Jonathan Cape, 1929) [Berghahn Books, 1995 edition] 168.
[40] Ibid 168–9.
[41] John Grainger, The Battle for Syria, 1918-1920 (Boydell and Brewer, 2013) 201–5.
[42] Paul Daley, Beersheba: A Journey Through Australia's Forgotten War (Melbourne University Press, 2009) chs 22–7; Henry Gullett, The Official History of Australia in the War of 1914-1918: Vol VII – The Australian Imperial Force in the Sinai and Palestine (Angus & Robertson, 1923) 788–92.
[43] Gullett (n 42) 789.
[44] Daley (n 42) 259, 263.
[45] Gullett (n 42) 790.
[46] Daley (n 42) 267.
[47] Ibid 258.
[48] Ibid 266–7.
[49] Ibid 300–2.
[50] Ibid 277.
[51] Daley (n 42) 273ff.
[52] Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, opened for signature 17 July [1929] LNTSer 234; 1925, 94 LNTS 65 (entered into force for Australia 1930); Geneva Convention relative to the Treatment of Prisoners of War, opened for signature 27 July [1931] LNTSer 156; 1929, 118 LNTS 343 (entered into force for Australia 1931); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, opened for signature 27 July [1931] LNTSer 157; 1929, 118 LNTS 303 (entered into force for Australia 1931) (‘1929 Geneva Convention’). In addition, the Geneva Convention Act 1938 (Cth) had come into effect, replacing the application of the Geneva Convention Act 1911 (Imp). The Geneva Convention Act 1911 (Imp.) was narrowly concerned with protection from abuse and misuse of the Red Cross emblem as per, most particularly, Article 27 of the 1906 Geneva Convention. The Geneva Convention Act 1911 (Imp) was extended to Australia by Order-in-Council, 11 February 1913. Application of the Geneva Convention Act 1911 (Imp) and its subsequent iterations directly to Australia was terminated in 1938 by s 3 of the Geneva Convention Act 1938 (Cth). Like its Imperial predecessor, the scope of the 1938 Act was very narrow, essentially to implement Article 28 of the 1929 Geneva Convention, which prohibited abuse and misuse of the Red Cross emblem.
[53] Lewis (n 12) 59.
[54] Ibid 209–10.
[55] Ibid 208.
[56] Douglas Gillison, Royal Australian Air Force 1939-1942 (Australian War Memorial, Australia in the War of 1939-1945: Series 3, Vol I, 1962) 691–6.
[57] Alan Stephens, ‘Air Power and the Battle of the Bismarck Sea’, From Balloons to Drones (2 March 2017), available at https://balloonstodrones.com/2017/03/02/air-power-and-the-battle-of-the-bismarck-sea/; Alan Stephens, ‘The Battle of the Bismarck Sea’, Battle for Australia Association (undated), available at http://www.battleforaustralia.org.au/BABismarkSea.php; Lex McAulay, The Battle of the Bismarck Sea: 3 March 1943 (Banner Books, 2008) 135; Alexander Gillespie, A History of the Laws of War: Vol I – The Customs and Laws of War with Regards to Combatants and Captives (Hart Publishing, 2011) 190.
[58] Gregory P Gilbert, The Battle of the Bismarck Sea, March 1943 (Air Power Development Centre, 2013) 66.
[59] Gillison (n 56) 694–5.
[60] Ken Wright, ‘Battle of the Bismark Sea’ (December 2009) Naval Historical Review, available at https://www.navyhistory.org.au/battle-of-the-bismark-sea/5/.
[61] McAulay (n 57) 152.
[62] Ibid 144.
[63] Opened for signature 18 October 1907. Article 16 is as follows: ‘After every engagement, the two belligerents, so far as military interests permit, shall take steps to look for the shipwrecked, sick, and wounded, and to protect them, as well as the dead, against pillage and ill-treatment...’.
[64] Kevin Baker, Paul Cullen, Citizen and Soldier: The Life and Times of Major-General Paul Cullen (Rosenberg Publishing, 2005) 145.
[65] Ibid 146.
[66] Philip Dwyer, ‘Anzacs behaving badly: Scott McIntyre and contested history’, The Conversation (29 April 2015), available at http://theconversation.com/anzacs-behaving-badly-scott-mcintyre-and-contested-history-40955.
[67] See, inter alia, Adam Wakeling, Stern Justice: The Forgotten Story of Australia, Japan and the Pacific War Crimes Trials (Penguin, 2018), and the appendixes contained therein detailing the different levels of trials; Yuki Takatori, ‘‘America's’ War Crimes Trial? Commonwealth Leadership at the International Military Tribunal for the Far East, 1946–48’ (2007) 35(4) The Journal of Imperial and Commonwealth History 549.
[68] Dennis et al (n 11) 642; Gerry Simpson, ‘Revisiting the Tokyo War Crimes Trial’ (2009) 78(4) Pacific Historical Review 608; Sung Yoon Cho, ‘The Tokyo War Crimes Trial’ (1967) 24(4) The Quarterly Journal of the Library of Congress 309.
[69] Timothy Maga, ‘“Away From Tokyo”: The Pacific Islands War Crimes Trials 1945-1949’ (2001) 36(1) Journal of Pacific History 3; John Pritchard, ‘The Gift of Clemency Following British War Crimes Trials in the Far East, 1946-1948’ (1996) 7(1) Criminal Law Forum 15; Suzannah Linton, ‘Rediscovering the War Crimes Trials in Hong Kong, 1946-48’ [2012] MelbJlIntLaw 11; (2012) 13(2) Melbourne Journal of International Law 284; W L Cheah, ‘An Overview of the Singapore War Crimes Trials (1946-1948): Prosecuting Lower-Level Accused’ (2016) 34(1) Singapore Law Review 1.
[70] DCS Sissons, The Australian War Crimes Trials and Investigations (1942-51) (Australian National University Press, 2006).
[71] The Board of Inquiry was appointed under the National Security (Inquiries) Regulations and the National Security (General) Regulations, on 03 September 1945, and reported in early 1946.
[72] This report is attached to A C C Menzies, Review of Material Relating to the Entry of Suspected War Criminals into Australia (Australian Government Publishing Service, Parliamentary Paper No 90, 1987),; available at https://nla.gov.au/nla.obj-1663719208/view?partId=nla.obj-1665147205James Thomson, ‘Is It a Mess - The High Court and the War Crimes Case: External Affairs, Defence, Judicial Power and Australian Constitution’ [1992] UWALawRw 11; (1992) 22(1) University of Western Australia Law Review 197.
[73] Statistics as at 1953 - NAA: A1838, 3103/10/13/2 PART 6; Narrelle Morris, ‘Unexpected Defeat: The Unsuccessful War Crimes Prosecution of Lt Gen Yamawaki Masataka and others at Manus Island, 1950’ (2013) 11(3) Journal of International Criminal Justice 591; Georgina Fitzpatrick et al, Australia’s War Crimes Trials 1945-1951 (Brill Nijhoff, 2016).
[74] ‘Stolen Years: Australian Prisoners of War’, Australian War Memorial (20 January 2020), available at https://www.awm.gov.au/visit/exhibitions/stolenyears/ww2/japan/warcrimes; Dennis et al (n 11) 641–2.
[75] Dean Aszkielowicz, ‘Repatriation and the Limits of Resolve: Japanese War Criminals in Australian Custody’ (2011) 31(2) Japanese Studies 211.
[76] Captain Russell Le Gay Brereton, later (1952-1974) a judge of the Supreme Court of New South Wales.
[77] Gideon Boas, ‘War Crimes Prosecutions in Australia and other Common Law Countries: Some Observations’ (2010) 21(2) Criminal Law Forum 313.
[78] Konrad Kwiet, ‘A Historian’s View: The War Crimes Debate Down Under’ (2010) 24(1) Dapim: Studies on the Holocaust 319, 327.
[79] Thomson (n 72) 200–1.
[80] Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 526 (Mason CJ); [1991] HCA 32.
[81] Gideon Boas and Pascale Chifflet, ‘Suspected War Criminals in Australia: Law and Policy’ [2016] MelbULawRw 9; (2016) 40(1) Melbourne University Law Review 46, 54.
[82] Kwiet (n 78) 329.
[83] ‘Polyukhovich v The Commonwealth of Australia and Another’, International Crimes Databse (2013), available at http://www.internationalcrimesdatabase.org/Case/1172; ‘Jury acquits man of war crimes charges’, AP News (18 May 1993), available at https://apnews.com/139ec9629b591b4108823a6511302637.
[84] Kwiet (n 78) 329.
[85] Ibid 329–30.
[86] Ibid 330.
[87] Boas and Chifflet (n 81) 54.
[88] Genocide Convention Act 1949 (Cth).
[89] Geneva Convention for Wounded in the Field 1949 (n 5).
[90] Opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950).
[91] Opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950).
[92] Opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950).
[93] Except that whereas previously, the Defence Act (n 29) had incorporated the Army Act (n 28) ‘for the time being in force’ – meaning that any amendments to the Army Act made from time to time by the UK Parliament were automatically incorporated – this was amended so as to apply the Army Act as in force as at 29 October 1956. This was because in the UK, the Army Act was repealed on 1 January 1957 and replaced by the Army Act 1955 (UK), and if the Defence Act had not been amended, it would have incorporated the new UK legislation. In circumstances where it was believed that a bill containing a revised Army discipline code for Australia was close to being enacted, it was considered that the effort required in Australia to implement a new UK discipline code for a short period of time would not be justified. In fact, no such code was enacted until 1982, so that the Army Act continued to apply to Australian service members on active service for nearly 30 years after its repeal in the UK: Oswald and Waddell (n 1) 246.
[94] While UK enactments affecting the Army Act (n 28) subsequent to 29 October 1956 had no application to Australia, subsequent UK enactments creating or otherwise affecting civil offences continued to apply to charges brought against Australian personnel under s 41 of the old Act. In Vietnam, for example, Australian servicemen were court-martialled on charges brought by reference to s 41 under the Road Traffic Act 1960 (UK): Oswald and Waddell (n 1) 319.
[95] Tran Quoc Trung, ‘A Page of History One Should Not Take Pride In’, in Kenneth Maddock and Barry Wright (eds), War: Australia and Vietnam (Harper & Row, 1987) 90.
[96] Stuart Rintoul, Ashes of Vietnam: Australian Voices (Heinemann, 1987) xiv, and examples at 48 (mutilation of dead), 55 (mutilation of dead), 91 (mistreatment of bodies), 116 (killing wounded), 122 (killing civilians), 129 (killing wounded), 136 (planting evidence), 148 (rape), 155 (killing prisoners), 165 (running over dead and wounded in an APC), 170 (withholding medical attention from wounded), 172 (killing civilians), 176 (killing wounded, killing civilians).
[97] The ABC reported on a ‘massacre’; the CO of 5RAR at the time (by 1985, a Brigadier) strenuously rebutted this claim: Frank Frost, Australia’s War in Vietnam (Allen & Unwin, 1987) 120–1. At 135–7, Frost also records the allegation of a ‘massacre’ of 27 civilians at Hoa Long in July 1970, which was in fact a well-reported ambush. Frank Walker records a claim by one veteran that the killing of a woman and her baby was covered up by running ‘over the bodies in the APC to obliterate trace of the atrocity’: Frank Walker, Ghost Platoon (Hachette, 2011) 175. For other allegations see Peter Lloyd, ‘Aussies Accused of War Crimes in Vietnam’, AM (ABC, 26 June 2001), available at https://www.abc.net.au/am/stories/s319013.htm; Matthew Benns, ‘Australian Federal Police May Investigate Claims Diggers Committed Atrocities During the Vietnam War’, Daily Telegraph, (Sydney, 29 December 2013), available at https://www.news.com.au/national/australian-federal-police-may-investigate-claims-diggers-committed-atrocities-during-the-vietnam-war/news-story/805921342a5e9a39143c34bdb871d074.
[98] Robert Hall and Andrew Ross, ‘Case Study: Confronting Moral Dilemmas in Combat: Vietnam 1966-1971’ (2010) 1 Leadership and Ethics Papers (Australian Defence College) 8–9.
[99] Ibid 10.
[100] Ian Mackay says he was told this by an Australian soldier: Ian Mackay, Australians in Vietnam (Rigby, 1968) 200; Frank Frost discounts the allegation: Frost (n 97) 83, citing Lex McAulay’s argument in rebuttal of it: Lex McAulay, The Battle of Long Tan (Hutchinson, 1986) 158–9. Terry Burstall remains adamant that it occurred, and cites (inter alia) a signal log in support: Terry Burstall, A Soldier Returns: A Long Tan Veteran Discovers the Other Side of Vietnam (University of Queensland Press, 1990) 54.
[101] Hall and Ross (n 98) 11.
[102] Paul Ham, Vietnam: The Australian War (HarperCollins, 2007) 411–13; Frost (n 97) 81–3; Terry Burstall, Vietnam: The Australian Dilemma (University of Queensland Press, 1993) 167–8.
[103] Hall and Ross (n 98) 14–15; Walker (n 97) 286–93.
[104] Stuart Rintoul, Ashes of Vietnam: Australian Voices (Heinemann, 1987) 136; Hall and Ross (n 98) 9.
[105] Hall and Ross (n 98) 9.
[106] Matthew Benns, ‘Bombshell Claims Army Covered Up Truth About Aussie Massacre at Nui Dat in Vietnam in 1967’, Daily Telegraph (Sydney, 12 October 2014), available at https://www.dailytelegraph.com.au/news/nsw/bombshell-claims-army-covered-up-truth-about-aussie-massacre-at-nui-dat-in-vietnam-in-1967/news-story/3eacf164bb0fa42790fb66b138922834. This report is related to the publication of an article by Ben Morris, ‘The Diggers’ Wish: Set the Record Straight’ (2014) 36 Oral History Association of Australia Journal 72, which contains greater detail.
[107] See Private R v Brigadier Cowen (2020) 94 ALJR 849; [2020] HCA 31.
[108] Convention for the Protection of Cultural Property in the Event of Armed Conflict, opened for signature 14 May 1954, 249 UNTS 216 (entered into force for Australia 1984); Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, opened for signature 10 April 1972, 1015 UNTS 163 (entered into force for Australia 1977); Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, opened for signature 10 October 1980, 1342 UNTS 137 (entered into force for Australia 1984) (‘CCW’); CCW Protocol I on Non-Detectable Fragments 1980; CCW Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby Traps and other Devices 1980; and CCW Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons 1980 (all entered into force for Australia 1984); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), opened for signature 8 June 1977, 1125 UNTS 3 (signed by Australia in 1978 but not ratified until after the conflict) (‘1977 Protocol I’); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), opened for signature 8 June 1977, 1125 UNTS 609 (signed by Australia in 1978 but not ratified until after the conflict).
[109] By the Geneva Conventions Amendment Act 1991 (Cth).
[110] 1977 Protocol I (n 108).
[111] Rome Statute the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (‘Rome Statute’).
[112] ‘Rome Statute of the International Criminal Court’, Department of Foreign Affairs and Trade Treaties Database (undated), available at http://www.info.dfat.gov.au/Info/Treaties/treaties.nsf/AllDocIDs/D30C586371409CE4CA256BA3000F6E84; and see Department of Foreign Affairs and Trade, ‘Statute of the International Criminal Court, done at Rome on 17 July 1998: National Interest Analysis’, available at http://www.austlii.edu.au/au/other/dfat/nia/2000/24.html.
[113] International Criminal Court (Consequential Amendments) Act 2002 (Cth) (Long Title: An Act to amend the Criminal Code Act 1995 and certain other Acts in consequence of the enactment of the International Criminal Court Act 2002, and for other purposes).
[115] International Criminal Court Act 2002 (Cth) s 3.
[116] Commonwealth of Australia, Parliamentary Debates, House of Representatives, 25 June 2002, ‘International Criminal Court Bill 2002 and International Criminal Court (Consequential Amendments) Bill 2002: Second Reading Speech’, 4368 (Mr Williams QC).
[117] Cedric Ryngaert, ‘Applying the Rome Statutes Complementarity Principle: Drawing Lessons from the Prosecution of Core Crimes by States Acting Under the Universality Principle’ (2008) 19(1) Criminal Law Forum 153.
[118] Gillian Triggs, ‘Implementation of the Rome Statute for the International Criminal Court: A Quiet Revolution in Australian Law’ [2003] SydLawRw 23; (2003) 25(4) Sydney Law Review 507, 517.
[119] National Interest Analysis (n 112).
[120] Joint Standing Committee on Treaties, Parliament of Australia, The Statute of the International Criminal Court (Report No 45, May 2002).
[121] Ibid 72 [3.16].
[122] Ibid 73 [3.17].
[123] International Criminal Court Act 2002 (Cth) ss 22 (Certificate by Attorney-General), 29 (Certificate by Attorney-General).
[124] Ibid s 55 (Postponement where admissibility challenge).
[125] Triggs (n 118) 531–2.
[126] See for example, William Schabas, ‘“Complementarity in Practice”: Some Uncomplimentary Thoughts’ (2008) 19(1) Criminal Law Forum 5.
[127] Chandra Lekha Sriram and Stephen Brown, ‘Kenya in the Shadow of the ICC: Complementarity, Gravity and Impact’ (2012) 12(2) International Criminal Law Review 219, 227–8.
[128] A convenient summary of the key relevant concepts in Chapter 2 of the Code is to be found in the judgment of French CJ in R v LK (2010) 241 CLR 177, 200–1 [41]–[43]; [2010] HCA 17.
[129] Criminal Code (n 9) s 268.117 (Geographical jurisdiction).
[130] Ibid s 15.4 (Extended geographical jurisdiction—category D).
[131] Ibid s 268.115.
[132] Ibid s 268.116.
[133] Ibid s 268.121.
[134] Ibid s 5.6(1): ‘If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element’. See also s 5.2 (Intention): ‘(1) A person has intention with respect to conduct if he or she means to engage in that conduct.’
[135] Ibid s 5.6(2): ‘If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.’ Note: under sub-s 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.
[136] Ibid s 5.3: ‘A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.’
[137] Ibid s 5.4(1).
[138] Hamdan v Rumsfeld, 548 US 1, 66–7 (2006).
[139] Criminal Code (n 9) s 11.1 (Attempt).
[140] Ibid s 11.2 (Complicity and common purpose).
[141] Ibid s 11.3 (Commission by proxy).
[142] Ibid s 11.4 (Incitement).
[143] United Nations War Crimes Commission, ‘Trial of General Tomoyuki Yamashita’ (1948) 4 Law Reports of Trials of War Criminals 1.
[144] He was also the commander during the Malaya campaign, during which Australian prisoners were slaughtered at Parit Sulong by authority of the Divisional Commander, who was subsequently also charged.
[145] ‘Trial of General Tomoyuki Yamashita’ (n 143) 35.
[146] ‘The High Command Case’, in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10: Vol XI (United States Government Printing Office, 1950) 462, 543–4.
[147] United Nations War Crimes Commission, ‘Trial of Wilhelm List and Others’ (1949) 8 Law Reports of Trials of War Criminals 34; ‘The Hostage Case’, in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10: Vol XI (United States Government Printing Office, 1950) 757.
[148] ‘International Military Tribunal for the Far East, The Tokyo War Crimes Trial, November 1948’, in L Friedman (ed), The Law of War: A Documentary History – Vol II (Random House, 1972) 1037–40.
[149] 1977 Protocol I (n 109).
[150] See Andrew D Mitchell ‘Failure to Halt, Prevent or Punish: The Doctrine for Command Responsibility for War Crimes’ [2000] SydLawRw 18; (2000) 22(3) Sydney Law Review 381, 384.
[151] See Prosecutor v Bemba Gombo (International Criminal Court, Appeals Chamber, Case No ICC-01/05-01/08, 8 June 2018).
[152] Prosecutor v Strugar (International Criminal Tribunal for the former Yugoslavia, Trial Chamber, Case No ICTY-IT-01-42-T, 17 July 2008).
[153] Ibid.
[154] Criminal Code (n 9) s 9.1 (Mistake or ignorance of fact (fault elements other than negligence)).
[155] Ibid s 10.1 (Intervening conduct or event).
[156] Ibid s 10.3 (Sudden or extraordinary emergency).
[157] Ibid s 10.4 (Self-defence).
[158] Ibid s 10.5 (Lawful authority).
[159] As to the adequacy of incorporation of the core law of armed conflict proportionality principle into Division 268 of the Code, see Rob McLaughlin and Bruce Oswald, ‘“Wilful Killing” During Armed Conflict: Is There a Defence of Proportionality in Australia?’ (2007) 18(1) Criminal Law Forum 1. Recent amendments to Division 268 have partially addressed this issue: Criminal Code Amendment (War Crimes) Act 2016 (Cth).
[160] The Rome Statute (n 112) distinguishes between offences of genocide and crimes against humanity, and war crimes. The former are made – by definition – manifestly unlawful, thus rendering of the defence of superior orders unavailable. For war crimes, however, the requirement to deal with the question of the manifest illegality of the order remains a factor in determining the availability of the defence: Rome Statute art 33 (Superior orders and prescription of law). For a detailed treatment of this issue see, inter alia: Paola Gaeta, ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law’ (1999) 10 European Journal of International Law 172.
[161] For example, R v Blackman [2015] 1 WLR 1900; [2014] EWCA Crim 1029, [67] (Lord Thomas of Cwmgiedd, CJ) (‘Blackman’); US v Maynulet (United States Court of Appeals for the Armed Forces, No 09-0073/AR, 3 March 2010) 6–10 (Baker J), on the non-availability of the defence of mistake of law in this case.
[162] On 15 September 2011, Alexander Blackman, then an Acting Colour Sergeant in the Royal Marines, fatally shot a badly wounded insurgent in Helmand Province, Afghanistan. Video evidence of the events showed that Blackman appeared to be acting in a rational manner before, during, and after the killing. On 8 November 2013, Blackman was found guilty of the ordinary crime of murder by the court martial. No psychiatric report was obtained before the trial and no psychiatric evidence was called at trial. A psychiatric report obtained for the purposes of sentence concluded that he may have been suffering from an undetected combat stress disorder which could have been considered an extenuating factor in relation to punishment. He was sentenced to life imprisonment with a minimum of ten years to serve. Blackman appealed to the Court Martials Appeal Court; his conviction was confirmed, but his sentence reduced to 8 years: Blackman (n 161). After a media campaign and review by the Criminal Cases Review Commission, the matter was referred to the Court of Appeal, where a psychological defence was presented for the first time; his conviction was reduced to manslaughter by reason of diminished responsibility: R v Blackman [2017] EWCA Crim 190 (‘Blackman Appeal’).
[163] Criminal Code (n 9) s 268.121 (Bringing proceedings under this Division).
[164] Blackman (n 161); Blackman Appeal (n 162).
[165] R v Semrau (2010) CM 4010.
[166] (2013) 259 FLR 208 (‘Re Civilian Casualty Court Martial’).
[167] Jann Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1(1) Journal of International Criminal Justice 86, 95–7.
[168] Defence Force Discipline Act 1982 (Cth) s 9 (‘DFDA’). In Re Civilian Casualty Court Martial (n 166), Westwood CJA held that there was no doubt as to the application of the DFDA in precisely this context. For an academic analysis of this case see Joshua Kelly, ‘Re Civilian Casualty Court Material: Prosecuting Breaches of International Humanitarian Law Using the Australian Military Justice System’ [2013] MelbULawRw 16; (2013) 37(2) Melbourne University Law Review 342.
[170] Kelly (n 168) 350–1.
[171] Evidence to Joint Standing Committee on Treaties, Parliament of Australia, Melbourne, 14 March 2001, 134 (Timothy McCormack).
[172] Philipp Kastner, ‘Domestic War Crimes Trials: Only for Others – Bridging National and International Criminal Law’ [2015] UWALawRw 12; (2015) 39(1) University of Western Australia Law Review 29, 33.
[173] Ibid 35.
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