(a) the person submits to the act because of force or the fear of force to the
person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is
so affected by alcohol or another drug as to be incapable of consenting;
(d)
the person is incapable of understanding the essential nature of the act;
(e)
the person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power; or
- (b)
- taking advantage of a coercive environment.
- (4)
- In subsection (1), being reckless as to whether there is consent to
one or more acts of a sexual nature includes not giving any thought to whether
or not the person is consenting to the act or acts of a sexual nature.
268.20 Crime against humanity—persecution
- (1)
- A person (the perpetrator
) commits an offence if:
- (a)
- the perpetrator severely deprives one or more persons of any of the rights
referred to in paragraph (b); and
- (b)
- the rights are those guaranteed in articles 6, 7, 8 and 9, paragraph 2 of
article 14, article 18, paragraph 2 of article 20, paragraph 2 of article 23
and article 27 of the Covenant; and
- (c)
- the perpetrator targets the person or persons by reason of the identity of
a group or collectivity or targets the group or collectivity as such; and
- (d)
- the grounds on which the targeting is based are political, racial,
national, ethnic, cultural, religious, gender or other grounds that are
recognised in paragraph 1 of article 2 of the Covenant; and
- (e)
- the perpetrator's conduct is committed in connection with another act that
is:
- (i)
- a proscribed inhumane act; or
- (ii)
- genocide; or
- (iii)
- a war crime; and
- (f)
- the perpetrator's conduct is committed intentionally or knowingly as part
of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
- (2)
- Strict liability applies to:
- (a)
- the physical element of the offence referred to in paragraph (1)(a)
that the rights are those referred to in paragraph (1)(b); and
- (b)
- paragraphs (1)(b) and (d).
268.21 Crime against humanity—enforced disappearance of persons
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator arrests, detains or abducts one or more persons; and
- (b)
- the arrest, detention or abduction is carried out by, or with the
authorisation, support or acquiescence of, the government of a country or a
political organisation; and
- (c)
- the perpetrator intends to remove the person or persons from the
protection of the law for a prolonged period of time; and
- (d)
- the perpetrator's conduct is committed intentionally or knowingly as part
of a widespread or systematic attack directed against a civilian population;
and
- (e)
- after the arrest, detention or abduction, the government or organisation
refuses to acknowledge the deprivation of freedom of, or to give information
on the fate or whereabouts of, the person or persons.
Penalty: Imprisonment for 17 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- one or more persons have been arrested, detained or abducted; and
- (b)
- the arrest, detention or abduction was carried out by, or with the
authorisation, support or acquiescence of, the government of a country or a
political organisation; and
- (c)
- the perpetrator refuses to acknowledge the deprivation of freedom, or to
give information on the fate or whereabouts, of the person or persons; and
- (d)
- the refusal occurs with the authorisation, support or acquiescence of the
government of the country or the political organisation; and
- (e)
- the perpetrator knows that, or is reckless as to whether, the refusal was
preceded or accompanied by the deprivation of freedom; and
- (f)
- the perpetrator intends that the person or persons be removed from the
protection of the law for a prolonged period of time; and
- (g)
- the arrest, detention or abduction occurred, and the refusal occurs, as
part of a widespread or systematic attack directed against a civilian
population; and
- (h)
- the perpetrator knows that the refusal is part of, or intends the refusal
to be part of, such an attack.
Penalty: Imprisonment for 17 years.
268.22 Crime against
humanity—apartheid
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator commits against one or more persons an act that is a
proscribed inhumane act (as defined by the Dictionary) or an act that is of a
nature and gravity similar to any such proscribed inhumane act; and
- (b)
- the perpetrator's conduct is committed in the context of an
institutionalised regime of systematic oppression and domination by one racial
group over any other racial group or groups; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish the character of the act; and
- (d)
- the perpetrator intends to maintain the regime by the conduct; and
- (e)
- the perpetrator's conduct is committed intentionally or knowingly as part
of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
268.23 Crime against humanity—other
inhumane act
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator causes great suffering, or serious injury to body or to
mental or physical health, by means of an inhumane act; and
- (b)
- the act is of a character similar to another proscribed inhumane act as
defined by the Dictionary; and
- (c)
- the perpetrator's conduct is committed intentionally or knowingly as part
of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
Subdivision D—War crimes that are
grave breaches of the Geneva Conventions and of Protocol I to the Geneva
Conventions
268.24 War crime—wilful killing
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator causes the death of one or more persons; and
- (b)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.25 War crime—torture
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator inflicts severe physical or mental pain or suffering upon
one or more persons; and
- (b)
- the perpetrator inflicts the pain or suffering for the purpose of:
- (i)
- obtaining information or a confession; or
- (ii)
- a punishment, intimidation or coercion; or
- (iii)
- a reason based on discrimination of any kind; and
- (c)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (d)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (e)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(c).
268.26 War crime—inhumane treatment
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator inflicts severe physical or mental pain or suffering upon
one or more persons; and
- (b)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.27 War crime—biological experiments
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator subjects one or more persons to a particular biological
experiment; and
- (b)
- the experiment seriously endangers the physical or mental health or
integrity of the person or persons; and
- (c)
- the perpetrator's conduct is neither justified by the medical, dental or
hospital treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (e)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (f)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(d).
268.28 War crime—wilfully causing great suffering
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator causes great physical or mental pain or suffering to, or
serious injury to body or health of, one or more persons; and
- (b)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.29 War crime—destruction and appropriation of property
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator destroys or appropriates property; and
- (b)
- the destruction or appropriation is not justified by military necessity;
and
- (c)
- the destruction or appropriation is extensive and carried out unlawfully
and wantonly; and
- (d)
- the property is protected under one or more of the Geneva Conventions or
under Protocol I to the Geneva Conventions; and
- (e)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the property is so protected; and
- (f)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 15 years.
- (2)
- Strict liability applies to
paragraph (1)(d).
268.30 War crime—compelling service in hostile forces
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator coerces one or more persons, by act or threat:
- (i)
- to take part in military operations against that person's or those
persons' own country or forces; or
- (ii)
- otherwise to serve in the forces of an adverse power; and
- (b)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 10 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.31 War crime—denying a fair trial
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator deprives one or more persons of a fair and regular trial
by denying to the person any of the judicial guarantees referred to in
paragraph (b); and
- (b)
- the judicial guarantees are those defined in articles 84, 99 and 105 of
the Third Geneva Convention and articles 66 and 71 of the Fourth Geneva
Convention; and
- (c)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (d)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (e)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 10 years.
- (2)
- Strict liability applies to:
- (a)
- the physical element of the offence referred to in paragraph (1)(a)
that the judicial guarantees are those referred to in paragraph (1)(b);
and
- (b)
- paragraphs (1)(b) and (c).
268.32 War crime—unlawful deportation or transfer
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator unlawfully deports or transfers one or more persons to
another country or to another location; and
- (b)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.33 War crime—unlawful confinement
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator unlawfully confines or continues to confine one or more
persons to a certain location; and
- (b)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.34 War crime—taking hostages
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator seizes, detains or otherwise holds hostage one or more
persons; and
- (b)
- the perpetrator threatens to kill, injure or continue to detain the person
or persons; and
- (c)
- the perpetrator intends to compel the government of a country, an
international organisation or a person or group of persons to act or refrain
from acting as an explicit or implicit condition for either the safety or the
release of the person or persons; and
- (d)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (e)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are so protected; and
- (f)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- Strict liability applies to
paragraph (1)(d).
Subdivision E—Other serious war crimes that are committed in the course
of an international armed conflict
268.35 War crime—attacking civilians
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is a civilian population as such or individual
civilians not taking direct part in hostilities; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
268.36 War crime—attacking civilian
objects
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is not a military objective; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 15 years.
268.37 War crime—attacking personnel
or objects involved in a humanitarian assistance or peacekeeping mission
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is personnel involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the
United Nations; and
- (c)
- the personnel are entitled to the protection given to civilians under the
Geneva Conventions or Protocol I to the Geneva Conventions; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance
with the Charter of the United Nations; and
- (c)
- the installations, material, units or vehicles are entitled to the
protection given to civilian objects under the Geneva Conventions or Protocol
I to the Geneva Conventions; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 20 years.
- (3)
- Strict liability applies to
paragraphs (1)(c) and (2)(c).
268.38 War crime—excessive incidental death, injury or damage
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator launches an attack; and
- (b)
- the perpetrator knows that the attack will cause incidental death or
injury to civilians; and
- (c)
- the perpetrator knows that the death or injury will be of such an extent
as to be excessive in relation to the concrete and direct military advantage
anticipated; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator launches an attack; and
- (b)
- the perpetrator knows that the attack will cause:
- (i)
- damage to civilian objects; or
- (ii)
- widespread, long-term and severe damage to the natural environment; and
- (c)
- the perpetrator knows that the damage will be of such an extent as to be
excessive in relation to the concrete and direct military advantage
anticipated; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 20 years.
268.39 War crime—attacking undefended places
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator attacks or bombards one or more towns, villages, dwellings
or buildings; and
- (b)
- the towns, villages, dwellings or buildings are open for unresisted
occupation; and
- (c)
- the towns, villages, dwellings or buildings do not constitute military
objectives; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
268.40 War crime—killing or injuring a
person who is hors de combat
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator kills one or more persons; and
- (b)
- the person or persons are hors de combat ; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are hors de combat ; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator injures one or more persons; and
- (b)
- the person or persons are hors de combat ; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the person or persons are hors de combat ; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.41 War crime—improper use of a flag of truce
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses a flag of truce; and
- (b)
- the perpetrator uses the flag in order to feign an intention to negotiate
when there is no such intention on the part of the perpetrator; and
- (c)
- the perpetrator knows of, or is reckless as to, the illegal nature of such
use of the flag; and
- (d)
- the perpetrator's conduct results in death or serious personal injury; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for life.
268.42 War crime—improper use of a flag,
insignia or uniform of the adverse party
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses a flag, insignia or uniform of the adverse party; and
- (b)
- the perpetrator uses the flag, insignia or uniform while engaged in an
attack or in order to shield, favour, protect or impede military operations;
and
- (c)
- the perpetrator knows of, or is reckless as to, the illegal nature of such
use of the flag, insignia or uniform; and
- (d)
- the perpetrator's conduct results in death or serious personal injury; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for life.
268.43 War crime—improper use of a flag,
insignia or uniform of the United Nations
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses a flag, insignia or uniform of the United Nations;
and
- (b)
- the perpetrator uses the flag, insignia or uniform without the authority
of the United Nations; and
- (c)
- the perpetrator knows of, or is reckless as to, the illegal nature of such
use of the flag, insignia or uniform; and
- (d)
- the perpetrator's conduct results in death or serious personal injury; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for life.
268.44 War crime—improper use of the
distinctive emblems of the Geneva Conventions
- (1)
- A person (the perpetrator
) commits an offence if:
- (a)
- the perpetrator uses an emblem; and
- (b)
- the emblem is one of the distinctive emblems of the Geneva Conventions;
and
- (c)
- the perpetrator uses the emblem for combatant purposes to invite the
confidence of an adversary in order to lead him or her to believe that the
perpetrator is entitled to protection, or that the adversary is obliged to
accord protection to the perpetrator, with intent to betray that confidence;
and
- (d)
- the perpetrator knows of, or is reckless as to, the illegal nature of such
use; and
- (e)
- the perpetrator's conduct results in death or serious personal injury; and
- (f)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for life.
- (2)
- Strict liability applies to
paragraph (1)(b).
- (3)
- In this section:
"emblem" means any emblem, identity card, sign, signal, insignia or uniform.
268.45 War crime—transfer of population
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator:
- (i)
- authorises, organises or directs, or participates in the authorisation,
organisation or direction of, or participates in, the transfer, directly or
indirectly, of parts of the civilian population of the perpetrator's own
country into territory that the country occupies; or
- (ii)
- authorises, organises or directs, or participates in the authorisation,
organisation or direction of, or participates in, the deportation or transfer
of all or parts of the population of territory occupied by the perpetrator's
own country within or outside that territory; and
- (b)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.46 War crime—attacking protected
objects
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is any one or more of the following that are not
military objectives:
- (i)
- buildings dedicated to religion, education, art, science or charitable
purposes;
- (ii)
- historic monuments;
- (iii)
- hospitals or places where the sick and wounded are collected; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 20 years.
268.47 War crime—mutilation
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or more persons to mutilation, such as by
permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
- (b)
- the perpetrator's conduct causes the death of the person or persons; and
- (c)
- the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are in the power of an adverse party; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator subjects one or more persons to mutilation, such as by
permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
- (b)
- the perpetrator's conduct seriously endangers the physical or mental
health, or the integrity, of the person or persons; and
- (c)
- the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are in the power of an adverse party; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.48 War crime—medical or scientific experiments
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or more persons to a medical or scientific
experiment; and
- (b)
- the experiment causes the death of the person or persons; and
- (c)
- the perpetrator's conduct is neither justified by the medical, dental or
hospital treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are in the power of an adverse party; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator subjects one or more persons to a medical or scientific
experiment; and
- (b)
- the experiment seriously endangers the physical or mental health, or the
integrity, of the person or persons; and
- (c)
- the perpetrator's conduct is neither justified by the medical, dental or
hospital treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are in the power of an adverse party; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.49 War crime—treacherously killing or injuring
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator invites the confidence or belief of one or more persons
that the perpetrator is entitled to protection, or that the person or persons
are obliged to accord protection to the perpetrator; and
- (b)
- the perpetrator kills the person or persons; and
- (c)
- the perpetrator makes use of that confidence or belief in killing the
person or persons; and
- (d)
- the person or persons belong to an adverse party; and
- (e)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator invites the confidence or belief of one or more persons
that the perpetrator is entitled to protection, or that the person or persons
are obliged to accord protection to the perpetrator; and
- (b)
- the perpetrator injures the person or persons; and
- (c)
- the perpetrator makes use of that confidence or belief in injuring the
person or persons; and
- (d)
- the person or persons belong to an adverse party; and
- (e)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.50 War crime—denying quarter
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator declares or orders that there are to be no survivors; and
- (b)
- the declaration or order is given with the intention of threatening an
adversary or conducting hostilities on the basis that there are to be no
survivors; and
- (c)
- the perpetrator is in a position of effective command or control over the
subordinate forces to which the declaration or order is directed; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
268.51 War crime—destroying or seizing
the enemy's property
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator destroys or seizes certain property; and
- (b)
- the property is property of an adverse party; and
- (c)
- the property is protected from the destruction or seizure under article 18
of the Third Geneva Convention, article 53 of the Fourth Geneva Convention or
article 54 of Protocol I to the Geneva Conventions; and
- (d)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the property is so protected; and
- (e)
- the destruction or seizure is not justified by military necessity; and
- (f)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 15 years.
- (2)
- Strict liability applies to
paragraph (1)(c).
268.52 War crime—depriving nationals of the adverse power of rights or
actions
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator effects the abolition, suspension or termination of
admissibility in a court of law of certain rights or actions; and
- (b)
- the abolition, suspension or termination is directed at the nationals of
an adverse party; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 10 years.
268.53 War crime—compelling
participation in military operations
- (1)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator coerces one or more persons by act or threat to take part
in military operations against that person's or those persons' own country or
forces; and
- (b)
- the person or persons are nationals of an adverse party; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 10 years.
- (2)
- It is not a defence to a prosecution
for an offence against subsection (1) that the person or persons were in
the service of the perpetrator at a time before the beginning of the
international armed conflict.
268.54 War crime—pillaging
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator appropriates certain property; and
- (b)
- the perpetrator intends to deprive the owner of the property and to
appropriate it for private or personal use; and
- (c)
- the appropriation is without the consent of the owner; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 15 years.
268.55 War crime—employing poison or
poisoned weapons
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator employs a substance or employs a weapon that releases a
substance as a result of its employment; and
- (b)
- the substance is such that it causes death or serious damage to health in
the ordinary course of events through its toxic properties; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.56 War crime—employing
prohibited gases, liquids, materials or devices
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator employs a gas or other analogous substance or device; and
- (b)
- the gas, substance or device is such that it causes death or serious
damage to health in the ordinary course of events through its asphyxiating or
toxic properties; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
268.57 War crime—employing
prohibited bullets
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator employs certain bullets; and
- (b)
- the bullets are such that their use violates the Hague Declaration because
they expand or flatten easily in the human body; and
- (c)
- the perpetrator knows that, or is reckless as to whether, the nature of
the bullets is such that their employment will uselessly aggravate suffering
or the wounding effect; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.58 War crime—outrages upon personal dignity
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator severely humiliates, degrades or otherwise violates the
dignity of one or more persons; and
- (b)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator severely humiliates, degrades or otherwise violates the
dignity of the body or bodies of one or more dead persons; and
- (b)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.59 War crime—rape
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator sexually penetrates another person without the consent of
that person; and
- (b)
- the perpetrator knows about, or is reckless as to, the lack of consent;
and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator causes another person to sexually penetrate the
perpetrator without the consent of the other person; and
- (b)
- the perpetrator knows about, or is reckless as to, the lack of consent;
and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (3)
- In this section:
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of force or the fear of force to the
person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is
so affected by alcohol or another drug as to be incapable of consenting;
(d)
the person is incapable of understanding the essential nature of the act;
(e)
the person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
- (4)
- In this section:
"sexually penetrate" means:
- (a)
- penetrate (to any extent) the genitalia or anus of a person by any part of
the body of another person or by any object manipulated by that other person;
or
- (b)
- penetrate (to any extent) the mouth of a person by the penis of another
person; or
- (c)
- continue to sexually penetrate as defined in paragraph (a) or (b).
- (5)
- In this section, being reckless as to a lack of consent to sexual
penetration includes not giving any thought to whether or not the person is
consenting to sexual penetration.
- (6)
- In this section, the genitalia or other parts of the body of a person
include surgically constructed genitalia or other parts of the body of the
person.
268.60 War crime—sexual slavery
- (1)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator causes another person to enter into or remain in sexual
slavery; and
- (b)
- the perpetrator intends to cause, or is reckless as to causing, that
sexual slavery; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- For the purposes of this section,
sexual slavery is the condition of a person who provides sexual services and
who, because of the use of force or threats:
- (a)
- is not free to cease providing sexual services; or
- (b)
- is not free to leave the place or area where the person provides sexual
services.
- (3)
- In this section:
"sexual service" means the use or display of the body of the person providing
the service for the sexual gratification of others.
"threat" means:
- (a)
- a threat of force; or
- (b)
- a threat to cause a person's deportation; or
- (c)
- a threat of any other detrimental action unless there are reasonable
grounds for the threat of that action in connection with the provision of
sexual services by a person.
268.61 War crime—enforced prostitution
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator causes one or more persons to engage in one or more acts
of a sexual nature without the consent of the person or persons, including by
being reckless as to whether there is consent; and
- (b)
- the perpetrator intends that he or she, or another person, will obtain
pecuniary or other advantage in exchange for, or in connection with, the acts
of a sexual nature; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In subsection (1):
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of force or the fear of force to the
person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is
so affected by alcohol or another drug as to be incapable of consenting;
(d)
the person is incapable of understanding the essential nature of the act;
(e)
the person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power; or
- (b)
- taking advantage of a coercive environment.
- (3)
- In subsection (1), being reckless as to whether there is consent to
one or more acts of a sexual nature includes not giving any thought to whether
or not the person is consenting to the act or acts of a sexual nature.
268.62 War crime—forced pregnancy
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator unlawfully confines one or more women forcibly made
pregnant; and
- (b)
- the perpetrator intends to affect the ethnic composition of any population
or to destroy, wholly or partly, a national, ethnical, racial or religious
group, as such; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In subsection (1):
"forcibly made pregnant" includes made pregnant by a consent that was effected
by deception or by natural, induced or age-related incapacity.
- (3)
- To avoid doubt, this section does not affect any other law of the
Commonwealth or any law of a State or Territory.
268.63 War crime—enforced sterilisation
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator deprives one or more persons of biological reproductive
capacity; and
- (b)
- the deprivation is not effected by a birth-control measure that has a
non-permanent effect in practice; and
- (c)
- the perpetrator's conduct is neither justified by the medical or hospital
treatment of the person or persons nor carried out with the consent of the
person or persons; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In subsection (1):
consent does not include consent effected by deception or by natural, induced
or age-related incapacity.
268.64 War crime—sexual violence
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator does either of the following:
- (i)
- commits an act or acts of a sexual nature against one or more persons;
- (ii)
- causes one or more persons to engage in an act or acts of a sexual
nature;
without the consent of the person or persons, including by being reckless as
to whether there is consent; and
- (b)
- the perpetrator's conduct is of a gravity comparable to the offences
referred to in sections 268.59 to 268.63; and
- (c)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
- (3)
- In subsection (1):
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of force or the fear of force to the
person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is
so affected by alcohol or another drug as to be incapable of consenting;
(d)
the person is incapable of understanding the essential nature of the act;
(e)
the person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power; or
- (b)
- taking advantage of a coercive environment.
- (4)
- In subsection (1), being reckless as to whether there is consent to
one or more acts of a sexual nature includes not giving any thought to whether
or not the person is consenting to the act or acts of a sexual nature.
268.65 War crime—using protected persons as shields
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator uses the presence of one or more civilians, prisoners of
war, military, medical or religious personnel or persons who are hors de
combat ; and
- (b)
- the perpetrator intends the perpetrator's conduct to render a military
objective immune from attack or to shield, favour or impede military
operations; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty:
- (a)
- if the conduct results in the death of any of the persons
referred to in paragraph (a)—imprisonment for life; or
- (b)
- otherwise—imprisonment for 17 years.
- (2)
- In this section:
"religious personnel" includes non-confessional, non-combatant military
personnel carrying out a similar function to religious personnel.
268.66 War crime—attacking persons or objects using the distinctive
emblems of the Geneva Conventions
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator attacks one or more persons; and
- (b)
- the person or persons are using, in conformity with the Geneva Conventions
or the Protocols to the Geneva Conventions, any of the distinctive emblems of
the Geneva Conventions; and
- (c)
- the perpetrator intends the persons so using such an emblem to be the
object of the attack; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator attacks one or more buildings, medical units or transports
or other objects; and
- (b)
- the buildings, units or transports or other objects are using, in
conformity with the Geneva Conventions or the Protocols to the Geneva
Conventions, any of the distinctive emblems of the Geneva Conventions; and
- (c)
- the perpetrator intends the buildings, units or transports or other
objects so using such an emblem to be the object of the attack; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 20 years.
- (3)
- Strict liability applies to
paragraphs (1)(b) and (2)(b).
268.67 War crime—starvation as a method of warfare
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator uses as a method of warfare:
- (i)
- any intentional deprivation of civilians of objects indispensable to their
survival; or
- (ii)
- without limiting subparagraph (i)—the wilful impeding of relief
supplies for civilians; and
- (b)
- if subparagraph (a)(ii) applies—the relief supplies are provided
for under the Geneva Conventions; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.68 War crime—using, conscripting or enlisting children
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses one or more persons to participate actively in
hostilities; and
- (b)
- the person or persons are under the age of 15 years; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator conscripts one or more persons into the national armed
forces; and
- (b)
- the person or persons are under the age of 15 years; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 15 years.
- (3)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator enlists one or more persons into the national armed
forces; and
- (b)
- the person or persons are under the age of 15 years; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 10 years.
Subdivision F—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
268.69 Definition of religious
personnel
In this Subdivision:
"religious personnel" includes non-confessional, non-combatant military
personnel carrying out a similar function to religious personnel.
268.70 War crime—murder
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator causes the death of one or more persons; and
- (b)
- the person or persons are not taking an active part in the hostilities;
and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- To avoid doubt, a reference in
subsection (1) to a person or persons who are not taking an active part
in the hostilities includes a reference to:
(a) a person or persons who are hors de combat ; or
- (b)
- civilians, medical personnel or religious personnel who are not taking an
active part in the hostilities.
268.71 War crime—mutilation
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator subjects one or more persons to mutilation, such as by
permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
- (b)
- the perpetrator's conduct causes the death of the person or persons; and
- (c)
- the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are not taking an active part in the hostilities;
and
- (e)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (f)
- the conduct takes place in the context of, and is associated with, an
armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator subjects one or more persons to mutilation, such as by
permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
- (b)
- the perpetrator's conduct seriously endangers the physical or mental
health, or the integrity, of the person or persons; and
- (c)
- the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are not taking an active part in the hostilities;
and
- (e)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (f)
- the conduct takes place in the context of, and is associated with, an
armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (3)
- To avoid doubt, a reference in
subsection (1) or (2) to a person or persons who are not taking an active
part in the hostilities includes a reference to:
(a) a person or persons who are hors de combat ; or
- (b)
- civilians, medical personnel or religious personnel who are not taking an
active part in the hostilities.
268.72 War crime—cruel treatment
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator inflicts severe physical or mental pain or suffering upon
one or more persons; and
- (b)
- the person or persons are not taking an active part in the hostilities;
and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- To avoid doubt, a reference in
subsection (1) to a person or persons who are not taking an active part
in the hostilities includes a reference to:
(a) a person or persons who are hors de combat ; or
- (b)
- civilians, medical personnel or religious personnel who are not taking an
active part in the hostilities.
268.73 War crime—torture
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator inflicts severe physical or mental pain or suffering upon
one or more persons; and
- (b)
- the perpetrator inflicts the pain or suffering for the purpose of:
- (i)
- obtaining information or a confession; or
- (ii)
- a punishment, intimidation or coercion; or
- (iii)
- a reason based on discrimination of any kind; and
- (c)
- the person or persons are not taking an active part in the hostilities;
and
- (d)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (e)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- To avoid doubt, a reference in
subsection (1) to a person or persons who are not taking an active part
in the hostilities includes a reference to:
(a) a person or persons who are hors de combat ; or
- (b)
- civilians, medical personnel or religious personnel who are not taking an
active part in the hostilities.
268.74 War crime—outrages upon personal dignity
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator severely humiliates, degrades or otherwise violates the
dignity of one or more persons; and
- (b)
- the person or persons are not taking an active part in the hostilities;
and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator severely humiliates, degrades or otherwise violates the
dignity of the body or bodies of one or more dead persons; and
- (b)
- the dead person or dead persons were not, before his, her or their death,
taking an active part in the hostilities; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the dead person or dead persons were not, before his, her or
their death, taking an active part in the hostilities; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
- (3)
- To avoid doubt, a reference in this
section to a person or persons who are not, or a dead person or dead persons
who were not before his, her or their death, taking an active part in the
hostilities includes a reference to:
(a) a person or persons who:
- (i)
- are hors de combat ; or
- (ii)
- are civilians, medical personnel or religious personnel who are not
taking an active part in the hostilities; or
- (b)
- a dead person or dead persons who, before his, her or their death:
- (i)
- were hors de combat ; or
- (ii)
- were civilians, medical personnel or religious personnel who were not
taking an active part in the hostilities;
as the case may be.
268.75 War crime—taking hostages
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator seizes, detains or otherwise holds hostage one or more
persons; and
- (b)
- the perpetrator threatens to kill, injure or continue to detain the person
or persons; and
- (c)
- the perpetrator intends to compel the government of a country, an
international organisation or a person or group of persons to act or refrain
from acting as an explicit or implicit condition for either the safety or the
release of the person or persons; and
- (d)
- the person or persons are not taking an active part in the hostilities;
and
- (e)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (f)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- To avoid doubt, a reference in
subsection (1) to a person or persons who are not taking an active part
in the hostilities includes a reference to:
(a) a person or persons who are hors de combat ; or
- (b)
- civilians, medical personnel or religious personnel who are not taking an
active part in the hostilities.
268.76 War crime—sentencing or execution without due process
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator passes a sentence on one or more persons; and
- (b)
- the person or persons are not taking an active part in the hostilities;
and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (d)
- either of the following applies:
- (i)
- there was no previous judgment pronounced by a court;
- (ii)
- the court that rendered judgment did not afford the essential guarantees
of independence and impartiality or other judicial guarantees; and
- (e)
- if the court did not afford other judicial guarantees—those
guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant;
and
- (f)
- the perpetrator knows of:
- (i)
- if subparagraph (d)(i) applies—the absence of a previous
judgment; or
- (ii)
- if subparagraph (d)(ii) applies—the failure to afford the
relevant guarantees and the fact that they are indispensable to a fair trial;
and
- (g)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 10 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator executes one or more persons; and
- (b)
- the person or persons are not taking an active part in the hostilities;
and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the person or persons are not taking an active part in the
hostilities; and
- (d)
- either of the following applies:
- (i)
- there was no previous judgment pronounced by a court;
- (ii)
- the court that rendered judgment did not afford the essential guarantees
of independence and impartiality or other judicial guarantees; and
- (e)
- if the court did not afford other judicial guarantees—those
guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant;
and
- (f)
- the perpetrator knows of:
- (i)
- if subparagraph (d)(i) applies—the absence of a previous
judgment; or
- (ii)
- if subparagraph (d)(ii) applies—the failure to afford the
relevant guarantees and the fact that they are indispensable to a fair trial;
and
- (g)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
- (3)
- Strict liability applies to
paragraphs (1)(e) and (2)(e).
- (4)
- To avoid doubt, a reference in subsection (1) or (2) to a person or
persons who are not taking an active part in the hostilities includes a
reference to:
(a) a person or persons who are hors de combat ; or
- (b)
- civilians, medical personnel or religious personnel who are not taking an
active part in the hostilities.
Subdivision G—War crimes that are other serious violations of the laws
and customs applicable in an armed conflict that is not an international armed
conflict
268.77 War crime—attacking civilians
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is a civilian population as such or individual
civilians not taking direct part in hostilities; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
268.78 War crime—attacking persons or
objects using the distinctive emblems of the Geneva Conventions
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator attacks one or more persons; and
- (b)
- the person or persons are using, in conformity with the Geneva Conventions
or the Protocols to the Geneva Conventions, any of the distinctive emblems of
the Geneva Conventions; and
- (c)
- the perpetrator intends the persons so using such an emblem to be the
object of the attack; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator attacks one or more buildings, medical units or transports
or other objects; and
- (b)
- the buildings, units or transports or other objects are using, in
conformity with the Geneva Conventions or the Protocols to the Geneva
Conventions, any of the distinctive emblems of the Geneva Conventions; and
- (c)
- the perpetrator intends the buildings, units or transports or other
objects so using such an emblem to be the object of the attack; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
- (3)
- Strict liability applies to
paragraphs (1)(b) and (2)(b).
268.79 War crime—attacking personnel or objects involved in a
humanitarian assistance or peacekeeping mission
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is personnel involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the
United Nations; and
- (c)
- the personnel are entitled to the protection given to civilians under the
Geneva Conventions or Protocol II to the Geneva Conventions; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping mission in accordance
with the Charter of the United Nations; and
- (c)
- the installations, material, units or vehicles are entitled to the
protection given to civilian objects under the Geneva Conventions and Protocol
II to the Geneva Conventions; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
- (3)
- Strict liability applies to
paragraphs (1)(c) and (2)(c).
268.80 War crime—attacking protected objects
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is any one or more of the following that are not
military objectives:
- (i)
- buildings dedicated to religion, education, art, science or charitable
purposes;
- (ii)
- historic monuments;
- (iii)
- hospitals or places where the sick and wounded are collected; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
268.81 War crime—pillaging
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator appropriates certain property; and
- (b)
- the perpetrator intends to deprive the owner of the property and to
appropriate it for private or personal use; and
- (c)
- the appropriation is without the consent of the owner; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 20 years.
268.82 War crime—rape
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator sexually penetrates another person without the consent of
that person; and
- (b)
- the perpetrator knows of, or is reckless as to, the lack of consent; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator causes another person to sexually penetrate the
perpetrator without the consent of the other person; and
- (b)
- the perpetrator knows of, or is reckless as to, the lack of consent; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (3)
- In this section:
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of force or the fear of force to the
person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is
so affected by alcohol or another drug as to be incapable of consenting;
(d)
the person is incapable of understanding the essential nature of the act;
(e)
the person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
- (4)
- In this section:
"sexually penetrate" means:
- (a)
- penetrate (to any extent) the genitalia or anus of a person by any part of
the body of another person or by any object manipulated by that other person;
or
- (b)
- penetrate (to any extent) the mouth of a person by the penis of another
person; or
- (c)
- continue to sexually penetrate as defined in paragraph (a) or (b).
- (5)
- In this section, being reckless as to a lack of consent to sexual
penetration includes not giving any thought to whether or not the person is
consenting to sexual penetration.
- (6)
- In this section, the genitalia or other parts of the body of a person
include surgically constructed genitalia or other parts of the body of the
person.
268.83 War crime—sexual slavery
- (1)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator causes another person to enter into or remain in sexual
slavery; and
- (b)
- the perpetrator intends to cause, or is reckless as to causing, that
sexual slavery; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- For the purposes of this section,
sexual slavery is the condition of a person who provides sexual services and
who, because of the use of force or threats:
- (a)
- is not free to cease providing sexual services; or
- (b)
- is not free to leave the place or area where the person provides sexual
services.
- (3)
- In this section:
"sexual service" means the use or display of the body of the person providing
the service for the sexual gratification of others.
"threat" means:
- (a)
- a threat of force; or
- (b)
- a threat to cause a person's deportation; or
- (c)
- a threat of any other detrimental action unless there are reasonable
grounds for the threat of that action in connection with the provision of
sexual services by a person.
268.84 War crime—enforced prostitution
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator causes one or more persons to engage in one or more acts
of a sexual nature without the consent of the person or persons, including by
being reckless as to whether there is consent; and
- (b)
- the perpetrator intends that he or she, or another person, will obtain
pecuniary or other advantage in exchange for, or in connection with, the acts
of a sexual nature; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In subsection (1):
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of force or the fear of force to the
person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is
so affected by alcohol or another drug as to be incapable of consenting;
(d)
the person is incapable of understanding the essential nature of the act;
(e)
the person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power; or
- (b)
- taking advantage of a coercive environment.
- (3)
- In subsection (1), being reckless as to whether there is consent to
one or more acts of a sexual nature includes not giving any thought to whether
or not the person is consenting to the act or acts of a sexual nature.
268.85 War crime—forced pregnancy
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator unlawfully confines one or more women forcibly made
pregnant; and
- (b)
- the perpetrator intends to affect the ethnic composition of any population
or to destroy, wholly or partly, a national, ethnical, racial or religious
group as such; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In subsection (1):
"forcibly made pregnant" includes made pregnant by a consent that was affected
by deception or by natural, induced or age-related incapacity.
- (3)
- To avoid doubt, this section does not affect any other law of the
Commonwealth or any law of a State or Territory.
268.86 War crime—enforced sterilisation
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator deprives one or more persons of biological reproductive
capacity; and
- (b)
- the deprivation is not effected by a birth-control measure that has a
non-permanent effect in practice; and
- (c)
- the perpetrator's conduct is neither justified by the medical or hospital
treatment of the person or persons nor carried out with the consent of the
person or persons; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In subsection (1):
consent does not include consent effected by deception or by natural, induced
or age-related incapacity.
268.87 War crime—sexual violence
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator does either of the following:
- (i)
- commits an act or acts of a sexual nature against one or more persons;
- (ii)
- causes one or more persons to engage in an act or acts of a sexual
nature;
without the consent of the person or persons, including by being reckless as
to whether there is consent; and
- (b)
- the perpetrator's conduct is of a gravity comparable to the offences
referred to in sections 268.82 to 268.87; and
- (c)
- the conduct takes place in the context of, and is associated with, an
armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
- (3)
- In subsection (1):
"consent" means free and voluntary agreement.
The following are examples of circumstances in which a person does not consent
to an act:
(a) the person submits to the act because of force or the fear of force to the
person or to someone else;
(b) the person submits to the act because the
person is unlawfully detained;
(c) the person is asleep or unconscious, or is
so affected by alcohol or another drug as to be incapable of consenting;
(d)
the person is incapable of understanding the essential nature of the act;
(e)
the person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power, against the
person or another person; or
- (b)
- taking advantage of a coercive environment.
- (4)
- In subsection (1), being reckless as to whether there is consent to
one or more acts of a sexual nature includes not giving any thought to whether
or not the person is consenting to the act or acts of a sexual nature.
268.88 War crime—using, conscripting or enlisting children
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses one or more persons to participate actively in
hostilities; and
- (b)
- the person or persons are under the age of 15 years; and
- (c)
- the perpetrator knows that, or is reckless as to whether, the person or
persons are under that age; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator conscripts one or more persons into an armed force or
group; and
- (b)
- the person or persons are under the age of 15 years; and
- (c)
- the perpetrator knows that, or is reckless as to whether, the person or
persons are under that age; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years.
- (3)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator enlists one or more persons into an armed force or group;
and
- (b)
- the person or persons are under the age of 15 years; and
- (c)
- the perpetrator knows that, or is reckless as to whether, the person or
persons are under that age; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 10 years.
268.89 War crime—displacing civilians
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator orders a displacement of a civilian population; and
- (b)
- the order is not justified by the security of the civilians involved or by
imperative military necessity; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 17 years.
268.90 War crime—treacherously
killing or injuring
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator invites the confidence or belief of one or more persons
that the perpetrator is entitled to protection, or that the person or persons
are obliged to accord protection to the perpetrator; and
- (b)
- the perpetrator kills the person or persons; and
- (c)
- the perpetrator makes use of that confidence or belief in killing the
person or persons; and
- (d)
- the person or persons belong to an adverse party; and
- (e)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator invites the confidence or belief of one or more persons
that the perpetrator is entitled to protection, or that the person or persons
are obliged to accord protection to the perpetrator; and
- (b)
- the perpetrator injures the person or persons; and
- (c)
- the perpetrator makes use of that confidence or belief in injuring the
person or persons; and
- (d)
- the person or persons belong to an adverse party; and
- (e)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.91 War crime—denying quarter
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator declares or orders that there are to be no survivors; and
- (b)
- the declaration or order is given with the intention of threatening an
adversary or conducting hostilities on the basis that there are to be no
survivors; and
- (c)
- the perpetrator is in a position of effective command or control over the
subordinate forces to which the declaration or order is directed; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
268.92 War crime—mutilation
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or more persons to mutilation, such as by
permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
- (b)
- the perpetrator's conduct causes the death of the person or persons; and
- (c)
- the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are in the power of another party to the conflict;
and
- (e)
- the conduct takes place in the context of, and is associated with, an
armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator subjects one or more persons to mutilation, such as by
permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
- (b)
- the perpetrator's conduct seriously endangers the physical or mental
health, or the integrity, of the person or persons; and
- (c)
- the conduct is neither justified by the medical, dental or hospital
treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are in the power of another party to the conflict;
and
- (e)
- the conduct takes place in the context of, and is associated with, an
armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.93 War crime—medical or scientific experiments
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or more persons to a medical or scientific
experiment; and
- (b)
- the experiment causes the death of the person or persons; and
- (c)
- the perpetrator's conduct is neither justified by the medical, dental or
hospital treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are in the power of another party to the conflict;
and
- (e)
- the conduct takes place in the context of, and is associated with, an
armed conflict that is not an international armed conflict.
Penalty: Imprisonment for life.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator subjects one or more persons to a medical or scientific
experiment; and
- (b)
- the experiment seriously endangers the physical or mental health, or the
integrity, of the person or persons; and
- (c)
- the perpetrator's conduct is neither justified by the medical, dental or
hospital treatment of the person or persons nor carried out in the interest or
interests of the person or persons; and
- (d)
- the person or persons are in the power of another party to the conflict;
and
- (e)
- the conduct takes place in the context of, and is associated with, an
armed conflict that is not an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.94 War crime—destroying or seizing an adversary's property
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator destroys or seizes certain property; and
- (b)
- the property is property of an adversary; and
- (c)
- the property is protected from the destruction or seizure under article 14
of Protocol II to the Geneva Conventions; and
- (d)
- the perpetrator knows of, or is reckless as to, the factual circumstances
that establish that the property is so protected; and
- (e)
- the destruction or seizure is not justified by military necessity; and
- (f)
- the perpetrator's conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 15 years
- (2)
- Strict liability applies to
paragraph (1)(c).
Subdivision H—War crimes that are grave breaches of Protocol I to the
Geneva Conventions
268.95 War crime—medical procedure
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or more persons to a medical procedure; and
- (b)
- the procedure seriously endangers the physical or mental health, or the
integrity, of the person or persons; and
- (c)
- the perpetrator's conduct is not justified by the state of health of the
person or persons; and
- (d)
- the perpetrator knows that, or is reckless as to whether, the conduct is
consistent with generally accepted medical standards that would be applied
under similar medical circumstances to persons who are of the same nationality
as the perpetrator and are in no way deprived of liberty; and
- (e)
- the person or persons are in the power of, or are interned, detained or
otherwise deprived of liberty by, the country of the perpetrator as a result
of an international armed conflict; and
- (f)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for 25 years.
268.96 War crime—removal of blood,
tissue or organs for transplantation
- (1)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator removes from one or more persons blood, tissue or organs
for transplantation; and
- (b)
- in the case of the removal of blood—the removal:
- (i)
- is not for transfusion; or
- (ii)
- is for transfusion without the consent of the person or persons; and
- (c)
- in the case of the removal of skin—the removal:
- (i)
- is not for grafting; or
- (ii)
- is for grafting without the consent of the person or persons; and
- (d)
- the intent of the removal is non-therapeutic; and
- (e)
- the removal is not carried out under conditions consistent with generally
accepted medical standards and controls designed for the benefit of the person
or persons and of the recipient; and
- (f)
- the person or persons are in the power of, or are interned, detained or
otherwise deprived of liberty by, an adverse party as a result of an
international armed conflict; and
- (g)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In subsection (1):
"consent" means consent given voluntarily and without any coercion or
inducement.
268.97 War crime—attack against works or installations containing
dangerous forces resulting in excessive loss of life or injury to civilians
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator launches an attack against works or installations
containing dangerous forces; and
- (b)
- the attack is such that it will cause loss of life, injury to civilians,
or damage to civilian objects, to such an extent as to be excessive in
relation to the concrete and direct military advantage anticipated; and
- (c)
- the perpetrator knows that the attack will cause loss of life, injury to
civilians, or damage to civilian objects, to such an extent; and
- (d)
- the attack results in death or serious injury to body or health; and
- (e)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
268.98 War crime—attacking undefended
places or demilitarized zones
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator attacks one or more towns, villages, dwellings, buildings
or demilitarized zones; and
- (b)
- the towns, villages, dwellings or buildings are open for unresisted
occupation; and
- (c)
- the attack results in death or serious injury to body or health; and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
268.99 War crime—unjustifiable delay in
the repatriation of prisoners of war or civilians
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- one or more persons are in the power of, or are interned, detained or
otherwise deprived of liberty by, an adverse party as a result of an
international armed conflict; and
- (b)
- the perpetrator unjustifiably delays the repatriation of the person or
persons to the person's own country or the persons' own countries; and
- (c)
- the delay is in violation of Part IV of the Third Geneva Convention
or Chapter XII of Section IV of Part III of the Fourth Geneva Convention.
Penalty: Imprisonment for 10 years.
- (2)
- Strict liability applies to
paragraph (1)(c).
268.100 War crime—apartheid
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator commits against one or more persons an act that is a
proscribed inhumane act or is of a nature and gravity similar to any
proscribed inhumane act; and
- (b)
- the perpetrator knows of, or is reckless at to, the factual circumstances
that establish the character of the act; and
- (c)
- the perpetrator's conduct is committed in the context of an
institutionalised regime of systematic oppression and domination by one racial
group over any other racial group or groups; and
- (d)
- the perpetrator intends to maintain the regime by the conduct; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for 17 years.
268.101 War crime—attacking
protected objects
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object of the attack is any one or more of the following that are not
used in support of the military effort and are not located in the immediate
proximity of military objectives:
- (i)
- clearly recognised historic monuments;
- (ii)
- works of art;
- (iii)
- places of worship; and
- (c)
- the monuments, works of art and places of worship constitute the cultural
or spiritual heritage of peoples and have been given special protection by
special arrangement (for example, within the framework of a competent
international organisation); and
- (d)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 20 years.
Subdivision J—Crimes against the
administration of the justice of the International Criminal Court
268.102
Perjury
- (1)
- A person commits the offence of perjury if:
- (a)
- the person makes a sworn statement in or for the purposes of a proceeding
before the International Criminal Court; and
- (b)
- the statement is false.
Penalty: Imprisonment for 10 years.
- (2)
- A person who is an interpreter
commits the offence of perjury if:
- (a)
- the person, by a sworn statement, gives an interpretation of a statement
or other thing in or for the purposes of a proceeding before the International
Criminal Court; and
- (b)
- the interpretation is false or misleading.
Penalty: Imprisonment for 10 years.
268.103 Falsifying evidence
- (1)
- A
person commits an offence if the person makes false evidence with the
intention of:
- (a)
- influencing a decision on the institution of a proceeding before the
International Criminal Court; or
- (b)
- influencing the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
- (2)
- A person commits an offence if the
person:
- (a)
- uses evidence that is false evidence and that the person believes is false
evidence; and
- (b)
- is reckless as to whether or not the use of the evidence could:
- (i)
- influence a decision on the institution of a proceeding before the
International Criminal Court; or
- (ii)
- influence the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
- (3)
- For the purposes of this section,
making evidence includes altering evidence, but does not include perjury.
268.104 Destroying or concealing evidence
- (1)
- A person commits an offence if
the person destroys or conceals evidence with the intention of:
- (a)
- influencing a decision on the institution of a proceeding before the
International Criminal Court; or
- (b)
- influencing the outcome of such a proceeding.
Penalty: Imprisonment for 7 years.
- (2)
- For the purposes of this section,
destroying evidence includes making the evidence illegible, indecipherable or
otherwise incapable of being identified.
268.105 Deceiving witnesses
A person commits an offence if the person deceives another person with the
intention that the other person or a third person will:
- (a)
- give false evidence in a proceeding before the International Criminal
Court; or
- (b)
- withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
268.106 Corrupting witnesses or
interpreters
- (1)
- A person commits an offence if the person provides, or
offers or promises to provide, a benefit to another person with the intention
that the other person or a third person will:
- (a)
- not attend as a witness at a proceeding before the International Criminal
Court; or
- (b)
- give false evidence at such a proceeding; or
- (c)
- withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
- (2)
- A person commits an offence if the
person asks for, or receives or agrees to receive, a benefit for himself,
herself or another person with the intention that he, she or another person
will:
- (a)
- not attend as a witness at a proceeding before the International Criminal
Court; or
- (b)
- give false evidence at such a proceeding; or
- (c)
- withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5 years.
- (3)
- A person commits an offence if the
person provides, or offers or promises to provide, a benefit to another person
with the intention that the other person or a third person will:
- (a)
- not attend as an interpreter at a proceeding before the International
Criminal Court; or
- (b)
- give a false or misleading interpretation as an interpreter at such a
proceeding.
Penalty: Imprisonment for 5 years.
268.107 Threatening witnesses or
interpreters
- (1)
- A person commits an offence if the person causes or
threatens to cause any detriment to another person with the intention that the
other person or a third person will:
- (a)
- not attend as a witness at a proceeding before the International Criminal
Court; or
- (b)
- give false evidence at such a proceeding; or
- (c)
- withhold true evidence at such a proceeding.
Penalty: Imprisonment for 7 years.
- (2)
- A person commits an offence if the
person causes or threatens to cause any detriment to another person with the
intention that the other person or a third person will:
- (a)
- not attend as an interpreter at a proceeding before the International
Criminal Court; or
- (b)
- give a false or misleading interpretation as an interpreter in such a
proceeding.
Penalty: Imprisonment for 7 years.
268.108 Preventing witnesses or
interpreters
- (1)
- A person commits an offence if the person, by his or her
conduct, intentionally prevents another person from attending as a witness or
interpreter at a proceeding before the International Criminal Court.
Penalty: Imprisonment for 5 years.
- (2)
- This section does not apply to
conduct that constitutes an offence against section 268.105, 268.106,
268.107, 268.109 or 268.110.
268.109 Preventing production of things in evidence
A person commits an offence if the person, by his or her conduct,
intentionally prevents another person from producing in evidence at a
proceeding before the International Criminal Court a thing that is legally
required to be produced.
Penalty: Imprisonment for 5 years.
268.110 Reprisals against witnesses
- (1)
- A person commits an offence if the person causes or threatens to cause any
detriment to another person who was a witness in a proceeding before the
International Criminal Court:
- (a)
- because of anything done by the other person in or for the purposes of the
proceeding; and
- (b)
- in the belief that the other person was a witness who had done that thing.
Penalty: Imprisonment for 5 years.
- (2)
- It is a defence to a prosecution for
an offence against subsection (1) that:
- (a)
- the detriment to the witness was not (apart from this section) an offence;
and
- (b)
- the witness committed perjury in the proceeding before the International
Criminal Court.
Note: A defendant bears an evidential burden in relation to the matters in
subsection (2). See subsection 13.3(3).
- (3)
- In this section:
"witness" includes:
- (a)
- a person who attends at a proceeding before the International Criminal
Court as a witness but is not called as a witness; or
- (b)
- an interpreter.
268.111 Reprisals against officials of the International Criminal Court
- (1)
- A person commits an offence if the person causes or threatens to cause any
detriment to another person who is an official of the International Criminal
Court:
- (a)
- because of anything done by the other person; and
- (b)
- in the belief that the other person was an official of that Court who had
done that thing for the purposes of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
- (2)
- A person commits an offence if the
person causes or threatens to cause any detriment to another person who is an
official of the International Criminal Court:
- (a)
- because of anything done by a third person who is an official of that
Court; and
- (b)
- in the belief that the third person was an official of that Court who had
done that thing for the purposes of a proceeding before that Court.
Penalty: Imprisonment for 5 years.
268.112 Perverting the course of justice
- (1)
- A person commits an offence if the person, by his or her conduct,
intentionally perverts the course of justice in respect of the International
Criminal Court.
Penalty: Imprisonment for 5 years.
- (2)
- This section does not apply to
conduct that constitutes the publication of any matter.
- (3)
- In this section:
"perverts" includes obstructs, prevents or defeats.
268.113 Receipt of a corrupting benefit by an official of the International
Criminal Court
- (1)
- A person who is an official of the International Criminal
Court commits an offence if:
- (a)
- the person:
- (i)
- asks for a benefit for himself, herself or another person; or
- (ii)
- receives or obtains a benefit for himself, herself or another person; or
- (iii)
- agrees to receive or obtain a benefit for himself, herself or another
person; and
- (b)
- the person does so with the intention that the exercise of the person's
duties as an official of the International Criminal Court will be influenced.
Penalty: Imprisonment for 10 years.
- (2)
- For the purposes of
subsection (1), it is immaterial whether the benefit is in the nature of
a reward.
268.114 Subdivision not to apply to certain conduct
- (1)
- This Subdivision
does not apply to a person in respect of:
- (a)
- conduct that results in a failure or refusal to issue a certificate under
section 22 or 29 of the International Criminal Court Act 2002 ; or
- (b)
- a failure or refusal to issue such a certificate; or
- (c)
- conduct engaged in reliance on the absence of such a certificate.
- (2)
- In this section:
"conduct "includes any one or more acts or omissions.
Subdivision K—Miscellaneous
268.115 Responsibility of commanders and
other superiors
- (1)
- The criminal responsibility imposed by this section is
in addition to other grounds of criminal responsibility under the law in force
in Australia for acts or omissions that are offences under this Division.
- (2)
- A military commander or person effectively acting as a military commander
is criminally responsible for offences under this Division committed by forces
under his or her effective command and control, or effective authority and
control, as the case may be, as a result of his or her failure to exercise
control properly over those forces, where:
- (a)
- the military commander or person either knew or, owing to the
circumstances at the time, was reckless as to whether the forces were
committing or about to commit such offences; and
- (b)
- the military commander or person failed to take all necessary and
reasonable measures within his or her power to prevent or repress their
commission or to submit the matter to the competent authorities for
investigation and prosecution.
- (3)
- With respect to superior and subordinate relationships not described in
subsection (2), a superior is criminally responsible for offences against
this Division committed by subordinates under his or her effective authority
and control, as a result of his or her failure to exercise control properly
over those subordinates, where:
- (a)
- the superior either knew, or consciously disregarded information that
clearly indicated, that the subordinates were committing or about to commit
such offences; and
- (b)
- the offences concerned activities that were within the effective
responsibility and control of the superior; and
- (c)
- the superior failed to take all necessary and reasonable measures within
his or her power to prevent or repress their commission or to submit the
matter to the competent authorities for investigation and prosecution.
268.116 Defence of superior orders
- (1)
- The fact that genocide or a crime
against humanity has been committed by a person pursuant to an order of a
Government or of a superior, whether military or civilian, does not relieve
the person of criminal responsibility.
- (2)
- Subject to subsection (3), the fact that a war crime has been
committed by a person pursuant to an order of a Government or of a superior,
whether military or civilian, does not relieve the person of criminal
responsibility.
- (3)
- It is a defence to a war crime that:
- (a)
- the war crime was committed by a person pursuant to an order of a
Government or of a superior, whether military or civilian; and
- (b)
- the person was under a legal obligation to obey the order; and
- (c)
- the person did not know that the order was unlawful; and
- (d)
- the order was not manifestly unlawful.
Note: A defendant bears an evidential burden in establishing the elements in
subsection (3). See subsection 13.3(3).
268.117 Geographical jurisdiction
- (1)
- Section 15.4 (extended
geographical jurisdiction—Category D) applies to genocide, crimes against
humanity and war crimes.
- (2)
- Section 15.3 (extended geographical jurisdiction—Category C)
applies to crimes against the administration of the justice of the
International Criminal Court.
268.118 Double jeopardy
A person cannot be tried by a federal court or a court of a State or Territory
for an offence under this Division if the person has already been convicted or
acquitted by the International Criminal Court for an offence constituted by
substantially the same conduct as constituted the offence under this Division.
268.119 Offences related to exercise of jurisdiction of International Criminal
Court
- (1)
- A person must not:
- (a)
- intentionally contravene an order that the International Criminal Court
makes while sitting in Australia; or
- (b)
- otherwise intentionally hinder the International Criminal Court in
performing its functions while sitting in Australia.
Penalty: Imprisonment for 2 years.
- (2)
- In this section:
"Australia" includes all the external Territories.
268.120 Saving of other laws
This Division is not intended to exclude or limit any other law of the
Commonwealth or any law of a State or Territory.
268.121 Bringing proceedings under this Division
- (1)
- Proceedings for an
offence under this Division must not be commenced without the
Attorney-General's written consent.
- (2)
- An offence against this Division may only be prosecuted in the name of the
Attorney-General.
- (3)
- However, a person may be arrested, charged, remanded in custody, or
released on bail, in connection with an offence under this Division before the
necessary consent has been given.
268.122 Attorney-General's decisions in relation to consents to be final
- (1)
- Subject to any jurisdiction of the High Court under the Constitution, a
decision by the Attorney-General to give, or to refuse to give, a consent
under section 268.121:
- (a)
- is final; and
- (b)
- must not be challenged, appealed against, reviewed, quashed or called in
question; and
- (c)
- is not subject to prohibition, mandamus, injunction, declaration or
certiorari.
- (2)
- The reference in subsection (1) to a decision includes a reference to
the following:
- (a)
- a decision to vary, suspend, cancel or revoke a consent that has been
given;
- (b)
- a decision to impose a condition or restriction in connection with the
giving of, or a refusal to give, a consent or to remove a condition or
restriction so imposed;
- (c)
- a decision to do anything preparatory to the making of a decision to give,
or to refuse to give, a consent or preparatory to the making of a decision
referred to in paragraph (a) or (b), including a decision for the taking
of evidence or the holding of an inquiry or investigation;
- (d)
- a decision doing or refusing to do anything else in connection with a
decision to give, or to refuse to give, a consent or a decision referred to in
paragraph (a), (b) or (c);
- (e)
- a failure or refusal to make a decision whether or not to give a consent
or a decision referred to in a paragraph (a), (b), (c) or (d).
- (3)
- Any jurisdiction of the High Court referred to in subsection (1) is
exclusive of the jurisdiction of any other court.
268.123 Legal representation
The provisions of section 12 (other than subsection 12(2)) of the
Geneva Conventions Act 1957 apply in relation to the trial of a person for an
offence against this Division in the same way as they apply in relation to the
trial of a protected prisoner of war.
268.124 Proof of application of Geneva Conventions or Protocol I to the Geneva
Conventions
If, in proceedings under this Division in respect of a grave breach of any of
the Geneva Conventions or of Protocol I to the Geneva Conventions, a question
arises under:
- (a)
- Article 2 of the Geneva Convention concerned (which relates to the
circumstances in which the Convention applies); or
- (b)
- Article 1 of that Protocol (which relates to the circumstances in which
the Protocol applies);
a certificate signed by the Minister responsible for legislation relating to
foreign affairs certifying to any matter relevant to that question is prima
facie evidence of the matter so certified.
3 The Schedule (the Dictionary in
the Criminal Code)
Insert:
"attack directed against a civilian population"
means a course of conduct involving the multiple commission of any one or more
proscribed inhumane acts against any civilian population pursuant to, or in
furtherance of, a state or organisational policy to engage in that course of
conduct.
4 The Schedule (the Dictionary in the Criminal Code)
Insert:
"benefit"
includes any advantage and is not limited to property.
5 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Covenant"
means the International Covenant on Civil and Political Rights, a copy of the
English text of which is set out in Schedule 2 to the
Human Rights and Equal Opportunity Commission Act 1986 .
6 The Schedule (the Dictionary in the Criminal Code)
Insert:
"crime against
humanity" means an offence under Subdivision C of Division 268.
7 The Schedule (the Dictionary in the Criminal Code)
Insert:
crime against
the administration of the justice of the International Criminal Court means an
offence under Subdivision J of Division 268.
8 The Schedule (the Dictionary in the Criminal Code)
Insert:
"detriment"
includes any disadvantage and is not limited to personal injury or to loss of
or damage to property.
9 The Schedule (the Dictionary in the Criminal Code)
Insert:
"distinctive
emblems of the Geneva Conventions" means the emblems, identity cards, signs,
signals, insignia or uniforms to which subsection 15(1) of the
Geneva Conventions Act 1957 applies.
10 The Schedule (the Dictionary in the Criminal Code)
Insert:
"evidence"
includes anything that may be used as evidence.
11 The Schedule (the Dictionary in the Criminal Code)
Insert:
"First Geneva
Convention" means the Geneva Convention for the Amelioration of the Condition
of the Wounded and Sick in Armed Forces in the Field, adopted at Geneva on
12 August 1949, a copy of the English text of which (not including the
annexes) is set out in Schedule 1 to the Geneva Conventions Act 1957 .
12 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Fourth
Geneva Convention" means the Geneva Convention relative to the Protection of
Civilian Persons in Time of War, adopted at Geneva on 12 August 1949, a
copy of the English text of which (not including the annexes) is set out in
Schedule 4 to the Geneva Conventions Act 1957 .
13 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Geneva
Conventions" means the First Geneva Convention, the Second Geneva Convention,
the Third Geneva Convention and the Fourth Geneva Convention.
14 The Schedule (the Dictionary in the Criminal Code)
Insert:
"genocide"
means an offence under Subdivision B of Division 268.
15 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Hague
Declaration" means the Hague Declarations Concerning the Prohibition of Using
Bullets which Expand or Flatten Easily in the Human Body, adopted at the Hague
on 29 July 1899.
16 The Schedule (the Dictionary in the Criminal Code)
Insert:
"hors de
combat": a person is hors de combat if:
- (a)
- the person is in the power of an adverse party; and
- (b)
- the person:
- (i)
- clearly expresses an intention to surrender; or
- (ii)
- has been rendered unconscious or is otherwise incapacitated by wounds or
sickness and is therefore incapable of defending himself or herself; and
- (c)
- the person abstains from any hostile act and does not attempt to escape.
17 The Schedule (the Dictionary in the Criminal Code)
Insert:
"ICC Statute"
means the Statute of the International Criminal Court done at Rome on
17 July 1998, a copy of the English text of which is set out in
Schedule 1 to the International Criminal Court Act 2002 .
18 The Schedule (the Dictionary in the Criminal Code)
Insert:
"international armed conflict" includes a military occupation.
19 The Schedule (the Dictionary in the Criminal Code)
Insert:
"International Criminal Court" means the International Criminal Court
established under the ICC Statute.
20 The Schedule (the Dictionary in the Criminal Code)
Insert:
"interpreter"
includes a person who interprets signs or other things made or done by a
person who cannot speak adequately for the purpose of giving evidence in a
proceeding before the International Criminal Court.
21 The Schedule (the Dictionary in the Criminal Code)
Insert:
"proscribed
inhumane act" means any of the following acts:
- (a)
- an act that is described in paragraph 268.8(a);
- (b)
- an act that is described in paragraph 268.9(1)(a) and is committed as
mentioned in paragraph 268.9(1)(b);
- (c)
- an act that is described in paragraph 268.10(1)(a);
- (d)
- an act that is described in paragraph 268.11(1)(a) and to which paragraph
268.11(1)(b) applies;
- (e)
- an act that is described in paragraph 268.12(1)(a) and to which paragraph
268.12(1)(b) applies;
- (f)
- an act that is described in paragraph 268.13(a) and to which paragraph
268.13(b) applies;
- (g)
- an act that is described in paragraph 268.14(1)(a) or (2)(a);
- (h)
- an act that is described in paragraph 268.15(1)(a);
- (i)
- an act that is described in paragraph 268.16(1)(a) and to which paragraph
268.16(1)(b) applies;
- (j)
- an act that is described in paragraph 268.17(1)(a) and to which paragraph
268.17(1)(b) applies;
- (k)
- an act that is described in paragraphs 268.18(1)(a) and (b) and to which
paragraph 268.18(1)(c) applies;
- (l)
- an act that is described in paragraph 268.19(1)(a) and is of the gravity
mentioned in paragraph 268.19(1)(b);
- (m)
- an act that is described in paragraph 268.20(1)(a) and is committed as
mentioned in paragraphs 268.20(1)(c), (d) and (e);
- (n)
- an act that is described in paragraph 268.21(1)(a) and to which paragraphs
268.21(1)(b) and (c) apply;
- (o)
- an act that is described in paragraph 268.21(2)(c) and is committed as
mentioned in paragraph 268.21(2)(d);
- (p)
- an act that is described in paragraph 268.22(a) and is committed as
mentioned in paragraph 268.22(b);
- (q)
- an act that is described in paragraph 268.23(a) and to which paragraph
268.23(b) applies.
22 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Protocol I
to the Geneva Conventions" means the Protocol Additional to the Geneva
Conventions of 12 August 1949, and relating to the Protection of Victims
of International Armed Conflicts (Protocol I), done at Geneva on 10 June
1977, a copy of the English text of which is set out in Schedule 5 to the
Geneva Conventions Act 1957 .
23 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Protocol II
to the Geneva Conventions" means the Protocol Additional to the Geneva
Conventions of 12 August 1949, relating to the Protection of Victims of
Non-International Armed Conflicts done at Geneva on 10 June 1977.
24 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Protocols to
the Geneva Conventions" means Protocol I to the Geneva Conventions and
Protocol II to the Geneva Conventions.
25 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Second
Geneva Convention" means the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at
Sea, adopted at Geneva on 12 August 1949, a copy of the English text of
which (not including the annexes) is set out in Schedule 2 to the
Geneva Conventions Act 1957 .
26 The Schedule (the Dictionary in the Criminal Code)
Insert:
"sworn
statement" means an oral statement made on oath or affirmation or a statement
in a document verified on oath or affirmation.
27 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Third Geneva
Convention" means the Geneva Convention relative to the Protection of
Prisoners of War, adopted at Geneva on 12 August 1949, a copy of the
English text of which (not including the annexes) is set out in
Schedule 3 to the Geneva Conventions Act 1957 .
28 The Schedule (the Dictionary in the Criminal Code)
Insert:
"threat"
includes a threat made by any conduct, whether express or implied and whether
conditional or unconditional.
29 The Schedule (the Dictionary in the Criminal Code)
Insert:
"war crime"
means an offence under Subdivision D, E, F, G or H of Division 268.
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Commonwealth Numbered Acts