War Crimes
War Crimes
Understanding War Crimes and Legal Implications in Australia
Role of the international Criminal Court (ICC)
The ICC steps in to prosecute individuals when it determines that a country is “unwilling or unable” to do so domestically. This means that Australian citizens could face prosecution by the ICC for war crimes if the Australian government fails to adequately investigate and prosecute such offences.
War Crimes in Australian Law
Under Australian law, war crimes are criminalized in Division 268 of the Criminal Code Act 1995 (Cth). This section outlines 78 different war crimes offences, including:
- Willful killing, torture, and inhumane treatment.
- Attacks on civilians or civilian structures.
- Destruction and appropriation of property.
- Forced service in hostile forces.
- Unlawful deportation, transfer, or confinement.
- Use of prohibited weapons, poisons, and banned materials.
- Sexual violence, including rape and sexual slavery.
- Use of child soldiers.
These offences, when committed during an armed conflict, are prosecuted as war crimes. Division 268 also establishes universal jurisdiction, allowing Australia to prosecute alleged offenders regardless of their nationality or where the crime occurred.
Penalties for War Crimes
The most severe penalty for a war crime in Australia is life imprisonment. However, many offences carry maximum penalties ranging from 15 to 25 years in prison. Corporations found liable for war crimes can face fines ranging from $666,000 to $2,230,000 per conviction, under Division 12 of the Criminal Code Act.
Investigating and Prosecuting War Crimes in Australia
Defences to War Crimes
There are two primary defences to war crimes under Division 268 of the Criminal Code Act:
- General Defences: These apply broadly across most offences under the Criminal Code Act, such as a mistake or ignorance of fact.
- Superior Order Defence: Specific to war crimes, this defence argues that the defendant was following orders from a government or superior officer, and believed they were legally obligated to obey.
How Garde Wilson Lawyers Can Assist You
Frequently asked question
Do you still have questions?
01Can Australian courts prosecute war crimes committed overseas?
Yes, Australian courts can prosecute war crimes committed overseas under the Criminal Code Act 1995 (Cth). Australia has universal jurisdiction, meaning it can take action against war crimes regardless of where they occur, as long as certain conditions are met.
02What rights does a person have if detained by an international tribunal while in Australia?
If you’re detained in Australia under an international tribunal request, you have the same fundamental rights as any person in Australia, including the right to a lawyer, to be told why you’re detained, and to challenge your detention in court. You’re also protected under international human rights laws that Australia upholds.
03How do extradition and war-crime allegations interact in Victoria?
If you’re accused of a war crime while in Victoria, you could face extradition to another country or prosecution in Australia. Extradition is managed under the Extradition Act 1988 (Cth). You have the right to legal representation and to oppose extradition on legal grounds. The Australian Government decides whether to prosecute here or allow another country to proceed.
04Are there specific defences available for war-crime charges under Australian law?
Yes, there are defences under Australian law, including the superior orders defence, which can apply if you were acting under an unlawful order. However, this defence does not apply if the order was clearly illegal. Other defences may include duress or lack of intent, depending on the case.
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