Australia's proposed war crimes amendments demand careful scrutiny

Prime Minister Malcolm Turnbull announced this month that the government will seek to amend the Criminal Code to assist in the fight against Islamic State (IS) in Iraq and Syria. The changes flagged include:

… targeting those who may not openly take up arms but are still key to Daesh’s [another name for IS] fighting capability.

Defence Minister Marise Payne explained that the amendments would enable the Australian Defence Force to target a broader range of IS combatants. Opposition Leader Bill Shorten has indicated Labor will support the amendments.

Changes to Division 268 of the Criminal Code would clarify that the war crimes offence of murder would not apply to members of an organised armed group. Also, murder would not apply to collateral civilian deaths resulting from an otherwise lawful attack.

If enacted, this would align Australian domestic law with international law. The government, however, has not yet explained the relevant differences between these laws.

What is lawful in conflict?

The Criminal Code, which in part deals with offences in a non-international armed conflict, currently includes an offence of murder. If a perpetrator causes the death of one or more persons not taking an active part in the hostilities, they face a penalty of life imprisonment.

Under current domestic law, if the perpetrator knows, or is reckless as to whether the person or persons are not taking an active part in the hostilities, and attacks, they have broken the law.

International humanitarian law, or the law of armed conflict, has very detailed rules about this. Targeting people “who are not taking an active part in the hostilities” is unlawful.

In 2009, the International Committee of the Red Cross released the Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law.

Some American military lawyers have criticised this document. The main criticism is that it blurs the line between civilians who take an active part in hostilities and members of organised armed groups. State practice also diverges from the Red Cross guidance to some extent.

How do we decide who is a citizen?

The Red Cross guidance is based on the fundamental international humanitarian law principle of distinction between armed forces, or members of organised armed groups like IS, and civilians. It says:

… all persons who are not members of state armed forces or organised armed groups of a party to the conflict are civilians and, therefore, entitled to protection against direct attack unless … they take a direct part in hostilities.

Individuals who continuously accompany or support an organised armed group, but who do not directly participate in hostilities, are not members of that group within the meaning of international humanitarian law. This is because they do not carry out a “continuous combat function”.

Personnel like recruiters, trainers, financiers and propagandists may not be targeted. This is also true of individuals involved in purchasing, smuggling, manufacturing and maintaining weapons. Unless their activities amount to direct participation in hostilities, they are protected by international humanitarian law.

How far the continuous combat function extends, though, is open to debate. It may extend, for example, to the makers of improvised explosive devices.

Who would lose protection under the changes?

Under the proposed changes to Australia’s Criminal Code, the war crime offence of murder, in a non-international armed conflict, would not apply to collateral civilian deaths resulting from an otherwise lawful attack. Clearly, the definition of what constitutes a “lawful attack” needs careful examination.

In international humanitarian law, a lawful attack is one that conforms to fundamental principles of military necessity and humanity. Specifically, only to the degree:

… that is required in order to achieve the legitimate purpose of the conflict. Namely, the complete or partial submission of the enemy at the earliest possible moment, with the minimum expenditure of life and resources.

This severely restricts military action that would result in “collateral civilian deaths”. Part of the objective in amending the war crimes provisions seems to be to incorporate the international humanitarian law principle of proportionality.

An attack expected to cause incidental loss of civilian life or injury to civilians would therefore be unlawful. If it would be excessive in relation to the concrete and direct military advantage anticipated, it would breach the Criminal Code.

These proposed amendments, when released, should be examined carefully. They must maintain the constraints on military operations imposed by international humanitarian law, which are carefully observed by the Australian Defence Force.