(This is the 2008 downloaded version of Australia's ICC Consequential Amendments Act of 2002. Hope the old icrc.org websites links are still working. )
Schedule 2—Amendment of the Director of Public Prosecutions Act 1983 85
Schedule 3—Amendment of the Geneva Conventions Act 1957 86
Schedule 4—Amendment of the Migration Act 1958 87
Schedule 5—Amendment of the Mutual Assistance in Criminal Matters Act 1987 88
Schedule 6—Amendment of the Telecommunications (Interception) Act 1979 89
Schedule 7—Amendment of the Witness Protection Act 1994 90
An Act to amend the Criminal Code Act 1995 and certain other Acts in consequence of the enactment of the International Criminal Court Act 2002, and for other purposes
[Assented to 27 June 2002]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the International Criminal Court (Consequential Amendments) Act 2002.
2 Commencement
(1) Each provision of this Act
specified in column 1 of the table commences, or is taken to have
commenced, on the day or at the time specified in column 2 of the table.
| Commencement information |
Column 1Column 2Column 3 |
Provision(s)CommencementDate/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this tableThe day after this Act receives the Royal Assent28 June 2002 |
2. Schedules 1 to 7The day fixed under column 2 of item 2 of the table in subsection 2(1) of the International Criminal Court Act 200226 September 2002 (Gazette 2002, No. GN38) |
3 Schedule(s)
Each Act that is specified in a
Schedule to this Act is amended or repealed as set out in the
applicable items in the Schedule concerned, and any other item in a
Schedule to this Act has effect according to its terms.
Schedule 1—Amendment of the Criminal Code Act 1995
1 Chapter 8 of the Schedule to the Criminal Code (heading)
2 The Schedule to the Criminal Code (before Division 270)
Subdivision A—Introductory
268.1 Purpose of Division
(1) The purpose of this Division is to create certain offences that are of international concern and certain related offences.
(2) It is the Parliament’s intention that the jurisdiction of the International Criminal Court is to be complementary to the jurisdiction of Australia with respect to offences in this Division that are also crimes within the jurisdiction of that Court.
(3) Accordingly, the International Criminal Court Act 2002 does not affect the primacy of Australia’s right to exercise its jurisdiction with respect to offences created by this Division that are also crimes within the jurisdiction of the International Criminal Court.
268.2 Outline of offences
(1) Subdivision B creates offences each of which is called genocide.
(2) Subdivision C creates offences each of which is called a crime against humanity.
(3) Subdivisions D, E, F, G and H create offences each of which is called a war crime.
(4) Subdivision J creates offences each of which is called a crime against the administration of the justice of the International Criminal Court.
Subdivision B—Genocide
268.3 Genocide by killing
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 belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes serious bodily or mental harm to one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such.
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts certain conditions of life upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the conditions of life are intended to bring about the physical destruction of that group, in whole or in part.
A person (the perpetrator) commits an offence if:
(a) the perpetrator imposes certain measures upon one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the measures imposed are intended to prevent births within that group.
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator forcibly transfers one or more persons; and
(b) the person or persons belong to a particular national, ethnical, racial or religious group; and
(c) the perpetrator intends to destroy, in whole or in part, that national, ethnical, racial or religious group, as such; and
(d) the transfer is from that group to another national, ethnical, racial or religious group; and
(e) the person or persons are under the age of 18 years; and
(f) the perpetrator knows that, or is reckless as to whether, the person or persons are under that age.
Subdivision C—Crimes against humanity
268.8 Crime against humanity—murder
A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the perpetrator’s conduct is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator causes the death of one or more persons; and
(b) the perpetrator’s conduct constitutes, or takes place as part of, a mass killing of members of a civilian population; and
(c) the perpetrator’s conduct is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator exercises any or all
of the powers attaching to the right of ownership over one or more
persons (including the exercise of a power in the course of trafficking
in persons, in particular women and children); and
(b) the perpetrator’s conduct is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator forcibly displaces one
or more persons, by expulsion or other coercive acts, from an area in
which the person or persons are lawfully present to another country or
location; and
(b) the forcible displacement is contrary to paragraph 4 of article 12 or article 13 of the Covenant; and
(c) the perpetrator knows of, or is
reckless as to, the factual circumstances that establish the lawfulness
of the presence of the person or persons in the area; and
(d) the perpetrator’s conduct is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
(3) In subsection (1):
268.12 Crime against humanity—imprisonment or other severe deprivation of physical liberty
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and
(b) the perpetrator’s conduct violates article 9, 14 or 15 of the Covenant; and
(c) the perpetrator’s conduct is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
268.13 Crime against humanity—torture
A person (the perpetrator) commits an offence if:
(a) the perpetrator inflicts severe
physical or mental pain or suffering upon one or more persons who are
in the custody or under the control of the perpetrator; and
(b) the pain or suffering does not arise only from, and is not inherent in or incidental to, lawful sanctions; and
(c) the perpetrator’s conduct is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
(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 is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
The following are examples of circumstances in which a person does not consent to an act:
(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.
(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.
268.15 Crime against humanity—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 is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
(3) In this section:
threat means:
268.16 Crime against humanity—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 is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
The following are examples of circumstances in which a person does not consent to an act:
(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.
(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 or persons are consenting to engaging in the act or acts of a sexual nature.
268.17 Crime against humanity—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 is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
268.18 Crime against humanity—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 is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
(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 268.14 to 268.18; and
(c) the perpetrator’s conduct is committed
intentionally or knowingly as part of a widespread or systematic attack
directed against a civilian population.
(3) In subsection (1):
The following are examples of circumstances in which a person does not consent to an act:
(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 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
(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.
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.
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.
(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.
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.
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.
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.
(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.
(3) In this section:
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.
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.
(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.
(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.
(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.
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.
(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.
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.
(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.
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.
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.
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.
(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.
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.
(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.
The following are examples of circumstances in which a person does not consent to an act:
(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.
(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.
(3) In this section:
threat means:
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.
The following are examples of circumstances in which a person does not consent to an act:
(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.
(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.
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.
(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.
(3) In subsection (1):
The following are examples of circumstances in which a person does not consent to an act:
(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 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.
(2) In this section:
(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.
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.
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.
268.69 Definition of religious personnel
In this Subdivision:
(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.
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.
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.
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.
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.
(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.
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.
(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.
(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.
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.
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.
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.
(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.
The following are examples of circumstances in which a person does not consent to an act:
(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.
(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.
(3) In this section:
threat means:
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.
The following are examples of circumstances in which a person does not consent to an act:
(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.
(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.
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.
(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.
(3) In subsection (1):
The following are examples of circumstances in which a person does not consent to an act:
(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 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.
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.
(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.
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.
(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.
(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.
(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.
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.
(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.
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.
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.
(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.
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.
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.
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.
(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.
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.
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.
(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.
(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.
(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.
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.
(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.
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.
(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.
(3) In this section:
(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.
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:
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.
(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.
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);
17 The Schedule (the Dictionary in the Criminal Code)
22 The Schedule (the Dictionary in the Criminal Code)
1 Paragraph 6(1)(k)
1 Part II
1 After subparagraph 145(a)(ia)
2 After subparagraph 147(b)(ia)
1 Subsection 37A(1)
1 After paragraph 5B(h)
1 Section 3 (paragraph (d) of the definition of Commonwealth participant)
(1) If:
(a) the Minister receives a request from the International Criminal Court for the inclusion of a person (the nominated person) in the NWPP; and
(b) the Minister is satisfied that:
(i) the Court has provided all material that is necessary to support the request; and
(ii) it is appropriate to do so in all the circumstances;
(3) The Commissioner may, if he or she thinks it appropriate to do so, seek further information about the nominated person from the Court.
(4) If:
(a) the Commissioner decides that the nominated person is suitable for inclusion in the NWPP; and
(b) the Minister, after considering a
report from the Commissioner recommending the inclusion of the person
in the NWPP, has decided that it is appropriate in all the
circumstances that the person be included in the NWPP; and
(c) the Commissioner has entered into an
arrangement with the Court for the purpose of making services under the
NWPP available to the Court; and
(d) if the person is not an Australian citizen—the nominated person has been granted a visa for entry to Australia;
(6) In this section:
References: International Treaties and Documents
UN Convention on Genocide: Art. 2 
First Geneva Convention 1949: Art. 3 , 49 , 50 and 51
Second Geneva Convention 1949: Art. 3 , 50 , 51 and 52
Third Geneva Convention 1949: Art. 3 , 129 , 130 and 131
Fourth Geneva Convention 1949: Art. 3 , 146 , 147 and 148
Additional Protocol I 1977: Art. 11 , 85 and 86
Rome Statute of the ICC 1998: Art. 6 , 7 , 8 20 , 28 , 33 , 68 and 70
Hague Convention on Cultural Property 1954: Art. 1 , 2 and 8
Second Protocol to the Hague Convention on Cultural Property 1999: Art. 15 .