Criminal Code Act 1995 (Australia, unsourced)/Chapter 8/268/F

=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.