A WAR CRIME BY ANY OTHER NAME: DOMESTIC PROSECUTIONS OF CONDUCT CONSTITUTING WAR CRIMES.

• Author: Hinds, Georgia

I INTRODUCTION

On 19 November 2020, the Chief of the Australian Defence Force announced the findings of a landmark inquiry by the Inspector-General of the Australian Defence Force (TGADF') into possible breaches of the laws of armed conflict by Australian Defence Force personnel in Afghanistan between 2005 and 2016 (1). In his words, the allegations were 'deeply disturbing.' (2) The IGADF inquiry found credible evidence of 23 incidents in which one or more non-combatants or persons hors de combat were unlawfully killed by or at the direction of members of the Australian Special Operations Task Group. (3) In total, at least 39 individuals were killed, whilst a further two were cruelly treated. (4) If substantiated, these actions would constitute the war crimes of murder and cruel treatment.

However, the inquiry itself was administrative rather than criminal in nature, such that it was not empowered to find guilt in an individual case. Accordingly, one of its key recommendations was that the Chief of the Defence Force refer the 36 matters to the Australian Federal Police for criminal investigation. (5) It further recommended that any resulting prosecutions should proceed through civilian criminal courts, in trial by jury, rather than as Service offences in a Service Tribunal. (6)

In a pre-emptive joint media statement issued a week before the IGADF's Report was publicly released, the Australian Prime Minister, the Minister for Home Affairs and the Minister for Defence announced that a new investigative body would be established to assess and examine the Reports findings. (7) This new 'Office of the Special Investigator', situated in the Department of Home Affairs, now exists with a mandate to investigate the allegations raised in the report, gather evidence and, where appropriate, refer briefs to the Commonwealth Director of Public Prosecutions for consideration. (8)

Accordingly, it seems very likely that criminal action on the matters raised in the IGADF Report will be taken in civilian courts under the Criminal Code Act 1995 (Cth) ('Criminal Code), rather than through military channels under the Defence Force Discipline Act 1982 (Cth). This, in itself, would be a first. It would be even more momentous if these prosecutions were to be ultimately commenced under Australia's specialised war crimes offences, found in Division 268 of the Criminal Code, rather than under its more general 'ordinary offences' such as murder. Nearly two decades after they were enacted, none of the offences in Division 268 have yet been litigated.

Thus, any such prosecutions would clearly be remarkable as the first of their kind. They would also no doubt animate international humanitarian law ('IHL') practitioners in Australia and in international law circles more broadly. But are there other reasons why Australia, or indeed any State, should prefer charges under specialised war crimes offences, as opposed to ordinary criminal or military offences?

This article will first examine whether there is any international law obligation for States to prosecute war crimes as such. It will then situate the issue within existing State practice, before exploring some of the practical and political challenges that may go some way towards explaining the apparent dearth of cases under domestic war crimes legislation.

Finally, the article will consider whether, even absent any international legal obligation, there are nonetheless cogent policy arguments favouring prosecuting under specialised war crimes offences where they are available. Whilst international crimes are generally recognised as including crimes against humanity, genocide and war crimes, this article will confine its analysis to war crimes.

II DEFINITION OF A WAR CRIME

Somewhat surprisingly, the definition of a war crime is not straightforward. Nearly 60 years after Hersch Lauterpacht wrote, in a memo for the International Military Tribunal in Nuremberg, 'Is there a definition of war crimes?', the question remains somewhat unsettled. (9) The term 'war crimes' was not used in the 1949 Geneva Conventions, which instead referred to 'grave breaches' of the Conventions. (10) The 1977 First Additional Protocol to the Geneva Conventions ('AP I') (11) then at least clarified that grave breaches 'shall be regarded' as war crimes. (13) However, this left open the possibility that there could be other war crimes that did not amount to grave breaches. In the Rome Statute of the International Criminal Court ('ICC'), (13) adopted in 1998, grave breaches were listed as a category of war crimes, under article 8(2)(a), confirming that grave breaches had been subsumed into the broader war crimes concept. (14) Thus, all grave breaches will be war crimes, but not all war crimes are necessarily grave breaches.

Today, the most common view is that this broader war crimes concept encompasses all serious violations of IHL, both in international and non-international armed conflict. (15) Accordingly, whilst there remains a level of debate over the precise boundaries of what constitutes a war crime, it appears uncontroversial that States are obliged to ensure they have some framework and means to bring perpetrators to justice.

Ill STATES' OBLIGATIONS TO PREVENT AND REPRESS WAR CRIMES

All States have an obligation to prevent and halt IHL violations, including war crimes, in both international and non-international armed conflicts. (16) The way States choose to do so will vary, but there are at least some offences that must be incorporated into national legislation. In particular, for those war crimes that are defined as 'grave breaches' in the Geneva Conventions and their AP I, States have specific obligations to enact penal legislation, and to prosecute or extradite alleged perpetrators. (17) These laws must extend to anyone, irrespective of nationality, who has committed or ordered such offences. Since the Geneva Conventions are universally ratified, every State is bound by these criminal repression obligations. Further, the International Committee of the Red Cross ('ICRC') has also identified a customary IHL rule obliging States to investigate and, if appropriate, prosecute war crimes allegedly committed by their nationals or armed forces, or on their territory, as well as other war crimes over which they have jurisdiction. (18) Accordingly, whilst there remains a level of debate over the precise boundaries of what constitutes a war crime, it appears uncontroversial that States are obliged to ensure they have some framework and means to bring perpetrators to justice.

1. Legislative incorporation models

   To comply with their criminal repression obligations, States have adopted various legislative models. One approach is to incorporate specific war crimes offences, for example by drafting provisions setting out crimes that correspond to grave breaches of the Geneva Conventions. (19) As noted above, Australia, has adopted this approach with its detailed set of war crimes offences in Division 268 of its Criminal Code. These crimes draw on and paraphrase the language of the Geneva Conventions and the Elements of Crime of the Rome Statute. (20)

   Another way of enacting specific offences is to criminalise all serious violations of IHL by way of a general reference to IHL or to the laws and customs of war. In its War Crimes and Crimes Against Humanity Act 2000, Canada has made it an offence to commit a war crime, defined as any act or omission that constitutes a war crime according to customary IHL 'or conventional international law applicable to armed conflicts.' (21) Similarly, Article 9 of the Criminal Law of the People's Republic of China extends the law's application to 'crimes specified in international treaties to which the People's Republic of China is a signatory state or with which it is a member...'. (22) This approach will not necessarily be adapted to the system of certain States, particularly those in which the principle of legality requires that any offence be known, predictable and specific. (23)

   The other main approach is for States to instead rely on existing military or ordinary national criminal law, without explicit incorporation of international law elements. (24) This approach has been followed by, for example, France, Austria, Israel and Turkey. (25)

2. Is there a legal obligation to prosecute as 'war crimes'?

   As outlined above, many States do choose to rely upon their existing military or ordinary national criminal law rather than enacting specialised offences. This practice confirms that there is no international law rule, either in treaty or customary law, requiring States to prosecute acts under war crimes rather than 'ordinary' offence provisions. This was the conclusion of the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia ('ICTY') in Hadzihasanovic. (26)

   In that case the Trial Chamber considered whether States (specifically there, the Republic of Bosnia and Herzegovina) were obligated to prosecute serious violations of IHL only on the basis of international criminal law ('ICL'), setting aside charges of violations of ordinary law included in their domestic criminal codes. (27) Looking first at the ICRC's customary IHL study (in particular rule 158), the Trial Chamber considered that the study's silence as to whether a State is obligated to prosecute war crimes per se indicated that no such customary IHL rule existed.

   It then turned to State practice, which it characterised as 'more than divided' on the issue. (28) Nevertheless, drawing on cases such as the murder and assault conviction that was applied for involvement in the My Lai massacre, along with an Argentinian court ruling that explicitly said core crimes could be charged as ordinary crimes, the Trial Chamber ultimately identified a post-World War II trend that provided 'more than enough freedom' to prosecute international crimes solely as ordinary criminal offences. (29) This led to a...