Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 8 - OFFENCES AGAINST HUMANITY AND RELATED OFFENCES  

Division 268 - Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court  

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  

SECTION 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.