Senate debates

Thursday, 1 December 2016


Criminal Code Amendment (War Crimes) Bill 2016; Second Reading

1:10 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | Hansard source

I rise to speak on the Criminal Code Amendment (War Crimes) Bill 2016. I start by saying that this bill is disappointing on several levels. A few months ago the Australian Defence Force advised government of a legitimate policy concern—the need to provide our defence forces with legal clarity around their actions in conflict zones. So why did the ADF request clarity? The reason is that the nature of war has changed in the last 15 years since Australia ratified the Rome Statute and implemented domestic legislation to criminalise war crimes as a member of the International Criminal Court. Since 2002 we have seen a significant rise in nonstate actors like, for example, Daesh, taking part in conflict.

I think all of us in this chamber would agree it is vitally important to make sure we are all on the same page on what constitutes a war crime in this changing environment and to make sure that our understanding is aligned with international law. Unfortunately, as we have seen so often, the government has fluffed this legislation. In particular, the Attorney-General has fluffed it, which is unsurprising, given his record of political fluffing. In seeking to provide clarity for the ADF, the government has, as it often does, gone too far. Backed by the ALP, it is proposing to weaken safeguards that protect civilians when our forces are involved in overseas conflicts. This is irresponsible and it is negligent. It fails the Australian people, it fails the ADF and, perhaps most importantly of all, it fails innocent civilians who may be caught up in overseas conflict and who, if this bill passes, will be even more vulnerable and at risk of injury and death.

Before I get into the specifics, let me voice my concerns about the process by which this bill has made its way into the Senate. It should not surprise us that the government has opted for a rushed, secretive process to pass this bill. Of course, the Attorney-General has form at this, in preventing his own colleagues from seeking expert legal advice from the Solicitor-General and then of course forcing the SG out of office. But, in this case, which is quite literally a matter of life and death for civilians in conflict zones overseas, we might have hoped for even just the veneer of a transparent review process in line with law.

These changes seriously alter the governance of ADF personnel in combat. They change the definition of a war crime. It is a highly charged, complex topic in which civilians in war zones on the other side of the world have no voice at all. Australian forces operate under much more stringent rules of engagement than many of our allies do, including the US. Anything that creates a risk of that changing needs to be very carefully scrutinised. But the government has sidelined parliament and sidelined parliamentary committees. There has been no real possibility of establishing why these changes are necessary. The legislation went to the PJCIS in a referral outside its statutory functions. The PJCIS refers matters relating to Australia's intelligence agencies as well as some aspects of the AFP's work like, for example, counter-terrorism and certain aspects of data retention and citizenship legislation. This bill is clearly intended for the benefit of the ADF, which is not amongst the agencies reviewed by the PJCIS.

Of course, it is worth pointing out that the PJCIS is a closed bipartisan shop which shuts Senate crossbenchers—and, in fact, House of Representatives crossbenchers—out of its processes. The purpose has been clear—that is, to limit genuine scrutiny of a critically important piece of legislation. The shadow Attorney-General, Mr Dreyfus, claimed last week the bill was thoroughly scrutinised by the PJCIS. This is blatantly untrue. We need to ask ourselves why the coalition and Labor closed the door on the crossbench. Might it be so that we can unquestioningly follow the US into whatever battle it wants us to, even though it is not a signatory to key international humanitarian law treaties like the Rome statute?

The committee inquiring into this bill only received three submissions. This is not only because it is a highly specialised area of international law, it is also because the process was deliberately rushed. Some stakeholders told us they were advised on Friday afternoon of a public committee hearing they were expected to front up for in Canberra before 9 am on a Monday morning. That is not good enough, Attorney-General. In order to give this bill the scrutiny it deserves, the Greens tried to refer it to the proper committee—the Senate Standing Committee on Foreign Affairs, Defence and Trade—but of course this was denied. These actions fit with a government too willing to compromise on principle and international law and an opposition in zombie lock step with the government, blindly following in the misguided interest of a 'bipartisan approach in all matters of national security'.

Now I will address part 1 of the bill, which deals with the issue of who exactly constitutes a member of an organised armed group and, therefore, whether they can be targeted with lethal force. The Greens acknowledge there has been considerable controversy in international humanitarian law about targeting members of organised armed groups. But we are lucky because we can turn to experts in the field who can provide advice on these matters. An authoritative touchstone in international humanitarian law is the International Committee of the Red Cross's Interpretive guidance on the notion of direct participation in hostilities under international humanitarian law, which they published in 2009. The ICRC's guidance brings together all sources of international humanitarian law from treaties like the Rome statute and from jurisprudence like cases heard at the international criminal court to the writings of legal experts and different state practices. This bill does not square with the ICRC's interpretation of international humanitarian law. That interpretation states that only those serving continuous combat functions are members of an armed group.

The Greens are standing with international humanitarian law experts such as Professor Ben Saul, the Challis Chair of International Law at the University of Sydney and a visiting professor at Harvard. In his submission to the Parliamentary Joint Committee on Intelligence and Security—one of the very few submissions, I might add—Professor Saul proposed an amendment to better align the bill with the ICRC's interpretation of international humanitarian law. He urged the government to amend the legislation to make sure that it is not interpreted too expansively—in other words, to make sure that people who Australia currently regards as citizens are not legally killed by Australian forces. We will be moving an amendment in line with Professor Saul's recommendation to make it clear that only those serving a continuous combat function are members of an armed group. Ultimately, the spirit of international humanitarian law is about protecting civilians. This bill seeks to lower the current level of legal protection for potential targets of Australia's military, thereby increasing the likelihood that civilians will be killed—even if they are killed unintentionally. I urge the Senate to support the amendment so that we can limit the chances of the ADF's killing civilians.

I want to now go to the notion of proportionality—that is, that any attack must not cause civilian death or injury that would be excessive in relation to the military advantage anticipated. Again, the government has got it wrong here. Again, to quote Professor Saul:

… the proportionality principle is not confined to ‘the time the attack was launched’—

which is what the bill says—

but is rather a continuing obligation that endures throughout an attack.

Imagine a case where coalition forces, including the ADF, make a decision to launch an attack on a bridge. Let's say the bridge is in Syria. Taking out the bridge might be a significant strategic victory for the coalition. At the time the attack is given the go-ahead, it seems unlikely there will be any casualties. But shortly after the attack is launched, a school bus is driven over the bridge. Surely, in that circumstance, if the attack can be aborted it should be. Everyday compassion for victims of war says it should be. International humanitarian law says it should be. But my colleagues in the coalition and the Labor Party do not think that this should be enshrined in Australia's legislation. Shame on them for taking that position. We will be moving an amendment to properly reflect the proportionality principle in this legislation. I urge the Senate to support it.

Others in this chamber will repeatedly say during this debate that Australian law is more restrictive than that of some of our coalition partners and that we cannot fully participate in military operations without changing the law in the way this bill proposes to do. We say we should not be comparing ourselves to countries like the United States, which, shamefully, has not even signed the Rome statute relating to war crimes, crimes against humanity and genocide. Why on earth would we want to position ourselves in that sort of company?

I want to now talk about drones. I ask myself: why is it so critical that this bill be whisked through the Australian parliament in such a rushed way and with such poor process and lack of scrutiny? I understand the desire for the ADF to have clarity, but surely something like this is too important to rush. Surely we do not want to make a mistake with this legislation. Make no mistake about it: this bill is very deeply enmeshed in our security relationship with the United States. The government, facilitated as usual by the opposition, is making it easier than ever for us to follow the US into every battle. We are fawning away, betraying our principles yet again, in the name of our alliance with the US. Now more than ever, with someone like Donald Trump, an erratic demagogue, about to become the US commander-in-chief, we should be making sure that we have the capacity to differentiate ourselves from the United States. I ask rhetorically: is the government planning to amend our laws so that we can legally waterboard people in this country?

This bill gets to the very heart of this government's secrecy around our military operations overseas, and it is quite clearly aimed at our participation in drone strikes. Here in this chamber, we may—and I am sure most of us do—feel very removed from what is happening in the far-flung corners of the globe, but right now in Syria, Iraq, Somalia, Pakistan and, frankly, who knows where else, lethal drones are homing in on people. They are homing in on and killing civilian people. In Syria and Iraq, Australia is involved in at least supporting this mission.

Don't you think, Attorney, the Australian people deserve to know what our forces are doing as part of Operation Okra against IS in Syria and Iraq, and any other similar operations for that matter? The Australian Greens say they do. They do have a right to know that. For that reason, we are moving a second reading amendment calling on the government to release a monthly report on the ADF's involvement in military operations involving drones or autonomous weapons which result in civilian casualties. I move:

At the end of the motion, add:

", but the Senate notes, in the context of these proposed amendments, the Australian Defence Force's participation in military operations involving drones or autonomous weapons is currently surrounded in secrecy and calls on the Government, where these operations result in civilian casualties, to publish a monthly report detailing the date, location, target, number of civilian casualties and level of Australian assistance to these operations.".

This very basic level of transparency is nowhere near unprecedented. Indeed, in July this year even the US released statistics on how many combatants and non-combatants the US drone program had killed since 2009. The US administration said that between 64 and 116 civilians had been killed, although many experts estimate that the figure is most likely higher. If even the US can implement some level of transparency, surely Australia can and should too. This openness is even more important given that the evolution of warfare is making it harder and harder for the media, NGOs and the general public to scrutinise our actions in conflict. Releasing basic information about our participation in drone strikes goes some way to remedying the secrecy that shrouds conflict zones.

In conclusion, Attorney, we will not be supporting this legislation. As I said earlier, this is a matter of life and death. At a very basic level, international humanitarian law aims to limit the effects of armed conflict for humanitarian reasons. It is about balancing the achievement of military objectives on one hand against limiting human pain and suffering on the other. The Greens are the only voice in this parliament willing to stand up and make sure we get the balance right. I want to be very clear here: if the government had gone through a proper process and got the balance right, I am not standing here suggesting that we would not support legislation to clarify our obligations and the legality of the actions of the ADF. We acknowledge the desire of the ADF to have these matters clarified, but the government has not got the balance right.

This legislation may very well result in greater civilian deaths perpetrated by Australia's own Defence Force. Only a month ago we saw coalition forces launch an air strike on a medical facility in Iraq that killed eight civilians. We need to make sure that we do not increase the risk of Australian forces being involved in strikes like that. No-one should want that outcome—not the Australian people, not the ADF and not a single elected representative of this parliament.

This bill has been the subject of a rushed and secretive committee assessment. The parliament has been shown no clear evidence of the operational need for the measures contained in this legislation. For those reasons and the others I have stated in this speech, we will be opposing this bill regardless. But I do urge all senators to consider and support our amendments, which will go some way to aligning this bill with the ICRC's interpretation of international humanitarian law and to increasing transparency around Australia's actions in war zones.


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