George Brandis (Queensland, Liberal Party, Attorney-General) Share this | Hansard source

The passage of the Criminal Code Amendment (War Crimes) Bill will align Australian domestic law with international law in relation to the treatment of members of organised armed groups in non-international armed conflict. The bill will provide ADF personnel with the legal certainty they require to conduct more effective operations against members of organised armed groups. This is especially relevant in the context of current coalition operations against the military element of Daesh in Iraq and Syria.

As the Prime Minister noted in his National Security Statement on 1 September 2016, the decision to amend the criminal code was made following a review by the government of its policy on targeting members of organised armed groups. The bill has been subjected to careful scrutiny by the Parliamentary Joint Committee on Intelligence and Security, which concluded that the amendments would provide appropriate protection for civilians while maintaining the capacity to conduct operations against legitimate military targets. The committee also correctly noted that the bill will harmonise Australian law with the interpretation of international humanitarian law applied by our key allies and coalition partners.

I want to thank the PJCIS for recognising the urgency of these amendments and for working within a tight time frame to thoroughly review this bill and ultimately recommend that it be passed. I also want to recognise and highlight the bipartisan support that these amendments received. This is a very good example of the constructive, cooperative approach that this parliament—or at least most of it—is taking on questions of national security. We must continue to work together to support and empower our military, in accordance with international law, in the ongoing operations against Daesh in Iraq and Syria.

The only senators who have spoken in relation to the bill are Senator Wong and Senator McKim. Senator Wong spoke in support of the bill, so there is nothing I need to address in her remarks. Senator McKim—having made, I thought, a very measured and intelligent contribution to the Criminal Code Amendment (High Risk Terrorist Offenders) Bill 2016 earlier in the morning—has disappointingly descended into very belligerent and very inaccurate rhetoric in addressing international legal notions which he does not understand. This bill was developed by the Office of International Law within the Commonwealth Attorney-General's Department, which is the location of the best international law and international humanitarian law experts to be found in this country.

Senator McKim asserts that the amendments will reduce protections for civilians in non-international armed conflicts. That is incorrect. Whoever has told you that, Senator McKim, is wrong. A central purpose of these amendments is to more clearly recognise the distinction that exists in international humanitarian law between civilians and members of organised armed groups under Australian domestic law. These amendments do not alter the protections afforded to civilians and other protected persons under international humanitarian law, such as medical and religious personnel and persons who are hors de combat. The bill is also consistent with the international humanitarian law principle of proportionality, which prohibits attacks which may be expected to cause incidental civilian debt or injury that would be excessive in relation to the military advantage anticipated. Members of the ADF operate under strict rules of engagement which are always in compliance with Australia's international legal obligations, including the principles of distinction and proportionality. As well, they operate under Australian domestic law.

Senator McKim, you addressed some remarks to a submission made by Professor Ben Saul. The committee's conclusion in relation to the issue of membership of organised armed groups is that a practicable definition of membership of an organised armed group is applied to a constrained definition, which provides appropriate protection for civilians whilst also maintaining the ADF's capacity to strike legitimate military targets. So the principle of proportionality has been observed and respected. The continuous combat function test—and this is the recommendation of Professor Saul—produces an inequity in the law: an attack on a member of an organised armed group with no continuous combat function is prohibited, while a member of a state's armed forces who performs no combat related duties could be attacked at any time. The approach taken in the bill aims to treat organised armed groups as analogous with state armed forces for the purpose of targeting. The bill recognises that all members of such groups who perform combat, combat support or combat service support functions are contributing to the military effort of the group and should not be afforded the same protection as civilians in an armed conflict. It also harmonises Australian law with the interpretation of international humanitarian law applied by our key allies and coalition partners.

Senator McKim, the international humanitarian law principle of proportionality to which you refer but do not appear to understand is the prohibition against attacks which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. The principle of proportionality is codified in treaties binding on Australia, and it is accepted as a norm of customary international law in both international and non-international armed conflicts. The rule reflects the balance inherent in international humanitarian law between considerations of humanity and considerations of military necessity. Australia's understanding is that the term military advantage, in the context of proportionality, refers to the advantage anticipated from the military attack considered as a whole. This understanding was clarified by Australia in its declaration in relation to the articles of Protocol 1 Additional to the Geneva Conventions, which addresses proportionality in an international armed conflict. Australia is obliged under international law to minimise the risk of injury to civilians and damage to civilian property. In addition, the prohibition against deliberate acts directed at civilians not directly participating in hostilities remains a fundamental principle of international humanitarian law, and this prohibition is reflected in division 268 of the Criminal Code and in the bill.

The bill clarifies that, consistent with the international humanitarian law principle of proportionality, relevant offences will not have been committed where the relevant death or injury results from an attack on a military objective launched in circumstances where the person reasonably did not expect the attack would cause incidental death or injury that is excessive in relation to the concrete and direct military advantage anticipated. This is the test under international humanitarian law. So what the bill in fact does, Senator McKim, as the PJCIS understood, is to ensure that the international humanitarian law principle of proportionality already enshrined in division 268 of the code is made more explicit. This will align the Australian domestic law position with the position in international law.

With those words to address and correct some of the misunderstandings under which Senator McKim labours, I commend the bill to the Senate.