Senate debates

Thursday, 1 December 2016


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

1:04 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

I rise to speak on the Criminal Code Amendment (War Crimes) Bill on behalf of the opposition. We will be supporting this bill, and we recognise the importance, as I previously indicated today, of seeking to work in a bipartisan fashion on national security matters.

The bill before us aims to ensure that Australia's domestic laws are consistent with changes in international law in relation to the treatment of members of organised armed groups in international armed conflict. This will reduce legal uncertainty for our armed forces. Our forces should not have to face such uncertainty when engaging with nonstate armed groups, such as Daesh, during armed conflict. Contemporary international conflict has seen the nonstate actors, such as Daesh, become a significant threat to our national security.

This bill provides the legal certainty needed for the ADF to target members of organised armed groups with lethal force without the risk of potentially, and I stress potentially, falling foul of Australia's domestic law. The bill amends the Criminal Code at division 268, which concerns offences in the area of genocide, crimes against humanity, war crimes and crimes against the administration of justice in the ICC. These are changes that will clarify that these offences will only apply to personnel affected who are:

… neither taking … part in hostilities nor are members of an organised armed group; and

… the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the—


… persons are neither—

active in—

… hostilities nor are members of an organised armed group.

Other parts of this bill amend sections of the Criminal Code which apply proportionality, which is a principle of international law, in relation to attacks on military objectives in non-international armed conflict. These accompany other small amendments reflecting progress in international law.

As with other bills relating to national security, including the Criminal Code Amendment (High Risk Terrorist Offenders) Bill, which was considered this morning by the Senate, the Parliamentary Joint Committee on Intelligence and Security, of which I am a member, has thoroughly scrutinised this bill. I would note other members of this committee include my Labor colleague Mr Kelly, the member for Eden-Monaro, who has expertise in international law as a distinguished former member of the Australian Army Legal Corps. The committee took evidence from a range of experts, including professors Tim McCormack and Ben Saul. AGD, the Attorney-General's Department, and DoD, the Department of Defence, also provided evidence to the committee.

One of the issues the committee considered was the meaning of the term 'members of an organised armed group'. Such groups can often contain a number of different actors, including support personnel and administrative support, in addition to combatants. Nonstate groups, by their very nature, are formed of different kinds of personnel than national armies, often not as organised or as professional—although one would suggest that Daesh is an exception to this proposition. Professor Saul, in his evidence, suggested that the definition of 'members of an organised armed group' should be defined as 'those with a continuous combat function within that group'.

Australia's key coalition partners and allies already operate in accordance with international law. As I said, this bill extends the provisions of the Criminal Code to ensure they are consistent with international law. It recognises that organised armed groups are on an equal footing with state armed forces and recognises that members of those groups, whether acting as direct combatants, providing combat service support or similar, are all contributing to the efforts of those groups and thus ought not be given the same protection as civilians in armed conflict. The explanatory memorandum accompanying this bill explains that 'organised armed group' is to be interpreted in a constrained way. This makes sure that persons in civilian-type functions in territory controlled by such a group will not be considered members of the group.

The battlefields of the 21st century are far less defined and rigid than were conflicts in the past. Such conflicts are not constrained by state borders and national jurisdictions. We face scenarios that transcend national borders. We face scenarios with nonstate groups originating and operating in multiple states. International law has developed a response to these dynamics and to regulate the conflicts which we continue to face. It is important that our domestic laws adapt to these changes in international law.

I want to take this opportunity to again recognise the admirable work of Australia's armed forces. All of us in this place support the work of Australia's Defence Force personnel. We continue to have the second largest on-the-ground presence in the fight against Daesh, after the United States. It is a contribution that is recognised by coalition partners. We are combating Daesh at its source to make Australian shores safer. This legislation provides legal certainty for our forces engaged in Iraq and Syria and allows them to do their job properly. We recognise and thank our armed forces for their continued service and courage for the Australian people.

I again highlight the work of the Parliamentary Joint Committee on Intelligence and Security and particularly acknowledge the work of the secretariat. They produce an enormous amount of work on highly difficult, complex and nuanced matters. Some of the bills that are before the committee, whilst they may not be unrivalled in terms of their complexity, are certainly highly complex. They have been able to hold five inquiries and prepare an equal number of reports in a very short period.

I again note that we have taken a bipartisan approach on these matters and will continue to do so. We have reached agreement as a committee on a number of difficult matters, and I want to recognise the work of my fellow committee members in that. I look forward to working in a cooperative manner with the government on matters of national security and I commend the bill to the Senate.

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.

1:27 pm

Photo of George BrandisGeorge 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.

Photo of Alex GallacherAlex Gallacher (SA, Australian Labor Party) Share this | | Hansard source

The question is that Greens amendment (1) on sheet 7991, moved by Senator McKim, be agreed to.