In 1995 the Rome Statute of the International Criminal Court was written into Australian Law, and section 268.76 of the Australian Criminal Code 1995 defines “War crime – denying a fair trial“, where:
(1) A person (the perpetrator) commits an offence if: (a) the perpetrator deprives one or more persons of a fair and regular trial by denying to the person any of the judicial guarantees referred to in paragraph (b); and (b) the judicial guarantees are those defined in articles 84, 99 and 105 of the Third Geneva Convention and articles 66 and 71 of the Fourth Geneva Convention; and (c) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and (d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and (e) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
The penalty for such a war crime is 10 years imprisonment.
In November 2006 a panel of lawyers (( The accompanying press release says “The Opinion has been signed by The Hon Alastair Nicholson AO RFD QC (Former Judge Advocate General of the ADF, Honorary Professorial Fellow, Department of Criminology, University of Melbourne); Peter Vickery QC (Special Rapporteur, International Commission of Jurists, Victoria); Professor Hilary Charlesworth (Professor of International Law and Human Rights, ANU); Professor Andrew Byrnes (Professor of International Law, Faculty of Law, UNSW); and Gavan Griffith AO QC (Solicitor-General of Australia 1984 â€“ 97); and Professor Tim McCormack (Australian Red Cross Professor of International Humanitarian Law, University of Melbourne).” )) wrote a 30 page legal opinion (there is also a four page summary) titled “David Hicks – Military Commissions Act 2006 – Compliance with Common Article 3 of the Geneva Conventions, the Hamdan Decision and Australian Law” on the first and second military tribunals created by the US government and concluded:
Further, the Replacement Military Commission will contravene the standards for a fair trial under Australian law provided for in the Australian Criminal Code, and counselling or urging a trial to take place before any such Military Commission with the requisite knowledge and intention would constitute a war crime under Division 268 of the Code.
This opinion was delivered by the Law Council of Australia to the Attorney General, Philip Ruddock, to inform him of the nature of the crime that was being committed by the government. To date no action to rectify this appears to have been taken.
Thanks to Tim for the pointer to the letter to the editor of The Age newspaper from one of the reports authors, the Hon Alastair Nicholson AO RFD QC, former Chief Justice of the Family Court of Australia and former Judge Advocate General of the Australian Defence Force.