2024 change could put Australian troops at risk, veteran warns
Seemingly minor regulatory changes could hamper the military’s ability to fight terrorist groups and other enemies, put Australian soldiers at risk and expose veterans to retroactive war crimes charges, a former air force commander has warned.
The 2024 revision of the Criminal Code Act was passed with little notice at the time, but retired air commander Terry van Haren said he feared the changes would have far-reaching consequences that were not fully understood.
Van Haren said the Senate inquiry should examine the consequences of the changes, which are expected to comply with the principles of the Geneva Conventions.
The federal government has defended the changes as applying retroactively, but the Coalition argues it was misled about the implications of the revisions.
Van Haren, who received the Distinguished Service Medal for his service in the Iraq war, said the changes had significant implications for all Australian Defense Force veterans who have served since 2002, including Afghanistan and Iraq, and those who will serve in future conflicts.
“The new definition invites Australia’s adversaries to play military law against the ADF in future operations and significantly reduces the ADF’s ability to wage war,” the 35-year military veteran said.
“The ADF will need to change tactics, potentially delaying decisions and putting soldiers, sailors and airmen at risk.”
Victoria Cross winner Ben Roberts-Smith was arrested and charged with five war crimes of murder in April for crimes he allegedly committed against unarmed detainees while serving with the Special Air Service Regiment in Afghanistan between 2009 and 2012.
Ex-SAS soldier Oliver Schulz charged with war crime murder after ABC report Four Corners In 2012, footage of him allegedly shooting an Afghan man was published.
The previous definition stated that if the person was under the control of the “opposing party” and did not act hostile or attempt to escape, the victim would be considered noncombatant or “noncombatant.” They must also have either clearly stated their intention to surrender or be unable to defend themselves.
The 2024 amendment added the term “if any of the following applies” and narrowed the definition to require two grounds to be met instead of three.
Van Haren, who commanded the Australian Air Task Group during operations against the Islamic State in 2017, said he feared the change would encourage enemy fighters to feign surrender or act incapacitated to gain the upper hand against Australia.
He outlined a number of scenarios that he said could leave Australian soldiers facing war crimes charges, which could be imposed sooner.
These included a hypothetical soldier who fired at a fighter suspected of wearing a bomb vest while signifying surrender, or Marines who fired at targets in Iraq in 2002 and later learned that disabled people were in the target area.
He stressed that it was important for Australia to comply with its international legal obligations and that he did not comment on current legal cases.
A spokesman for Attorney-General Michelle Rowland said: “The change to the non-war definition corrects a long-standing technical drafting error and returns the law to parliament’s original intent in 2002.
“Retroactive application ensures that the law operates as originally intended, avoiding inconsistencies or gaps in the treatment of serious international crimes.
“This reflects the government’s clear intention for Australia to have fully effective and complementary jurisdiction to the International Criminal Court.”
Shadow Attorney-General Michaelia Cash said: “At the time the Coalition supported the amendment because the government gave assurances that it merely corrected a drafting error made to bring the criminal code into line with Australia’s international obligations and would not change the substance of the law… It is clear that the amendment has a broader substantive impact than what Labor represents, which is a serious matter and requires close scrutiny.”
Queensland law firm Rubicon Law I published an article this month He says: “Retroactive criminal law has always been viewed with caution because it undermines the fundamental principle of justice: people should be tried according to the law that existed at the time they acted.
“Whilst it has been argued that the change merely brings Australian law into line with Article 41 of Additional Protocol I to the Geneva Conventions, it can also be argued that its practical effect has been to reduce the evidentiary hurdles for allegations of unlawful killing and to expose military personnel to greater retrospective legal risk arising from split-second battlefield decisions.”
Although the bill is due to pass parliament in 2024, a standing committee in the Senate has expressed concerns about the law.
While the committee noted that it was important for Australian legislation to comply with international law, it said: “No information was provided as to whether the retrospective application of this definition would have a detrimental effect on any person.”
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