There are a number of criminal activities and offences which are recognised internationally as well as in Australia.
Many of these are crimes under both Commonwealth law and international laws due to their severity, or through international agreements that different countries have to uphold their human rights obligations.
Unlawful deportations as a war crime are an offence under Section 268.32 of the Criminal Code Act, and come with a maximum penalty of 17 years’ imprisonment.
Unlawful deportation is also considered to be an international crime against humanity.
What is a war crime?
The concept of a war crime has only officially been around since World War II, although people have been tried for atrocities committed during conflicts and war in one form or another since before then.
Prior to WWII, all sorts of atrocities were committed against enemy soldiers and civilians during wars and there was no structured approach for dealing with them.
Generally the winning side punished the commanders of the losing side in whatever way they saw fit.
Even now it is usually the politicians and military commanders from the losing side in a conflict that face charges of war crimes, although this is not always the case.
After World War II when millions of Jews were persecuted and killed, the allied powers saw the need for a structured way to prosecute the people who they believed were the main perpetrators.
This process set a precedent for other countries to launch tribunals against commanders and politicians believed to have committed or ordered atrocities against people, and there have been a number of war crime tribunals held internationally since then.
The best-known war crime trials were the Nuremberg Trials, where a number of prominent Nazis were prosecuted for atrocities committed during World War II.
The definition of the different war crimes is laid out in the Geneva Conventions, a list of laws which are intended to protect civilians during armed conflict and help prevent mistreatment of prisoners of war, wounded and sick people.
War crimes cover a wide range of different activities including torture, hostage taking, rape, sexual slavery, conscripting or enlisting children under the age of 15 and directing attacks intentionally against the civilian population.
Under the Geneva Conventions, certain people and groups of people are defined as ‘protected’ and war crimes centre around mistreatment of these protected people. They include civilians, children and vulnerable people.
What is deportation as a war crime?
Unlawful deportation is listed as a war crime both in the Australian Criminal Code and in international law. Under the Criminal Code, an offence has been committed if the perpetrator unlawfully deports or transfers a person or more than one person to a different country or location under certain circumstances.
The people or person being deported has to be protected under one or more of the Geneva conventions, and the perpetrator has to know or be reckless as to the circumstances establishing that the person or persons are protected.
To be classified as a war crime, the deportation has to take place in the context or and be associated with an international armed conflict.
The difference between war crimes and other crimes is that they need to have been committed in the context of armed conflict.
Generally if a crime is committed by an armed combatant it is considered a war crime, but if a civilian commits an offence during a time of conflict, for it to be considered a war crime, it has to be shown that the offence was committed in the context of the conflict and not independently.
In certain circumstances transfers of populations can be considered lawful, for example where transfers are undertaken to safeguard civilians and move them out of dangerous areas or where they are undertaken within the rules for the requisition of workers or soldiers.
Deportation becomes illegal when recognised standards of humanity and decency are disregarded, and where the purpose of the displacement is illegal.
In some circumstances if a person is charged with a war crime like unlawful deportation, they may be put on trial in Australia, or they may be extradited if the alleged offences took place in another country.