Section 268.38 Criminal Code Act | International War Crime Excessive Incidental Death


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The Legislation

Section 268.38 of the Criminal Code Act 1995 (Cth) is International War Crime Excessive Incidental Death and is extracted below.

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268.38  War crime—excessive incidental death, injury or damage

(1)  A person (the perpetrator) commits an offence if:

(a)  the perpetrator launches an attack; and

(b)  the perpetrator knows that the attack will cause incidental death or injury to civilians; and

(c)  the perpetrator knows that the death or injury will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and

(d)  the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.

Penalty:  Imprisonment for life.

(2)  A person (the perpetrator) commits an offence if:

(a)  the perpetrator launches an attack; and

(b)  the perpetrator knows that the attack will cause:

(i)  damage to civilian objects; or

(ii)  widespread, long-term and severe damage to the natural environment; and

(c)  the perpetrator knows that the damage will be of such an extent as to be excessive in relation to the concrete and direct military advantage anticipated; and

(d)  the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.

Penalty for a contravention of this subsection: Imprisonment for 20 years.