Section 268.76 Criminal Code Act | National War Crime Sentencing Without Due Process


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The Legislation

Section 268.76 of the Criminal Code Act 1995 (Cth) is National War Crime Sentencing Without Due Process and is extracted below.

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268.76  War crime—sentencing or execution without due process

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

(a)  the perpetrator passes a sentence on one or more persons; and

(b)  the person or persons are not taking an active part in the hostilities; and

(c)  the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and

(d)  either of the following applies:

(i)  there was no previous judgment pronounced by a court;

(ii)  the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and

(e)  if the court did not afford other judicial guarantees—those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and

(f)  the perpetrator knows of:

(i)  if subparagraph (d)(i) applies—the absence of a previous judgment; or

(ii)  if subparagraph (d)(ii) applies—the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and

(g)  the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty:  Imprisonment for 10 years.

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

(a)  the perpetrator executes one or more persons; and

(b)  the person or persons are not taking an active part in the hostilities; and

(c)  the perpetrator knows of, or is reckless as to, the factual circumstances establishing that the person or persons are not taking an active part in the hostilities; and

(d)  either of the following applies:

(i)  there was no previous judgment pronounced by a court;

(ii)  the court that rendered judgment did not afford the essential guarantees of independence and impartiality or other judicial guarantees; and

(e)  if the court did not afford other judicial guarantees—those guarantees are guarantees set out in articles 14, 15 and 16 of the Covenant; and

(f)  the perpetrator knows of:

(i)  if subparagraph (d)(i) applies—the absence of a previous judgment; or

(ii)  if subparagraph (d)(ii) applies—the failure to afford the relevant guarantees and the fact that they are indispensable to a fair trial; and

(g)  the perpetrator’s conduct takes place in the context of, and is associated with, an armed conflict that is not an international armed conflict.

Penalty:  Imprisonment for life.

(3)  Strict liability applies to paragraphs (1)(e) and (2)(e).

(4)  To avoid doubt, a reference in subsection (1) or (2) to a person or persons who are not taking an active part in the hostilities includes a reference to:

(a)  a person or persons who are hors de combat; or

(b)        civilians, medical personnel or religious personnel who are not taking an active part in the hostilities.