The War Crime of Torture

The War Crime of Torture is an offence under section 268.25 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 25 years in prison.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

1. You inflicted severe physical or mental pain or suffering on another person
2. Your conduct was for the purpose of:

• Obtaining information or a confession
• Punishment, intimidation or coercion, or
• A reason based on discrimination of any kind

3. The person was protected under a Geneva Convention
4. You knew of, or were reckless to, the circumstances establishing that the person was protected under a Geneva Convention, and
5. Your conduct took place in the context of, and associated with, international armed conflict.

You were ‘reckless’ if you were aware there was a substantial risk that the person was protected under a Geneva Convention, but went ahead with your actions regardless.

Persons protected under the Geneva Conventions include:

1. Civilians
2. Wounded combatants
3. Prisoners of war
4. Medical and religious personnel attached to armed forces, and
5. War correspondents.

‘International armed conflict’ includes, “all cases of declared war or of any other armed conflict which may arise between two or more… [nations], even if the state of war is not recognized by one of them”.

It covers “all cases of partial or total occupation of the territory… [of a nation] even if the said occupation meets with no resistance”.

Duress and self defence are defences to the charge.