(a) the person submits to the act because of force or the fear of
force to the person or to someone else;
(b) the person submits to the act
because the person is unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of understanding the essential
nature of the act;
(e) the person is mistaken about the essential nature of
the act (for example, the person mistakenly believes that the act is for
medical or hygienic purposes);
(f) the person submits to the act because of
psychological oppression or abuse of power;
(g) the person submits to the act
because of the perpetrator taking advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion
such as that caused by fear of violence, duress, detention, psychological
oppression or abuse of power; or
- (b)
- taking advantage of a coercive
environment.
- (4)
- In subsection (1), being reckless as to whether there
is consent to one or more acts of a sexual nature includes not giving any
thought to whether or not the person is consenting to the act or acts of a
sexual nature.
268.20 Crime against humanity—persecution
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator severely
deprives one or more persons of any of the rights referred to in
paragraph (b); and
- (b)
- the rights are those guaranteed in articles 6, 7,
8 and 9, paragraph 2 of article 14, article 18, paragraph 2 of article 20,
paragraph 2 of article 23 and article 27 of the Covenant; and
- (c)
- the
perpetrator targets the person or persons by reason of the identity of a group
or collectivity or targets the group or collectivity as such; and
- (d)
- the
grounds on which the targeting is based are political, racial, national,
ethnic, cultural, religious, gender or other grounds that are recognised in
paragraph 1 of article 2 of the Covenant; and
- (e)
- the perpetrator's conduct
is committed in connection with another act that is:
- (i)
- a proscribed
inhumane act; or
- (ii)
- genocide; or
- (iii)
- a war crime; and
- (f)
- the
perpetrator's conduct is committed intentionally or knowingly as part of a
widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
- (2)
- Strict liability applies to:
- (a)
- the physical element of the offence referred to in paragraph (1)(a)
that the rights are those referred to in paragraph (1)(b); and
- (b)
- paragraphs (1)(b) and (d).
268.21 Crime against humanity—enforced
disappearance of persons
- (1)
- A person (the perpetrator ) commits an offence
if:
- (a)
- the perpetrator arrests, detains or abducts one or more persons;
and
- (b)
- the arrest, detention or abduction is carried out by, or with the
authorisation, support or acquiescence of, the government of a country or a
political organisation; and
- (c)
- the perpetrator intends to remove the person
or persons from the protection of the law for a prolonged period of time; and
- (d)
- the perpetrator's conduct is committed intentionally or knowingly as part
of a widespread or systematic attack directed against a civilian population;
and
- (e)
- after the arrest, detention or abduction, the government or
organisation refuses to acknowledge the deprivation of freedom of, or to give
information on the fate or whereabouts of, the person or persons.
Penalty:
Imprisonment for 17 years.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- one or more persons have been arrested, detained or
abducted; and
- (b)
- the arrest, detention or abduction was carried out by, or
with the authorisation, support or acquiescence of, the government of a
country or a political organisation; and
- (c)
- the perpetrator refuses to
acknowledge the deprivation of freedom, or to give information on the fate or
whereabouts, of the person or persons; and
- (d)
- the refusal occurs with the
authorisation, support or acquiescence of the government of the country or the
political organisation; and
- (e)
- the perpetrator knows that, or is reckless as
to whether, the refusal was preceded or accompanied by the deprivation of
freedom; and
- (f)
- the perpetrator intends that the person or persons be
removed from the protection of the law for a prolonged period of time; and
- (g)
- the arrest, detention or abduction occurred, and the refusal occurs, as
part of a widespread or systematic attack directed against a civilian
population; and
- (h)
- the perpetrator knows that the refusal is part of, or
intends the refusal to be part of, such an attack.
Penalty: Imprisonment for
17 years.
268.22 Crime against humanity—apartheid
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
commits against one or more persons an act that is a proscribed inhumane act
(as defined by the Dictionary) or an act that is of a nature and gravity
similar to any such proscribed inhumane act; and
- (b)
- the perpetrator's
conduct is committed in the context of an institutionalised regime of
systematic oppression and domination by one racial group over any other racial
group or groups; and
- (c)
- the perpetrator knows of, or is reckless as to, the
factual circumstances that establish the character of the act; and
- (d)
- the
perpetrator intends to maintain the regime by the conduct; and
- (e)
- the
perpetrator's conduct is committed intentionally or knowingly as part of a
widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 17 years.
268.23 Crime against humanity—other
inhumane act
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
causes great suffering, or serious injury to body or to mental or physical
health, by means of an inhumane act; and
- (b)
- the act is of a character
similar to another proscribed inhumane act as defined by the Dictionary; and
- (c)
- the perpetrator's conduct is committed intentionally or knowingly as part
of a widespread or systematic attack directed against a civilian population.
Penalty: Imprisonment for 25 years.
Subdivision D—War crimes that are
grave breaches of the Geneva Conventions and of Protocol I to the Geneva
Conventions
268.24 War crime—wilful killing
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator causes the death
of one or more persons; and
- (b)
- the person or persons are protected under one
or more of the Geneva Conventions or under Protocol I to the Geneva
Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the
factual circumstances that establish that the person or persons are so
protected; 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)
- Strict liability applies to
paragraph (1)(b).
268.25 War crime—torture
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator inflicts severe
physical or mental pain or suffering upon one or more persons; and
- (b)
- the
perpetrator inflicts the pain or suffering for the purpose of:
- (i)
- obtaining information or a confession; or
- (ii)
- a punishment, intimidation or
coercion; or
- (iii)
- a reason based on discrimination of any kind; and
- (c)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (d)
- the
perpetrator knows of, or is reckless as to, the factual circumstances that
establish that the person or persons are so protected; and
- (e)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to paragraph (1)(c).
268.26 War
crime—inhumane treatment
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator inflicts severe physical or mental pain or
suffering upon one or more persons; and
- (b)
- the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
- (c)
- the perpetrator knows of, or is reckless as
to, the factual circumstances that establish that the person or persons are so
protected; and
- (d)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.27 War crime—biological experiments
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or more persons to a particular biological
experiment; and
- (b)
- the experiment seriously endangers the physical or mental
health or integrity of the person or persons; and
- (c)
- the perpetrator's
conduct is neither justified by the medical, dental or hospital treatment of
the person or persons nor carried out in the interest or interests of the
person or persons; and
- (d)
- the person or persons are protected under one or
more of the Geneva Conventions or under Protocol I to the Geneva Conventions;
and
- (e)
- the perpetrator knows of, or is reckless as to, the factual
circumstances that establish that the person or persons are so protected; and
- (f)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to paragraph (1)(d).
268.28 War
crime—wilfully causing great suffering
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator causes great physical or mental
pain or suffering to, or serious injury to body or health of, one or more
persons; and
- (b)
- the person or persons are protected under one or more of the
Geneva Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the
perpetrator knows of, or is reckless as to, the factual circumstances that
establish that the person or persons are so protected; and
- (d)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to paragraph (1)(b).
268.29 War
crime—destruction and appropriation of property
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator destroys or
appropriates property; and
- (b)
- the destruction or appropriation is not
justified by military necessity; and
- (c)
- the destruction or appropriation is
extensive and carried out unlawfully and wantonly; and
- (d)
- the property is
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
- (e)
- the perpetrator knows of, or is reckless as
to, the factual circumstances that establish that the property is so
protected; and
- (f)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty:
Imprisonment for 15 years.
- (2)
- Strict liability applies to
paragraph (1)(d).
268.30 War crime—compelling service in hostile
forces
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the
perpetrator coerces one or more persons, by act or threat:
- (i)
- to take part
in military operations against that person's or those persons' own country or
forces; or
- (ii)
- otherwise to serve in the forces of an adverse power; and
- (b)
- the person or persons are protected under one or more of the Geneva
Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the
perpetrator knows of, or is reckless as to, the factual circumstances that
establish that the person or persons are so protected; and
- (d)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 10 years.
- (2)
- Strict liability applies to paragraph (1)(b).
268.31 War
crime—denying a fair trial
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator deprives one or more persons of a fair and
regular trial by denying to the person any of the judicial guarantees referred
to in paragraph (b); and
- (b)
- the judicial guarantees are those defined
in articles 84, 99 and 105 of the Third Geneva Convention and articles 66 and
71 of the Fourth Geneva Convention; and
- (c)
- the person or persons are
protected under one or more of the Geneva Conventions or under Protocol I to
the Geneva Conventions; and
- (d)
- the perpetrator knows of, or is reckless as
to, the factual circumstances that establish that the person or persons are so
protected; and
- (e)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty:
Imprisonment for 10 years.
- (2)
- Strict liability applies to:
- (a)
- the
physical element of the offence referred to in paragraph (1)(a) that the
judicial guarantees are those referred to in paragraph (1)(b); and
- (b)
- paragraphs (1)(b) and (c).
268.32 War crime—unlawful deportation
or transfer
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator unlawfully deports or transfers one or more persons to another
country or to another location; and
- (b)
- the person or persons are protected
under one or more of the Geneva Conventions or under Protocol I to the Geneva
Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the
factual circumstances that establish that the person or persons are so
protected; and
- (d)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty:
Imprisonment for 17 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.33 War crime—unlawful confinement
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
unlawfully confines or continues to confine one or more persons to a certain
location; and
- (b)
- the person or persons are protected under one or more of
the Geneva Conventions or under Protocol I to the Geneva Conventions; and
- (c)
- the perpetrator knows of, or is reckless as to, the factual circumstances that
establish that the person or persons are so protected; and
- (d)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.34 War crime—taking hostages
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator seizes,
detains or otherwise holds hostage one or more persons; and
- (b)
- the
perpetrator threatens to kill, injure or continue to detain the person or
persons; and
- (c)
- the perpetrator intends to compel the government of a
country, an international organisation or a person or group of persons to act
or refrain from acting as an explicit or implicit condition for either the
safety or the release of the person or persons; and
- (d)
- the person or persons
are protected under one or more of the Geneva Conventions or under Protocol I
to the Geneva Conventions; and
- (e)
- the perpetrator knows of, or is reckless
as to, the factual circumstances that establish that the person or persons are
so protected; and
- (f)
- the perpetrator's conduct takes place in the context
of, and is associated with, an international armed conflict.
Penalty:
Imprisonment for 17 years.
- (2)
- Strict liability applies to
paragraph (1)(d).
Subdivision E—Other serious war crimes that are
committed in the course of an international armed conflict
268.35 War
crime—attacking civilians
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
directs an attack; and
- (b)
- the object of the attack is a civilian population
as such or individual civilians not taking direct part in hostilities; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for life.
268.36 War crime—attacking civilian objects
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
directs an attack; and
- (b)
- the object of the attack is not a military
objective; and
- (c)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty:
Imprisonment for 15 years.
268.37 War crime—attacking personnel or
objects involved in a humanitarian assistance or peacekeeping mission
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
directs an attack; and
- (b)
- the object of the attack is personnel involved in
a humanitarian assistance or peacekeeping mission in accordance with the
Charter of the United Nations; and
- (c)
- the personnel are entitled to the
protection given to civilians under the Geneva Conventions or Protocol I to
the Geneva Conventions; 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 directs an attack; and
- (b)
- the object of the attack is
installations, material, units or vehicles involved in a humanitarian
assistance or peacekeeping mission in accordance with the Charter of the
United Nations; and
- (c)
- the installations, material, units or vehicles are
entitled to the protection given to civilian objects under the Geneva
Conventions or Protocol I to the Geneva Conventions; and
- (d)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 20 years.
- (3)
- Strict liability applies to paragraphs (1)(c) and (2)(c).
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.
268.39 War crime—attacking undefended places
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
attacks or bombards one or more towns, villages, dwellings or buildings; and
- (b)
- the towns, villages, dwellings or buildings are open for unresisted
occupation; and
- (c)
- the towns, villages, dwellings or buildings do not
constitute military objectives; and
- (d)
- the perpetrator's conduct takes place
in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.40 War crime—killing or injuring a
person who is hors de combat
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator kills one or more persons; and
- (b)
- the person or persons
are hors de combat ; and
- (c)
- the perpetrator knows of, or is reckless as to,
the factual circumstances that establish that the person or persons are hors
de combat ; 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 injures one or more persons; and
- (b)
- the person or
persons are hors de combat ; and
- (c)
- the perpetrator knows of, or is reckless
as to, the factual circumstances that establish that the person or persons are
hors de combat ; 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 25 years.
268.41 War
crime—improper use of a flag of truce
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses
a flag of truce; and
- (b)
- the perpetrator uses the flag in order to feign an
intention to negotiate when there is no such intention on the part of the
perpetrator; and
- (c)
- the perpetrator knows of, or is reckless as to, the
illegal nature of such use of the flag; and
- (d)
- the perpetrator's conduct
results in death or serious personal injury; and
- (e)
- the conduct takes place
in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.42 War crime—improper use of a flag,
insignia or uniform of the adverse party
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses
a flag, insignia or uniform of the adverse party; and
- (b)
- the perpetrator
uses the flag, insignia or uniform while engaged in an attack or in order to
shield, favour, protect or impede military operations; and
- (c)
- the
perpetrator knows of, or is reckless as to, the illegal nature of such use of
the flag, insignia or uniform; and
- (d)
- the perpetrator's conduct results in
death or serious personal injury; and
- (e)
- the conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.43 War crime—improper use of a flag,
insignia or uniform of the United Nations
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses
a flag, insignia or uniform of the United Nations; and
- (b)
- the perpetrator
uses the flag, insignia or uniform without the authority of the United
Nations; and
- (c)
- the perpetrator knows of, or is reckless as to, the illegal
nature of such use of the flag, insignia or uniform; and
- (d)
- the
perpetrator's conduct results in death or serious personal injury; and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for life.
268.44 War crime—improper use of the
distinctive emblems of the Geneva Conventions
- (1)
- A person (the perpetrator
) commits an offence if:
- (a)
- the perpetrator uses an emblem; and
- (b)
- the
emblem is one of the distinctive emblems of the Geneva Conventions; and
- (c)
- the perpetrator uses the emblem for combatant purposes to invite the
confidence of an adversary in order to lead him or her to believe that the
perpetrator is entitled to protection, or that the adversary is obliged to
accord protection to the perpetrator, with intent to betray that confidence;
and
- (d)
- the perpetrator knows of, or is reckless as to, the illegal nature of
such use; and
- (e)
- the perpetrator's conduct results in death or serious
personal injury; and
- (f)
- the conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for
life.
- (2)
- Strict liability applies to paragraph (1)(b).
- (3)
- In this
section:
"emblem" means any emblem, identity card, sign, signal, insignia
or uniform.
268.45 War crime—transfer of population
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator:
- (i)
- authorises, organises or directs, or participates in the authorisation,
organisation or direction of, or participates in, the transfer, directly or
indirectly, of parts of the civilian population of the perpetrator's own
country into territory that the country occupies; or
- (ii)
- authorises,
organises or directs, or participates in the authorisation, organisation or
direction of, or participates in, the deportation or transfer of all or parts
of the population of territory occupied by the perpetrator's own country
within or outside that territory; and
- (b)
- the perpetrator's conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 17 years.
268.46 War
crime—attacking protected objects
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
directs an attack; and
- (b)
- the object of the attack is any one or more of the
following that are not military objectives:
- (i)
- buildings dedicated to
religion, education, art, science or charitable purposes;
- (ii)
- historic
monuments;
- (iii)
- hospitals or places where the sick and wounded are
collected; and
- (c)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
268.47 War crime—mutilation
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
subjects one or more persons to mutilation, such as by permanently
disfiguring, or permanently disabling or removing organs or appendages of, the
person or persons; and
- (b)
- the perpetrator's conduct causes the death of the
person or persons; and
- (c)
- the conduct is neither justified by the medical,
dental or hospital treatment of the person or persons nor carried out in the
interest or interests of the person or persons; and
- (d)
- the person or persons
are in the power of an adverse party; and
- (e)
- the 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 subjects one or more persons to mutilation,
such as by permanently disfiguring, or permanently disabling or removing
organs or appendages of, the person or persons; and
- (b)
- the perpetrator's
conduct seriously endangers the physical or mental health, or the integrity,
of the person or persons; and
- (c)
- the conduct is neither justified by the
medical, dental or hospital treatment of the person or persons nor carried out
in the interest or interests of the person or persons; and
- (d)
- the person or
persons are in the power of an adverse party; and
- (e)
- the conduct takes place
in the context of, and is associated with, an international armed conflict.
Penalty for a contravention of this subsection: Imprisonment for 25 years.
268.48 War crime—medical or scientific experiments
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or
more persons to a medical or scientific experiment; and
- (b)
- the experiment
causes the death of the person or persons; and
- (c)
- the perpetrator's conduct
is neither justified by the medical, dental or hospital treatment of the
person or persons nor carried out in the interest or interests of the person
or persons; and
- (d)
- the person or persons are in the power of an adverse
party; and
- (e)
- the 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
subjects one or more persons to a medical or scientific experiment; and
- (b)
- the experiment seriously endangers the physical or mental health, or the
integrity, of the person or persons; and
- (c)
- the perpetrator's conduct is
neither justified by the medical, dental or hospital treatment of the person
or persons nor carried out in the interest or interests of the person or
persons; and
- (d)
- the person or persons are in the power of an adverse party;
and
- (e)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty for a contravention of this
subsection: Imprisonment for 25 years.
268.49 War crime—treacherously
killing or injuring
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator invites the confidence or belief of one or more persons
that the perpetrator is entitled to protection, or that the person or persons
are obliged to accord protection to the perpetrator; and
- (b)
- the perpetrator
kills the person or persons; and
- (c)
- the perpetrator makes use of that
confidence or belief in killing the person or persons; and
- (d)
- the person or
persons belong to an adverse party; and
- (e)
- 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 invites the confidence or belief
of one or more persons that the perpetrator is entitled to protection, or that
the person or persons are obliged to accord protection to the perpetrator; and
- (b)
- the perpetrator injures the person or persons; and
- (c)
- the perpetrator
makes use of that confidence or belief in injuring the person or persons; and
- (d)
- the person or persons belong to an adverse party; and
- (e)
- 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 25 years.
268.50 War crime—denying quarter
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
declares or orders that there are to be no survivors; and
- (b)
- the declaration
or order is given with the intention of threatening an adversary or conducting
hostilities on the basis that there are to be no survivors; and
- (c)
- the
perpetrator is in a position of effective command or control over the
subordinate forces to which the declaration or order is directed; and
- (d)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for life.
268.51 War
crime—destroying or seizing the enemy's property
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator destroys or seizes
certain property; and
- (b)
- the property is property of an adverse party; and
- (c)
- the property is protected from the destruction or seizure under article 18
of the Third Geneva Convention, article 53 of the Fourth Geneva Convention or
article 54 of Protocol I to the Geneva Conventions; and
- (d)
- the perpetrator
knows of, or is reckless as to, the factual circumstances that establish that
the property is so protected; and
- (e)
- the destruction or seizure is not
justified by military necessity; and
- (f)
- the perpetrator's conduct takes
place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 15 years.
- (2)
- Strict liability applies
to paragraph (1)(c).
268.52 War crime—depriving nationals of the
adverse power of rights or actions
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
effects the abolition, suspension or termination of admissibility in a court
of law of certain rights or actions; and
- (b)
- the abolition, suspension or
termination is directed at the nationals of an adverse party; and
- (c)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 10 years.
268.53 War crime—compelling
participation in military operations
- (1)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator coerces one or more persons by act or
threat to take part in military operations against that person's or those
persons' own country or forces; and
- (b)
- the person or persons are nationals
of an adverse party; and
- (c)
- the perpetrator's conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 10 years.
- (2)
- It is not a defence to a prosecution
for an offence against subsection (1) that the person or persons were in
the service of the perpetrator at a time before the beginning of the
international armed conflict.
268.54 War crime—pillaging
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
appropriates certain property; and
- (b)
- the perpetrator intends to deprive the
owner of the property and to appropriate it for private or personal use; and
- (c)
- the appropriation is without the consent of the owner; and
- (d)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 15 years.
268.55
War crime—employing poison or poisoned weapons
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
employs a substance or employs a weapon that releases a substance as a result
of its employment; and
- (b)
- the substance is such that it causes death or
serious damage to health in the ordinary course of events through its toxic
properties; and
- (c)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
268.56 War crime—employing prohibited gases,
liquids, materials or devices
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
employs a gas or other analogous substance or device; and
- (b)
- the gas,
substance or device is such that it causes death or serious damage to health
in the ordinary course of events through its asphyxiating or toxic properties;
and
- (c)
- the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for
25 years.
268.57 War crime—employing prohibited bullets
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator employs
certain bullets; and
- (b)
- the bullets are such that their use violates the
Hague Declaration because they expand or flatten easily in the human body; and
- (c)
- the perpetrator knows that, or is reckless as to whether, the nature of
the bullets is such that their employment will uselessly aggravate suffering
or the wounding effect; and
- (d)
- the perpetrator's conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.58 War crime—outrages upon personal dignity
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
severely humiliates, degrades or otherwise violates the dignity of one or more
persons; and
- (b)
- the perpetrator's conduct takes place in the context of, and
is associated with, an international armed conflict.
Penalty: Imprisonment
for 17 years.
- (2)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator severely humiliates, degrades or otherwise violates the
dignity of the body or bodies of one or more dead persons; and
- (b)
- the
perpetrator's conduct takes place in the context of, and is associated with,
an international armed conflict.
Penalty: Imprisonment for 17 years.
268.59
War crime—rape
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator sexually penetrates another person without the consent of
that person; and
- (b)
- the perpetrator knows about, or is reckless as to, the
lack of consent; and
- (c)
- the perpetrator's conduct takes place in the context
of, and is associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator causes another person to sexually penetrate
the perpetrator without the consent of the other person; and
- (b)
- the
perpetrator knows about, or is reckless as to, the lack of consent; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (3)
- In this section:
"consent" means free and voluntary agreement.
The
following are examples of circumstances in which a person does not consent to
an act:
(a) the person submits to the act because of force or the fear of
force to the person or to someone else;
(b) the person submits to the act
because the person is unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of understanding the essential
nature of the act;
(e) the person is mistaken about the essential nature of
the act (for example,
the person mistakenly believes that the act is for medical or hygienic
purposes);
(f) the person submits to the act because of psychological
oppression or abuse of power;
(g) the person submits to the act because of
the perpetrator taking advantage of a coercive environment.
- (4)
- In this
section:
"sexually penetrate" means:
- (a)
- penetrate (to any extent) the
genitalia or anus of a person by any part of the body of another person or by
any object manipulated by that other person; or
- (b)
- penetrate (to any extent)
the mouth of a person by the penis of another person; or
- (c)
- continue to
sexually penetrate as defined in paragraph (a) or (b).
- (5)
- In this
section, being reckless as to a lack of consent to sexual penetration includes
not giving any thought to whether or not the person is consenting to sexual
penetration.
- (6)
- In this section, the genitalia or other parts of the body of
a person include surgically constructed genitalia or other parts of the body
of the person.
268.60 War crime—sexual slavery
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator causes another
person to enter into or remain in sexual slavery; and
- (b)
- the perpetrator
intends to cause, or is reckless as to causing, that sexual slavery; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- For the purposes of this section, sexual slavery is the condition of a
person who provides sexual services and who, because of the use of force or
threats:
- (a)
- is not free to cease providing sexual services; or
- (b)
- is not
free to leave the place or area where the person provides sexual services.
- (3)
- In this section:
"sexual service" means the use or display of the body
of the person providing the service for the sexual gratification of others.
"threat" means:
- (a)
- a threat of force; or
- (b)
- a threat to cause a person's
deportation; or
- (c)
- a threat of any other detrimental action unless there are
reasonable grounds for the threat of that action in connection with the
provision of sexual services by a person.
268.61 War crime—enforced
prostitution
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator causes one or more persons to engage in one or more acts
of a sexual nature without the consent of the person or persons, including by
being reckless as to whether there is consent; and
- (b)
- the perpetrator
intends that he or she, or another person, will obtain pecuniary or other
advantage in exchange for, or in connection with, the acts of a sexual nature;
and
- (c)
- the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for
25 years.
- (2)
- In subsection (1):
"consent" means free and voluntary
agreement.
The following are examples of circumstances in which a person
does not consent to an act:
(a) the person submits to the act because of
force or the fear of force to the person or to someone else;
(b) the person
submits to the act because the person is unlawfully detained;
(c) the person
is asleep or unconscious, or is so affected by alcohol or another drug as to
be incapable of consenting;
(d) the person is incapable of understanding the
essential nature of the act;
(e) the person is mistaken about the essential
nature of the act (for example, the person mistakenly believes that the act is
for medical or hygienic purposes);
(f) the person submits to the act because
of psychological oppression or abuse of power;
(g) the person submits to the
act because of the perpetrator taking advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion
such as that caused by fear of violence, duress, detention, psychological
oppression or abuse of power; or
- (b)
- taking advantage of a coercive
environment.
- (3)
- In subsection (1), being reckless as to whether there
is consent to one or more acts of a sexual nature includes not giving any
thought to whether or not the person is consenting to the act or acts of a
sexual nature.
268.62 War crime—forced pregnancy
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator unlawfully
confines one or more women forcibly made pregnant; and
- (b)
- the perpetrator
intends to affect the ethnic composition of any population or to destroy,
wholly or partly, a national, ethnical, racial or religious group, as such;
and
- (c)
- the perpetrator's conduct takes place in the context of, and is
associated with, an international armed conflict.
Penalty: Imprisonment for
25 years.
- (2)
- In subsection (1):
"forcibly made pregnant" includes
made pregnant by a consent that was effected by deception or by natural,
induced or age-related incapacity.
- (3)
- To avoid doubt, this section does not affect any other law of the
Commonwealth or any law of a State or Territory.
268.63 War
crime—enforced sterilisation
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator deprives one or more persons of biological
reproductive capacity; and
- (b)
- the deprivation is not effected by a
birth-control measure that has a non-permanent effect in practice; and
- (c)
- the perpetrator's conduct is neither justified by the medical or hospital
treatment of the person or persons nor carried out with the consent of the
person or persons; and
- (d)
- the perpetrator's conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In subsection (1):
consent
does not include consent effected by deception or by natural, induced or
age-related incapacity.
268.64 War crime—sexual violence
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator does either
of the following:
- (i)
- commits an act or acts of a sexual nature against one
or more persons;
- (ii)
- causes one or more persons to engage in an act or acts
of a sexual nature;
without the consent of the person or persons, including by being reckless as
to whether there is consent; and - (b)
- the perpetrator's conduct is of a
gravity comparable to the offences referred to in sections 268.59 to
268.63; and
- (c)
- the conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to paragraph (1)(b).
- (3)
- In
subsection (1):
"consent" means free and voluntary agreement.
The
following are examples of circumstances in which a person does not consent to
an act:
(a) the person submits to the act because of force or the fear of
force to the person or to someone else;
(b) the person submits to the act
because the person is unlawfully detained;
(c) the person is asleep or
unconscious, or is so affected by alcohol or another drug as to be incapable
of consenting;
(d) the person is incapable of understanding the essential
nature of the act;
(e) the person is mistaken about the essential nature of
the act (for example, the person mistakenly believes that the act is for
medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power; or
- (b)
- taking
advantage of a coercive environment.
- (4)
- In subsection (1), being
reckless as to whether there is consent to one or more acts of a sexual nature
includes not giving any thought to whether or not the person is consenting to
the act or acts of a sexual nature.
268.65 War crime—using protected
persons as shields
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses the presence of one or more civilians, prisoners of
war, military, medical or religious personnel or persons who are hors de
combat ; and
- (b)
- the perpetrator intends the perpetrator's conduct to render
a military objective immune from attack or to shield, favour or impede
military operations; and
- (c)
- the perpetrator's conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty:
- (a)
- if the conduct results in the death of any of the persons
referred to in paragraph (a)—imprisonment for life; or
- (b)
- otherwise—imprisonment for 17 years.
- (2)
- In this section:
"religious personnel" includes non-confessional, non-combatant military
personnel carrying out a similar function to religious personnel.
268.66 War
crime—attacking persons or objects using the distinctive emblems of the
Geneva Conventions
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator attacks one or more persons; and
- (b)
- the person or
persons are using, in conformity with the Geneva Conventions or the Protocols
to the Geneva Conventions, any of the distinctive emblems of the Geneva
Conventions; and
- (c)
- the perpetrator intends the persons so using such an
emblem to be the object of the attack; 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 attacks one or more buildings,
medical units or transports or other objects; and
- (b)
- the buildings, units or
transports or other objects are using, in conformity with the Geneva
Conventions or the Protocols to the Geneva Conventions, any of the distinctive
emblems of the Geneva Conventions; and
- (c)
- the perpetrator intends the
buildings, units or transports or other objects so using such an emblem to be
the object of the attack; and
- (d)
- the perpetrator's conduct takes place in
the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 20 years.
- (3)
- Strict liability applies to
paragraphs (1)(b) and (2)(b).
268.67 War crime—starvation as a
method of warfare
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses as a method of warfare:
- (i)
- any intentional
deprivation of civilians of objects indispensable to their survival; or
- (ii)
- without limiting subparagraph (i)—the wilful impeding of relief
supplies for civilians; and
- (b)
- if subparagraph (a)(ii)
applies—the relief supplies are provided for under the Geneva
Conventions; and
- (c)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty:
Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
268.68 War crime—using, conscripting or
enlisting children
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses one or more persons to participate actively in
hostilities; and
- (b)
- the person or persons are under the age of 15 years; and
- (c)
- the perpetrator's conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
- (2)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
conscripts one or more persons into the national armed forces; and
- (b)
- the
person or persons are under the age of 15 years; and
- (c)
- the perpetrator's
conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for 15 years.
- (3)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
enlists one or more persons into the national armed forces; and
- (b)
- the
person or persons are under the age of 15 years; and
- (c)
- 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 10 years.
Subdivision F—War crimes that are
serious violations of article 3 common to the Geneva Conventions and are
committed in the course of an armed conflict that is not an international
armed conflict
268.69 Definition of religious personnel
In this Subdivision:
"religious personnel" includes non-confessional, non-combatant military
personnel carrying out a similar function to religious personnel.
268.70 War
crime—murder
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator causes the death of 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)
- 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.
- (2)
- To avoid doubt, a reference
in subsection (1) 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.
268.71 War
crime—mutilation
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or more persons to mutilation, such as by
permanently disfiguring, or permanently disabling or removing organs or
appendages of, the person or persons; and
- (b)
- the perpetrator's conduct
causes the death of the person or persons; and
- (c)
- the conduct is neither
justified by the medical, dental or hospital treatment of the person or
persons nor carried out in the interest or interests of the person or persons;
and
- (d)
- the person or persons are not taking an active part in the
hostilities; and
- (e)
- 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
- (f)
- the 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.
- (2)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one
or more persons to mutilation, such as by permanently disfiguring, or
permanently disabling or removing organs or appendages of, the person or
persons; and
- (b)
- the perpetrator's conduct seriously endangers the physical
or mental health, or the integrity, of the person or persons; and
- (c)
- the
conduct is neither justified by the medical, dental or hospital treatment of
the person or persons nor carried out in the interest or interests of the
person or persons; and
- (d)
- the person or persons are not taking an active
part in the hostilities; and
- (e)
- 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
- (f)
- the conduct takes place in
the context of, and is associated with, an armed conflict that is not an
international armed conflict.
Penalty: Imprisonment for 25 years.
- (3)
- 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.
268.72 War crime—cruel treatment
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator inflicts severe
physical or mental pain or suffering upon 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)
- 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 25 years.
- (2)
- To avoid doubt, a
reference in subsection (1) 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.
268.73 War crime—torture
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator inflicts severe physical or mental pain or
suffering upon one or more persons; and
- (b)
- the perpetrator inflicts the pain
or suffering for the purpose of:
- (i)
- obtaining information or a confession;
or
- (ii)
- a punishment, intimidation or coercion; or
- (iii)
- a reason based on
discrimination of any kind; and
- (c)
- the person or persons are not taking an
active part in the hostilities; and
- (d)
- 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
- (e)
- 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 25 years.
- (2)
- To avoid doubt, a reference in
subsection (1) 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.
268.74 War
crime—outrages upon personal dignity
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator severely humiliates, degrades or
otherwise violates the dignity of 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)
- 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 17 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator severely humiliates, degrades or
otherwise violates the dignity of the body or bodies of one or more dead
persons; and
- (b)
- the dead person or dead persons were not, before his, her or
their death, taking an active part in the hostilities; and
- (c)
- the
perpetrator knows of, or is reckless as to, the factual circumstances
establishing that the dead person or dead persons were not, before his, her or
their death, taking an active part in the hostilities; and
- (d)
- 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 17 years.
- (3)
- To avoid doubt, a reference in this section
to a person or persons who are not, or a dead person or dead persons who were
not before his, her or their death, taking an active part in the hostilities
includes a reference to:
(a) a person or persons who:
- (i)
- are hors de
combat ; or
- (ii)
- are civilians, medical personnel or religious personnel who
are not taking an active part in the hostilities; or
- (b)
- a dead person or
dead persons who, before his, her or their death:
- (i)
- were hors de combat ;
or
- (ii)
- were civilians, medical personnel or religious personnel who were not
taking an active part in the hostilities;
as the case may be.
268.75 War
crime—taking hostages
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator seizes, detains or otherwise holds hostage
one or more persons; and
- (b)
- the perpetrator threatens to kill, injure or
continue to detain the person or persons; and
- (c)
- the perpetrator intends to
compel the government of a country, an international organisation or a person
or group of persons to act or refrain from acting as an explicit or implicit
condition for either the safety or the release of the person or persons; and
- (d)
- the person or persons are not taking an active part in the hostilities;
and
- (e)
- 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
- (f)
- 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 17 years.
- (2)
- To
avoid doubt, a reference in subsection (1) 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.
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.
Subdivision G—War crimes that are other serious violations
of the laws and customs applicable in an armed conflict that is not an
international armed conflict
268.77 War crime—attacking civilians
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
directs an attack; and
- (b)
- the object of the attack is a civilian population
as such or individual civilians not taking direct part in hostilities; and
- (c)
- 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.
268.78 War crime—attacking persons or
objects using the distinctive emblems of the Geneva Conventions
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator attacks one
or more persons; and
- (b)
- the person or persons are using, in conformity with
the Geneva Conventions or the Protocols to the Geneva Conventions, any of the
distinctive emblems of the Geneva Conventions; and
- (c)
- the perpetrator
intends the persons so using such an emblem to be the object of the attack;
and
- (d)
- 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.
- (2)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator attacks one or more buildings,
medical units or transports or other objects; and
- (b)
- the buildings, units or
transports or other objects are using, in conformity with the Geneva
Conventions or the Protocols to the Geneva Conventions, any of the distinctive
emblems of the Geneva Conventions; and
- (c)
- the perpetrator intends the
buildings, units or transports or other objects so using such an emblem to be
the object of the attack; and
- (d)
- 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 20 years.
- (3)
- Strict liability applies to paragraphs (1)(b) and (2)(b).
268.79 War
crime—attacking personnel or objects involved in a humanitarian
assistance or peacekeeping mission
- (1)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator directs an attack; and
- (b)
- the object
of the attack is personnel involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United Nations; and
- (c)
- the personnel are entitled to the protection given to civilians under the
Geneva Conventions or Protocol II to the Geneva Conventions; and
- (d)
- 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.
- (2)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
directs an attack; and
- (b)
- the object of the attack is installations,
material, units or vehicles involved in a humanitarian assistance or
peacekeeping mission in accordance with the Charter of the United Nations; and
- (c)
- the installations, material, units or vehicles are entitled to the
protection given to civilian objects under the Geneva Conventions and Protocol
II to the Geneva Conventions; and
- (d)
- 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 20 years.
- (3)
- Strict liability applies to paragraphs (1)(c) and (2)(c).
268.80 War
crime—attacking protected objects
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
directs an attack; and
- (b)
- the object of the attack is any one or more of the
following that are not military objectives:
- (i)
- buildings dedicated to
religion, education, art, science or charitable purposes;
- (ii)
- historic
monuments;
- (iii)
- hospitals or places where the sick and wounded are
collected; and
- (c)
- 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 20 years.
268.81 War
crime—pillaging
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
appropriates certain property; and
- (b)
- the perpetrator intends to deprive the
owner of the property and to appropriate it for private or personal use; and
- (c)
- the appropriation is without the consent of the owner; and
- (d)
- 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 20 years.
268.82 War crime—rape
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator sexually
penetrates another person without the consent of that person; and
- (b)
- the
perpetrator knows of, or is reckless as to, the lack of consent; and
- (c)
- 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 25 years.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator causes another person to sexually penetrate
the perpetrator without the consent of the other person; and
- (b)
- the
perpetrator knows of, or is reckless as to, the lack of consent; and
- (c)
- 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 25 years.
- (3)
- In this section:
"consent" means
free and voluntary agreement.
The following are examples of circumstances
in which a person does not consent to an act:
(a) the person submits to the
act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or
another drug as to be incapable of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the person is mistaken
about the essential nature of the act (for example, the person mistakenly
believes that the act is for medical or hygienic purposes);
(f) the person
submits to the act because of psychological oppression or abuse of power;
(g)
the person submits to the act because of the perpetrator taking advantage of a
coercive environment.
- (4)
- In this section:
"sexually penetrate" means:
- (a)
- penetrate (to any extent) the genitalia or anus of a person by any part of
the body of another person or by any object manipulated by that other person;
or
- (b)
- penetrate (to any extent) the mouth of a person by the penis of
another person; or
- (c)
- continue to sexually penetrate as defined in
paragraph (a) or (b).
- (5)
- In this section, being reckless as to a lack
of consent to sexual penetration includes not giving any thought to whether or
not the person is consenting to sexual penetration.
- (6)
- In this section, the
genitalia or other parts of the body of a person include surgically
constructed genitalia or other parts of the body of the person.
268.83 War
crime—sexual slavery
- (1)
- A person (the perpetrator ) commits an offence
if:
- (a)
- the perpetrator causes another person to enter into or remain in
sexual slavery; and
- (b)
- the perpetrator intends to cause, or is reckless as
to causing, that sexual slavery; and
- (c)
- 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 25 years.
- (2)
- For the purposes of this section, sexual slavery is the condition of a person
who provides sexual services and who, because of the use of force or threats:
- (a)
- is not free to cease providing sexual services; or
- (b)
- is not free to
leave the place or area where the person provides sexual services.
- (3)
- In this section:
"sexual service" means the use or display of the body
of the person providing the service for the sexual gratification of others.
"threat" means:
- (a)
- a threat of force; or
- (b)
- a threat to cause a person's
deportation; or
- (c)
- a threat of any other detrimental action unless there are
reasonable grounds for the threat of that action in connection with the
provision of sexual services by a person.
268.84 War crime—enforced
prostitution
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator causes one or more persons to engage in one or more acts of a
sexual nature without the consent of the person or persons, including by being
reckless as to whether there is consent; and
- (b)
- the perpetrator intends that
he or she, or another person, will obtain pecuniary or other advantage in
exchange for, or in connection with, the acts of a sexual nature; and
- (c)
- 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 25 years.
- (2)
- In subsection (1):
"consent" means
free and voluntary agreement.
The following are examples of circumstances
in which a person does not consent to an act:
(a) the person submits to the
act because of force or the fear of force to the person or to someone else;
(b) the person submits to the act because the person is unlawfully detained;
(c) the person is asleep or unconscious, or is so affected by alcohol or
another drug as to be incapable of consenting;
(d) the person is incapable of
understanding the essential nature of the act;
(e) the person is mistaken
about the essential nature of the act (for example, the person mistakenly
believes that the act is for medical or hygienic purposes);
(f) the person
submits to the act because of psychological oppression or abuse of power;
(g)
the person submits to the act because of the perpetrator taking advantage of a
coercive environment.
"threat of force or coercion" includes:
- (a)
- a
threat of force or coercion such as that caused by fear of violence, duress,
detention, psychological oppression or abuse of power; or
- (b)
- taking
advantage of a coercive environment.
- (3)
- In subsection (1), being
reckless as to whether there is consent to one or more acts of a sexual nature
includes not giving any thought to whether or not the person is consenting to
the act or acts of a sexual nature.
268.85 War crime—forced pregnancy
- (1)
- A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator unlawfully confines one or more women forcibly made
pregnant; and
- (b)
- the perpetrator intends to affect the ethnic composition of
any population or to destroy, wholly or partly, a national, ethnical, racial
or religious group as such; and
- (c)
- 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 25 years.
- (2)
- In
subsection (1):
"forcibly made pregnant" includes made pregnant by a
consent that was affected by deception or by natural, induced or age-related
incapacity.
- (3)
- To avoid doubt, this section does not affect any other law
of the Commonwealth or any law of a State or Territory.
268.86 War
crime—enforced sterilisation
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator deprives one or more persons of biological
reproductive capacity; and
- (b)
- the deprivation is not effected by a
birth-control measure that has a non-permanent effect in practice; and
- (c)
- the perpetrator's conduct is neither justified by the medical or hospital
treatment of the person or persons nor carried out with the consent of the
person or persons; and
- (d)
- 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 25 years.
- (2)
- In
subsection (1):
consent does not include consent effected by deception
or by natural, induced or age-related incapacity.
268.87 War
crime—sexual violence
- (1)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator does either of the following:
- (i)
- commits an act or acts of a sexual nature against one or more persons;
- (ii)
- causes one or more persons to engage in an act or acts of a sexual nature;
without the consent of the person or persons, including by being reckless as
to whether there is consent; and - (b)
- the perpetrator's conduct is of a
gravity comparable to the offences referred to in sections 268.82 to
268.87; and
- (c)
- the conduct takes place in the context of, and is associated
with, an armed conflict that is not an international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- Strict liability applies to
paragraph (1)(b).
- (3)
- In subsection (1):
"consent" means free and voluntary agreement.
The following are examples of
circumstances in which a person does not consent to an act:
(a) the person
submits to the act because of force or the fear of force to the person or to
someone else;
(b) the person submits to the act because the person is
unlawfully detained;
(c) the person is asleep or unconscious, or is so
affected by alcohol or another drug as to be incapable of consenting;
(d) the
person is incapable of understanding the essential nature of the act;
(e) the
person is mistaken about the essential nature of the act (for example, the
person mistakenly believes that the act is for medical or hygienic purposes);
(f) the person submits to the act because of psychological oppression or abuse
of power;
(g) the person submits to the act because of the perpetrator taking
advantage of a coercive environment.
"threat of force or coercion" includes:
- (a)
- a threat of force or coercion such as that caused by fear of violence,
duress, detention, psychological oppression or abuse of power, against the
person or another person; or
- (b)
- taking advantage of a coercive environment.
- (4)
- In subsection (1), being reckless as to whether there is consent to
one or more acts of a sexual nature includes not giving any thought to whether
or not the person is consenting to the act or acts of a sexual nature.
268.88 War crime—using, conscripting or enlisting children
- (1)
- A person
(the perpetrator ) commits an offence if:
- (a)
- the perpetrator uses one or
more persons to participate actively in hostilities; and
- (b)
- the person or
persons are under the age of 15 years; and
- (c)
- the perpetrator knows that, or
is reckless as to whether, the person or persons are under that age; and
- (d)
- 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 17 years.
- (2)
- A person (the perpetrator ) commits
an offence if:
- (a)
- the perpetrator conscripts one or more persons into an
armed force or group; and
- (b)
- the person or persons are under the age of 15
years; and
- (c)
- the perpetrator knows that, or is reckless as to whether, the
person or persons are under that age; and
- (d)
- 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 15 years.
- (3)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
enlists one or more persons into an armed force or group; and
- (b)
- the person
or persons are under the age of 15 years; and
- (c)
- the perpetrator knows that,
or is reckless as to whether, the person or persons are under that age; and
- (d)
- 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 for a contravention of this subsection: Imprisonment for 10 years.
268.89 War crime—displacing civilians
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
orders a displacement of a civilian population; and
- (b)
- the order is not
justified by the security of the civilians involved or by imperative military
necessity; and
- (c)
- 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 17 years.
268.90 War
crime—treacherously killing or injuring
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator invites the confidence or belief
of one or more persons that the perpetrator is entitled to protection, or that
the person or persons are obliged to accord protection to the perpetrator; and
- (b)
- the perpetrator kills the person or persons; and
- (c)
- the perpetrator
makes use of that confidence or belief in killing the person or persons; and
- (d)
- the person or persons belong to an adverse party; and
- (e)
- 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.
- (2)
- A person (the perpetrator ) commits an offence
if:
- (a)
- the perpetrator invites the confidence or belief of one or more
persons that the perpetrator is entitled to protection, or that the person or
persons are obliged to accord protection to the perpetrator; and
- (b)
- the
perpetrator injures the person or persons; and
- (c)
- the perpetrator makes use
of that confidence or belief in injuring the person or persons; and
- (d)
- the
person or persons belong to an adverse party; and
- (e)
- 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 for a
contravention of this subsection: Imprisonment for 25 years.
268.91 War
crime—denying quarter
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
declares or orders that there are to be no survivors; and
- (b)
- the declaration
or order is given with the intention of threatening an adversary or conducting
hostilities on the basis that there are to be no survivors; and
- (c)
- the
perpetrator is in a position of effective command or control over the
subordinate forces to which the declaration or order is directed; and
- (d)
- 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.
268.92 War crime—mutilation
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator subjects one or
more persons to mutilation, such as by permanently disfiguring, or permanently
disabling or removing organs or appendages of, the person or persons; and
- (b)
- the perpetrator's conduct causes the death of the person or persons; and
- (c)
- the conduct is neither justified by the medical, dental or hospital treatment
of the person or persons nor carried out in the interest or interests of the
person or persons; and
- (d)
- the person or persons are in the power of another
party to the conflict; and
- (e)
- the 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.
- (2)
- A person (the perpetrator ) commits an
offence if:
- (a)
- the perpetrator subjects one or more persons to mutilation,
such as by permanently disfiguring, or permanently disabling or removing
organs or appendages of, the person or persons; and
- (b)
- the perpetrator's
conduct seriously endangers the physical or mental health, or the integrity,
of the person or persons; and
- (c)
- the conduct is neither justified by the
medical, dental or hospital treatment of the person or persons nor carried out
in the interest or interests of the person or persons; and
- (d)
- the person or
persons are in the power of another party to the conflict; and
- (e)
- the
conduct takes place in the context of, and is associated with, an armed
conflict that is not an international armed conflict.
Penalty for a
contravention of this subsection: Imprisonment for 25 years.
268.93 War
crime—medical or scientific experiments
- (1)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator subjects one or more persons to
a medical or scientific experiment; and
- (b)
- the experiment causes the death
of the person or persons; and
- (c)
- the perpetrator's conduct is neither
justified by the medical, dental or hospital treatment of the person or
persons nor carried out in the interest or interests of the person or persons;
and
- (d)
- the person or persons are in the power of another party to the
conflict; and
- (e)
- the 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.
- (2)
- A person (the perpetrator )
commits an offence if:
- (a)
- the perpetrator subjects one or more persons to
a medical or scientific experiment; and
- (b)
- the experiment seriously
endangers the physical or mental health, or the integrity, of the person or
persons; and
- (c)
- the perpetrator's conduct is neither justified by the
medical, dental or hospital treatment of the person or persons nor carried out
in the interest or interests of the person or persons; and
- (d)
- the person or
persons are in the power of another party to the conflict; and
- (e)
- the
conduct takes place in the context of, and is associated with, an armed
conflict that is not an international armed conflict.
Penalty for a
contravention of this subsection: Imprisonment for 25 years.
268.94 War
crime—destroying or seizing an adversary's property
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- the perpetrator destroys or seizes
certain property; and
- (b)
- the property is property of an adversary; and
- (c)
- the property is protected from the destruction or seizure under article 14 of
Protocol II to the Geneva Conventions; and
- (d)
- the perpetrator knows of, or
is reckless as to, the factual circumstances that establish that the property
is so protected; and
- (e)
- the destruction or seizure is not justified by
military necessity; and
- (f)
- 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 15 years
- (2)
- Strict liability applies to paragraph (1)(c).
Subdivision H—War crimes that are grave breaches of Protocol I to the
Geneva Conventions
268.95 War crime—medical procedure
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
subjects one or more persons to a medical procedure; and
- (b)
- the procedure
seriously endangers the physical or mental health, or the integrity, of the
person or persons; and
- (c)
- the perpetrator's conduct is not justified by the
state of health of the person or persons; and
- (d)
- the perpetrator knows that,
or is reckless as to whether, the conduct is consistent with generally
accepted medical standards that would be applied under similar medical
circumstances to persons who are of the same nationality as the perpetrator
and are in no way deprived of liberty; and
- (e)
- the person or persons are in
the power of, or are interned, detained or otherwise deprived of liberty by,
the country of the perpetrator as a result of an international armed conflict;
and
- (f)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for 25 years.
268.96
War crime—removal of blood, tissue or organs for transplantation
- (1)
- A
person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
removes from one or more persons blood, tissue or organs for transplantation;
and
- (b)
- in the case of the removal of blood—the removal:
- (i)
- is not
for transfusion; or
- (ii)
- is for transfusion without the consent of the person
or persons; and
- (c)
- in the case of the removal of skin—the removal:
- (i)
- is not for grafting; or
- (ii)
- is for grafting without the consent of the
person or persons; and
- (d)
- the intent of the removal is non-therapeutic;
and
- (e)
- the removal is not carried out under conditions consistent with
generally accepted medical standards and controls designed for the benefit of
the person or persons and of the recipient; and
- (f)
- the person or persons are
in the power of, or are interned, detained or otherwise deprived of liberty
by, an adverse party as a result of an international armed conflict; and
- (g)
- the conduct takes place in the context of, and is associated with, an
international armed conflict.
Penalty: Imprisonment for 25 years.
- (2)
- In
subsection (1):
"consent" means consent given voluntarily and without
any coercion or inducement.
268.97 War crime—attack against works or
installations containing dangerous forces resulting in excessive loss of life
or injury to civilians
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator launches an attack against works or installations
containing dangerous forces; and
- (b)
- the attack is such that it will cause
loss of life, injury to civilians, or damage to civilian objects, to such an
extent as to be excessive in relation to the concrete and direct military
advantage anticipated; and
- (c)
- the perpetrator knows that the attack will
cause loss of life, injury to civilians, or damage to civilian objects, to
such an extent; and
- (d)
- the attack results in death or serious injury to body
or health; and
- (e)
- the perpetrator's conduct takes place in the context of,
and is associated with, an international armed conflict.
Penalty:
Imprisonment for life.
268.98 War crime—attacking undefended places or
demilitarized zones
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
attacks one or more towns, villages, dwellings, buildings or demilitarized
zones; and
- (b)
- the towns, villages, dwellings or buildings are open for
unresisted occupation; and
- (c)
- the attack results in death or serious injury
to body or health; and
- (d)
- the perpetrator's conduct takes place in the
context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for life.
268.99 War crime—unjustifiable delay in
the repatriation of prisoners of war or civilians
- (1)
- A person (the
perpetrator ) commits an offence if:
- (a)
- one or more persons are in the
power of, or are interned, detained or otherwise deprived of liberty by, an
adverse party as a result of an international armed conflict; and
- (b)
- the
perpetrator unjustifiably delays the repatriation of the person or persons to
the person's own country or the persons' own countries; and
- (c)
- the delay is
in violation of Part IV of the Third Geneva Convention or Chapter XII of
Section IV of Part III of the Fourth Geneva Convention.
Penalty:
Imprisonment for 10 years.
- (2)
- Strict liability applies to
paragraph (1)(c).
268.100 War crime—apartheid
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
commits against one or more persons an act that is a proscribed inhumane act
or is of a nature and gravity similar to any proscribed inhumane act; and
- (b)
- the perpetrator knows of, or is reckless at to, the factual circumstances that
establish the character of the act; and
- (c)
- the perpetrator's conduct is
committed in the context of an institutionalised regime of systematic
oppression and domination by one racial group over any other racial group or
groups; and
- (d)
- the perpetrator intends to maintain the regime by the
conduct; and
- (e)
- the conduct takes place in the context of, and is associated
with, an international armed conflict.
Penalty: Imprisonment for 17 years.
268.101 War crime—attacking protected objects
A person (the perpetrator ) commits an offence if:
- (a)
- the perpetrator
directs an attack; and
- (b)
- the object of the attack is any one or more of the
following that are not used in support of the military effort and are not
located in the immediate proximity of military objectives:
- (i)
- clearly recognised historic monuments;
- (ii)
- works of art;
- (iii)
- places
of worship; and
- (c)
- the monuments, works of art and places of worship
constitute the cultural or spiritual heritage of peoples and have been given
special protection by special arrangement (for example, within the framework
of a competent international organisation); and
- (d)
- the perpetrator's conduct
takes place in the context of, and is associated with, an international armed
conflict.
Penalty: Imprisonment for 20 years.
Subdivision J—Crimes
against the administration of the justice of the International Criminal Court
268.102 Perjury
- (1)
- A person commits the offence of perjury if:
- (a)
- the
person makes a sworn statement in or for the purposes of a proceeding before
the International Criminal Court; and
- (b)
- the statement is false.
Penalty:
Imprisonment for 10 years.
- (2)
- A person who is an interpreter commits the
offence of perjury if:
- (a)
- the person, by a sworn statement, gives an
interpretation of a statement or other thing in or for the purposes of a
proceeding before the International Criminal Court; and
- (b)
- the
interpretation is false or misleading.
Penalty: Imprisonment for 10 years.
268.103 Falsifying evidence
- (1)
- A person commits an offence if the person
makes false evidence with the intention of:
- (a)
- influencing a decision on
the institution of a proceeding before the International Criminal Court; or
- (b)
- influencing the outcome of such a proceeding.
Penalty: Imprisonment for
7 years.
- (2)
- A person commits an offence if the person:
- (a)
- uses evidence
that is false evidence and that the person believes is false evidence; and
- (b)
- is reckless as to whether or not the use of the evidence could:
- (i)
- influence a decision on the institution of a proceeding before the
International Criminal Court; or
- (ii)
- influence the outcome of such a
proceeding.
Penalty: Imprisonment for 7 years.
- (3)
- For the purposes of
this section, making evidence includes altering evidence, but does not include
perjury.
268.104 Destroying or concealing evidence
- (1)
- A person commits an
offence if the person destroys or conceals evidence with the intention of:
- (a)
- influencing a decision on the institution of a proceeding before the
International Criminal Court; or
- (b)
- influencing the outcome of such a
proceeding.
Penalty: Imprisonment for 7 years.
- (2)
- For the purposes of
this section, destroying evidence includes making the evidence illegible,
indecipherable or otherwise incapable of being identified.
268.105 Deceiving
witnesses
A person commits an offence if the person deceives another person with the
intention that the other person or a third person will:
- (a)
- give false
evidence in a proceeding before the International Criminal Court; or
- (b)
- withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5
years.
268.106 Corrupting witnesses or interpreters
- (1)
- A person commits an
offence if the person provides, or offers or promises to provide, a benefit to
another person with the intention that the other person or a third person
will:
- (a)
- not attend as a witness at a proceeding before the International
Criminal Court; or
- (b)
- give false evidence at such a proceeding; or
- (c)
- withhold true evidence at such a proceeding.
Penalty: Imprisonment for 5
years.
- (2)
- A person commits an offence if the person asks for, or receives
or agrees to receive, a benefit for himself, herself or another person with
the intention that he, she or another person will:
- (a)
- not attend as a
witness at a proceeding before the International Criminal Court; or
- (b)
- give
false evidence at such a proceeding; or
- (c)
- withhold true evidence at such a
proceeding.
Penalty: Imprisonment for 5 years.
- (3)
- A person commits an
offence if the person provides, or offers or promises to provide, a benefit to
another person with the intention that the other person or a third person
will:
- (a)
- not attend as an interpreter at a proceeding before the
International Criminal Court; or
- (b)
- give a false or misleading
interpretation as an interpreter at such a proceeding.
Penalty: Imprisonment
for 5 years.
268.107 Threatening witnesses or interpreters
- (1)
- A person
commits an offence if the person causes or threatens to cause any detriment to
another person with the intention that the other person or a third person
will:
- (a)
- not attend as a witness at a proceeding before the International
Criminal Court; or
- (b)
- give false evidence at such a proceeding; or
- (c)
- withhold true evidence at such a proceeding.
Penalty: Imprisonment for 7 years.
- (2)
- A person commits an offence if the
person causes or threatens to cause any detriment to another person with the
intention that the other person or a third person will:
- (a)
- not attend as
an interpreter at a proceeding before the International Criminal Court; or
- (b)
- give a false or misleading interpretation as an interpreter in such a
proceeding.
Penalty: Imprisonment for 7 years.
268.108 Preventing witnesses
or interpreters
- (1)
- A person commits an offence if the person, by his or her
conduct, intentionally prevents another person from attending as a witness or
interpreter at a proceeding before the International Criminal Court.
Penalty: Imprisonment for 5 years.
- (2)
- This section does not apply to
conduct that constitutes an offence against section 268.105, 268.106,
268.107, 268.109 or 268.110.
268.109 Preventing production of things in
evidence
A person commits an offence if the person, by his or her conduct,
intentionally prevents another person from producing in evidence at a
proceeding before the International Criminal Court a thing that is legally
required to be produced.
Penalty: Imprisonment for 5 years.
268.110
Reprisals against witnesses
- (1)
- A person commits an offence if the person
causes or threatens to cause any detriment to another person who was a witness
in a proceeding before the International Criminal Court:
- (a)
- because of
anything done by the other person in or for the purposes of the proceeding;
and
- (b)
- in the belief that the other person was a witness who had done that
thing.
Penalty: Imprisonment for 5 years.
- (2)
- It is a defence to a
prosecution for an offence against subsection (1) that:
- (a)
- the
detriment to the witness was not (apart from this section) an offence; and
- (b)
- the witness committed perjury in the proceeding before the International
Criminal Court.
Note: A defendant bears an evidential burden in relation to
the matters in subsection (2). See subsection 13.3(3).
- (3)
- In this
section:
"witness" includes:
- (a)
- a person who attends at a proceeding
before the International Criminal Court as a witness but is not called as a
witness; or
- (b)
- an interpreter.
268.111 Reprisals against officials of the International Criminal Court
- (1)
- A person commits an offence if the person causes or threatens to cause any
detriment to another person who is an official of the International Criminal
Court:
- (a)
- because of anything done by the other person; and
- (b)
- in the
belief that the other person was an official of that Court who had done that
thing for the purposes of a proceeding before that Court.
Penalty:
Imprisonment for 5 years.
- (2)
- A person commits an offence if the person
causes or threatens to cause any detriment to another person who is an
official of the International Criminal Court:
- (a)
- because of anything done
by a third person who is an official of that Court; and
- (b)
- in the belief
that the third person was an official of that Court who had done that thing
for the purposes of a proceeding before that Court.
Penalty: Imprisonment
for 5 years.
268.112 Perverting the course of justice
- (1)
- A person commits
an offence if the person, by his or her conduct, intentionally perverts the
course of justice in respect of the International Criminal Court.
Penalty:
Imprisonment for 5 years.
- (2)
- This section does not apply to conduct that
constitutes the publication of any matter.
- (3)
- In this section:
"perverts"
includes obstructs, prevents or defeats.
268.113 Receipt of a corrupting
benefit by an official of the International Criminal Court
- (1)
- A person who
is an official of the International Criminal Court commits an offence if:
- (a)
- the person:
- (i)
- asks for a benefit for himself, herself or another
person; or
- (ii)
- receives or obtains a benefit for himself, herself or another
person; or
- (iii)
- agrees to receive or obtain a benefit for himself, herself
or another person; and
- (b)
- the person does so with the intention that the
exercise of the person's duties as an official of the International Criminal
Court will be influenced.
Penalty: Imprisonment for 10 years.
- (2)
- For the
purposes of subsection (1), it is immaterial whether the benefit is in
the nature of a reward.
268.114 Subdivision not to apply to certain conduct
- (1)
- This Subdivision does not apply to a person in respect of:
- (a)
- conduct that results in a failure or refusal to issue a certificate under
section 22 or 29 of the International Criminal Court Act 2002 ; or
- (b)
- a
failure or refusal to issue such a certificate; or
- (c)
- conduct engaged in
reliance on the absence of such a certificate.
- (2)
- In this section:
"conduct "includes any one or more acts or omissions.
Subdivision
K—Miscellaneous
268.115 Responsibility of commanders and other superiors
- (1)
- The criminal responsibility imposed by this section is in addition to
other grounds of criminal responsibility under the law in force in Australia
for acts or omissions that are offences under this Division.
- (2)
- A military
commander or person effectively acting as a military commander is criminally
responsible for offences under this Division committed by forces under his or
her effective command and control, or effective authority and control, as the
case may be, as a result of his or her failure to exercise control properly
over those forces, where:
- (a)
- the military commander or person either knew
or, owing to the circumstances at the time, was reckless as to whether the
forces were committing or about to commit such offences; and
- (b)
- the military
commander or person failed to take all necessary and reasonable measures
within his or her power to prevent or repress their commission or to submit
the matter to the competent authorities for investigation and prosecution.
- (3)
- With respect to superior and subordinate relationships not described in
subsection (2), a superior is criminally responsible for offences against
this Division committed by subordinates under his or her effective authority
and control, as a result of his or her failure to exercise control properly
over those subordinates, where:
- (a)
- the superior either knew, or
consciously disregarded information that clearly indicated, that the
subordinates were committing or about to commit such offences; and
- (b)
- the
offences concerned activities that were within the effective responsibility
and control of the superior; and
- (c)
- the superior failed to take all
necessary and reasonable measures within his or her power to prevent or
repress their commission or to submit the matter to the competent authorities
for investigation and prosecution.
268.116 Defence of superior orders
- (1)
- The fact that genocide or a crime against humanity has been committed by a
person pursuant to an order of a Government or of a superior, whether military
or civilian, does not relieve the person of criminal responsibility.
- (2)
- Subject to subsection (3), the fact that a war crime has been committed
by a person pursuant to an order of a Government or of a superior, whether
military or civilian, does not relieve the person of criminal responsibility.
- (3)
- It is a defence to a war crime that:
- (a)
- the war crime was committed by
a person pursuant to an order of a Government or of a superior, whether
military or civilian; and
- (b)
- the person was under a legal obligation to obey
the order; and
- (c)
- the person did not know that the order was unlawful; and
- (d)
- the order was not manifestly unlawful.
Note: A defendant bears an
evidential burden in establishing the elements in subsection (3). See
subsection 13.3(3).
268.117 Geographical jurisdiction
- (1)
- Section 15.4 (extended
geographical jurisdiction—Category D) applies to genocide, crimes against
humanity and war crimes.
- (2)
- Section 15.3 (extended geographical
jurisdiction—Category C) applies to crimes against the administration of
the justice of the International Criminal Court.
268.118 Double jeopardy
A person cannot be tried by a federal court or a court of a State or Territory
for an offence under this Division if the person has already been convicted or
acquitted by the International Criminal Court for an offence constituted by
substantially the same conduct as constituted the offence under this Division.
268.119 Offences related to exercise of jurisdiction of International Criminal
Court
- (1)
- A person must not:
- (a)
- intentionally contravene an order that
the International Criminal Court makes while sitting in Australia; or
- (b)
- otherwise intentionally hinder the International Criminal Court in performing
its functions while sitting in Australia.
Penalty: Imprisonment for 2 years.
- (2)
- In this section:
"Australia" includes all the external Territories.
268.120 Saving of other laws
This Division is not intended to exclude or limit any other law of the
Commonwealth or any law of a State or Territory.
268.121 Bringing
proceedings under this Division
- (1)
- Proceedings for an offence under this
Division must not be commenced without the Attorney-General's written consent.
- (2)
- An offence against this Division may only be prosecuted in the name of the
Attorney-General.
- (3)
- However, a person may be arrested, charged, remanded in
custody, or released on bail, in connection with an offence under this
Division before the necessary consent has been given.
268.122
Attorney-General's decisions in relation to consents to be final
- (1)
- Subject
to any jurisdiction of the High Court under the Constitution, a decision by
the Attorney-General to give, or to refuse to give, a consent under
section 268.121:
- (a)
- is final; and
- (b)
- must not be challenged,
appealed against, reviewed, quashed or called in question; and
- (c)
- is not
subject to prohibition, mandamus, injunction, declaration or certiorari.
- (2)
- The reference in subsection (1) to a decision includes a reference to
the following:
- (a)
- a decision to vary, suspend, cancel or revoke a consent
that has been given;
- (b)
- a decision to impose a condition or restriction in
connection with the giving of, or a refusal to give, a consent or to remove a
condition or restriction so imposed;
- (c)
- a decision to do anything
preparatory to the making of a decision to give, or to refuse to give, a
consent or preparatory to the making of a decision referred to in
paragraph (a) or (b), including a decision for the taking of evidence or
the holding of an inquiry or investigation;
- (d)
- a decision doing or refusing
to do anything else in connection with a decision to give, or to refuse to
give, a consent or a decision referred to in paragraph (a), (b) or (c);
- (e)
- a failure or refusal to make a decision whether or not to give a consent
or a decision referred to in a paragraph (a), (b), (c) or (d).
- (3)
- Any jurisdiction of the High Court referred to in subsection (1) is
exclusive of the jurisdiction of any other court.
268.123 Legal
representation
The provisions of section 12 (other than subsection 12(2)) of the
Geneva Conventions Act 1957 apply in relation to the trial of a person for an
offence against this Division in the same way as they apply in relation to the
trial of a protected prisoner of war.
268.124 Proof of application of Geneva
Conventions or Protocol I to the Geneva Conventions
If, in proceedings under this Division in respect of a grave breach of any of
the Geneva Conventions or of Protocol I to the Geneva Conventions, a question
arises under:
- (a)
- Article 2 of the Geneva Convention concerned (which
relates to the circumstances in which the Convention applies); or
- (b)
- Article
1 of that Protocol (which relates to the circumstances in which the Protocol
applies);
a certificate signed by the Minister responsible for legislation
relating to foreign affairs certifying to any matter relevant to that question
is prima facie evidence of the matter so certified.
3 The Schedule (the
Dictionary in the Criminal Code)
Insert:
"attack directed against a
civilian population" means a course of conduct involving the multiple
commission of any one or more proscribed inhumane acts against any civilian
population pursuant to, or in furtherance of, a state or organisational policy
to engage in that course of conduct.
4 The Schedule (the Dictionary in the
Criminal Code)
Insert:
"benefit" includes any advantage and is not limited
to property.
5 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Covenant" means the International Covenant on Civil and Political Rights, a
copy of the English text of which is set out in Schedule 2 to the
Human Rights and Equal Opportunity Commission Act 1986 .
6 The Schedule (the
Dictionary in the Criminal Code)
Insert:
"crime against humanity" means an
offence under Subdivision C of Division 268.
7 The Schedule (the
Dictionary in the Criminal Code)
Insert:
crime against the administration
of the justice of the International Criminal Court means an offence under
Subdivision J of Division 268.
8 The Schedule (the Dictionary in the
Criminal Code)
Insert:
"detriment" includes any disadvantage and is not
limited to personal injury or to loss of or damage to property.
9 The
Schedule (the Dictionary in the Criminal Code)
Insert:
"distinctive emblems
of the Geneva Conventions" means the emblems, identity cards, signs, signals,
insignia or uniforms to which subsection 15(1) of the
Geneva Conventions Act 1957 applies.
10 The Schedule (the Dictionary in the Criminal Code)
Insert:
"evidence"
includes anything that may be used as evidence.
11 The Schedule (the
Dictionary in the Criminal Code)
Insert:
"First Geneva Convention" means
the Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, adopted at Geneva on 12 August 1949, a
copy of the English text of which (not including the annexes) is set out in
Schedule 1 to the Geneva Conventions Act 1957 .
12 The Schedule (the
Dictionary in the Criminal Code)
Insert:
"Fourth Geneva Convention" means
the Geneva Convention relative to the Protection of Civilian Persons in Time
of War, adopted at Geneva on 12 August 1949, a copy of the English text
of which (not including the annexes) is set out in Schedule 4 to the
Geneva Conventions Act 1957 .
13 The Schedule (the Dictionary in the
Criminal Code)
Insert:
"Geneva Conventions" means the First Geneva
Convention, the Second Geneva Convention, the Third Geneva Convention and the
Fourth Geneva Convention.
14 The Schedule (the Dictionary in the Criminal
Code)
Insert:
"genocide" means an offence under Subdivision B of
Division 268.
15 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Hague Declaration" means the Hague Declarations Concerning the
Prohibition of Using Bullets which Expand or Flatten Easily in the Human Body,
adopted at the Hague on 29 July 1899.
16 The Schedule (the Dictionary
in the Criminal Code)
Insert:
"hors de combat": a person is hors de combat
if:
- (a)
- the person is in the power of an adverse party; and
- (b)
- the
person:
- (i)
- clearly expresses an intention to surrender; or
- (ii)
- has been
rendered unconscious or is otherwise incapacitated by wounds or sickness and
is therefore incapable of defending himself or herself; and
- (c)
- the person
abstains from any hostile act and does not attempt to escape.
17 The
Schedule (the Dictionary in the Criminal Code)
Insert:
"ICC Statute" means
the Statute of the International Criminal Court done at Rome on 17 July
1998, a copy of the English text of which is set out in Schedule 1 to the
International Criminal Court Act 2002 .
18 The Schedule (the Dictionary in
the Criminal Code)
Insert:
"international armed conflict" includes a
military occupation.
19 The Schedule (the Dictionary in the Criminal Code)
Insert:
"International Criminal Court" means the International Criminal Court
established under the ICC Statute.
20 The Schedule (the Dictionary in the
Criminal Code)
Insert:
"interpreter" includes a person who interprets signs
or other things made or done by a person who cannot speak adequately for the
purpose of giving evidence in a proceeding before the International Criminal
Court.
21 The Schedule (the Dictionary in the Criminal Code)
Insert:
"proscribed inhumane act" means any of the following acts:
- (a)
- an act that
is described in paragraph 268.8(a);
- (b)
- an act that is described in paragraph
268.9(1)(a) and is committed as mentioned in paragraph 268.9(1)(b);
- (c)
- an
act that is described in paragraph 268.10(1)(a);
- (d)
- an act that is described
in paragraph 268.11(1)(a) and to which paragraph 268.11(1)(b) applies;
- (e)
- an
act that is described in paragraph 268.12(1)(a) and to which paragraph
268.12(1)(b) applies;
- (f)
- an act that is described in paragraph 268.13(a) and
to which paragraph 268.13(b) applies;
- (g)
- an act that is described in
paragraph 268.14(1)(a) or (2)(a);
- (h)
- an act that is described in paragraph
268.15(1)(a);
- (i)
- an act that is described in paragraph 268.16(1)(a) and to
which paragraph 268.16(1)(b) applies;
- (j)
- an act that is described in
paragraph 268.17(1)(a) and to which paragraph 268.17(1)(b) applies;
- (k)
- an
act that is described in paragraphs 268.18(1)(a) and (b) and to which
paragraph 268.18(1)(c) applies;
- (l)
- an act that is described in paragraph
268.19(1)(a) and is of the gravity mentioned in paragraph 268.19(1)(b);
- (m)
- an act that is described in paragraph 268.20(1)(a) and is committed as
mentioned in paragraphs 268.20(1)(c), (d) and (e);
- (n)
- an act that is
described in paragraph 268.21(1)(a) and to which paragraphs 268.21(1)(b) and
(c) apply;
- (o)
- an act that is described in paragraph 268.21(2)(c) and is
committed as mentioned in paragraph 268.21(2)(d);
- (p)
- an act that is
described in paragraph 268.22(a) and is committed as mentioned in paragraph
268.22(b);
- (q)
- an act that is described in paragraph 268.23(a) and to which
paragraph 268.23(b) applies.
22 The Schedule (the Dictionary in the Criminal
Code)
Insert:
"Protocol I to the Geneva Conventions" means the Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to
the Protection of Victims of International Armed Conflicts (Protocol I), done
at Geneva on 10 June 1977, a copy of the English text of which is set out
in Schedule 5 to the Geneva Conventions Act 1957 .
23 The Schedule (the
Dictionary in the Criminal Code)
Insert:
"Protocol II to the Geneva
Conventions" means the Protocol Additional to the Geneva Conventions of
12 August 1949, relating to the Protection of Victims of
Non-International Armed Conflicts done at Geneva on 10 June 1977.
24
The Schedule (the Dictionary in the Criminal Code)
Insert:
"Protocols to
the Geneva Conventions" means Protocol I to the Geneva Conventions and
Protocol II to the Geneva Conventions.
25 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Second
Geneva Convention" means the Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at
Sea, adopted at Geneva on 12 August 1949, a copy of the English text of
which (not including the annexes) is set out in Schedule 2 to the
Geneva Conventions Act 1957 .
26 The Schedule (the Dictionary in the
Criminal Code)
Insert:
"sworn statement" means an oral statement made on
oath or affirmation or a statement in a document verified on oath or
affirmation.
27 The Schedule (the Dictionary in the Criminal Code)
Insert:
"Third Geneva Convention" means the Geneva Convention relative to the
Protection of Prisoners of War, adopted at Geneva on 12 August 1949, a
copy of the English text of which (not including the annexes) is set out in
Schedule 3 to the Geneva Conventions Act 1957 .
28 The Schedule (the
Dictionary in the Criminal Code)
Insert:
"threat" includes a threat made by
any conduct, whether express or implied and whether conditional or
unconditional.
29 The Schedule (the Dictionary in the Criminal Code)
Insert:
"war crime" means an offence under Subdivision D, E, F, G or H of
Division 268.
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Commonwealth Consolidated Acts