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Purpose
To provide additional protection for the victims of international armed conflicts, and to include breaches of the new protections in the range of offences under the Geneva Conventions Act 1957 (the Principal Act).
Background
On 12 August 1949 a diplomatic conference in Geneva approved the text of four Conventions on the laws of war. They deal with wounded and sick armed forces in the field; wounded, sick and ship-wrecked armed forces at sea; prisoners of war; and civilians. The central purpose of the four Conventions is the protection of victims of war. To date 147 nations have either acceded to or ratified the four Conventions. Australia ratified the four Conventions on 14 October 1958.
After adoption of the four Conventions, developments in the character of warfare led to a growing realisation that the laws of war required adaptation to the conditions of modern conflicts. For example, many armed conflicts occurring since the Second World War have been regarded by some as non-international in character, and hence the need arose to clarify the application of the law in relation to such conflicts. In addition, the widespread resort to guerrilla warfare raised questions concerning the application of the Conventions, because in most cases the activities of guerrillas challenged the existing legal conditions for combatant status. On 8 June 1977, the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts adopted two Protocols additional to the four Conventions.
Protocol 1 relates to the protection of victims of international armed conflicts. Protocol 1 supplements the four Conventions. Article 1 provides that Protocol 1 applies in situations described in common Article 2 of the four Conventions and to armed conflicts in which people are fighting against colonial domination, foreign occupation, and against racist regimes in the exercise of their right of self-determination. The principle of self-determination of peoples is enshrined in the Charter of the United Nations. The concept has been developed by the Declaration on the Granting of Independence to Colonial Countries and Peoples and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States. According to prevailing views, only peoples that have not yet exercised their right to self-determination may qualify. In addition, Protocol 1 deals only with specific types of armed conflict and not with the legal status of particular groups. The Friendly Relations Declaration makes it clear that a secessionist movement cannot expect its struggle against a central government to be recognised as a war of liberation. Neither can minorities dissatisfied with the majority or political opponents of a government rely on the right of self-determination to voice their grievances.
A major aim of Protocol 1 was the desire to afford civilians and innocent parties to a conflict protection. Under Protocol 1 civilians are protected against dangers arising from military operations; are not to be the object of attack; and are not to be used to render certain points or areas immune from military operations. The execution of this responsibility falls on the field commander who under Article 57(1) of Protocol 1 is to do everything feasible to verify that the objectives to be attacked are neither civilians nor civilian objects and choose a method of attack with a view to avoiding and minimising loss of civilian life. Further protection is provided to civilians under Article 52 of Protocol 1 which prohibits indiscriminate attacks on civilian objects and protects places of historic, cultural, artistic and spiritual heritage.
Article 44 of Protocol 1 requires combatants to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. A breach of this obligation amounts to a war crime under Article 37(1)(d) of Protocol 1, for which the individuals concerned may be tried and punished. Article 47 of Protocol 1 states that mercenaries shall not have the status of a combatant or prisoner of war. However, a capturing party to a conflict may choose to accord combatant or prisoner status to captured mercenaries who, in any case, remain under the protection of the fundamental guarantees, applicable to all persons, as set out in Article 75. Although the provisions outlined have attracted considerable attention, Protocol 1 incorporates other important developments including the identification and protection of medical aircraft and the first reference to civil defence in an international agreement on the laws of war.
As at 20 September 1989, 89 nations had ratified or acceded to Protocol 1. Absent from the attached list of States that have ratified or acceded to Protocol 1 (see below) are the world's military and economic superpowers (with the exception of China). The former United States President Reagan had urged the United States Senate on January 29 1987 not to ratify Protocol 1 because the Department of State was of the view that Protocol 1 would undermine humanitarian law and endanger civilians in war; would treat as an international conflict any wars of `national liberation' thereby politicising humanitarian law and eliminating the distinction between international and non-international conflict; that combat status would be granted to non-combatant forces possibly endangering civilians; and that the Joint Chiefs of Staff had concluded that a number of the provision of Protocol 1 were militarily unacceptable 1. To date the United States has not ratified or acceded to Protocol 1.
This Bill is the same as one which was introduced by the Government on 2 March 1989 (i.e. the `Geneva Conventions Amendment Bill 1989'). The 1989 Bill was the subject of considerable media attention following the Government's decision of 9 March 1989 to adjourn debate on it. The stated reason for adjourning debate was the Opposition's decision to oppose the legislation. The then Deputy Prime Minister and Attorney-General, in a News Release of 9 March 1989, stated that `... the Bill's underlying principles were of such importance and self-evident value that any attempt to push legislation through without bi-partisan support would be highly inappropriate'. In the Sydney Morning Herald of 9 March 1989, the Government's decision to adjourn debate on the 1989 Bill is described as following the leaking of a confidential letter from the Prime Minister to the then United States President Mr Reagan, concerning Australia's intention to ratify the treaty. The leaked letter allegedly `... confirms that President Reagan had written personally to Mr Hawke expressing concern at any move by Australia to proceed to ratification. Mr Hawke also confirmed in the letter that the former US Defence Secretary, Mr Weinberger, and senior US military officials had objected to the treaty'. 2
In the Canberra Times of 8 March 1989, the then Shadow Attorney-General is reported as saying that the Opposition would oppose the 1989 Bill `...because it would unreasonably hamper the armed forces...'. In the Sydney Morning Herald of 9 March 1989, the Opposition's reason for opposing the 1989 Bill is given as `...the Opposition believes that the effect of the treaty would be to unacceptably hamstring the co-operation of Australia and US troops while Washington remains opposed to the protocol'.
The response of the Australian Democrats to the Government's decision to adjourn debate on the 1989 Bill was to introduce a Private Senator's Bill identical to the Government's. In the Second Reading Speech to the Private Senator's Bill the Australian Democrats stated reason for introducing their Bill was `... that the Bill (the Government's 1989 Bill) is,..., of such importance and of such self-evident value that it must be pushed forward in the face of ill-informed and anti-humanitarian attitudes'. 3
Main Provisions
Clause 5 will insert into the Principal Act certain offences which, under Protocol 1, are required to be punished. The offences are found in Articles 11 and 85 of Protocol 1, and include such acts as physical mutilation; medical or scientific experiments on prisoners of war or refugees; making the
civilian population or individual civilians the object of a military attack; and making non-defended localities and demilitarised zones the object of a military attack.
Where a person, who has taken part in hostilities against Australia, comes under the control of Australian authorities and claims status as a protected prisoner of war they may apply to a Supreme Court for a declaration that they have the status of a protected prisoner of war. The Court may exclude the public, or persons specified by the Court, from a sitting of the Court where the Court is satisfied that the presence of the public or those persons would be contrary to the interests of justice or the public interest (clause 7).
A new subsection 15(1) (e), to be inserted into the Principal Act by clause 8, will provide that a person is not, without appropriate authorisation, to use for any purpose emblems, identity cards, signs, signals, insignia or uniforms as prescribed by Protocol 1. The maximum penalty for a breach of this provision will be a fine of $1000.
Clause 9 will insert a new Schedule 5 into the Principal Act which will set out the text of Protocol 1.
References
1. Letter of Transmittal, The White House, 29 January 1987, reproduced in 1987 81 (4) American Journal of International Law, pp. 910-912.
2. Sydney Morning Herald, 9 March 1989.
3. Commonwealth of Australia - Parliamentary Debates, Senate Weekly Hansard, No. 12, 1989, p.561.
Bills Digest Service 27 August 1990
Parliamentary Research Service
For further information if required, contact the Law and Government Group on 06 277 2430.
This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Commonwealth of Australia 1990
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Published by the Department of the Parliamentary Library, 1990.
<BREAK> </BREAK>
List of States that have ratified or acceded to the
Protocols Additional to the Geneva Conventions of
1949 as at 20 September 1989
State <BREAK> </BREAK> Date of Ratification or Accession
Algeria* <BREAK> </BREAK> 16 August 1989
Angola* (Protocol 1 only) <BREAK> </BREAK> 20 September 1984
Antigua and Barbuda <BREAK> </BREAK> 6 October 1986
Argentina* <BREAK> </BREAK> 26 November 1986
Austria* <BREAK> </BREAK> 13 August 1982
Bahamas <BREAK> </BREAK> 10 April 1980
Bahrain <BREAK> </BREAK> 30 October 1986
Bangladesh <BREAK> </BREAK> 8 September 1980
Belgium* <BREAK> </BREAK> 20 May 1986
Belize <BREAK> </BREAK> 29 June 1984
Benin <BREAK> </BREAK> 28 May 1986
Bolivia <BREAK> </BREAK> 8 December 1983
Botswana <BREAK> </BREAK> 23 May 1979
Burkina Faso <BREAK> </BREAK> 20 October 1987
Cameroon <BREAK> </BREAK> 16 March 1984
Central African Republic <BREAK> </BREAK> 17 July 1984
China* <BREAK> </BREAK> 14 September 1983
Comoros <BREAK> </BREAK> 21 November 1985
Congo <BREAK> </BREAK> 10 November 1983
Costa Rica <BREAK> </BREAK> 15 December 1983
Cote d'Ivoire <BREAK> </BREAK> 20 September 1989
Cuba (Protocol 1 only) <BREAK> </BREAK> 25 November 1982
Democratic People's Republic of Korea (Protocol 1 only) <BREAK> </BREAK> 1 June 1979
Denmark* <BREAK> </BREAK> 17 June 1982
Ecuador <BREAK> </BREAK> 10 April 1979
El Salvador <BREAK> </BREAK> 23 November 1978
Equatorial Guinea <BREAK> </BREAK> 24 July 1986
Finland* <BREAK> </BREAK> 7 August 1980
France (Protocol 2 only) <BREAK> </BREAK> 24 February 1984
Gabon <BREAK> </BREAK> 8 April 1980
Gambia <BREAK> </BREAK> 12 January 1989
Ghana <BREAK> </BREAK> 28 February 1978
Greece (Protocol 1 only) <BREAK> </BREAK> 31 March 1989
Guatemala <BREAK> </BREAK> 19 October 1987
Guinea <BREAK> </BREAK> 11 July 1984
Guinea-Bissau <BREAK> </BREAK> 21 October 1987
Guyana <BREAK> </BREAK> 18 January 1988
Holy See* <BREAK> </BREAK> 21 November 1985
Hungary <BREAK> </BREAK> 12 April 1989
Iceland* <BREAK> </BREAK> 10 April 1987
Italy* <BREAK> </BREAK> 27 February 1986
Jamaica <BREAK> </BREAK> 29 July 1986
Jordan <BREAK> </BREAK> 1 May 1979
Kuwait <BREAK> </BREAK> 17 January 1985
Lao People's Democratic Republic <BREAK> </BREAK> 18 November 1980
Liberia <BREAK> </BREAK> 30 June 1988
Libyan Arab Jamahiriya <BREAK> </BREAK> 7 June 1978
Liechtenstein* <BREAK> </BREAK> 10 August 1989
Luxembourg <BREAK> </BREAK> 29 August 1989
Mali <BREAK> </BREAK> 8 February 1989
Malta* <BREAK> </BREAK> 17 April 1989
Mauritania <BREAK> </BREAK> 14 March 1980
Mauritius <BREAK> </BREAK> 22 March 1982
Mexico (Protocol 1 only) <BREAK> </BREAK> 10 March 1983
Mozambique (Protocol 1 only) <BREAK> </BREAK> 14 March 1983
Netherlands* <BREAK> </BREAK> 26 June 1987
New Zealand* <BREAK> </BREAK> 8 February 1988
Niger <BREAK> </BREAK> 8 June 1979
Nigeria <BREAK> </BREAK> 10 October 1988
Norway* <BREAK> </BREAK> 14 December 1981
Oman* <BREAK> </BREAK> 29 March 1984
Peru <BREAK> </BREAK> 14 July 1989
Philippines (Protocol 2 only) <BREAK> </BREAK> 11 December 1986
Qatar (Protocol 1 only)* <BREAK> </BREAK> 5 April 1988
Republic of Korea* <BREAK> </BREAK> 15 January 1982
Rwanda <BREAK> </BREAK> 19 November 1984
Saint Kitts and Nevis <BREAK> </BREAK> 14 February 1986
Saint Lucia <BREAK> </BREAK> 7 October 1982
Saint Vincent and the Grenadines <BREAK> </BREAK> 8 April 1983
Samoa <BREAK> </BREAK> 23 August 1987
Saudi Arabia (Protocol 1 only) <BREAK> </BREAK> 21 August 1987
Senegal <BREAK> </BREAK> 7 May 1985
Seychelles <BREAK> </BREAK> 8 November 1984
Sierra Leone <BREAK> </BREAK> 21 October 1986
Solomon Islands <BREAK> </BREAK> 19 September 1988
Spain* <BREAK> </BREAK> 21 April 1989
Suriname <BREAK> </BREAK> 16 December 1985
Sweden* <BREAK> </BREAK> 31 August 1979
Switzerland* <BREAK> </BREAK> 17 February 1982
Syrian Arab Republic (Protocol 1 only)* <BREAK> </BREAK> 14 November 1983
Togo <BREAK> </BREAK> 21 June 1984
Tunisia <BREAK> </BREAK> 9 August 1979
United Arab Emirates* <BREAK> </BREAK> 9 March 1983
United Republic of Tanzania <BREAK> </BREAK> 15 February 1983
Uruguay <BREAK> </BREAK> 13 December 1985
Vanuatu <BREAK> </BREAK> 28 February 1985
Viet Nam (Protocol 1 only) <BREAK> </BREAK> 19 October 1981
Yugoslavia* <BREAK> </BREAK> 11 June 1979
Zaire (Protocol 1 only) <BREAK> </BREAK> 3 June 1982
Namibia (United Nations Council for) <BREAK> </BREAK> 18 October 1983
* Ratification or accession accompanied by a reservation and/or a declaration.