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Seemingly minor legislative tweaks could hamper the military’s ability to fight terrorist groups and other enemies, put Australian troops at risk and expose veterans to retrospective war crimes charges, a decorated former air force commander has warned.
The 2024 revision of the Criminal Code Act passed with little notice at the time, but retired air commodore Terry van Haren said he feared the changes have far-reaching consequences that have not been fully understood.
A Senate inquiry should examine the consequences of the changes, which are supposed to comply with the principles of the Geneva Conventions, van Haren said.
The federal government has defended the changes, which apply retrospectively, but the Coalition argues it was misled about the implications of the revisions.
Van Haren, who received the Distinguished Service Medal for his service in the Iraq war, said the changes had significant implications for all Australian Defence Force veterans who have served since 2002, including in Afghanistan and Iraq, as well as those who will serve in future conflicts.
“The new definition invites Australia’s adversaries to play military lawfare against the ADF in future operations, significantly reducing ADF warfighting capability,” the 35-year military veteran said.
“The ADF would have to change tactics, potentially delay decisions and put soldiers, sailors and aviators at risk.”
Victoria Cross winner Ben Roberts-Smith was arrested and charged with five counts of the war crime of murder in April for crimes he allegedly committed between 2009 and 2012 against unarmed detainees during his service in Afghanistan with the Special Air Service Regiment.
Former SAS trooper Oliver Schulz is facing charges for the war crime of murder after the ABC’s Four Corners aired footage of him allegedly shooting an Afghan man in 2012.
The previous definition said that a victim was regarded as hors de combat, or “out of combat”, if the person was under the power of an “adverse party” and did not behave in a hostile way or attempt to escape. They must also have either clearly expressed an intention to surrender or been incapable of defending themselves.
The 2024 change added the term “if any of the following apply” and collapsed the definition, requiring two grounds rather than three to be satisfied.
Van Haren, who commanded Australia’s Air Task Group during operations against Islamic State in 2017, said he feared the change could encourage enemy combatants to fake surrender or fake being incapacitated to gain an edge over Australia.
He outlined a series of scenarios he said could expose Australian troops to war crimes charges that would have applied previously.
These included a hypothetical soldier who shot at a combatant they suspected was wearing a bomb vest while indicating surrender, or sailors who fired at targets in Iraq in 2002 and later found out there were incapacitated persons in the target area.
He stressed that it was important for Australia to comply with its international legal obligations and that he was not commenting on current legal cases.
A spokesperson for Attorney-General Michelle Rowland said: “The amendment to the definition of hors de combat corrected a longstanding technical drafting error and restores the law to parliament’s original intent in 2002.
“Retrospective application ensures the law operates as originally intended, avoiding inconsistencies or gaps in the treatment of serious international crimes.
“This reflects the government’s clear intent that Australia maintain a fully effective and complementary jurisdiction to the International Criminal Court.”
Shadow Attorney-General Michaelia Cash said: “At the time the Coalition supported the amendment because the government gave assurances that it was simply correcting a drafting error to align the criminal code with Australia’s international obligations, and that it would not change the substance of the law … It is now apparent the amendment has had a broader substantive effect than Labor represented, which is a serious matter and one that warrants close scrutiny.”
Queensland law firm Rubicon Law published an article this month saying: “Retrospective criminal law has always been viewed with caution because it undermines a basic principle of justice: people should be judged according to the law that existed at the time they acted.
“While it has been argued that the amendment merely aligns Australian law with Article 41 of Additional Protocol I to the Geneva Conventions, it can also be argued that the practical effect is to lower evidentiary barriers for allegations of unlawful killing and to expose military personnel to greater retrospective legal risk arising from split-second battlefield decisions.”
Although the bill sailed through parliament in 2024, a Senate standing committee raised concerns about the legislation.
While noting it was important for Australian legislation to comply with international law, the committee said: “No information has been provided as to whether the retrospective application of this definition will have a detrimental impact on any person.”
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Matthew Knott is the foreign affairs and national security correspondent for The Sydney Morning Herald and The Age.Connect via X, Facebook or email.From our partners
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