War crimes prosecutions in Australia.

The news hook.

War crimes are again in the Australian news. The Australian Federal Police has charged former Defence Force members with offences arising out of conduct in Afghanistan, following the four-year inquiry by the Inspector-General of the Australian Defence Force that reported in November 2020. These are the first prosecutions of their kind brought against Australian soldiers in a domestic court. They have prompted a lot of public searching about how the law works.

This note answers the questions people are asking. It is written about the legal framework, not about any accused person. No finding of guilt has been made against anyone. A charge is an allegation. It is for the Crown to prove each element beyond reasonable doubt, and every person charged is presumed innocent until a court says otherwise.

What counts as a war crime under Australian law?

War crimes are set out in Division 268 of the Criminal Code Act 1995 (Cth). The Division was inserted in 2002 to bring Australian law into line with the Rome Statute of the International Criminal Court. It creates offences of genocide, crimes against humanity, and war crimes, and it defines each offence by its elements in the same way as any other serious Commonwealth crime.

The war crimes group alone contains dozens of separate offences. They include the war crime of murder, the war crime of torture, cruel treatment, mutilation, and inhumane treatment. They also cover attacking civilians and civilian objects, taking hostages, destroying or seizing property, sexual offences committed in armed conflict, and the use of prohibited weapons. Some offences apply to an international armed conflict; others apply to a conflict that is not international, which is the more common setting for modern operations.

The war crime of murder is the offence most relevant to the current Australian cases. It is in section 268.70 of the Criminal Code. The prosecution must prove that the accused caused the death of one or more people; that those people were not taking an active part in the hostilities, which covers civilians and captured or wounded combatants who are no longer fighting; that the accused knew of or was reckless as to that fact; and that the conduct took place in the context of, and was associated with, an armed conflict. Each element carries the ordinary Commonwealth fault requirements.

How does Australia investigate and prosecute war crimes?

The investigation is a police matter. The Australian Federal Police investigates the offences in Division 268. In the case of the Afghanistan allegations, that work has been done with the Office of the Special Investigator, a body set up in 2021 to gather and assess evidence and to refer briefs to the prosecutor. The Inspector-General's inquiry was not a criminal investigation; it could not charge anyone, and its findings are not evidence in a trial. The police start again and build an admissible brief.

The prosecution is run by the Commonwealth Director of Public Prosecutions. A war crime is an indictable offence. It is tried on indictment before a judge and jury in the Supreme Court of the state or territory where the accused is dealt with. The trial applies the Commonwealth offence, the local rules of criminal procedure, and the uniform evidence law where it is in force. There is no special war crimes court. The case runs like any other serious indictable trial, with a committal, a trial, and a right of appeal.

What is the penalty for the war crime of murder?

The war crime of murder under section 268.70 carries a maximum penalty of life imprisonment. That is the top of the scale for the Division. Other war crimes carry lower maximums, commonly in the range of 15 to 25 years, depending on the gravity of the conduct.

A maximum penalty is not a starting point. It marks the worst case. The sentencing court applies section 16A of the Crimes Act 1914 (Cth), which sets out the matters a court must weigh when sentencing for a Commonwealth offence. The standard non-parole period regime that applies to some state offences does not apply to Commonwealth crimes. The court fixes a head sentence and a non-parole period on the facts, the objective seriousness of the offence, and the personal circumstances of the offender.

Can Australia prosecute war crimes committed overseas?

Yes. Section 268.117 gives Division 268 extended geographical jurisdiction, category D. That is the widest category in the Criminal Code. It means the offence applies whether or not the conduct happened in Australia, and whether or not it was committed by or against an Australian. This is often called universal jurisdiction. It reflects the idea that these crimes are of concern to the whole international community, so any state that has the offender may deal with the matter.

The current Australian cases are narrower than pure universal jurisdiction. They concern conduct said to have been committed overseas by Australian nationals on operations. That falls within Australian jurisdiction on the plainest basis. But the reach of section 268.117 is what allows the offence to bite at all when the alleged acts took place on foreign soil, years ago, in a foreign conflict.

Why does the Attorney-General have to consent?

Section 268.121 provides that a proceeding for a Division 268 offence must not begin without the written consent of the Attorney-General, and that the offence may only be prosecuted in the name of the Attorney-General. This is a control on the power to prosecute. Because the jurisdiction is so wide, and because these cases can carry diplomatic weight, Parliament placed a gate in front of the court. The consent is required before the matter can proceed to trial.

The section keeps the early steps open. A person may still be arrested, charged, remanded in custody, or released on bail before consent is given. The consent is needed to carry the prosecution forward, not to make the arrest. Section 268.122 then makes the Attorney-General's decision to give or refuse consent final. It cannot be reviewed, appealed, or challenged in a court. That is a strong privative clause and a deliberate one.

What is command responsibility?

Command responsibility is a way of holding a commander criminally liable for the crimes of the people under their command. It is in section 268.115 of the Criminal Code, which closely tracks the Rome Statute. A military commander can be liable where forces under their effective command and control commit an offence; the commander knew, or owing to the circumstances at the time should have known, that the forces were committing or about to commit the offence; and the commander failed to take all necessary and reasonable measures within their power to prevent or stop the conduct, or to refer the matter for investigation.

The doctrine is not the same as being present at the crime. It is liability for a failure to control. The hard question in most cases is knowledge: what the commander actually knew, and what they should have known on the information available. The Brereton Report itself dealt with this. It reported that it did not recommend prosecuting commanders on the basis that they could not reasonably have known that subordinates were concealing offences. Whether a command responsibility charge is ever brought in these matters is a question for the investigators and the prosecutor on the evidence.

How a war crimes charge is defended.

A defence to a Division 268 charge starts where every serious criminal defence starts: with the elements. The Crown must prove each one beyond reasonable doubt. In a war crime of murder case that means proving the death, the status of the deceased as a person not taking part in the hostilities, the accused's knowledge or recklessness as to that status, the causal act, and the link to an armed conflict. Each is a live issue. The status of a person on a battlefield, and what the accused knew in the moment, are rarely simple.

These cases also carry problems of their own. The events are old. Witnesses are overseas and hard to reach. The scene cannot be revisited. Much of the material is classified, which raises questions about how the defence gets access to it and how a fair trial is run when national security is engaged. The National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) governs how sensitive information is handled in the courtroom, and it is a battleground in cases of this kind. The defence work is as much about disclosure, delay, and the fairness of the process as it is about the facts.

A person facing a Commonwealth charge of this gravity needs early, careful advice, and needs to say nothing to investigators before getting it. The right to silence is the first protection, and it matters most at the start.

Frequently asked.

Is a war crime a state or a Commonwealth offence in Australia?

It is a Commonwealth offence. War crimes, crimes against humanity and genocide are set out in Division 268 of the Criminal Code Act 1995 (Cth). They are investigated by the Australian Federal Police and prosecuted by the Commonwealth Director of Public Prosecutions in the name of the Attorney-General.

Does the Brereton Report decide whether anyone is guilty?

No. The Brereton Report was an administrative inquiry by the Inspector-General of the Australian Defence Force. It reported findings of credible information, not verdicts. Guilt can only be decided by a court after a trial, on evidence, beyond reasonable doubt. Anyone charged is presumed innocent.

Is there a time limit on charging a war crime in Australia?

No. There is no statute of limitations for the offences in Division 268. A charge can be brought many years after the alleged conduct, subject to the evidence being available and the Attorney-General's consent being given.

Can a war crime charge be heard by a jury?

Yes. The Division 268 offences are indictable. A charge is tried on indictment before a judge and jury in the Supreme Court of the state or territory where the accused is dealt with, applying the Commonwealth law and the local rules of procedure and evidence.

Could the International Criminal Court take the case instead?

The International Criminal Court operates on complementarity. It steps in only where a state is unwilling or unable to investigate and prosecute. Where Australia investigates and charges an offence under Division 268, the domestic process takes priority and the ICC does not act.

Primary sources: the offences and provisions discussed are in Division 268 of the Criminal Code Act 1995 (Cth). Sentencing for Commonwealth offences is governed by Part IB of the Crimes Act 1914 (Cth). Australian criminal decisions can be read on JADE.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 5 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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