Schedule 1—Amendment of the Criminal Code Act 1995

Chapter 8—Offences against humanity and related offences

Division 268—Genocide, crimes against humanity, war crimes and crimes against the administration of the justice of the International Criminal Court

Subdivision E—Other serious war crimes that are committed in the course of an international armed conflict


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.

Article 8
War crimes
2. For the purpose of this Statute, "war crimes" means:
(b) Other serious violations of the laws and customs applicable in international armed
conflict, within the established framework of international law, namely, any of the following acts:
(vi) Killing or wounding a combatant who, having laid down his arms or having no
longer means of defence, has surrendered at discretion