A decorated veteran has sounded the alarm about changes to war crimes laws in 2024 that he claims put Australian troops at risk and expose veterans to retrospective war crimes charges.
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.
Van Haren, a 35-year military veteran 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.
The changes add the term "if any of the following apply" to the definition of hors de combat, collapsing the definition and requiring two grounds rather than three to be satisfied. Van Haren said this invited enemies to fake surrender or incapacitation to gain an edge over Australia.
He outlined a series of scenarios that could expose Australian troops to war crimes charges. These included a hypothetical soldier who shot at a combatant they suspected was wearing a bomb vest while indicating surrender.
The federal government has defended the changes, which apply retrospectively, but the Coalition argues it was misled about the implications of the revisions.
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 saying that retrospective criminal law undermines a basic principle of justice: people should be judged according to the law that existed at the time they acted.
Van Haren stressed that it was essential for Australia to comply with its international legal obligations and that he was not commenting on current legal cases. However, he urged a Senate inquiry to examine the consequences of the changes.
The previous definition said that a victim was regarded as hors de 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.
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.
A Senate standing committee raised concerns about the legislation, but the bill sailed through parliament in 2024.
Van Haren served as Australia’s Air Task Group commander during operations against Islamic State in 2017.
The changes to the Criminal Code Act have significant implications for Australian veterans.
Van Haren said that the changes to the war crimes laws could harm the military's ability to fight terrorist groups and expose soldiers to war crimes charges.
The decorated veteran said that the changes invited enemies to play military lawfare against the ADF in future operations, significantly reducing ADF warfighting capability.
The changes could also 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 Coalition argues that the government misled them about the implications of the revisions.
A spokesperson for Attorney-General Michelle Rowland said that the amendment corrected a technical drafting error and restored the law to its original intent in 2002.