Negligent Combatants? Liability for negligent homicide during armed conflict: An Australian perspective

Abstract

This thesis seeks to establish whether ADF members can be liable for criminally negligent homicide during armed conflict. It argues that combatants can owe a duty of care during combat, enforceable under Australian discipline law.

Wherever the ADF operates, it takes with it its own disciplinary code: the Defence Force Discipline Act 1982 (Cth) (DFDA). The DFDA is a statutory code to provide the means to maintain good order and discipline in the ADF. While the DFDA incorporates many aspects of the criminal law, it operates concurrently with, but separate to, the criminal law.

The primary legal regime that applies to the ADF during an armed conflict is discipline law, not international law or domestic war crimes legislation. Only discipline law covers the field of potential offending on the battlefield, such as friendly fire incidents.

Ordinarily, the criminal law prohibits the use of lethal force. Given war is such an important Executive function, there must be Australian law that permits the use of, and limits on, lethal force by combatants. If criminal negligence is to apply to ADF members during armed conflict, then it must occur within this paradigm.

There must be a domestic law of armed conflict (DLOAC) in Australia. DLOAC is comprised of three parts: the war prerogative; criminal law; and international law that has been incorporated into Australian law. DLOAC provides the authority for, and limits on, the use of force by ADF members in armed conflict.

There are two negligent homicide offences in the DFDA: dangerous conduct with negligence as to consequences; and manslaughter by criminal negligence. Both offences use the same test for criminal negligence. A person is negligent if their conduct involves:

(a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

(b) such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment.

For manslaughter by criminal negligence, there must also be a duty of care. For dangerous conduct with negligence as to consequences, there must be a breach of the standard of care.

Manslaughter by criminal negligence requires that a duty of care at law exist between the accused and deceased. For civil negligence, combatants involved in actual combat do not owe a duty of care to anyone. However, the policy considerations that lead to this conclusion are not the same as those for criminal or disciplinary law. Tortious negligence is concerned with compensation, and criminal law the protection of society and imposition of punishment. The purpose of discipline law is to maintain good order and discipline in the ADF in order to enhance capability. As these public policy considerations are aimed at achieving different outcomes, no duty of care arising in one area of law does not necessarily mean there will similarly be no duty of care in another area of law .

If DLOAC can authorise the use of force by ADF members, it can also, in appropriate circumstances, create a duty of care to civilians, protected persons and friendly forces. Show more