Document ID: chunk:federal_register_of_legislation:C2004A00993:clause:1_2:p46
Version: federal_register_of_legislation:C2004A00993
Segment Type: clause
Provision Reference: sch 1 cl 2 (pt 46/48)
Character Range: 117635–120441

a certificate under section 22 or 29 of the International Criminal Court Act 2002; or
 (b) a failure or refusal to issue such a certificate; or
 (c) conduct engaged in reliance on the absence of such a certificate.

 (2) In this section:

conduct includes any one or more acts or omissions.

Subdivision K—Miscellaneous

268.115  Responsibility of commanders and other superiors

 (1) The criminal responsibility imposed by this section is in addition to other grounds of criminal responsibility under the law in force in Australia for acts or omissions that are offences under this Division.

 (2) A military commander or person effectively acting as a military commander is criminally responsible for offences under this Division committed by forces under his or her effective command and control, or effective authority and control, as the case may be, as a result of his or her failure to exercise control properly over those forces, where:
 (a) the military commander or person either knew or, owing to the circumstances at the time, was reckless as to whether the forces were committing or about to commit such offences; and
 (b) the military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

 (3) With respect to superior and subordinate relationships not described in subsection (2), a superior is criminally responsible for offences against this Division committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over those subordinates, where:
 (a) the superior either knew, or consciously disregarded information that clearly indicated, that the subordinates were committing or about to commit such offences; and
 (b) the offences concerned activities that were within the effective responsibility and control of the superior; and
 (c) the superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

268.116  Defence of superior orders

 (1) The fact that genocide or a crime against humanity has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.

 (2) Subject to subsection (3), the fact that a war crime has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, does not relieve the person of criminal responsibility.

 (3) It is a defence to a war crime that:
 (a) the war crime was committed by a person