[Ian Henderson is a group captain in the Royal Australian Air Force and is currently posted as the Director Military Law Centre and Deputy-Director Asia-Pacific Centre for Military Law. Bryan Cavanagh is a squadron leader in the Royal Australian Air Force and is currently posted as a legal training officer at the Military Law Centre and Asia-Pacific Centre for Military Law. This note was written in their personal capacities and does not necessarily represent the views of the Australian Government or the Australian Department of Defence. This is the third in a four-part series. The first post can be found here (along with a response here) and the second post here.]
This is the third in a series of four posts that address the relationship between self-defence and LOAC. In this post we compare how LOAC and the law of self-defence deal with a number of discrete issues like use of prohibited weapons, obedience to lawful commands, and a ‘duty’ to retreat. It also provides a table which summarises the main points in the first three posts.
Can you use a poisoned bullet to protect yourself in self-defence?
The Law of Armed Conflict (LOAC) prohibits the use of certain weapons. Under the Rome Statute and the Australian Commonwealth Criminal Code, it is a war crime to employ poison or poisoned weapons, prohibited gases, or prohibited bullets.In contrast, the law of self-defence does not specifically address the means of response to a threat, but rather merely requires the response to be necessary, reasonable and proportional.
Under the Australian Criminal Code and the Rome Statute, there is no limitation on pleading self-defence only to crimes relating to the use of force. Therefore, the use of a prohibited weapon would be consistent with self-defence analysed under the Australian Criminal Code and the Rome Statute provided that a person’s actions were a necessary, reasonable and proportionate response to the threat.
In some jurisdictions, for example New Zealand, self-defence operates to exclude criminal responsibility for use of force. It is possible in these jurisdictions a combatant could not successfully plead self-defence in relation to weapons offences which are separate and distinct to offences relating to the actual use of force. We did not come to any conclusion on this issue.
Nowhere to run
Under LOAC, not unsurprisingly there is no requirement to retreat from an attack. The position under self-defence varies from jurisdiction to jurisdiction. We found Leverick’s categorisation of the different approaches useful:
a) An absolute retreat rule. The accused must make an attempt to retreat before using force in self-defence regardless of the circumstances.
b) A strong retreat rule. The accused must make an attempt to retreat before using force in self-defence only if an opportunity to do so actually exists.
c) A weak retreat rule. Retreat is not treated as an independent variable, but rather as one factor that is taken into account in deciding whether the accused’s actions were necessary or reasonable.
d) No retreat rule. There is no duty on the accused to take an opportunity to retreat. The victim of an attack has the right to stand their ground and meet force with force.