A/HRC/33/43 79. Federal criminal jurisdiction also extends to conduct that is determined to constitute a war crime when committed anywhere in the world, by or against a United States national or a member of the United States armed forces.124 It also applies to the offences of recruitment or use of child soldiers, genocide, homicide, torture or trafficking in persons committed by a national of the United States within the special maritime and territorial jurisdiction of the United States.125 80. The Uniform Code of Military Justice was also amended to expand the United States military’s authority to prosecute crimes committed by civilians serving with or accompanying the armed forces to include civilians serving in a “contingency operation”.126 It should be noted, however, that the constitutionality of this provision has not been fully tested, as the United States Supreme Court has in the past expressed significant concerns about trying civilians in military courts. 127 81. In Australia, the legislation on criminal accountability pertains in certain limited circumstances to private military companies by extending the application of Australian criminal law to civilians (whether they are Australian nationals or residents or not) accompanying the Australian forces abroad, or to Australian nationals or residents engaged by an Australian governmental agency to undertake tasks in countries outside Australia. For example, the Defence Force Discipline Act 1982, which provides in principle the legal framework for the Australian military, establishes a process for the extension of the Australian criminal law to civilians, including private contractors that accompany the armed forces on missions abroad. 82. Under the Australian law, contractors of the Department of Defence can be considered “defence civilians”; their criminal acts committed abroad are covered by the extraterritorially applicable Australian criminal law and they can be prosecuted for such acts by Australian courts.128 As a result of the amendment to the Crimes (Overseas) Act 1964, even criminal acts committed on mission by private security or military contractors hired by government agencies other than the Department of Defence are covered by Australian criminal law.129 The Crimes (Overseas) Act covers bodies corporate as well as individuals, which means that an Australian private military or security company carrying out activities in a foreign country could be subject to criminal prosecution. 83. The Working Group believes that private military and security companies contracted by the Government of Australia should be held accountable for human rights violations, even if they occur outside Australian territory. The Australian legislation on civil liability for the activities of private military companies and private security companies and/or the actions of their personnel is minimal. Australian contract law may well apply extraterritorially in the sense that parties can enter into a binding contract in Australia for services provided overseas, and any alleged breach of the contract can be litigated in Australian courts. However, tortious liability in Australia does not extend extraterritorially in the absence of a specific legislative provision to that effect.130 124 125 126 127 128 129 130 War Crimes Act, United States Code, title 18, section 2441. United States Code, title 18, sections 1091, 1111, 2340-2340B and 2442; Code of Federal Regulations, title 48, chapter 1 (2000 edition), sections 22-1700-22.1704. Uniform Code of Military Justice, United States Code, title 10, sections 801-946. See, e.g., Toth v. Quarles (1955). Defence Force Discipline Act 1982, sections 9 and 61. Crimes (Overseas) Act 1964, section 3. McCormack, PRIV-WAR Report – Australia, p. 14. 19