Going to war is the most profound exercise of public power, and killing in war is its most profound expression. As much as killing in war, or injuring, capturing and destroying in war, has been occurring since ancient times, there is very little in domestic or international law that expressly authorises it. In an age where statutory authority is required to authorise the exercise of public power in the finest detail, killing in war stands as a strange anomaly. Rather than providing positive authorisation, the common law has addressed this issue through the doctrine of combat immunity and international law has the closely related – but not identical -concept of combatant immunity. The wars in Iraq and Afghanistan have led to a series of cases which have tested these concepts and, perhaps, posed yet further questions about them. Combat and combatant immunity now raise some of the most challenging legal issues of our time, particularly in relation to the authority to kill and destroy in war.
This seminar will briefly explore both the origins in Australian law of the doctrine of combat immunity, as well as possible ways forward in addressing the questions it raises.
Chair: A/Prof David Letts