We should be creating a dedicated unit in the Australian Federal Police for investigating and prosecuting conflict-related crimes, including sexual violence.
Australia must do more to end impunity for conflict-related sexual violence. Recent legislation allowing the repudiation of citizenship as part of a wider effort against people who engage in terrorism effectively excludes perpetrators of conflict-related sexual violence from prosecution in Australia.
We should be creating a dedicated unit in the Australian Federal Police (AFP) for investigating and prosecuting conflict-related crimes, including sexual violence.
When sexual violence is perpetrated as part of an armed conflict, it’s a war crime. When that violence is widespread or systemic, it’s a crime against humanity. When it’s used to destroy, in whole or in part, an ethnic, racial or religious group, it’s genocide.
ISIS and its members perpetrated all those crimes against Yazidis in Syria and Iraq. More than 200 Australians travelled to Syria and Iraq to join ISIS and other terrorist groups who were known to commit sexual violence as war crimes, crimes against humanity and genocide.
Under Australian law, those offences, attempts to commit them, and complicity, incitement or conspiracy to commit them are punishable with imprisonment for 25 years to life, depending on the specifics of the charge.
The crimes are detailed in Division 268 of the Commonwealth Criminal Code, but that legislation has never been used in criminal courts.
‘Running from reponsibility’
Decades ago, Australia had a war crimes unit, but these days the staff tasked with such investigations within the AFP are assigned to more politically expedient investigations within the parliamentary triangle.
Submissions have been made to previous budget processes to re-establish a unit responsible for implementing updated legislation, which now accounts for the Rome Statute of the International Criminal Court (ICC).
The Australian Centre for International Justice has published a comprehensive paper outlining what a permanent, specialised international crimes unit would look like at the AFP and what it would cost the federal government.
As a state party to the ICC, Australia is obliged to investigate and prosecute the crimes in the Rome Statute within our own court system. The Australian Centre for International Justice has published a comprehensive paper outlining what a permanent, specialised international crimes unit would look like at the AFP and what it would cost the federal government.
The Yazidi community here in Australia wants Australian perpetrators to be brought to justice in Australia. One community member said that, if the citizenship of a foreign fighter were repudiated, “the Australian Government would be running from their responsibility to punish them”.
The Joint Parliamentary Committee on Intelligence and Security has heard testimony on the importance of justice to these survivors. Previous parliaments have called for the investigation and prosecution of perpetrators.
But other policies, practices and legislation have been getting in the way of ending impunity for conflict-related sexual violence. For example, if an arrest warrant has been issued for an Australian who fought with ISIS, it often includes only terrorism offences, not the Division 268 crimes.
Walking in fear
Two well-known Australian foreign fighters implicated in Division 268 crimes are Khaled Sharrouf and Neil Prakash.
Neil Prakash was a known recruiter for ISIS and was reportedly involved in the planning and conduct of attacks. He made public statements, including on social media, that could be interpreted as inciting genocide.
Australia extradited him from Turkey on terrorism charges, but once he returned to Australia his citizenship was revoked. He never faced charges under Division 268 of the Criminal Code.
In terms of access to justice, far too many perpetrators of wartime sexual violence still walk free, while women and girls walk in fear. Left unchecked, these crimes set back both the cause of gender equality and the cause of peace.”
Pramila Patten, United Nations
Khaled Sharrouf held many Yazidi women in sexual servitude. His citizenship was revoked in 2017. Five survivors sought access to victims-of-crime support after the violence he inflicted upon them. It’s unacceptable that their request for support was denied.
Even though the violence they experienced constituted genocide, which has universal jurisdiction, including under Australian law, the tribunal found that the crime they experienced was not in and of New South Wales.
Last month at the UN, the Security Council held an open debate on conflict-related sexual violence. Goodwill Ambassador Danai Gurira briefed the Council, saying: “We must acknowledge women and survivors all over the world. Nothing is more dangerous than crimes that are not acknowledged, crimes that are unseen and allowed to persist.”
The special representative of the secretary-general on sexual violence in conflict, Pramila Patten, reported: “In terms of access to justice, far too many perpetrators of wartime sexual violence still walk free, while women and girls walk in fear. Left unchecked, these crimes set back both the cause of gender equality and the cause of peace.”
Must do better
UN Security Council resolution 2467 emphasises the responsibility of individual member states to end impunity “through prompt investigation, prosecution and punishment of perpetrators of sexual and gender-based violence, as well as reparations for victims”.
Australia has a whole-of-government policy that’s supposed to facilitate the implementation of UNSCR 2467 and all the other UN resolutions on women, peace and security.
One of the four outcomes of that National Action Plan is focused on improving women’s access to justice for conflict-related sexual violence. Reporting against this policy is more than a year late, and the departments responsible for ending impunity for conflict-related sexual violence have done the least implementation.
The AFP and the Department of Home Affairs must do better. So must their ministers. The Foreign Minister has overall responsibility for the implementation of the National Action Plan, and justice issues are the responsibility of the attorney-general. They all have to do better.
This article first appeared on The Strategist, the website of the Australian Strategic Policy Institute, and is republished under a Creative Commons Licence; you can read the original here.
About the Author
Susan Hutchinson is a PhD scholar at the Australian National University’s Coral Bell School; her PhD research is in international relations, focusing on women, peace and security and the Australian Defence Force. A specialist in conflict and development, Susan is a civil-military professional with experience in government, military and non-government organisations. Susan served in the Australian Defence Force for many years and has worked in capability and policy areas in the Department of Defence; she also has expertise in complex emergencies, protection of civilians, gender equality and international justice.
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