More munitions on Mosul… must we?

Last week, the Department of Defence released its latest data on Australian Defence Force Operations in Iraq. The data showed that a record number of munitions had been dropped on targets in Mosul. In total, 119 munitions were dropped in May, up from 60 in April. This figure is in line with recent statements by Defence Minister Marise Payne, in which she described a preference for members of Da’esh to be killed on the battlefields of Iraq and Syria. The government is so far not pursuing a policy of investigating and charging foreign fighters from Australia with war crimes, crimes against humanity and genocide, the Minister said “we would rather that they were eliminated as part of the process of the self-defence of Iraq and the operations being undertaken in Syria.”

Australia has obligations under the Rome Statute, and our own legislation on the International Criminal Court to investigate and prosecute the worst crimes under international law including crimes against humanity and genocide. The United Nations and Human Rights Watch have published definitive reports showing Da’esh perpetrating these crimes. At the end of 2016, Australia co-sponsored a General Assembly resolution on the investigation and prosecution of the worst crimes under international law in the war in Syria. But the government has so far been unwilling to follow through with those obligations.

Aerial bombardment of densely populated urban areas is unlikely to prove a successful strategy in counterinsurgency. While Da’esh’s strength in both Mosul and Raqqa gives rise to the need to consider operations as more than a counterinsurgency, aerial bombardment does not provide the precision required to defeat an enemy so immersed in highly populated terrain. Indeed, unlike other coalition partners in Iraq, Australia has proven unable to prove it has undertaken sufficient battle damage assessments to even calculate civilian casualties.

Similarly, several significant Australian Da’esh operatives have been considered killed in airstrikes but later discovered alive. Such operatives include Neil Prakash and Khaled Sharouf, amoung others. There is significant evidence that these individuals have perpetrated international crimes for which Australia is obliged to investigate and prosecute. Neil Prakash is likely guilty of genocide, and even more likely to be guilty of inciting genocide. At present, Prakash’s arrest warrant is only for terrorism related offences. There is significant evidence Khaled Sharrouf perpetrated sexual violence as war crimes, genocide and crimes against humanity, as well as having breached Australia’s human trafficking laws. It seems unlikely Sharrouf will face any charges since the Immigration Minister revoked his citizenship earlier this year.

While thousands are dying in an aerial battle designed with a strategic imperative in mind, thousands of civilians are dying in the wreckage. Families are starving and economically devastated. Even families who are opposed to Da’esh are having trouble keeping young men from taking up arms when Da’esh are the only ones offering an income and food rations. Mainstream media commentary, including in publications like The Australian, has argued that it is just and right for these foreign fighters to be killed on the battlefield. But what that argument lacks is a grasp of the driving ideology, and the desperate calls for gender justice of the survivors of Da’esh’s crimes.

Survivors of Da’esh’s genocide of the Yazidi are crying out for justice. Military operations make no account for sex slaves still held captive, nor provision for their testimony. Evidence is being bombed and land operations make no consideration for its preservation or documentation. Police in Mosul may well have returned to directing traffic, but they are not documenting and investigating the sexual violence that has driven this conflict, nor any of the other crimes that have been perpetrated that are recognised under international law. In a speech at the UN earlier this year, international human rights lawyer Amal Clooney noted that ‘there is still not one ISIS militant who has faced trial for international crimes anywhere in the world’.

The final glaring flaw in the logic of annihilation is the willingness of Da’esh fighters to die as martyrs on the battlefield. Many of them not only prepare for this eventuality, but hope for its occurrence.  The belief in martyrdom has long held the imagination of those in the west so it seems odd now that coalition strategy would bear it to fruition. Rather than bringing these fighters down to the level of common criminal, stigmatised as war criminals and génocidaires, we are giving them exactly what they want, a martyrs death in a battle for a caliphate.

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The crimes of Khaled Sharrouf: citizenship revoked, justice denied?

TRIGGER WARNING – slavery, sexual violence and threats of physical violence

“In Syria, in Raqqa, we were kept in a hall. The Australian then came there and bought us.” ‘Layla’ is a Yazidi woman who, like thousands others, was kidnapped by Da’esh and sold into sexual slavery. She was bought by Khaled Sharrouf, a Lebanese migrant who used to live in Sydney. Having already been convicted and imprisoned for terrorism offences, Sharrouf flew to Syria on his brother’s passport where he began fighting with Da’esh. His Australian wife, now deceased, and children lived there with him.  ‘Layla’ says “the children were holding knives and told us that they were going to kill us. They were calling us infidels. “All Yazidis are infidels,” they said. “All the world must convert to Islam.””

'Layla'

‘Layla’

She was one of seven Yazidi women held together in servitude in a house on the outskirts of Raqqa. “We were required to do anything those children asked. We were their servant and slaves. We weren’t allowed to disturb them or rebuke them. That went for the entire family. We had to do anything they wanted.”

Her friend, ‘Nazdar’ says “We couldn’t even cry, they hurt us so much. If we refused anything they demanded of us, they would beat us hard.” A third woman, ‘Ghazala’ said the children had knives and cellphones, “saying that they will take videos while killing us because we follow a different religion. And said that they will make a video while cutting off our heads.”

The sexual violence experienced by Yazidi women is often considered a deeply shameful thing, and many of the survivors have trouble talking about it. But ‘Ghazala’ says “they told two of us to marry him. And he was taking them to a lonely, private room and spending two or three hours with them. Sometimes he was taking one of them late at night and bringing her back in the morning.”

Khaled Sharrouf

Khaled Sharrouf

Layla hoped that the Australian Government would help her find justice for what Khaled Sharrouf and his Australian comrades have done to her and her friends. She said ”if those terrorists are ever caught, they must make sure that they will never escape. I want them to punish those terrorists…”

When sexual violence is perpetrated as part of an armed conflict, it is a war crime. When that violence is widespread, systemic and directed at the civilian population, it is a crime against humanity. If it used to destroy, in whole or in part, a particular ethnic, racial or religious group, it is genocide. These are crimes under international law; under the Geneva Conventions, the Genocide Convention and the Rome Statute of the International Criminal Court. They are crimes under Australian law, having been ratified through the War Crimes Act, the Geneva Conventions Act and the Rome Statute Act.

Sex trafficking is illegal under Australian law too. The laws have universal jurisdiction, meaning they can be applied even when neither the victim or perpetrator is Australian and the crimes need not have occurred in Australia. Slavery and sexual servitude can also be war crimes and crimes against humanity.

These are heinous crimes, given a special place in the law. They are the reason why the International Criminal Court was established, to end impunity for such violence. Under the principal of complementarity of that court, countries that are willing and able to investigate and prosecute these crimes, are obliged to do so. It is for this reason that the court usually deals with crimes committed in developing countries, places that the justice system and/or political situation do not have the capability to pursue justice.

In Australia, the Australian Federal Police are the responsible investigative authority. Presumably, in cases with such significant overlap of security concerns, investigations would be undertaken with the assistance of other security and intelligence agencies. But last month, rather that issue an arrest warrant for Khaled Sharrouf, the Australian Government simply revoked his citizenship. Now, he is of no greater concern to the government than any of the thousands of other foreign fighters committing war crimes, crimes against humanity and genocide in Syria and Iraq. The prospects of Layla and her friends receiving the justice they seek are now virtually nil.

How then, can this policy of revoking citizenship truly be about justice? Is it just another way for men to decide what women should feel about the ill that has been done to them? For men to decide what security is, what safety is, and what crimes matter the most? How is this fair for those women? How then, is it fair for any women?

If you would like to call on the Australian Government to investigate and prosecute Australians who have perpetrated sexual violence as war crimes, crimes against humanity and genocide in Iraq and Syria, please go to prosecutedontperpetrate.com to find out more and sign the petition now.

The names of the women in this story have been changed for their safety and security. All their quotes were drawn from voiceover translations during a story by Matt Brown on ABC’s 7.30 program. You can watch the whole program below.

It’s time to prosecute – sexual violence by Da’esh in Iraq and Syria

Last month, the United Nations Security Council met for its annual open debate on Women, Peace and Security (WPS). In their statement to the Security Council, the Permanent Representative from Iraq called for assistance strengthening their capacity to address sexual violence perpetrated against women and children by Da’esh.

This year marks the sixteenth anniversary of the first WPS resolution, United Nations Security Council Resolution (UNSCR) 1325. UNSCR 1325 emphasised “the responsibility of all States to put an end to impunity and to prosecute those responsible for genocide, crimes against humanity, and war crimes including those relating to sexual and other violence against women and girls”.

There are now a total of eight WPS resolutions, many of which focus on prevention of, protection from and ending impunity for sexual violence in armed conflict. The most recent, UNSCR 2242 reiterated the need for the “implementation of relevant obligations under international humanitarian law and international human rights law.” It also affirmed “the primary role of Member States to implement fully the relevant provisions of Security Council resolutions on women, peace and security”.

International campaigns such as Stop Rape Now have sought to bring attention to sexual violence in armed conflict. But these gendered crimes are often being perpetrated outside the jurisdiction of institutions willing and able to bring the perpetrators to justice. In 2014, Angelina Jolie and William Hague launched the Preventing Sexual Violence Initiative with projects to aid in the documentation and investigation of sexual violence in conflict. Despite advances at the International Criminal Court, these crimes are often still overlooked.

In Iraq and Syria, there’s an unprecedented opportunity to end impunity for sexual violence in armed conflict. Da’esh have used sexual violence as a weapon of war, constituent of genocide and in crimes against humanity. Since 2011, over 30 000 people have travelled from 89 countries to fight with Da’esh and other extremist organisations. Many of those people come from countries where war crimes, crimes against humanity, and genocide are outlawed under domestic legislation.

If countries prosecuted their own nationals for these crimes we would finally go some way to achieving justice for the victims, ending impunity for sexual violence in conflict, and implementing the WPS agenda. In countries such as France, Germany, and the United Kingdom, war crimes, genocide and crimes against humanity are outlawed in domestic legislation.  Finland and Sweden have already bought cases against their nationals.

Sexual violence can be prosecuted as a violation of the laws or customs of war, Common Article 3 to the Geneva Conventions, the Fourth Geneva Convention, or both Additional Protocols I and II to the Geneva Conventions.  In Australia, war crimes and violations of the laws and customs of war are criminalised in the Geneva Conventions Act 1957 (last updated in 2009) and the War Crimes Act 1945 (last updated in 2010). These two acts have been incorporated in Division 268 of the Criminal Code Act 1995.

The Rome Statute of the International Criminal Court recognises rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilisation and other forms of sexual violence as crimes against humanity if the action is part of a widespread or systemic practice.

Da’esh has indeed developed a widespread and systemic practice of sexual slavery and rape. There is dedicated infrastructure for the enslavement, trafficking and rape of women and girls. Investigations have uncovered a network of warehouses where the victims are held, viewing rooms where they are inspected and marketed, and a dedicated fleet of buses used to transport them. Da’esh has developed a detailed bureaucracy of sex slavery, including sales contracts notarized by their own court system. They have published an entire doctrine codifying their practices. In order to comply with this doctrine, women are forced to take oral contraceptives to ensure they are not pregnant while being raped.

yazidi-protest

The principle of complementarity of the International Criminal Court obliges States Parties to investigate and prosecute the crimes outlined in the Rome Statute. The Rome Statute is integrated into Australian law with the International Criminal Court Act 2002  and the International Criminal Court (Consequential Ammendments) Act 2002.

For sexual violence to be considered “a constitutive act with respect to genocide,” it needs to have been committed with the intent to destroy, in whole or in part a national, ethnical, racial or religious group. The United Nations Human Rights Council has published a damning report, outlining Da’esh’s ongoing genocide of the Yazidis. Genocide has been a crime under Australian domestic law since 2002, when the federal government finally passed the Genocide Convention Act 1949.

Friday 25 November marks the beginning of the annual 16 Days of Activism Against Gender Violence campaign. It will be marked by the launch of the ‘prosecute; don’t perpetrate‘ campaign, calling on the Australian government to investigate and prosecute Australians who have perpetrated these crimes. It is high time we used our own laws, to investigate and prosecute our own citizens for sexual violence perpetrated by Da’esh in Iraq and Syria. Today is the most pertinent day to turn our minds to ending impunity for sexual violence in armed conflict. These laws exist; we know the crimes have been perpetrated. Now we need to develop the political will to allocate the resources, investigate individual cases and prosecute them.

Mosul offensive mustn’t stop justice for war crimes

This post was kindly republished on the Huffington Post blog.

As the battle for Mosul rages, we need to remember that war crimes have driven this conflict.  Gendered war crimes have been the hallmark of Da’esh who have kidnapped women, published entire doctrines on the use of sex slaves, and thrown LGBTQI people off rooftops for their sexuality. There needs to be justice for those crimes. Their evidence needs to not be destroyed by the current offensive.

Rape has been used as a weapon of war; a war crime. It has been so widespread that it constitutes a crime against humanity. Furthermore, sexual violence has been used as constituent of genocide against the Yazidis. These crimes have been reported by the United Nations and many local and international activists.

The international nature of this conflict means there is the greatest scope for international justice for victims of these crimes. It has been reported that France is going to take Russia to the International Court of Justice for war crimes in the siege of Aleppo and the French prosecutor has been investigating Assad for war crimes since last September.

There have been repeated calls for the International Criminal Court to investigate and prosecute. However, neither Iraq nor Syria is signatory to the Rome Statute. The ICC may still be able to prosecute if it was referred by the Security Council, but both Russia and China have so far vetoed any efforts to pass such a resolution. As such, the ICC does not have the jurisdiction.

Foreign Fighters in Iraq and Syria (Credit: Radio Free Europe)

Foreign Fighters in Iraq and Syria (Credit: Radio Free Europe)

At the peak of Da’esh’s power some 30 000 foreign fighters filled their ranks. Many of these fighters came from places where war crimes, crimes against humanity and genocide are outlawed in domestic legislation. The principle of complementarity of the International Criminal Court means that countries who have signed the Rome Statue and have the willingness and ability, must investigate and prosecute these crimes. Finland and Sweden have already bought cases against their nationals. It is time countries like Australia, the United Kingdom and Belgium do so too.

However, investigation and prosecution of international crimes is incredibly difficult. Even when a competent authority has jurisdiction, gathering of evidence is problematic in a war zone, thousands of miles from home.

In 2014, Angelina Jolie and William Hague launched the International Protocol on the Investigation and Documentation of Sexual Violence in Conflict. Since then, the Foreign Office has developed training for the implementation of best practice for documenting sexual violence as a crime in conflict.

Yazidi activist, Ameena Saeed Hasan has called on planners of the Mosul offensive to consider Da’esh’s 1400 captives in their operational planning. US Ambassador to the United Nations, Sarah Mendelson has said the announcement of the Mosul offensive ahead of time allowed Da’esh to hide its captives. As such, it is all the more important to ensure considerations of investigation and evidence are integrated into the planning and conduct of military operations currently underway in Iraq.

Australia, the US and other nations supporting the Iraqi military have national action plans on women, peace and security. These action plans are based on the suite of UN Security Council resolutions that oblige member states to protect women from the effects of armed conflict (particularly sexual violence) and ensure their participation in conflict prevention, mitigation and recovery.

These resolutions identify sexual violence not only as a crime against humanity or constituent of genocide, but also a threat to international peace and security. Security Council Resolution 2106

affirms that sexual violence, when used or commissioned as a method or tactic of war or as part of a widespread or systemic attack against civilian populations, can significantly exacerbate and prolong situations of armed conflict and may impede the restoration of international peace and security

This time last year, the Security Council passed resolution 2242, reiterating the need for “implementation of relevant obligations under international humanitarian law and international human rights law”. That resolution also

called for the greater integration by member states and the United Nations of their agendas on women, peace and security, counter-terrorism and countering violent extremism

As such, it is absolutely imperative that the documentation and investigation of international crimes be fully considered in the planning, conduct and transition activities undertaken by security forces in Mosul. It is necessary for us to meet our obligations under international law, within the Security Council resolutions and within our own policy documents.

Citizenship revoked

A few months ago, the Abbott government developed several proposals to strip Australian dual nationals of their citizenship should they join Daesh in the Middle East. They released a discussion paper which stated that “citizenship is a contract by which we all abide.” The paper talks about citizenship as a privilege that is “fundamentally linked to an ongoing commitment to Australia and participation in Australian society.”

First of all, citizenship is neither a privilege nor a contract. Citizenship is a right. Every human being has a right to statehood. Article 15 of the Universal Declaration of Human Rights provides that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Arbitrarily depriving someone of their nationality engages consideration of a legitimate objective, proportionality and due process. Each of these three considerations is questionable in this context.

It surprised me that this whole discussion began on the 800th anniversary of the signing of the Magna Carta, a document credited with the beginning of a western tradition of human rights and limitations on state power. Australia has the only copy of the Magna Carta in the southern hemisphere and it is permanently displayed in Parliament House. The most famous passage contained in this historic document can be found in Chapter 39 and states that, “no free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgement of his peers or by the law of the land.”

The right to citizenship is not one that can be revoked by Ministerial decree. This matter has been tested by courts in other jurisdictions. In 1958, in the Tropp v Dulles judgement, the United State Supreme Court stated “citizenship is not a licence that expires on misbehaviour… and the deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.” In that case, the Chief Justice, joined by Justices Black, Douglas and Whittaker concluded that “citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers.”

In a recent article in The Conversation, Rayner Thwaites went beyond legal questions of the government’s proposals. He asked if revoking citizenship would be an effective “means of expressing moral opprobrium about terrorism?” I would argue that revoking citizenship is not a suitable means of addressing moral contempt of terrorism.

Captured women and children were treated as

Captured women and children were treated as “spoils of war”, the UN report said.
(Photo by AFP: Ahmad Al-Rubaye)

If an Australian citizen chooses to travel to Iraq or Syria and fight with Daesh and then chooses to return to Australia, they should be charged with the relevant criminal offences and prosecuted. Such offences could include treason, genocide and war crimes. In 2013, the Commonwealth Crimes Act was amended to update the definition of treason which could now cover acts undertaken by Australians fighting with Daesh in Syria or Iraq. The United Nations has suggested that Daesh is committing genocide against the Yazidi people. Genocide has been a crime in Australia since 2002, when the government finally passed the Genocide Convention Act of 1949.

There is also a vast body of evidence to suggest Daesh are committing a range of war crimes, or grave breaches of the Geneva Conventions. A recent report by the Human Rights Council recorded the following acts which are defined as war crimes in the Rome Statue: murder, cruel or degrading treatment and torture; directing attacks against civilians or humanitarian workers; taking hostages; summary executions; rape, sexual slavery, forced prostitution or forced pregnancy. The report documented particularly egregious violations against women and girls. As a result of this report, the Office of the High Commissioner for Human Rights has asked the Security Council to refer perpetrators to the International Criminal Court for further investigation and possible prosecutions.

In Australia, these acts are criminal offences under the Geneva Conventions Act 1957 (last updated in 2009) and the War Crimes Act 1945 (last updated in 2010). These two acts have been incorporated in Division 268 of the Criminal Code Act 1995. Under the principle of complementarity of the International Criminal Court, signatories to the Rome Statue have the obligation, if they are willing and able, to investigate and prosecute these crimes themselves. If such crimes have been committed by Australian citizens, we will certainly have the jurisdiction, and should show a willingness and ability to investigate and prosecute.

During the late 1980s, concern “that a significant number of persons who committed serious war crimes in Europe during World War II may have entered Australia and become Australian citizens or residents” gave rise to the establishment, in 1987, of the Special Investigations Unit. The unit investigated Nazi war crimes, and was later used in investigations of crimes in the Balkans. But there has been a “lack of political will to cover the necessary financial costs” and the unit no longer exists. When Australian soldiers were accused of unlawfully killing civilians in Afghanistan, the body of law used in their prosecution was not the Geneva Conventions, but civil law relating to duty of care.

A just response to Australians choosing to join Daesh, one that falls within the human rights framework and supports the rule of law, would be to find sufficient evidence, charge the individuals in question, and prosecute them. Justice would be much better served if the Australian Government mandated, maintained and supported the relevant institutions and units required for this task. This is particularly pertinent given Australia’s public stance against impunity for sexual and gender based violence in conflict and would certainly go some way to meeting our obligations under the suite of United Nations Security Council Resolutions on Women, Peace and Security and Australia’s National Action Plan on Women, Peace and Security 2012-2018.