Australian company arms Saudi government department responsible for gender based violence

This week, the 104 countries that have signed up to the Arms Trade Treaty will be gathering for their annual meeting in Geneva. This year, their discussions will focus on gender-based violence.

Both the ABC and the Guardian recently published photos of shipments of weapons systems from an Australian manufacturer being shipped directly to the government of Saudi Arabia. The weapons systems were sold to the Ministry of Interior, the government department responsible for quashing public dissent and women’s rights.

Picture of a package label departing Sydney Airport.

Label of item for shipping at Sydney International Airport (Photo supplied by Gulf Institute for Democracy and Human Rights)

This sale breeches our obligations under the international Arms Trade Treaty. The Arms Trade Treaty is supposed to stop the sale of weapons to countries responsible for significant human rights breeches.

The Ministry of Interior is in charge of the police, courts and prisons that are all responsible for gender-based violence. They are also largely responsible for implementing the guardianship system that requires women to obtain permission from a male guardian to travel abroad, obtain a passport, or be discharged from prison.

Australian advocates for women’s rights who were at the UN for negotiations of the Arms Trade Treaty were part of the effort include gender provisions in the treaty. The aim of the activists was to help gender based violence by ending the export of the weapons used to facilitate that violence.

Ray Acheson was a leader in those negotiations. She is the Director of the Reaching Critical Will campaign of the Women’s International League for Peace and Freedom. They’ve been working on disarmament issues for over a century.

The legally binding clause of the treaty authorisation of exports must consider if they will “facilitate serious acts of gender-based violence.” Acheson said “Saudi Arabia is a known violator of women’s rights and LGBT rights. The risks of gender based violence inside Saudi Arabia are high.”

Indeed, a 2013 law supposed to reduce domestic abuse still allows male guardians to persistently abuse women. Male relatives are also able to bring legal claims against ‘disobedient’ female dependents who flee domestic violence. Human Rights Watch has documented cases where police have turned women away when they sought to report abuse.

Earlier this year, the male guardianship system returned to the Australian news when Rahaf al-Qunun’s attempted to flee to Australia, escaping her family due to fears for her life. The Ministry of Interior maintains an extensive intelligence network and special police force that has been used to prevent and punish such attempts to break free from the guardianship system.

Over the past twelve months, various elements of the Ministry of Interior have undertaken a campaign of arrests, imprisoning and torturing women’s human rights defenders. Women including Eman Al-Nafjan, Loujain al-Hathloul, Aziza al-Yousef and Samar Badawi were among a dozen leading activists arrested after the ban on women driving was lifted in May last year. Each of them were reportedly tortured while in custody.

The Saudi Arabian public prosecutor’s office had announced that the group undertook “coordinated activity to undermine the security, stability and social peace of the kingdom.” These security related charges could bring sentences of up to 20 years imprisonment. In reality, the women used social media to speak up about women’s rights in the country.

The UN Committee on the Elimination of All Forms of Discrimination against Women has called on the Saudi government to “ensure that women activists are able to exercise their right to freedom of expression and association” and that counter-terrorism law, the anti-cybercrime law and regulations for electronic publishing are not used to “abusively to criminalize women human rights defenders.”

The Australian Government needs to use this opportunity to re-examine its processes for authorising arms exports in accordance with the Arms Trade Treaty.

UN readies for another resolution while Australia stands in the way of ending impunity for wartime rape

The UN Security Council is in the process of developing a new resolution on Women, Peace and Security. The resolution has been anticipated for several months and is due to be passed as part of the Council’s annual open debate on conflict related sexual violence which is due to be held in New York on Tuesday. An Arria formula meeting was held earlier in the year to prepare council members for the debate, with a particular focus on ending impunity for conflict related sexual violence. Conflict related sexual violence is the focus of four of the existing eight resolutions on women, peace and security. But even the Council has bemoaned the lack of prosecutions for these crimes.

Nobel Laureate Nadia Murad will address the Council during the Open Debate. She has spoken out time and again for justice for survivors from her community who experienced sexual violence as war crimes, crimes against humanity and genocide at the hands of Da’esh in Syria and Iraq. For all the times the international community has shone a spotlight on her tears, we have still failed to do what she asks.

Germany, the current President of the Security Council and chair of this week’s debate is the only country to put a member of Da’esh on trial for any of these gendered crimes. But tens of thousands of foreign fighters travelled from countries around the world and committed these crimes. Many of those foreign fighters come from countries that are States Parties to the Rome Statute of the International Criminal Court and are therefore obliged to investigate and prosecute these crimes in their own court systems.

Both houses of Australia’s Federal Parliament passed multi-party motions calling for the investigation and prosecution of Australians who may have perpetrated sexual violence as war crimes, crimes against humanity and genocide. Several federal ministers have reinforced this obligation. These ministers have included Julie Bishop as Foreign Minister, Peter Dutton as Minister for Home Affairs and Linda Reynolds as Assistant Minister for Home Affairs.

Despite this, the government has failed to implement the strategies required to make such investigations and prosecutions are reality and they have invested energy into policies and legislation which prevent such action. Chapter eight of the Commonwealth Criminal Code clearly articulates the crimes that are laid out in the Rome Statute and ensures that Australian authorities have jurisdiction over such offences even when they are perpetrated overseas, against victims from another country. But this legislation has never been tested in court. The Australian Federal Police require the funding and other resources to stand up unit dedicated to such investigations. No such funding was made available in the latest federal budget.

In order for these prosecutions to occur, the perpetrator must be in federal custody. But the government has pursued a range of legislative and policy processes removing this probability. Given the parliament passed legislation allowing the government to revoke the citizenship of anyone who travelled to Iraq or Syria to join Da’esh, the government was obliged to include an administrative step determining if such individuals perpetrated war crimes, crimes against humanity or genocide before making a determination about citizenship revocation. The citizenship review board that advices the Minister for Home Affairs on such matters has apparently continued to fail to account for such obligations. Now, over a dozen individuals, some of whom are known to have perpetrated heinous crimes against women have had their citizenship revoked, further reducing the likelihood that their victims will see the justice they so rightly deserve.

There is a group of Yazidi women who are fighting for access to support services under Australia’s victims of human trafficking schemes. These women were purchased by an Australian man, for the purpose of sexual slavery, and repeatedly sexually and violently abused. Under Australia’s own criminal laws, those women count as victims of human trafficking, modern slavery, war crimes, crimes against humanity and genocide. But rather than allow them justice, the government revoked the citizenship of their abuser. If they so choose, they could bring a case against the Commonwealth for failure to uphold their obligations under the Rome Statute. Their country of residence, or any other country of interest could take Australia to the International Court of Justice for failing to fulfil our obligations under the Convention on the Prevention and Punishment of the Crime of Genocide.

Early in the new year, the government tried to go even further, seeking legislative changes that would allow them to revoke the citizenship of even more people, and enforcing Temporary Exclusion Orders to delay Australians of counter-terrorism interest from re-entering Australia. This is yet another policy that would prevent the arrest or detention of individuals responsible for conflict related sexual violence.

At the Arria formula meeting earlier in the year, civil society presenter Akila Radhakrishnan from the Global Justice Centre said achieving accountability for conflict related sexual violence “requires more than just eloquent rhetoric; it will require Council members to take concrete action and display considerable political will. Sexual and gender-based violence is, at its core, an expression of discrimination, patriarchy and inequality.” Countries like Australia must stop getting in the way of justice and follow up the global rhetoric with the actual action required to end impunity for conflict related sexual violence. We must investigate and prosecute these crimes now!

Gendered insecurity in the Rohingya crisis

Last month, Human Rights Watch released a report confirming that the Burmese security forces “have committed widespread rape against women and girls as part of a campaign of ethnic cleansing against Rohingya Muslims in Burma’s Rakhine State” since 25 August 2017. The report found that the actions of the military, border police and ethnic Rakhine militias amount to crimes against humanity under international law.

Although there is no legally agreed definition of ethnic cleansing, the description developed by a UN Commission of Experts holds significant sway. They described ethnic cleansing as ‘a purposeful policy designed by one ethnic or religious group to remove by violent and terror-inspiring means the civilian population of another ethnic or religious group from certain geographic areas.’ The events of September and October have certainly served to remove Rohingyas from northern Rakhine State.

In early December, the International Committee of the Red Cross, one of the very few international organisations with access to effected areas inside Myanmar, reported that “formerly energetic communities and village tracts are suddenly empty. Life continues for those that remain, but in certain parts of Maungdaw and Sittwe, there is a pervasive sense of absence.”

MSF have now also released extensive testimonies from survivors on the killing, arson and sexual violence they have experienced. Ninety percent of the survivors of sexual violence treated by MSF were attacked after 25 August. Fifty per cent of survivors are under the age of 18, including several under the age of ten.

Early reports of the number of pregnant women and new mothers in the refugee population could have been used as an indicator of increased conflict related sexual violence and ethnic cleansing. While the accuracy of the data and a heightened tendency for pregnant women to flee may both affect the analysis, the matrix of indicators of conflict-related sexual violence developed in response to UN Security Council Resolution 1888 identifies an increase in cases of unwanted pregnancy as an indicator of ongoing sexual violence. International non-governmental organisation Ipas, began increasing its response to the crisis, providing trainers to ‘provide on-site training for health workers in postabortion care’.

That same matrix also reminds us that the increasing ‘statements from doctors, war surgeons, gynaecologists and/or medical NGOs that they are increasingly seeing rape-related injuries’ are an indicator of ongoing sexual violence. As early as September, doctors from the International Organization for Migration, as well as a range of UN agencies and non-governmental organisations, reported high numbers of patients with physical injuries that are consistent with violent sexual attacks, including forced penetration and lacerations to the vagina.

In the two weeks immediately proceeding the crisis, the lead UN agency on sexual and gender based violence (UNFPA), provided services to 3500 Rohingya refugee women who had been sexually assaulted. It is incredibly difficult to gather large-scale data on sexual violence in emergencies, but we do know that only 7 percent of women subjected to sexual violence during the conflict in East Timor reported it, and only 6 percent of rape victims during the Rwandan genocide sought medical treatment. If the women and girls who have reported to those health clinics represent 6 percent of victims, they would be the tip of just one iceberg comprising 58,300 women and girls.

If we had used a gendered lens to analyse the unfolding crisis from the outset, we would have had a better comprehension of the ethnic cleansing that was occurring from the outset. This could have better informed humanitarian and international legal responses. A new comment in the Australian Journal of International Affairs unpacks reported figures of pregnant women who are seeking refuge in Bangladesh in an attempt to understand some of the gendered dimensions of the conflict. It proposes possible reasons for the presence of a high proportion of pregnant and lactating women in the refugee population, and goes on to reflect on indications of increased conflict-related sexual violence and ethnic cleansing. It shows that, while failings in the quality of data in emergencies mean it cannot be relied on as the basis for rigorous conclusions about the gendered nature of conflict, when taken with qualitative reports, and compared with other emergencies, gendered data can be used to build a better understanding of the conflict.

In the first two weeks of the Rohingya crisis, UNICEF reported that an unprecedented portion of the refugees fleeing to Bangladesh were children. The Chief of Child Protection for UNICEF in Bangladesh, Jean Lieby announced that preliminary data showed that 60 percent of the arriving refugees were children, who were often unaccompanied. Such extreme family separation can be an indicator of the degree of chaos and of rate of adult deaths. This second indication is reinforced by the fact the next largest age group of refugees are the elderly. UNICEF also reported that 67 percent of the refugees are female. Combined, this could indicate fighting age males had been targeted in Myanmar.

In mid-September, the Bangladesh Ministry of Health reported that approximately 70,000 of the Rohingya refugees who have arrived since August were pregnant or new mothers. This would represent a staggering 20.8 percent of the female population. Despite the high birth rates among Rohingya communities, we know that Rohingya women have an average of 3.8 children in their lifetime, we would expect only 6.9 percent of the female Rohingya refugee population to be pregnant or breastfeeding. The Bangladesh home minister has said that 90 percent of the refugee women have been raped. That would equate to over 335,600 people.

Peter Bouckaert, emergencies director at Human Rights Watch, said that “the level of hatred and extreme violence—especially towards women and children” is driven by dehumanisation and racism. Because the Rohingya have been described as “too dirty” for soldiers to rape, he believes there is no doubt that “the majority of the women who were raped were killed.” The organisation has drawn connections between what is happening to the Rohingya in Rakhine State and what occurred during the genocide in Rwanda.

Indeed, a comparison of the above data on the Rohingya refugees to that which we saw in the aftermath of the Rwandan genocide provided an early indicator of ethnic cleansing in Rakhine State. UN reporting in the aftermath of the Rwandan genocide indicated that the genocide had so rapidly altered the demographics that 60–70 percent of the population was female. It was estimated that the Rwandan refugee population exceeded pre-war fertility. In the immediate aftermath, this was presumed to be the case because of the high number of men who were killed during the genocide. Adolescent and adult males under the age of 45 were the primary targets in the early stages of the Rwandan genocide. There were also “indications that attempts to exterminate women, girls and the elderly eventually encountered significant popular opposition”. But sexual violence was a key feature of the Rwandan genocide. Although, as in the Rohingya case, the majority of rape victims were then killed, most recent estimates indicate that in excess of 20,000 Rwandan children were born from genocidal rape.

It is hoped that the new comment in the Australian Journal of International Affairs, and the general analysis described here, will serve as a reminder of the importance of gendered, cross-disciplinary research to accurately understand forces of peace and conflict in the world, and to inform appropriate policy responses such as humanitarian assistance and international legal action.

Where’s the Governor-General when you need him in a constitutional crisis?

Governor-General, Sir Peter Cosgrove AK MC

The power of the Governor-General is prescribed in the constitution and detailed in constitutional practice.  While the Governor-General customarily acts on the advice of relevant ministers communicated through the Federal Executive Council, there are times when the Governor-General can act without, or contrary to that advice. Overall, the Governor-General has the responsibility of  ensuring the execution and maintenance of the constitution.

The Coalition currently holds 76 seats in the lower house, the minimum number required to form government. Barnaby Joyce MP and Senators Fiona Nash and Matt Canavan, all of the National Party, currently have cases before the High Court to determine if their dual citizenship precludes them from holding federal office.

Section 44 of the constitution is worded to ensure no federal member is beholden to a foreign power. There may be some room for interpretation for individuals who unwittingly held dual citizenship with another country whose head of state is also Queen Elizabeth II. Can one truly be considered beholden to a foreign power if said power has the same head of state as Australia? However, there is no room for such interpretation when the dual citizenship is held with a country outside the Commonwealth. For example, the meaning of the constitution would be quite clear if someone were a dual national of Italy, as is Matt Canavan.

On the face of it however, all three members appear to be in breach of Section 44 of the constitution. Their eligibility to sit in parliament could not be subject to more serious questioning. Remaining in cabinet under such conditions is phenomenally irregular. However, the High Court is unlikely to make a decision before October. Then, if Barnaby Joyce is ineligible to hold office, his seat would likely be re-decided in a by-election.

In the mean time, could the government itself be considered unconstitutional? If Barnaby Joyce is ineligible then the Coalition only holds 75 seats in the lower house. It has been reported that when parliament next sits, if Joyce doesn’t refrain from voting, Labor will seek to have all votes deferred. Is this a basis on which the Governor-General can be assured of the Coalition’s ability to maintain government?

More broadly, in section 64, the constitution also states that no minister can hold office for any longer than three months without being elected to parliament. While common law protects the decisions made by those who thought they were acting out the duties of their rightful office, neither Joyce nor Nash have resigned from cabinet since learning of their predicament. As such, the decisions they make moving forward cannot fairly be interpreted as made while thinking they were performing duties of rightful office.

Given such a constitutional crisis, where is the Governor-General and what is he saying on the issues at play? At present, it seems the Prime Minister, and the government more broadly are waiting for the High Court to decide the fate of the suite of parliamentarians who have discovered they are dual citizens.  The High Court is unlikely to make a decision before October. However, especially considering the number of individuals who have not resigned, but retained their office and in some cases, cabinet positions, the time has come for greater oversight and employment of the responsibilities of the Governor-General.