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!

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.