security

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.

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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.

Feminist analysis of Australia’s emerging security architecture

This post was originally published on 23 August, on the blog of BroadAgenda 50/50

Despite an emerging international movement for feminist foreign policies, it’s not often we publicly discuss feminist views of national security. Over the past five years, the Australian Government has been grappling with the implementation of a whole-of-government policy on Women, Peace and Security (WPS). That policy, the National Action Plan on WPS, is currently due for renewal. But last week, the Australian government announced a major change to Australia’s national security architecture which aligns a range of problematic policy and practice decisions that ignore the views and experiences of women nationally, in the region, and internationally.

Now is the time for a feminist analysis of Australia’s emerging security architecture including a gendered approach to counter terrorism, dealing with foreign fighters and the new home affairs arrangements including women in immigration detention and gendered police support programs in the Pacific.

Australia’s National Action Plan on WPS was developed to integrate Australia’s obligations under a suite of Security Council resolutions on the topic of WPS. The WPS resolutions recognise that men and women experience conflict differently, and that accounting for women’s experiences of conflict and insecurity is vital to achieving sustainable peace and security.

Most recently, the Security Council passed resolution 2242, calling on member states to better integrate WPS into their strategies for countering violent extremism and counter-terrorism. That resolution also urged member states to “strengthen access to justice for women in conflict and post-conflict situations, including through the prompt investigation, prosecution and punishment of perpetrators of sexual and gender-based violence.”

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. Rape has been perpetrated as war crimes and has been so widespread that it constitutes a crime against humanity. Furthermore, sexual violence has been used as constituent of genocide against the Yazidis. Of the tens of thousands of foreign fighters who fight with Da’esh in Iraq and Syria, many come from countries like Australia that criminalise sexual violence as war crimes, crimes against humanity and genocide.

One such fighter is Khaled Sharrouf who is known to have purchased Yazidi women at a slave market, held them captive, and forced them into sexual slavery. However, rather than meeting Australia’s international obligation to investigate and prosecute him for these crimes, the Minister for Immigration revoked his citizenship, abdicating our obligation for non-recurrence and supporting impunity for conflict related sexual violence.

Recent updates to data laws in Australia give intelligence and law enforcement agencies an unprecedented volume of information to prevent terrorist activity. However, the system continues to fail to adequately analyse the information at hand. Dr Anne Aly MP, noted that ahead of the Lindt café siege, Man Haron Monis exhibited the three behavioural traits that indicate a serious terrorist threat. Fixation: a pathological preoccupation with a person or cause; identification: a warrior mentality that includes narcissistic fantasies; and leakage: communication either to a third party or to the public of intent to commit violence.

There is a strong correlation between perpetration of domestic violence and modern terrorist activity. Sociological research has shown domestic terrorist groups are now more likely to show behaviours to reassert male dominance. This is a common pattern of behaviour in perpetrators of domestic violence. We know that Man Haron Monis has been charged with the murder of his former wife. Many other cases exist including one of the London Bridge terrorists abuse of his wife. But the Australian government continues to underfund the domestic violence services that make victims feel safe enough to report their abusers. Similarly, since 2015, the government has spent a mere three percent of what it did on counterterrorism, on the community sector programs that counter or prevent violent extremism.

In 2015, the Australian Senate heard that thirty-three asylum seekers alleged they had been raped or sexually assaulted at the immigration detention centre on Nauru. Given the centre on Nauru was only host to a hundred or so women and children, this figure is staggeringly high. Policy and government responses to the safety, health and wellbeing of refugees and asylum seekers in detention remain inadequate. The most shocking case was the refusal to provide sexual and reproductive health care to a Somali woman who fell pregnant when she was raped in detention.

The head of ASIO recently explained that he saw no relationship between refugees and asylum seekers coming to Australia and incidents of terrorism. But the government has decided to bring the Department of Immigration and Border Protection, that has overseen these gross breaches of women’s security, into a mega Department of Home Affairs designed to ‘improve’ Australia’s security.

Meanwhile, the Australian Federal Police (AFP) undertake a range of operations beyond merely securing our borders and counterterrorism.  The AFP are a key national tool in supporting the rules based global order. They participate in UN peacekeeping operations and undertake significant police support programs in the Pacific. Some of these programs are aimed at improving women’s participation in the police force as well as better responding to and reducing incidence of violence against women. Will these programs be reduced under a new strategic direction based on the concept of a ‘Home Office’?

In short, the merging of departments and agencies into the mega Department of Home Affairs, as well as the ministerial leadership chosen to run the new department, show scant regard for gender justice, women’s rights and the rule of law and admonishes women’s agency and expertise.

Super department a bad sign for justice and the rule of law

Earlier today, Prime Minister Malcolm Turnbull announced the launch of a new ‘super department’ along the lines of the UK Home Office or the US Department of Homeland Security.

The move was not recommended by the recent review of the national security architecture by respectected Michael Le’Strange, was not endorsed by cabinet and has split the National Security Committee. The new department will capture the Australian Secret Intelligence Organisation, the Australian Federal Police, Border Force and the Department of Immigration. It will be headed by the Immigration Minister Peter Dutton.

Many commentators have argued the only reason to create such a department is political, providing Peter Dutton with additional power as a means of steering him away from a leaderahip challenge. Although the government has not stated what benefits such a department would bring to national security, the new department would presumably be responsible for strategic planning and coordination of the agencies in its purvue. This is most concerning. 

The Australian Federal Police has historically been under the remit of the Justice Minister with a strong relationship to the Attorney-General’s Department. The Australian Federal Police are not only used for counter-terrorism and border control activities. The AFP has personnel deployed on operations all over the globe including on peace support operations with the United Nations. They are a significant tool in Australia’s strategic investment in a rules based global order more closely aligned with the work of the Department of Foreign Affairs and Trade and the Australian Defence Force.

On the other hand, Border Force and Australia’s immigration policies, particularly those relating to refugees and asylumn seekers, are broadly condemned as breaching international legal norms and human rights standards.

The AFP are the authority responsible for investigating and prosecuting such international crimes as war crimes, crimes against hanity and genocide when they fall under Australian jurisdiction. Each of these crimes is outlined under domestic legislation and has been included in the Criminal Code Act. Even though it is known that Australians have perpetrated these crimes while fighting with Da’esh in Iraq and Syria, no investigations of prosecutions have yet occurred. 

Indeed, rather than meeting our obligations to investigate and prosecute these crimes, Australia has supported impunity for sexual violence in armed conflict by revoking the citizenship of a key perpetrator known to have committed these crimes. That decision was made by the very man now given authority over all the agencies within thisnew department.

Amy Maguire has argued that Australia’s human rights obligations now need to be rechecked under the new departmental structure. I could not agree more.

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.

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.