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!

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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.

Beijing +20

In 1995, people from around the world gathered in Beijing for the United Nations’ Fourth World Conference on Women. Over 17,000 delegates and 30,000 activists attended. By the end of the conference, 189 participating countries had developed the most progressive blue print for women’s rights ever. The Beijing Platform for Action remains the gold standard for implementing women’s rights around the world. It comprises commitments under 12 critical areas of concern:

A. Women and poverty
B. Education and training of women
C. Women and health
D. Violence against women
E. Women and armed conflict
F. Women and the economy
G. Women in power and decision-making
H. Institutional mechanisms for the advancement of women
I.  Human rights of women
J.  Women and the media
K. Women and the environment
L. The girl child

This year, at the United Nations’ 59th Commission on the Status of Women, we are celebrating the 20th anniversary of the Beijing Platform for Action. It was hoped that the Ministers in the General Assembly would release a Political Declaration on accelerated action on the Beijing Platform for Action, prioritising human rights and women’s empowerment, calling for irreversible progress on women’s rights by 2030. I would have liked to see references to violence against women and girls as a key issue for equality and development, and a reinforcement of the women peace and security agenda. Other important issues in the women’s movement include the protection of sexual and reproductive health rights, climate change, and indigenous rights.

Released in the opening session of the Commission on the Status of Women, the Political Declaration was none of these things. It was merely a bland statement of support for the Beijing Platform for Action. During negotiations, specific needs and issues were shut out for fear of creating an unwieldy and unhelpful list of specificities. So there is no mention of disability; intersectionality; or women, peace and security. The Holy See, Russia and Member States in the G77 including China and Iran pushed to remove all references to human rights. Only three such references remain. There has certainly been discussion among civil society of the men in frocks wanting to take away women’s control of their own bodies.

The final document did maintain a reference to the specific goal on gender equality expected from the new development framework, the Sustainable Development Goals, which will replace the soon to expire Millennium Development Goals. Some of our Pacific neighbours fought hard to maintain references to the valuable work of non-government organisations and civil society in attaining gender equality. The Political Declaration also outlined the important role of UN Women in this process, which did not exist when the Beijing Platform for Action was developed, but now has the mandate to lead and coordinate the UN system’s work on gender equality.

Many people have been disappointed by the Political Declaration, and there is much hope that the General Assembly resolution on the working methods of the Commission on the Status of Women will keep the space open for non-government organisations to participate and advocate on women’s issues. Governments and civil society both need to be proactive to ensure the voices of young women and indigenous women are heard in these fora. It all goes to show what can be done when political and social movements seize the moment, as was done in Beijing. Now, the women’s movement needs to coalesce around what we do have, the Beijing Platform for Action and continue to push for its implementation. Rather than necessarily seeking new commitments, we need to see the implementation of the existing ones.

For ongoing updates from #CSW59, follow me on Twitter @SusansOpine.

I am participating in CSW59 as a member of the delegation from the Women’s International League for Peace and Freedom, of which I am a member of the Australian Section and convenor of the ACT Branch.

I have been able to travel to New York to participate in CSW59 thanks to a grant from the Australian National University Gender Institute as well as funding from my College of Arts and Social Science.