Published by the Faculty of Business, Government and Law, University of Canberra

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Lady justice is blindfolded in Afghanistan report

Nov 23, 2020 | News, Feature

Written by Susan Hutchinson

The Government’s response to Justice Brereton’s report for the Inspector General of the Australian Defence Force into misconduct by Australia’s Special Forces in Afghanistan has been swift and sure. The military and all parties in parliament have supported the recommendations of the report. Knowing the gravity of what was coming, the Prime Minister Scott Morrison announced the establishment of a new Office of the Special Investigator to undertake criminal investigations and refer cases to the Commonwealth Directorate of Public Prosecution.

This organisational restructure is an important move to ensure full accountability for war crimes under Australia’s criminal code and international law. However, the fact the restructure was required has highlighted a longstanding weakness in the nation’s governance architecture. The Australian Federal Police (AFP) have long lacked the resources for these types of investigations and prosecutions. Any institutional experience with such cases was lost decades ago and in the current context, such investigations need to be supported by a range of government agencies.

Australia’s legal framework around international criminal law is strong. When Australia signed up to the Rome Statute of the International Criminal Court, we updated the Commonwealth Criminal Code with a whole chapter of new crimes, under the heading ‘offences against humanity…’ Division 268 of that chapter covers war crimes, crimes against humanity and genocide. While Divisions 270 and 271 cover slavery and slave-like practices, including the sexual slavery that occurs in wartime. As a functioning state with sound judiciary, we are obliged, under the Rome Statute to investigate and prosecute these crimes within our own court system.

This obligation doesn’t just apply to those who perpetrate such crimes while serving in the military. From a gender perspective, it is important to critique the fact that over 100 Australians travelled to Syria and Iraq to fight with Da’esh and other terrorist groups who perpetrated war crimes, crimes against humanity and genocide, including through the use of gross sexual violence.

Conflict related sexual violence is all to often left unpunished. In Syria and Iraq, it was used as genocide against the Yazidis.

Conflict related sexual violence is all to often left unpunished. In Syria and Iraq, it was used as genocide against the Yazidis. So many Yazidi women have stood up and cried out, calling for justice for what happened to them and their community. Nadia Murad even won a Nobel Peace Prize for her efforts, but we have yet to see a single prosecution of a Da’esh fighter for sexual violence as genocide or war crimes. Tens of thousands of Da’esh fighters came from around the world, so countries like Australia have the capacity and obligation to carry out justice. But they don’t.

In Australia, organisations like prosecute; don’t perpetrate and Yazda have been campaigning for the investigation and prosecution of these perpetrators for years. Both houses of parliament passed multi-party motions calling for such investigations and prosecutions. But when push came to shove, the resource allocations have not been comparable.

Recognition of wrongdoing is an important part of natural justice. As part of the ADF’s processes, many sincere apologies are being made. The Prime Minister has apologised to his Afghan counterpart; the Defence Minister to her counterpart, members of Defence and the community; the Chief of Defence to his Afghan counterpart and to the community; and whistle blowers who felt they should have done more to save the lives of Afghan civilians.

Reparations to the survivors of those who were killed in Afghanistan will be made. The Chief of Defence Force said the process for this will be negotiated across government. Presumably, it will be informed by previous ISAF practices for compensation for civilian harm and NATO’s compensation guidelines. He made clear he would like this to occur as soon as possible. So, in line with that previous policy, payment will not be connected to any criminal liability.

Again, this is in stark contrast to the handful of women who survived sexual servitude at the hands of Khaled Sharrouf who travelled from Sydney and fought with Da’esh in Syria and Iraq. He is one of Australia’s other men who, presumably also thinking no law court could catch him, could be said to have behaved as though “killing was a sport” as Dr Samantha Crompvoets said of the Special Forces soldiers during a 60 Minutes interview. You may remember Khaled Sharrouf for posting a photo of his then seven-year-old son holding a severed head.

The women who survived Sharrouf’s genocidal crimes have been fighting for the most basic support given to victims of human trafficking, but they have been denied even that. Five of the Yazidi women  he purchased at a slave market and held in sexual servitude for years (thereby likely breaching both sections 268 and 270 of the Criminal Code) took their case to the NSW Administrative Tribunal last year. When their appeal for support was denied, Taban Shoresh, head of the charity who supported the women in their case said “we are frankly horrified that this decision has been made.”

Arguably, the Special Forces is the most exclusively male bastion of the defence force, that national bastion of power; now deeply marred by such ill-deeds that have so shocked the nation.

It is hugely important to hold members of the ADF accountable for any breaches of international criminal law. It is important for the survivors of those they harmed, and it’s important to maintain professional standards within the military. But as feminists, we need think about why now? Arguably, the Special Forces is the most exclusively male bastion of the defence force, that national bastion of power; now deeply marred by such ill-deeds that have so shocked the nation.

Why is it only now that the Government has invested in the required justice mechanisms to hold people to account? It is not just men and boys in Afghanistan who have been harmed by Australians breeching international criminal law. It is women and girls, from religious and ethnic minorities as well. Lady justice is blindfolded. She does not see a fall from grace. She does not see ego or the ANZAC myth. She seeks to balance the scales. The Government must ensure that can be done.

The Office of Special Investigator must become a permanent organisation, resourced and empowered to investigate any perpetrator of the crimes against humanity and related offences prescribed in Divisions 268, 270 and 271 of the Commonwealth Criminal Code. That remit needs to include the sexual and gender-based violence perpetrated against the Yazidis in Syria and Iraq, and other situations that may unfold in the future. This is our obligation under the Rome Statute and aligns with the suite of Security Council Resolutions on women, peace and security as well as those on trafficking of persons in situations of armed conflict.

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Susan Hutchinson is the Executive Director of Azadi-e Zan, a new NGO helping Afghan women’s rights defenders since the fall of Kabul. She lives with a chronic disabling illness. Before becoming ill she was the Civil-Military Advisor for the Australian Council for International Development. Susan continues to focus her energy on women’s experiences of conflict and is currently undertaking a PhD on women, peace and security at the Australian National University’s Coral Bell School.

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