This article was published on The Conversation on October 14, 2016.
Earlier this week, France announced it would take Russia to the International Court of Justice for war crimes in Syria. The French foreign minister will ask the International Court of Justice to hear a case on the siege of East Aleppo.
Late last year, the French national prosecutor’s office also announced it was launching an investigation into alleged crimes against humanity by the Assad regime.
Islamic State (IS) is committing war crimes and crimes against humanity in both Syria and Iraq. Sexual violence is being used as a weapon of war and constituent of genocide.
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, ethnic, racial or religious group. The UN has said rape is being used in this way against the Yazidis and constitutes a crime against humanity.
Rape is recognised as a war crime when it is committed in a widespread or systematic way. It is a violation of the laws or customs of war, Common Article 3 to the Geneva Conventions, the Fourth Geneva Convention, and both Additional Protocols I and II to the Geneva Conventions.
The UN Security Council has passed a suite of resolutions on Women, Peace and Security(WPS). These resolutions reaffirm the requirements of the Geneva Conventions and the Rome Statute of the International Criminal Court. These resolutions identify sexual violence not only as a crime against humanity or constituent of genocide, but also a threat to international peace and security.
Security Council Resolution 2106:
… affirms that sexual violence, when used or commissioned as a method or tactic of war or as part of a widespread or systemic attack against civilian populations, can significantly exacerbate and prolong situations of armed conflict and may impede the restoration of international peace and security.
This marks the threshold at which international security forces are obliged to act. The sexual violence is no longer considered “incidental” to the conflict; it is integral to the conflict. Certain measures need to be undertaken to prevent that violence, to protect potential victims, and to record or gather evidence in order for investigations and prosecutions to occur.
In October 2015, the Security Council passed Resolution 2242. It reiterated the need for the:
… implementation of relevant obligations under international humanitarian law and international human rights law.
But, it also called:
… for the greater integration by member states and the United Nations of their agendas on women, peace and security, counter-terrorism and countering violent extremism which can be conducive to terrorism.
ABC News recently aired a story that depicted an Australian army brigadier working with the Iraqi army in the battle against IS. He spoke of mentoring the Iraqis in operational planning, military skills, and military operations. He said he was with them all the way, in a conventional war, seizing ground from IS, and controlling territory with the Iraqis.
The Australian government requires the Australian Defence Force to uphold international law. The National Action Plan on Women, Peace and Security tackles issues including sexual violence in armed conflict. It is not acceptable for security forces to carry on regardless of sexual violence.
More needs to be done to integrate the WPS agenda into the security operations currently underway in Iraq and Syria. Gender considerations need to be included in pre-planning, planning, conduct and transition activities in order for us to meet our obligations under international law, within the Security Council resolutions and within our own policy documents.
The issue is also relevant to domestic law enforcement agencies. Several Australians are choosing to travel to the Middle East and join IS. If an Australian citizen chooses to travel to Iraq or Syria and fight with IS and then chooses to return to Australia, they should be charged with the relevant criminal offences and prosecuted.
Genocide has been a crime in Australia since 2002, when the government finally passed the Genocide Convention Act of 1949. War crimes are criminal offences under the Geneva Conventions Act and the War Crimes Act. These two acts have been incorporated in Division 268 of the Criminal Code Act.
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. In the past, Australia had a Special Investigations Unit that could investigate and prosecute such crimes, but a lack of political will and financial resources led to its disestablishment.
If such crimes have been committed by Australian citizens, the government certainly has the jurisdiction, and needs to show the willingness and ability to investigate and prosecute.