Sexual violence included in debate for new war crimes bill

On Wednesday, the Criminal Code Amendment (War Crimes) Bill 2016 had its second reading in federal parliament. Member for Canberra, Ms Gai Brodtmann spoke to the bill for nearly twenty minutes. She clearly addressed the importance of updating Australia’s legislation on war crimes and the importance of it’s implementation for gender justice. She specifically mentioned prosecute; don’t perpetrate and called for the investigation and prosecution of sexual violence perpetrated by Australian Da’esh fighters as war crimes, crimes against humanity and genocide. She discussed the situation for women in conflicts not only in Iraq and Syria, but also in the Balkans and during the Second World War.

You can read the complete speech or watch the video below.

We are witnessing a rapid transformation in the nature of armed conflict. The world looks very different to how it looked in 2002, when the existing Criminal Code provisions were enacted. We see it today in the rise of organised armed groups such as ISIS and the way these groups engage in non-international armed conflict. The world looks very different, and so do the laws that govern it. So it is appropriate that Australian law is updated in accordance with updates to international law.


The Criminal Code Amendment (War Crimes) Bill 2016 amends division 268 of the Criminal Code Act 1995 to align Australian domestic law with international laws governing the treatment of members of organised armed groups who participate in non-international armed conflicts. The bill recognises the distinction between a civilian and a member of an organised armed group. Members of an organised armed group do not benefit from the protections under international humanitarian law afforded to civilians or medical and religious personnel. These amendments today ensure that members of organised armed groups receive treatment equivalent to members of regular armed forces under the law.


These amendments are a reflection of what we have seen and experienced as a community since 2002, and there have been massive changes. We know we are in a different time, and this should be reflected in law. This distinction already exists in international humanitarian law. We should remove all doubt that it also exists in Australian domestic law. These amendments are not proposed with only current conflicts in mind. This is about setting a principal piece of legislation with which to go forward.


Of course, as with any legislation, it should reflect the time. When circumstances change, as always, so too should Australia’s legal environment. And we should expect them to change, for the participants in conflict shape the nature of the conflict. We are seeing today armies at war with civilians and with civilisation. With ISIS, we have a flag in search of a nation. Its ambitions are destruction. Its enemies are modernity. Its weapons are anything and everything.


But there is a third front in ISIS’s war, and it is one that does not get quite so much attention. Its fight is against the West and its fight is against the Muslim world, but its third fight is against female empowerment and all that it allows. Its fight is against women’s access to education, women’s freedom of association, women’s freedom of religion, women’s freedom of movement, women’s freedom of speech—women’s freedom. Its war is against women, and, in this war too, every weapon is fair game.


The 2015 ISIS manifesto ‘Women in the Islamic State: Manifesto and Case Study’ advises that the role of women is to ‘remain hidden and veiled’. The manifesto declares that ‘women gain nothing from the idea of their equality with men apart from thorns’ and that they should focus on their ‘divine duty of motherhood’. The same manifesto states that it is ‘legitimate for a girl to be married at the age of nine’ and that women should not get degrees. According to ISIS, women should only leave their homes in ‘exceptional circumstances’, such as committing jihad.


The United Nations estimates that ISIS has forced some 1,500 women, teenaged girls and boys into sexual slavery—these are old figures; I hate to think what sort of figures we are looking at now—but anecdotal evidence suggests that the true figure is far, far greater. The UN envoy on sexual violence in conflict found that girls from Iraq and Syria were made to engage in the most unspeakable acts of sexual violence. ISIS’s justification for these acts, as outlined in its pamphlet—yes, that is right: a pamphlet—on female captives and slaves is that ‘it is permissible to capture’ and ‘to have sexual intercourse’ with ‘unbelieving women’. Once captured, these unbelieving women can be bought and they can be sold, as—and I am quoting here from the pamphlet on female captives and slaves—’they are merely property, which can be disposed of.’


One so called ‘unbelieving woman’ is Nadia Murad. Nadia was 19 when her Yazidi village in Northern Iraq was captured by ISIS. Nadia watched, alongside her mother and sisters, as the men in the village—including her brothers—were brutally slaughtered. For the next eight months, Nadia was abused and she was raped by ISIS troops. She was held in captivity by 13 different ‘owners’. Nadia, 19 years old, from a Yazidi village in Northern Iraq was held in captivity by 13 different ‘owners’.


Nadia is a reminder of why it is important that we note this third front, the impact on women—and not because it is a new one. The Book of Lamentations recounts that: ‘Women have been ravished in Zion, and virgins in the towns of Judah.’ During the 15th and 16th centuries, throughout much of the world, the right to commit acts of sexual violence against the objects of one’s conquest was considered a form of earned compensation.


The Second World War showed us a level of human tragedy that we have never seen. It was in this context that the character of sexual violence in conflict was altered, because it became mechanised then. To use one example, it is estimated that the Soviet army raped anywhere between one million and two million women in Eastern Europe and Germany during one year, 1945. So: the Soviet army raped one million to two million women in Eastern Europe and Germany during 1945; in one year, one army, one million women.


In the Bosnian War, rape was an official order. Rape camps were deliberately established. The reported aim of these camps was to impregnate the Muslim and Croatian women held captive. This occurred in the context of a patrilineal society, in which children inherit their father’s ethnicity; hence, the ‘rape camps’ aimed at the birth of a new generation of Serb children. It was a tool of ethnic cleansing. It was a mode of genocide—and I use that word carefully, because, if what we are seeing today in Iraq and Syria constitutes genocide, we should call it out for what it is. It is a form of crime with a long history, and it is one that needs a new form of response. I propose that we prosecute the perpetrators.


This Friday marks the beginning of the 16 Days of Activism against Gender Violence. It will also be the launch of the ‘Prosecute, don’t perpetrate’ campaign, which calls for an end to the impunity currently enjoyed by those who commit acts of sexual violence in the theatre of armed conflict. The ‘Prosecute, don’t perpetrate’ campaign calls for the investigation and prosecution of sexual violence committed by Australians who have travelled to Iraq and Syria to fight with Daesh.


We know that Daesh has used sexual violence as a tactic of war. Sexual violence is a war crime, and we should treat it as such. The occurrence of systematic rape is well documented in Iraq and Syria. It is a crime against humanity; it is a crime against women; and we should treat it as such. The United Nations Human Rights Council has published reports of Daesh’s intentions to impose: ‘measures to prevent Yazidi children from being born’. This is genocide, and we should treat it as such. By some accounts—and we have heard quite a bit about it this week—over 100 Australians have travelled to Iraq and Syria to fight with Daesh and other extremist groups. We need to investigate and prosecute the sexual violence they have perpetrated as war crimes, crimes against humanity and genocide, for these are all crimes under Australian domestic legislation.


We also need to remind ourselves that sexual violence in conflict is not inevitable. I think that everyone just thinks that this is basically the by-product of war—the raping of women; the raping of small girls; the raping of small boys—and just thinks, ‘Oh, gee; that’s bad, but this is just a by-product of war.’ We saw it with the Second World War. We saw it in Bosnia. It is not simply a sad consequence of war. It is how war is now being fought, and ISIS is using sexual violence as a weapon of war—as an orchestrated, coordinated, industrialised tactic of terror. It is a horrifying evolution of an age-old practice, and it is now the means to a very different end. And its use is a crime we cannot excuse.


I want to conclude by thanking a range of women who have been very active in this space for a very long time, who are still maintaining the rage and who are behind this campaign to prosecute, not perpetrate. I have met most of these women since I have been in the shadow Defence portfolio over the last four years. I have met most of them through the Australian Strategic Policy Institute, which has a number of seminars on women, peace and security and the range of UN resolutions that have emerged in this area.


It is very important that we keep discussing this issue and that we do not just sweep it under the carpet. It is important that we keep maintaining the rage about this issue, because it is not something that is going to go away by our basically just saying, ‘Oh, sorry, but that is just a by-product of war; we’re just going to have to put up with it.’ It is unacceptable. As I said: women are being raped—and not just raped; enslaved. Nadia had—what was it?—13 ‘owners’. Small children—small girls and boys—are being raped and held as sex slaves, with 13 owners plus. It is unacceptable. It is brutal. It is hard to imagine the lives that these women are enduring under this hideous, monstrous existence.


I want to do a call-out to a number of people who have been very active in keeping this issue on the agenda and reminding us as leaders and as a community that we cannot take our eye off this issue. We do need to maintain our attention on this issue. I want to, first of all, thank Peter Jennings and his team at the Australian Strategic Policy Institute for having regular seminars on this issue. I was at a panel discussion probably a month ago where we had a woman who had just been involved in representing Australia on the UN 1325 and other resolutions. We also had Brad Orchard, from the Department of Defence, who is actually implementing the UN 1325 and other resolutions from the defence perspective.


We also had the wonderful Jennifer Wittwer, who is going to be our new representative in the UN, hopefully shortly. I understand she has had a bit of a bad bout with health but has recently got the all-clear. So she will, I hope, be winging her way to New York to be a fantastic representative for Australia in the very near future. I also want to thank Lisa Sharland, who has been very, very active in this space for a long time. She is probably one of Australia’s leading experts on women, peace and security. She has worked on this issue in Africa, the United States, Europe and Asia. She is one of our leading experts here in Australia. Again, I want to thank her for educating me on this issue and constantly bringing to my attention the fact that we need to maintain the rage.


I also want to thank Susan Hutchinson for her continuing campaigning on this most crucial issue. I spoke about this issue yesterday and it was wonderful to have Susan in the gallery listening to the speech. She is an expert on women, peace and security and she has championed this issue with energy and dedication. She recognises, as I do, that asking for existing laws to be enforced should not be a controversial demand, should not really be much of a big ask. She recognises, as I do, that we should never excuse or tolerate incidents of sexual violence in armed conflict. She recognises, as I do, that we have the power to provide justice to the victims of these heinous crimes.


War crimes are criminalised in the Geneva Conventions Act 1957 and the War Crimes Act 1945. Genocide and crimes against humanity are outlawed in the International Criminal Court Act 2002. These laws need to be implemented. International law matters, and these laws need to be implemented. That is why we propose to amend the Criminal Code to better reflect it. We seek to harmonise international humanitarian law with Australian domestic law, because we recognise that the challenge we share is a common one.

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