This post was originally published on The Interpreter blog by the Lowy Institute for International Policy on 23 December.
It’s been almost a month since Australian Neil Prakash, thought to be the most senior Australian in Islamic State, was arrested in Turkey.
In 2015, the Australian Federal Police issued an arrest warrant for Prakesh for being a member of a terrorist organisation and for incursions into a foreign state with the intention of engaging in hostile activities. The warrant was promulgated through INTERPOL and remains valid. Other reports suggest he may also face charges relating to foreign fighting, recruitment and planning attacks.
Australia remains the only country to have lodged a formal extradition request with Turkey. Australia’s extradition treaty with Turkey includes a requirement for double criminality: crimes with which Prakash would be charged in Australia must also be crimes under Turkish law. According to ANU’s Kevin Boreham, ‘this does not require the crimes to be identical in both countries’ criminal law, but just perceived as punishable under both countries’ laws.’
It’s important for international justice and for the victims in Iraq and Syria that foreign fighters like Prakash are not solely charged with terrorism related offences. Islamic State have used sexual violence in war crimes, crimes against humanity and genocide. The international community is obliged to end impunity for these crimes through a range of Security Council resolutions (most recently Resolution 2242, passed in October last year).
The principle of complementarity of the Rome Statute of the International Criminal Court also requires states that are willing and able to investigate and prosecute war crimes, crimes against humanity and genocide. Survivor activists from Iraq have called for international justice for crimes committed against Yazidis.
Crimes against humanity, genocide and war crimes are integrated into Australian legislation through the International Criminal Court Act 2002, the Geneva Conventions Act 1957 and the War Crimes Act 1945respectively. In turn, these acts have been incorporated in Division 268 of the Criminal Code. Indeed, just last month, parliament was debating updates to Australia’s war crimes legislation to better account for combatants such as those in Islamic State.
Turkey is not a signatory to the Rome Statute, so crimes against humanity are not recognised in their jurisdiction. However, they are signatory to the Convention on the Prevention and Punishment of the Crime of Genocide 1948. Implementation of that convention has been clouded by the politics of the Armenian genocide, but the crime is recognised none the less.
The United Nations Human Rights Council has documented the genocide of the Yazidis perpetrated by Islamic State. Their report, They came to destroy, states that Islamic State ‘sought to destroy the Yazidis through killings; sexual slavery, enslavement, torture and inhuman and degrading treatment and forcible transfer causing serious bodily and mental harm; [and] the infliction of conditions of life that bring about a slow death…’.
It is also a crime under international law to directly and publicly incite others to commit any act outlined in the Genocide Convention. Article 25 of the Rome Statute provides that someone who ‘orders, solicits or induces the commission of such a crime’ has committed an offence. Incitement to genocide is punishable even if the genocide itself did not occur.
A direct appeal to commit an act of genocide is determined in light of its context and audience; inciting speech can be coded or implicit or otherwise not obvious to outside observers. In his propaganda videos and social media posts, Neil Prakash regularly incited violence that could be construed as targeted against a particular ethnic or religious group.
In August last year, he tweeted ‘message me if you want to kill kuffar’. Kuffar is the plural of a highly derogatory Arabic term most commonly used to describe people who are not of the Abrahamic faiths. In a recruiting video posted to YouTube, Prakash called Muslims to ‘kill this disbeliever, this one that denies Allah…the one that associates with idols’.
Given the ethnic and religious make-up of Islamic State-controlled territory, Prakash’s messages could be considered an incitement to kill Yazidis, who believe God is represented on earth by a peacock angel. Several other Yazidi practices can also appear to be pagan, such as praying towards the sun and a belief in reincarnation.
Prakash has been implicated in a range of plots both in Australia and elsewhere. As investigators question him, his activities and role in the organisation will become more apparent and it may be appropriate for further charges to be laid.
He has been described as a fighter. If he was directly participating in hostilities, he may be responsible for war crimes. If he had command responsibilities, he can also be held responsible for war crimes and crimes against humanity perpetrated by his subordinates.
Gendered war crimes have been the hallmark of Islamic State. Sexual violence is a serious violation of the laws of war when committed as part of an armed conflict. Turkey is signatory to all of the Geneva Conventions, of which Common Article 3 in particular prohibits violence to life and person (including cruel treatment and torture) and outrages upon personal dignity, especially humiliating and degrading treatment. The rape, sexual slavery, enforced sterilisation, forced marriage and trafficking for sexual exploitation perpetrated by Islamic State can all fall under one or more of those prohibitions.
Charges can also be bought against commanders for ordering or allowing sexual violence to take place, even if they did not personally commit the sexual violence. The landmark case for holding military leaders responsible for sexual violence perpetrated by their subordinates was the Čelebići judgement of the International Criminal Tribunal for the former Yugoslavia. Having known or had reason to know subordinates sexually abused detainees, the superiors in the Čelebići Camp were charged with superior responsibility for ‘wilfully causing great suffering’ and ‘inhumane treatment’ as grave breaches of the Geneva Conventions, or ‘cruel treatment’ as a violation of the laws or customs of war.
While Turkey is not party to the International Criminal Court (which classifies widespread and systemic practice of sexual slavery as crimes against humanity), they are a signatory to the European Convention on Human Rights, Article 4 of which prohibits slavery.
Islamic State has dedicated infrastructure for the enslavement, trafficking and rape of women and girls. They have developed a detailed bureaucracy of sex slavery, including sales contracts notarised by their own court system.
These crimes are of a magnitude that warrants investigation and prosecution beyond merely terrorist offences. Australia has the legislation, international obligation and moral duty to help end impunity for these crimes. We must charge our nationals if and when they have committed war crimes, crimes against humanity and genocide, including the use of sexual violence. There is already perfunctory evidence that Neil Prakash has perpetrated a range of crimes in addition to those relating to terrorism. He needs to be questioned about acts that may constitute war crimes, crimes against humanity and genocide. If sufficient evidence is found, he should be charged and prosecuted appropriately.