On Thursday, 23rd November, the ANU Gender Institute and the Centre for Military and Security Law cosponsored a public event for prosecute; don’t perpetrate. Campaign architect, Susan Hutchinson delivered a ted style talk on sexual violence perpetrated by Da’esh in Syria and Iraq, the situation internationally, and how Australia can help end impunity through investigations and prosecutions. Her talk was followed by a high-level panel discussion covering the political, legal and victim perspectives on the issue. You can listen to the podcast of the event below.
Susan Hutchinson’s civil-military career in conflict and development has seen her working in government, the military and non-government organisations. She is an expert in the implementation of the women, peace and security agenda and is currently undertaking her PhD at the Coral Bell School of the ANU. Her opinions have been published in The Canberra Times, The Lowy Institute’s Interpreter and the Australian Strategic Policy Institute’s Strategist. Susan is also a member of the Australian Civil Society Coalition for Women, Peace and Security
International humanitarian law is one of the key legal frameworks under which prosecution of these crimes can occur. Professor Geoff Skillen spoke to the law and practicalities of investigating and prosecuting sexual violence as war crimes, crimes against humanity and genocide. Professor Skillen had careers as a legal officer in the Australian Defence Force and with the Office of International Law in the Attorney-General’s Department from 1975 to 2010. He is now an Adjunct Professor at the ANU College of Law. He works in several international law disciplines, including international humanitarian law, human rights law and criminal law. He is a long standing member of the Red Cross movement, and since 2010 he has been the Chair of Australian Red Cross’s national committee on International Humanitarian Law.
While justice is an important social good, it is also driven by service to survivors. Nikki Marczak works with Yazidi survivors of Daesh and advocates for recognition and justice. Nikki Marczak is the Director of Yazda Australia and Deputy Director of Yazidi advocate Nadia Murad’s campaign. Nikki is a genocide scholar with a research focus on women’s experiences during genocide. She is a member of the Australian Institute for Holocaust and Genocide Studies, co-editor of Genocide Perspectives, and the Armenian Genocide Museum-Institute’s 2016 Lemkin Scholar.
Although Australia has legislation criminalising these acts, political will is needed to ensure their implementation. Ms Gai Brodtmann MP spoke to the issues through a parliamentary lens. Ms Brodtmann is the Federal Member for Canberra and the Shadow Assistant Minister for Cyber Security and Defence. She has championed the prosecute; don’t perpetrate campaign in Federal Parliament. She has made several speeches on the issues and recently sponsored a motion calling for the investigation and prosecution of sexual violence perpetrated by Australians in Syria and Iraq.
Transcript of keynote address
I would like to acknowledge we are meeting on the land of the Ngunnawal people tonight; to recognise their experiences of injustice, dispossession and genocide; and to pay my respect to their elders, past present and emerging, particularly the wonderful indigenous women on whose land we meet today.
There are members of the Yazidi community in the audience tonight and I’d really like to thank them for coming. I’m so glad you could travel from Wagga Wagga to be here.
This topic can be traumatic, particularly for those whose families and communities are directly affected by violence. My presentation will include testimony of people who survived captivity and sexual violence as well as stories of perpetrators. I’d ask you to recognise that some of the language used to describe these issues has different meaning and resonance across different cultures.
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Sexual violence has always happened in times of war. The phrase ‘rape, loot, pillage’ is so ubiquitous that people associate it with Viking wars, Genghis Khan, pirates, the Russian occupation of Germany, the Vietnam war, the Rwandan genocide, and the more recent ongoing conflicts in the Congo and South Sudan.
Over recent decades, international law has evolved to prohibit sexual violence in armed conflict. The Genocide Convention and the Geneva Conventions both include a gendered dimension. But most notably, the Rome Statute of the International Criminal Court recognises rape, sexual slavery, forced pregnancy, forced sterilisation and other forms of sexual violence as crimes against humanity.
When sexual violence is perpetrated as part of an armed conflict, it is a war crime; when that violence is widespread or systematic, it’s a crime against humanity; and when it’s used to destroy in whole or in part, an ethnic, racial or religious group, it is genocide.
But even the UN Security Council has acknowledged the woeful lack of prosecutions and there remain issues with jurisdiction. These gendered crimes are often perpetrated by people from another country, against people from another country, in another country.
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In Syria and Iraq, Da’esh kidnapped women, published entire doctrines on the use of sex slaves and threw LGBTQI people off rooftops for their sexuality. In so doing, they committed serious breaches of the laws of war. By definition, Da’esh have committed war crimes, crimes against humanity and genocide.
Rape, sexual slavery, enforced prostitution, forced pregnancy, forced sterilisation and forced marriage are all covered as the outrages upon personal dignity prohibited under common article 3 in each of the four Geneva Conventions.
Da’esh developed a dedicated infrastructure for the enslavement, trafficking and rape of women and girls throughout Syria and Iraq. Investigations by Human Rights Watch uncovered a network of warehouses where victims were held, viewing rooms where they were inspected and marketed, and a dedicated fleet of buses used to transport them. In 2014, a total of 5,270 Yazidis were abducted. To handle them, Da’esh developed a detailed bureaucracy of sex slavery, including sales contracts notarized by their own court system. In order to comply with their doctrine on sexual slavery, women were forced to take oral contraceptives to ensure they didn’t get pregnant while being raped.
This level of organisation shows that Da’esh’s efforts were both ‘systematic’ and ‘widespread’, meeting the threshold for crimes against humanity. The crime against humanity of sexual violence requires that the perpetrator committed an act of a sexual nature against one or more persons or caused them to engage in an act of a sexual nature by force, or by threat of force or coercion. Rape, sexual slavery and forced marriage can all be crimes against humanity in their own right.
The damning report of UN’s Independent Commission of Inquiry on Syria, entitled ‘They came to destroy us’, stated that Da’esh “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; the infliction of conditions of life that bring about a slow death; the imposition of measures to prevent Yazidi children from being born, including forced conversion of adults, the separation of Yazidi men and women, and mental trauma; and the transfer of Yazidi children from their own families and placing them with ISIS fighters, thereby cutting them off from beliefs and practices of their own religious community, and erasing their identity as Yazidis.
The public statements and conduct of ISIS and its fighters clearly demonstrate that ISIS intended to destroy the Yazidis of Sinjar, composing the majority of the world’s Yazidi population, in whole or in part.” This report is profound because it documents the nature of the genocide Da’esh has perpetrated against the Yazidis and it describes the sexual and gender based violence in particular detail.
The International Criminal Court has stated that Da’esh’s atrocities constitute serious crimes under international law, but neither Syria nor Iraq are Parties to the Rome Statute. As such, these crimes are outside the court’s territorial jurisdiction. The court could still investigate if the matter was referred from the Security Council. Indeed, the Security Council has made several attempts to do so, but the geopolitics at play in the region, especially in Syria, mean that Russia continues to veto any resolutions to act. Regardless, the principle of complementarity of the International Criminal Court obliges all States Parties to investigate and prosecute those international criminals within their respective jurisdictions. That means countries like Australia that are party to the Rome Statute, have an obligation to investigate and prosecute.
In recent days, internationally renowned campaigner on sexual violence in armed conflict, Angelina Jolie said that too often, sexual violence isn’t seen as a serious enough crime to warrant significant action, it’s “not grave enough to mount prosecutions and imprison those responsible.” In 2014, Nadia Murad was 21 when Da’esh kidnapped her from her village of Kocho in northern Iraq. She was sold into sexual slavery in Mosul where she was beaten, tortured and gang raped for a month before escaping her captors. She recently published a book, entitled ‘The Last Girl’, because she wants to be the last girl who has to experience such violence and deprivation.
Imprisoning those responsible for the crimes against Nadia and women like her will be difficult, but it is possible. Successful prosecutions rely on high quality investigations and evidence. To get this we need the political will to mobilise the necessary resources. The prosecute; don’t perpetrate campaign has a range of actions members of the public can take to help build political will. We have been working across all political parties to get agreement that we should be enforcing our own laws. Then, we need to advocate for the tasking and resource allocation to overcome the practical barriers to investigation and prosecution.
Right now, we have a unique moment in time to help end impunity for sexual violence in armed conflict. Over 30,000 foreign fighters travelled from 89 countries to fight with Da’esh in Syria and Iraq. Many of those foreign fighters came from countries with national legislation criminalising sexual violence as war crimes, crimes against humanity and genocide. Approximately 200 of them came from Australia. Others came from the US, UK, NZ, Canada, Germany, Belgium, France, Netherlands and the countries of Scandinavia.
In 2002 Australia criminalised war crimes, crimes against humanity and genocide including sexual violence by updating our Criminal Code Act. These crimes now fall under Division 268 of the Criminal Code. The crimes perpetrated by Da’esh may also come under our slavery and human trafficking legislation which fall under Divisions 270 and 271.
We have a whole of government policy to implement the suite of resolutions from the UN Security Council on Women, Peace and Security. Indeed, we championed the Women, Peace and Security agenda when we were a member of the Security Council. Our Foreign Affairs Minister has been named a champion of the UK government’s Prevention of Sexual Violence Initiative and we have an active civil society working in this space.
Some Yazidi survivors have reported Australians as their most brutal rapists. You may know the name Khaled Sharrouf. Formerly of Sydney, Sharrouf was Australia’s most recognisable and gruesome member of Da’esh, notorious for having his seven year-old son pose for social media photographs holding a severed head. Last year, on ABC’s 7:30 Report, four women identified Sharrouf as the man who purchased them from a slave market and held them captive in his house on the outskirts of Raqqa.
Speaking under a protected identity, one woman said “they told two of us to marry him. And he was taking them to a lonely, private room and spending two or three hours with them. Sometimes he was taking one of them late at night and bringing her back in the morning.” Another woman explained, they had to do anything his children asked, “we were their servant and slaves. We weren’t allowed to disturb them or rebuke them. That went for the entire family. We had to do anything they wanted.” “The children were holding knives and told us that they were going to kill us. They were calling us infidels. ‘All Yazidis are infidels,’ they said. ‘All the world must convert to Islam.’”
Those women had hoped the Australian Government would seek retribution for what Khaled Sharrouf and his Australian comrades did to them. But rather than charge Sharrouf with these crimes, in February this year, the Australian Government merely revoked his citizenship. Shirking their obligations under the Rome Statute and the guarantee of non-recurrence in the UN General Assembly resolution they themselves co-sponsored to aid the investigation and prosecution of Da’esh’s crimes. Khaled Sharrouf is now only a citizen only of Lebanon, that for a range of internal political and historic reasons won’t prosecute war criminals.
Some commentators argue that people like Sharrouf should be left to die on the battlefield. But dying on the battlefield is nothing more than giving extremist jihadis exactly what they want, a martyr’s death in battle for a caliphate. A country like Australia, that supports the rule of law and a rules-based global order, must surely bring these individuals down to the status of criminal.
Those foreign fighters who are returning to Australia are still only being charged with terrorism related offences. Last year, Turkish authorities arrested Neil Prakash, who was thought to be Australia’s most senior Da’esh operative. Prakash has been implicated in a range of plots in Australia and elsewhere. He has been described as a fighter but his primary roles seem to have been as spokesperson and recruiter. 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.
But at the very least, he could be charged with inciting genocide, including through his social media posts. In one such post, he called on all Muslims to ‘kill this disbeliever, this one that denies Allah… the one that associates with idols.’ Given the ethnic and religious make-up of Da’esh-controlled territory at the time, Prakash’s post could be considered an incitement to kill Yazidis who believe God is represented on earth by a peacock angel.
Australia is still in the process of extraditing Prakash back to Melbourne. Senior leadership of the Victorian Police have made public statements about the brief they have developed on his activities. He is charged with being a member of a terrorist organisation and for incursions into a foreign state with the intention of engaging in hostile activities. But he is still not being charged with any international crimes.
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If countries prosecuted their own nationals for sexual violence perpetrated as war crimes, crimes against humanity and genocide we would finally go some way to achieving justice for the victims, ending impunity for sexual and gender based violence in conflict, and implementing the Women, Peace and Security agenda. That is what this campaign is all about.
Sexual violence in war should not go unpunished. War does not excuse sexual violence and we need to show that if you rape someone, wherever you are, whatever the circumstance, you will be prosecuted.
In Australia, the prosecute; don’t perpetrate campaign is making progress. We are building the political will to investigate and prosecute. Panellists here this evening will tell you about the progress so far and how we might overcome the hurdles still ahead. We need your help to continue building the political will and to make sure it leads to the tasking and resource allocations that make prosecutions a reality and bring justice to bear. If we can make this happen in Australia, our example can be used to advocate for other countries to do the same. So, I ask you to:
- Sign the petition to the Senate calling for the investigation and prosecution of these crimes.
- Write to your MP about the issue; or
- Schedule a meeting with your MP to talk the issues through.
Hard copies of the petition are outside, as is a tablet with an electronic copy. There is a sample letter you can use to draft one of your own to your MP, and a brief you can take to a meeting. There is also a range of other material including thematic briefs and copies of ‘they came to destroy us’. Share any, and all, of this material on social media with the hashtag #prosecutedontperpetrate and a photo of you ‘getting cross’ about sexual violence in armed conflict.
I hope that we can take a getcross photo together at the end of the evening to share on social media to show our collective interest in advancing this issue.
Prosecute; don't perpetrate. 