Now that the Australian Government has revoked the citizenship of notorious Islamic State extremist Khaled Sharrouf, will he ever face prosecution for the crimes he has committed in Iraq and Syria?
Last month, the Immigration Minister used a 2015 anti-terror law to revoke the citizenship of Australian-Lebanese dual national Khaled Sharrouf. Sharrouf is the first person to be subject to a law designed to revoke Australian privileges from dual citizens. Others have argued that there is some philosophical and practical justice in such action (see Rodger Shanahan writing for The Interpreter), but revoking Sharrouf's citizenship shows a serious disregard for gender justice, women's rights and international law.
Australia has an obligation to investigate and prosecute war crimes, crimes against humanity and genocide. The UN, Human Rights Watch, Amnesty International and other organisations have all published reports on Islamic State's use of sexual violence as war crimes, crimes against humanity and genocide. All of these acts are criminalised in Australia's Criminal Code Act (1995).
The principle of complementarity of the Rome Statute of the International Criminal Court (ICC) obliges States Parties who are willing and able to investigate and prosecute the crimes contained therein. Australia, as a stable economically developed country, has the capability to undertake those investigations and prosecutions. The tricky thing about investigating and prosecuting these crimes is accessing evidence against specific individuals in the midst of an active war zone on the other side of the world.
While most information on individual cases is classified, public testimonies have been made by four women who were purchased from a slave market in Syria by Khaled Sharrouf. The women positively identified him from a photographic line-up and spoke about the abuses they suffered in his house on the outskirts of Raqqa. 'Layla', speaking under a protected identity, said that '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."'
She was one of seven Yazidi women held at the site during that time. 'We were required to do anything those 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.' 'Ghazala' said that '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.'
'Layla' had hoped that the Australian Government would seek retribution for what Khaled Sharrouf and his Australian comrades did to her and her friends. She said that 'if those terrorists are ever caught, they must make sure that they will never escape.'
When sexual violence is perpetrated as part of an armed conflict, it is a war crime. When that violence is widespread or systemic and directed against the civilian population, it is a crime against humanity. When it is used to destroy, in whole or in part, an ethnic, racial or religious group it is genocide.
While forced marriage, slavery and sexual servitude can be war crimes and crimes against humanity in themselves, they are also covered by separate Australian legislation on human trafficking. The slavery offences in Division 270 of the Criminal Code Act (1995) have universal jurisdiction, so they can be applied even if neither the victim nor perpetrator is Australian and if the crime did not occur within Australia.
Australia's obligations to prosecute are not just based on the Rome Statute and our own national legislation, but also from the Security Council and whole-of-government policy. Today, the Australian National Action Plan (NAP) on Women, Peace and Security 2012-2018 celebrates its fifth birthday. The Department of Prime Minister and Cabinet has responsibility for coordinating implementation of the NAP. But the Attorney-General's Department, Australian Civil–Military Centre, Australian Federal Police, Department of Foreign Affairs and Trade, and Department of Defence all have responsibility for its implementation.
The suite of UN Security Council Resolutions on Women, Peace and Security dates back to October 2000, with the most recent resolution passed in 2015. They reiterate the obligations of Member States to prosecute those responsible for rape and sexual violence in war. Six of those eight resolutions recall the Beijing Platform for Action, the premier international agreement on women's rights and gender equality; and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). More recently, the CEDAW Committee delivered General Recommendation 30 on women in conflict prevention, conflict and post-conflict situations.
Australia was a member of the UN Security Council when it passed Resolution 1960 in 2010, recalling 'the responsibilities of States to end impunity and to prosecute those responsible for genocide, crimes against humanity, war crimes, and other egregious crimes perpetrated against civilians'. That resolution went on to note with 'concern that only limited numbers of perpetrators of sexual violence have been brought to justice'.
While Australian courts could still hear a case against Sharrouf for war crimes, crimes against humanity, or genocide, he would need to be extradited here for the hearing. So far, the relevant authority for investigating these crimes has not been provided the resources or tasking to prioritise such investigations. Now that Sharrouf is no longer even a citizen, it is even less likely that resources will be spent on his case.