Australia’s Responsibility to Prosecute in Syria and Iraq
Australia has openly declared its commitment to protecting and endorsing universal human rights, but it does not seem to be fulfilling all its obligations. There are some simple steps that could help.
Australia’s defence and foreign policy emphasises a rules-based global order, one that includes a responsibility to protect and uphold international criminal and humanitarian law (ICHL). In its 2016 Australian Defence White Paper, Australia pledged to support its partners to “achieve our common goals in protecting and promoting a stable rules-based global order.”
When Minister for Foreign Affairs Julie Bishop launched Australia’s candidature for a seat on the United Nations (UN) Human Rights Council for 2018 to 2020, she framed Australia’s role in a broader human rights tradition, one that had aided in the development of a post-World War II rules-based international order, whereby Australia “played an active role in drawing up the UN Charter, drafting the Universal Declaration on Human Rights, and the establishment of the UN Security Council.”
Nevertheless, while the UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, has described the “savage horror” and “absolute injustice” of Syria and Iraq as the “worst manmade disaster” since World War II, Australia has demonstrated little responsibility and capability to uphold the ICHL norms inherent to the rules-based global order it prescribes. Despite allegations of war crimes, crimes against humanity, and genocide in Syria and Iraq, Australia’s response has remained conspicuously less active.
With respect to Syria and Iraq, Australia can take a number of steps to demonstrate that there is no impunity for those who are most responsible for humanity’s gravest crimes.
Establish an ICHL accountability team
Australia could demonstrate its responsibility for strengthening accountability measures with respect to Syria and Iraq by developing a domestic body that exclusively addresses war crimes, crimes against humanity, and genocide, in order to satisfy its policy objectives.
Currently, Australia does not have a dedicated war crimes unit to investigate and prosecute grave breaches of international criminal law. In order to ensure that Australia has the capability and expertise, and “to strengthen accountability measures”, it should consider developing an ICHL accountability unit. The team should consist of investigators, analysts and prosecutors with experience of international criminal prosecution. Once the ICHL accountability unit has been established, the unit could be leveraged to address not only suspected atrocities in Syria and Iraq, but also other instances of organised violence, including against the Rohingya people in Myanmar.
Investigate and prepare case files for grave breaches of ICHL
Australia could investigate and prepare case briefs for those suspected of war crimes, crimes against humanity, and genocide in Syria and Iraq, including the most senior leaders, to show the symbolic value of, as well as its normative obligations to, ICHL. This mandate could be conducted by the newly devised ICHL accountability unit.
Similarly, Australia could lend resources to state and non-state groups that have the technical capability and willingness to investigate and prepare case briefs in the two theatres. In this respect, Australia could consider joining some of its partners, such as the UK, the European Union, Denmark, Norway, Germany and Canada, to support the Commission for International Justice and Accountability, a group of non-state actors that is currently investigating and preparing case briefs against the most senior actors in Syria and Iraq.
Be willing to prosecute within Australian jurisdiction
Australia could investigate and prosecute those suspected of war crimes, crimes against humanity and genocide within its jurisdiction, in accordance with international criminal law and the Rome Statute. Primarily, Australia has responded to Islamic State (IS) as a counterterrorism issue. Given the political and contested nature of the term ‘terrorism’ within Salafi narratives and the Middle East more widely, it stands to reason that, where possible, Australia should develop some capacity to respond by breaking down these narratives and by carving out an ICHL response as per the types of crimes defined in the Rome Statute.
In other words, where possible and suspected, the ICHL accountability unit should attempt to prosecute returning Australian IS fighters within its own domestic jurisdiction, for crimes such as murder, enslavement, torture and persecution, amongst others.
Provide greater support for UN initiatives
Australia could increase its support for interstate mechanisms designed to prepare case briefs for mass atrocities, such as the International Impartial and Independent Mechanism (IIIM) for Syria, adopted by the UN General Assembly, and the UN Investigative Team for Iraq, adopted by the UN Security Council. The upside is that Australia voted in favour of the IIIM resolution and has provided some financial support towards its establishment as it relies on voluntary contributions.
The downside is that Australia was by no means a leader or active player in its establishment. For example, Australia was not a co-sponsor of the resolution that proposed the IIIM to the UN General Assembly in December 2016, unlike Lichtenstein, Qatar, The Netherlands and Finland. While Australia’s financial contribution to the IIIM was $300,000, the Netherlands contributed 2.5 million euros and Finland 1 million euros.
What is more, the IIIM will fall under the responsibility of the UN Human Rights Council, on which Australia has been awarded a seat. While Australia’s low-key response, to date, is at odds with the narrative outlined in its campaign for the UN Human Rights Council, there is the opportunity for Australia to provide greater leadership and financial support to international protection and accountability mechanisms, not unlike its previous efforts in the early post-World War II era.
The creation and extension of a system of ICHL—a system that is still in the early stages of development—relies on those willing to use the law. If Australia is to continue to play an active role in shaping a rules-based global order, it must also demonstrate its responsibility to protect and promote accountability measures for grave breaches of ICHL. Australian policymakers must be willing to adhere to Australia’s obligations under the responsibility to protect and the Rome Statute by demonstrating a capacity to prosecute those suspected of humanity’s gravest crimes.
Melinda Rankin is a lecturer and tutor in international security at the Department of Government and International Relations at the University of Sydney.
This is an abridged version of a paper published online as part of the Australian Journal of International Affairs on 12 February 2018. (AIIA members have free access to the AJIA.)
This article is published under a Creative Commons Licence and may be republished with attribution.