The ABC’s recent Foreign Correspondent’s investigation reminds us of the ongoing need for justice for crimes against humanity perpetrated against the Yazidis. Australia can and should prosecute nationals who have engaged in such acts with the full weight of law.

This month marks the ninth anniversary of ISIS’ genocide of the Yazidi minority group in Syria and Iraq. The Yazidi are an ethnic and religious group who have lived primarily in Syria, Iraq, and Turkey for millennia. Theirs is one of the first monotheistic religions. They believe in the same God as Christians and Muslims and pay homage to God’s favourite angel who fell to earth in the form of a peacock. But ISIS believed them to be heathens and sought to eradicate them. They kidnapped their boys and turned them into child soldiers, forcing them to convert to Islam. They killed thousands of their men. Yazidi women and girls were kidnapped and forced into sexual servitude across the region.

Unlike other crimes against humanity, this genocide and the sexual violence used therein was not just committed by people from another country on some far-flung part of the globe. Over 30 000 foreign fighters joined ISIS from 89 countries. Many of those countries like Australia, the UK, Canada, Sweden, Norway, Germany, and France are States Parties of the Rome Statute of the International Criminal Court and therefore have an obligation to investigate and prosecute these crimes perpetrated by their own nationals in their own national court systems.

On 27 July, ABC’s Foreign Correspondent featured a full-length investigation into the genocide, the 2600 Yazidis who remain missing, and efforts for justice and accountability. Stephanie March produced the report which highlighted the work of the mass graves unit in Iraq, as well as Yazda and UN Investigative Team to Promote Accountability (UNITAD) who are gathering evidence of war crimes, crimes against humanity, and genocide perpetrated against the Yazidis, including through the use of sexual violence.

It is estimated over 200 Australians travelled to Syria and Iraq to join ISIS and other terrorist organisations in the region. During Foreign Correspondent, March revealed the names of two new perpetrators of crimes against Yazidi women while they were fighting in Syria and Iraq. They are Mohammed Ahmad (also known as Abu Omar) and one of his two sons. The names of these perpetrators were identified as part of the evidence gathering process of Yazda, a Yazidi rights-based organisation who was also crucial in the criminal prosecution of ISIS prosecutions in Germany. There is evidence that Khaled Sharrouf and Neil Prakash may also have committed international crimes related to genocide and sexual trafficking while they were with ISIS.

When sexual violence is perpetrated as part of an armed conflict, it is a war crime. When that violence is widespread or systemic, 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.

In Australia, war crimes, crimes against humanity, and genocide, including through the use of sexual violence, have been integrated into Division 268 of the Commonwealth Criminal Code 1995. Sex trafficking has also been integrated into Divisions 270 and 271 of the Commonwealth Criminal Code 1995. All of these crimes have universal jurisdiction, but prosecutions cannot be undertaken in absentia. Perpetrators need to be in the custody of the Australian Federal Police.

Decades ago, Australia had a dedicated unit for the investigation and prosecution of war criminals. But that responsibility now falls to a unit within the Australian Federal Police that also gets tasked with political investigations, which are often prioritised in a 24-hour new cycle. Now, there are a range of government organisations who gather information which may include details of these crimes, but work needs to be done to ensure those agencies share the information for the purposes of criminal prosecution. At present, some of that information, if it is gathered by intelligence organisations may not be admissible in a court of law.

In 2019, advocates of the Australian Citizenship Amendment (Citizenship Cessation) Bill argued that it was not in Australia’s national interest to allow Australians who had travelled to Syria and Iraq during ISIS’ reign to return to Australia. But the stated purpose of the bill was to enact “a common bond, involving reciprocal rights and obligations.” That notion of reciprocal rights and obligations harks as far back as the 17th century and John Locke’s liberal ideas about the social contract. Citizens are obliged to comply with the laws of the State, and the State is obliged to uphold its own laws and treaties.

Despite testimony delivered by this author to the Joint Parliamentary Committee on Intelligence and Security, and ongoing advocacy by the Yazidi community for justice for the crimes perpetrated against them, Parliament passed updated legislation continuing to allow the Minister for Home Affairs to revoke the citizenship of an individual likely to have committed such offences.

In June 2022, the High Court found it was not legal for the Minister to revoke the citizenship of someone who had been found to be involved in terrorism related offences. While in opposition, Attorney General Mark Dreyfus had told this author the prosecutions of such crimes would be a natural process of law and order under a Labor government. However, current Minister for Home Affairs Claire O’Neill publicly stated that the government would seek to renew the legislation.

Australia has a whole-of-government policy that should mean the government works towards such prosecutions. The UN Security Council has now passed ten resolutions on Women, Peace and Security that highlight the disproportionate impact of conflict on women, reinforcing State’s obligations to protect them from conflict related sexual violence, focus on their needs in post conflict recovery, and prosecute perpetrators. Australia now has its second National Action Plan for the implementation of these resolutions. Outcomes two and three of the National Action Plan are respectively “Reducing sexual and gender-based violence” and “Supporting resilience, crisis, and security, law and justice efforts to meet the needs and rights of all women and girls.” Both outcomes include actions to ensure women’s access to justice.

None the less, even outside the criminal courts, victims of Australian perpetrators have been refused access to justice. In addition to a National Action Plan on Women, Peace and Security, Australia also has a whole of government National Action Plan to Combat Modern Slavery. This document highlights the rights of survivors, and the need to take a holistic, victim centric approach, including in justice mechanisms. However, when five women who were trafficked and held in sexual servitude by Khaled Sharrouf sought access to victim support, they too were left wanting. When their case came before the NSW Civil and Administrative Tribunal, the Deputy President found against them because the acts of violence they experienced were not “in and of NSW,” regardless of the fact that the acts of violence they experienced occurred under universal jurisdiction and recognised under Federal law.

These practicalities, the structural barriers to justice for survivors of conflict related sexual violence need to be dismantled. So far, Germany is the only country in the world to prosecute a foreign fighter for the crimes they perpetrated against a Yazidi woman. This is not good enough. There can be no more excuses. Australia was the source of perpetrators of these crimes. It is home to a multitude of global experts in gender and international law. The government must now employ them to update the necessary policies and processes to make justice a reality for Yazidi survivors. Then, hopefully, the institutional architecture will exist for us to prosecute survivors from other communities too.

Susan Hutchinson is a civil-military professional with experience in the military, government and NGO sectors. She is currently a PhD Candidate at the Australian National University’s Coral Bell School of Asia Pacific Affairs. 

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