If Australia is not earnest and effective in investigating and prosecuting the war crimes allegedly committed by Australian special forces in Afghanistan, as outlined in the Brereton report, the International Criminal Court (ICC) may have to step in and prosecute, and Australians will find themselves in The Hague.
Australian political and military leaders are all saying the right things, but saying is not the same as doing. Further, domestic prosecutions may prove to be difficult, meaning that the ICC should be in the back of everyone's mind as a potential eventuality.
The ICC is the world's first permanent response to international crime. The Rome Statute, the treaty which created the court, was adopted in 1998 and entered into force in 2002. The court prosecutes individuals for international crimes - namely war crimes, crimes against humanity, genocide and the crime of aggression.
States sign up to the Rome Statute, which is a treaty, voluntarily, which gives the court jurisdiction to prosecute crimes committed by nationals of a state party or crimes committed on the territory of that country. Crimes can also be prosecuted if they are referred from the UN Security Council pursuant to the UN Charter if the state is not a party to the Rome Statute.
The ICC looks at the actions of individuals, not states. Australia will therefore never find itself at the ICC, but Australians might, which should be a serious cause for concern on the part of the Australian military, political leaders and also soldiers.
Australian political and military leaders are all saying the right things, but saying is not the same as doing.
The ICC, and international criminal justice more generally, focuses on higher-ranking individuals such as political leaders including heads of state, who have no immunity at the ICC, as well as military commanders and rebel leaders. But it can also prosecute other lower-ranking perpetrators.
The Rome Statute notes that a military commander or non-military leader can in certain circumstances be held responsible pursuant to the concept of superior responsibility for crimes committed by forces under his or her authority. Therefore, even if they did not pull the trigger themselves, superiors can still find themselves in the dock in The Hague.
There is already an investigation taking place at the ICC on the subject of Afghanistan, focusing on war crimes and crimes against humanity, but it is focused on crimes committed by Afghan forces, the Taliban and US nationals. The US has outright denied that the ICC has jurisdiction over its citizens, and this has resulted in international condemnation.
Earlier this month 72 state parties to the Rome Statute, including Australia, expressed their support for the ICC in the face of US sanctions against ICC chief prosecutor Fatou Bensouda and another senior official engaged in the Afghanistan investigation. There is also a preliminary investigation at the ICC into crimes committed by soldiers from the UK in Iraq.
Australia is a state party to the Rome Statute, having signed it in 1998, and so too is Afghanistan, which acceded to the statute in 2003. The crimes were allegedly committed by Australian nationals in the territory of Afghanistan, therefore any way you look at it the court has jurisdiction.
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- Michelle Grattan: Australia's war crimes in Afghanistan: how could those up the chain not know?
Generally, the ICC can only prosecute crimes from the date when the Rome Statute entered into force for the country in question, which for Australia was 2002, covering most of the time Australia has been in Afghanistan and the period in which the crimes were committed.
The ICC complements national jurisdictions and can only prosecute if the country in question, such as Australia, is unable or unwilling to do so, therefore if Australia prosecutes these crimes domestically there is no place for the ICC.
It is therefore in Australia's best interests to take these allegations and the findings of the report seriously and to institute prosecutions in Australia.
A war crimes trial in The Hague would damage not only the reputation of Australia globally, because it would communicate that Australia does not take war crimes seriously enough to prosecute its own people, but it would also further damage the reputation of the special forces within Australia and its authority when serving abroad.
These alleged crimes therefore require a strong domestic response, and that can be done through formal criminal investigation and prosecutions. It is time for Australia to take responsibility for its actions overseas.
- Shannon Maree Torrens is an international and human rights lawyer. She has worked on war crimes at the UN international criminal courts and tribunals and holds a PhD in international criminal law from the University of Sydney.