Australia, the Rome Statute and the War Crimes Proceedings: Where are the Victims?

[Eva Buzo is an Australian lawyer and Executive Director of Victim Advocates International. She is completing her PhD on victim participation in international accountability mechanisms at the Faculty of Law at Queensland University of Technology.]

Introduction

The recent article by Rawan Arraf, director of the Australian Centre for International Justice, ‘Without genuine war crime investigations, Australians could end up in the Hague’ states that unless authorities conducted a full investigation and prosecution into war crimes in Afghanistan, Australian nationals may face investigation by the International Criminal Court (“ICC”). The recent appointment of David McLure SC by the Commonwealth Director of Public Prosecutions (“CDPP”) to prosecute cases of alleged Australian war crimes relating to Special Operations Task Group deployments in Afghanistan between 2005 and 2016 is an indication of the intention to act on the findings of the Inspector General of the Australian Defence Force (“IGADF”), which are yet to be released. Domestic investigations and prosecutions would act as a bar to Australian soldiers being prosecuted by the ICC, whose jurisdiction is triggered by national authorities being unwilling or unable to investigate and prosecute.

The move to prosecute individuals in Australia, instead of in The Hague, while a positive step for accountability, may have the effect of limiting the participatory rights of victims in the proceedings, and their access to reparations. The ICC regime allows for victims to participate, through their Legal Representatives, as participants to the criminal trial.  Upon the event of the conviction, they are also able to claim reparations either directly from non-indigent accused, or through the Court’s Trust Fund for Victims. This situation raises critical questions around the contours of complementarity and the role of victims in proceedings. While Australia has enacted comprehensive legislation to adopt the Rome Statute into domestic law, the provisions relating to victim participation were not included, and are cited only in Schedule 1 to the International Criminal Court Act 2002 where the Rome Statute is replicated in full.

This article starts by outlining the key provisions of the Rome Statute which facilitate the broad scope of victim participation at the ICC. This is followed by an analysis of the framework under which Australian soldiers will be prosecuted, including opportunities the Prosecutor could use to incorporate the views of victims post-conviction. It concludes that while victims are without standing in Australian proceedings, there are opportunities for the CDPP to include the victim community in Afghanistan in the accountability processes that concern their interests.

The Right of Victims to Participate under the Rome Statute

The Rome Statute considers victims as parties to the criminal justice process and as such, a number of provisions give victims participatory rights. Victims can make representations to the Pre-Trial Chamber on matters with respect to jurisdiction or admissibility (Article 19); regarding the authorisation of an investigation (Article 15); where the personal interests of victims are affected, the court may permit the views and concerns of victims to be presented (Article 68); and the court may award reparations to victims (Article 75). Consequently, through their Legal Representatives, victims’ interests are presented directly to the judges at all stages of the proceedings. These broad participatory rights are viewed by many as assisting in the investigation and prosecution of international crimes and would fill critical gaps in the Australian proceedings.

Challenges Facing the Australian Proceedings

During the investigation, the Australian Department of Defence put out a call for information ‘…about rumours of possible breaches of the Laws of Armed Conflict in Afghanistan’ which was available online and placed in local Afghani newspapers translated into Dari. To make a valid complaint, complainants would need to have knowledge of, and be able to recognise, a breach of the laws of armed conflict. This is unlikely considering that the victim population is predominantly illiterate. In addition to this, complainants are expected to identify these breaches of international humanitarian law to the Australian Department of Defence, the very institution that they believe is responsible for perpetrating the war crimes against them.

While the effort to have a public call for information is laudable, the approach adopted was flawed. Providing victims with the opportunity to make submissions through a legal representative would assist in mitigating these issues. Counsel can support victims to articulate the complaints in legal language and provide a buffer between the victim and the Australian Department of Defence. Subsequently, the legal representative can follow up on the complaint and transmit the developments to the client.

In addition to assisting with investigations, allowing participation of victims throughout proceedings increases transparency. Four Corners reported that their investigation uncovered a culture of impunity and cover-ups within the Special Air Service Regiment. This culture of cover-ups was illustrated by the revelation that a previous investigation into the execution of an Afghani man caught on video had determined the man had been lawfully killed because he posed a direct threat to the Australians. Input from the victim’s family could have provided additional information not sourced from the same group as the alleged perpetrator.

At present, all actors involved in the investigation and prosecution of Australian troops suspected of having committed crimes in Afghanistan are, or have been, affiliated with the Australian government. The Prosecutor himself served with the Special Operations Task Group in Afghanistan. This affiliation, while providing the Prosecutor with vital background on the context in which these alleged crimes were perpetrated, is concerning considering the deficit of trust that exists. Victim participation can assist in repairing this trust deficit by providing avenues for actors not associated with the Australian government, i.e. victims, to make submissions. Under the Rome Statute the legal representatives of victims are authorised to make opening and closing statements and, within certain limits, can cross-examine witnesses, present evidence, make legal submissions, and call victim witnesses to give oral evidence. In this way, victims’ views and concerns become part of the record of the case, and they are able to question and challenge legal submissions made by both the Prosecutor and Defence to be taken into consideration by the Court.

Opportunities Under Australian Legislation

Despite the extensive legislation to adopt Rome Statute standards into domestic legislation, the provisions relating to victim participation were not included. Overall, the Australian criminal justice system has a limited role for victims in proceedings. If a victim is not called as a witness, then their trial participation is limited to that of the general public as an observer in the public gallery. The New South Wales Deputy Director of the Department of Public Prosecutions, Peter McGrath SC states,

…it’s not a compensation system, it’s not a system designed to allow the victims to have their day in court, it’s a system that is designed to see whether the representatives of the community can be satisfied beyond reasonable doubt that the accused has committed a crime.

While the current framework is not particularly amenable to victim participation, there are two areas where the Prosecutor could elect to incorporate the views of victims post-conviction.

First, the drafting of David McLure by the CDPP suggests that charges will be brought under the Criminal Code Act 1995 (Cth) (“the Code”), and not the Defence Force Discipline Act 1982 (Cth) (“DFDA”). This occurs by virtue of section 61 of DFDA which makes defence members subject to the Code and the Crimes Act 1914 (Cth) (“the Act”) even where the crimes are alleged to have been committed outside Australia. As such, the Prosecutor could use provisions under the Act to include victim impact statements and the Court may make a reparations order.

A victim impact statement is an oral or written statement which describes ‘the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence’ (s16AAA of the Act). It may be delivered by the individual, or if the Court gives leave, a member of the individual’s family. According to Division 2–General sentencing principles (s16 of the Act), the court must take into account such of the following matters as are relevant and known to the court (d) the personal circumstances of any victim of the offence;…(ea) if an individual who is a victim of the offence has suffered harm as a result of the offence- any victim impact statement for the victim (s16A of the Act). Arguably, the strong language of this provision imposes an obligation on the CDPP to attempt to facilitate the inclusion of a victim impact statement for the purposes of sentencing.

The second opportunity, which may follow from a victim impact statement, is for the court to make a reparations order. Under section 21B of the Act, where a person is convicted of a federal offence…the court may in addition to the penalty, if any, imposed upon the person, order the offender:… (d) to make reparation to any person, by way of money payment or otherwise, in respect of any loss suffered, or any expense incurred, by the person by reason of the offence.  In order to make a determination as to the loss or damage sustained through or by reason of that service offence, the court would invite the victim or the family of the victim to make a statement describing that loss or damage. A reparations order would not only allow the victims to speak about what they have lost, but would provide some level of recognition and restitution of the physical losses experienced by the victims. 

Conclusion

The situation as it stands gives rise to three available options. The first, and most straightforward, is for the Prosecutor to use his discretion to invite victims post-conviction to deliver victim impact statements and request the court make a reparations order. This course of action requires no legislating and works within the existing legal frameworks but would necessitate facilitating victims, ideally with the assistance of a legal representative, to be connected to the proceedings.

The second option is to incorporate the victim participation provisions included in the Rome Statute into domestic legislation. While this would enhance proceedings through increased transparency and effectiveness and send a strong message of Australia’s commitment to the ICC and the rights of victims, to be effective in practice it would require incorporating the provisions into the DFDA as well as the broader Commonwealth crime legislation and/or the International Criminal Court Act. In addition to this, it would be necessary to establish a mechanism to allow victims to communicate with authorities in the pre-trial phase. This could be included in the mandate of Arraf’s proposed permanent mechanism for the investigation of international crimes.

The third option is to do nothing. The ICC was unconvinced by arguments in The Prosecutor v Saifal-Islam Gaddafi and Abdullah Al Senussi that the absence of guarantees for victim participation and reparations in the Libyan national system was a reason to rule that Libya was unable to effectively prosecute the accused. Consequently, and regretfully, there is no pressure for national jurisdictions to give victims the same recognition they receive under the Rome Statute.

There is a great opportunity here for Australia to face its shortcomings in Afghanistan head on by recognising the individuals who have been impacted by the misconduct of the Australian Special Forces. Foreign Minister Marise Payne has stated Australia’s role in Afghanistan is to help ‘the Afghan people chart a course towards peace and a more secure and prosperous future’. The alleged war crimes undoubtedly have shaken Australia’s credibility in delivering this objective. Transparent and inclusive investigations and prosecutions, in which victims can participate, will go a long way to restoring that credibility.