International Criminal Court building
International Criminal Court (Image: Wikimedia Commons)

With allegations of the commission of war crimes by Australian special forces in Afghanistan now appearing to be large scale, together with the emerging pattern of a policy of cover ups by special forces personnel at the scene of the crimes, Australia must ensure it conducts genuine and effective investigations, and where appropriate, prosecutions into all allegations of crimes.

If it fails to do so, Australian nationals may face investigation by the International Criminal Court (ICC) in The Hague.

Earlier this year, the appeals chamber of the ICC overturned a controversial decision by a lower chamber in 2019, and allowed the prosecutor to open an investigation into allegations of war crimes and crimes against humanity in Afghanistan.

This can include allegations of crimes committed by individuals in the US and other Western forces, Afghan forces, the Taliban and the CIA.

The ICC, being a court of last resort, only steps in if it is shown that there has been a failure by national authorities to genuinely investigate and prosecute allegations of crimes. The US Trump administration responded angrily to the ICC decision and has threatened retribution against the court, the ICC’s prosecutor and key persons within her office.

In 2019 the Australian government emphasised the importance of national investigations and prosecutions, but Australia must show more action to give effect to these statements and should set up a permanent mechanism for the criminal investigation of international crimes.

The separate and ongoing inquiry by the Australian Defence Force Inspector-General is vital. It is investigating more than 55 separate incidents by special forces. However, the defence inquiry cannot initiate criminal investigations that lead to charges for prosecutions.

That role first lies with the Australian Federal Police (AFP).

It is encouraging that that the AFP travelled to Afghanistan last year to interview witnesses into a number of incidents under investigation. In addition, last month, the AFP sought pre-brief advice from the Commonwealth Director of Public Prosecutions and the advice of senior counsel, meaning we could see ground-breaking war crimes charges against individuals by the end of 2020.

Given the gravity and widescale commission of the crimes, the allegations should require the opening of structural investigations to determine patterns of criminality.

A specialist war crimes unit would act swiftly in such cases, and Australia does not have a dedicated and specialist team to investigate international crimes, unlike other countries in Europe, and the US and Canada.

Australia needs to establish a specialised investigations unit, whether it’s within the AFP or outside it, that is permanent, well-resourced and skilled. It should be proactive and provide minimum standards of transparency to the public who have a right to be informed about these matters, which can be done, where appropriate, without adverse impact on the investigations themselves.

Investigations and prosecutions of war crimes allegations are necessary for the accountability process. They are also a fundamental part of the healing process for the victims, their families, the Australian people, the defence force and the international community as a whole.

Failing to do so risks undermining efforts to prevent the commission of these crimes and entrenches the climate of impunity for the perpetrators. The war in Afghanistan has been devastating to the Afghan people with enormous loss and suffering and Afghan civilians continue to bear the brunt of the violence.

A more concerted and permanent response to investigate and prosecute all allegations of war crimes is needed.

Rawan Arraf is the principal lawyer and director of the Australian Centre for International Justice.

Peter Fray

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