To develop that same level of expertise,the AFP and the CDPP will require additional resources,and most importantly the specialist training and skills to investigate and prosecute these crimes. The logical home for any permanent unit would be in the AFP.
For many years Australians have stressed the need for such concentrated expertise. Supporters include Professor Tim McCormack,who currently serves as special advisor on IHL to the Prosecutor of the International Criminal Court,Mark Ierace,former international criminal prosecutor,and now a NSW Supreme Court Justice,and John Ralston,former international criminal investigator,who helped establish the Institute for International Criminal Investigations in The Hague,an institute where the most dedicated investigators receive training.
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There are serious challenges and barriers to investigating and prosecuting extraterritorial crimes that do not arise in domestic matters and require creative strategies,international co-operation,and sharing of expertise for successful prosecutions. Investigators and prosecutors must overcome jurisdictional constraints,language,cultural and technical barriers,in addition there are issues with access to crime scenes and other relevant evidence.
Specialised units deliver depth of experience and over time the quality of investigations improves and investigation time decreases. In establishing such a body,Australia would be joining many countries,such as the Netherlands,Germany,France,Switzerland,Sweden,Britain and the US,which have long-established war crimes units that are actively investigating atrocities in Syria,Iraq,Myanmar,and the Democratic Republic of the Congo to name just a few.
More specifically,in relation to the Afghanistan allegations,we need to ensure that the AFP and the CDPP will conduct investigations and prosecutions effectively and genuinely. Otherwise,Australian nationals may face the International Criminal Court in The Hague. A parliamentary inquiry could be set up now to examine whether the AFP has the skills,expertise and resources to undertake the referrals to come,and specify the reforms needed to properly investigate and fund these investigations and prosecutions. It should also commit to reviewing performance periodically.
The opportunity is now to consolidate any build-up of Australia’s expertise in investigating and prosecuting war crimes by special forces in Afghanistan and establish a permanent investigations unit,while developing a national strategy and program to join the global fight to disrupt the impunity that exists for those who commit atrocities and to assist victims and survivor communities around the world in their struggle for justice and accountability.
Rawan Arraf is principal lawyer and director of the Australian Centre for International Justice,a legal centre that has been working with survivor and victims’ communities on criminal complaints to the Australian Federal Police.
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