Australia High Court declines to provide reparations to Yazidi victims of enslavement, sexual violence and crimes against humanity perpetrated by an Australian foreign fighter of so called “Islamic State”

London, Sydney, 30 April 2021 – This month the High Court of Australia refused to grant special leave to appeal a decision of the Court of Appeal of New South Wales, which held that five Yazidi women, represented by Hogan Lovells on a pro bono basis, were not eligible for victims’ support under the New South Wales Victims Support Scheme.

The Scheme entitles victims of an "offence", involving the commission of "acts of violence", to a "recognition payment" (of up to Aus $ 10,000) and other forms of support, including counselling services. The five women who applied were bought as slaves by a former Australian national and New South Wales resident, Khalid Sharrouf   and were subjected to various forms of inhuman and degrading treatment, including sexual violence,whilst they were held captive at his house in Syria. The Court also ordered the Yazidi women appellants to pay the State’s costs of responding to the application for special leave to appeal. The survivors have been represented by global law firm Hogan Lovells on a pro bono basis.

The Yazidi women have been co-operating with Australian Federal Police investigations since 2016 when they identified the Sharrouf as the alleged offender. It has been reported that, despite being a convicted terrorist and on a “watch list”, he managed to leave Australia on an out-of-date passport.  This was confirmed by Julie Bishop, when she was Australia’s Foreign Minister in 2014. He has been designated as a listed person under the UN and Australian sanctions lists since 2017.

The primary argument advanced by the lawyers acting pro bono for the five victims is that the definition of “offence” in the New South Wales Victims Rights and Support Act ought to be interpreted as including extra-territorial international crimes proscribed by the Criminal Code of Australia, over which Australia recognises the right to assert universal jurisdiction. Additionally, they referred to Australia’s international human rights obligations to victims of sexual violence, which include provisions “to establish national programmes for reparation and other assistance to victims in the event that the parties liable for the harm suffered are unable or unwilling to meet their obligations.” The Australian Courts, however, did not engage with the arguments on Australia’s obligations under international law and rejected their entitlement to any compensation under the domestic scheme.

 “Survivors of conflict-related sexual violence and other related crimes globally, have been waiting for compensation and reparations for a long time. They have the full right to receive remedies for what happened to them and have a wide range of urgent needs to rebuild their lives. Ensuring such remedies is not only the responsibility of the states where the crime was committed, but a global and collective moral imperative”, said Esther Dingemans, the Acting Executive Director of the Global Survivors Fund.

“Recent years have seen increased criminal prosecution of perpetrators of conflict-related sexual violence under domestic and universal jurisdiction regimes. However, very few of the survivors, who in many cases have helped build the prosecution cases, have received any form of compensation or reparations awarded through the criminal justice procedures. Similarly, as this case illustrates, survivors of conflict-related sexual violence, can rarely relieve themselves by pursuing compensation and reparations through civil litigation. Courts worldwide, including Australia, should strive to apply the existing laws in the best interest of the victims, and policy-makers and legislators should consider necessary changes that will facilitate such an approach” added Igor Cvetkovski, Senior Advisor on Reparations with the Global Survivors Fund.

It has also been reported that the New South Wales Criminal Commission began attempts to seize assets belonging to the offender in 2016.  But the victims’ lawyers have said that the State has not responded to their requests for information in relation to these reportedly seized assets.

Lawyers for the appellants are also keen to understand what level of  IS-related assets have been frozen in Australia under international sanctions and what processes (with due process guarantees for the designated individuals) have been developed to assess what is likely to happen to those assets.

The lawyers are currently considering bringing a complaint to the international UN human rights treaty bodies.

UN Special Rapporteur on Extrajudicial Killing, Dr Agnes Callemard, who has supported the case from the start, said “I am disappointed to see than Australia did not make available victims assistance for the gross violations of human rights endured by these women.  There remains a question on how reparations should be funded, particularly in light of the involvement of many thousands of foreign fighters in the Daesh atrocities.  Clearly, there is an urgent need for transparency  by Member States to disclose the values of the assets that have been frozen by virtue of Daesh  Sanctions.  We need to ensure these assets or indeed even the interest on those assets is mobilised for the benefit not to the State, but of the victims who have endured mass atrocity crimes and sexual violence in conflict and also to facilitate criminal prosecutions.”

Taban Shoresh, founder of the Lotus Flower, which runs programmes in the refugee camps in Iraq and supports the women said, “The world watched a genocidal campaign against the Yezidi community in August 2014. A group of brave Yezidi women took a courageous step forward to bring about some form of justice against an Australian national six years ago. Since then we have submitted our case to various courts in New South Wales, only to be rejected.  It feels like the women have little State support or sympathy. We've now exhausted all legal domestic remedies. The world’s headlines are no longer reporting on the lack of justice for Yezidi women but we continue to support them and will continue to support for the women to have a right to find some form of justice.

If anything has been shown in this process, it is the lack of legal support for victims of war crimes on the domestic level.  We will now place our trust in the international human rights system to provide an effective remedy without which, victims of war crimes have no where to turn.”

Abid Shamdeen, the Executive Director of Nadia’s Initiative, said, “All survivors of ISIS’ genocide against the Yazidi community deserve justice. In particular, female survivors of sexual violence deserve recognition and compensation for the abuse they endured at the hands of ISIS militants. If we do not honour their right to justice and reparations, we are sending a dangerous signal that crimes against humanity, war crimes, and genocide will be met with impunity instead of accountability. As a result, the international community will be complicit in the perpetuation of these crimes and continued traumatization of survivors.”

Nadia Murad, Nobel Peace Prize Laureate and UNODC Goodwill Ambassador, is a leading advocate for survivors of genocide and sexual violence.

Yasmin Waljee,  International Pro Bono partner at Hogan Lovells said, “We are disappointed that the High Court of Australia did not allow us to advance arguments on behalf of our Yazidi clients on the issue of victims’ assistance. We are equally disappointed not to have the opportunity to have the Court address the points we have consistently raise about Australia’s human rights obligations and commitment to addressing sexual violence in conflict.  We will now consider with our clients what avenues are available to them under international law.”

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