Recently, anti-drones activist and lawyer Shahzad Akbar wrote in The Age about Australia’s alleged involvement with the US-led targeted killing program of drone strikes. Akbar followed this with a presentation on 26 July at the Castan Centre’s annual Human Rights Conference in Melbourne, where he discussed the numerous civilian deaths caused by drone strikes in the Waziristan region of Pakistan. In both these pieces of commentary, Akbar argued that Australia may now be culpable for war crimes, and prosecuted at the International Criminal Court (ICC).
The Saturday Age reported further, stating that “Australia will have to end its complicity in the US drone attacks on civilians in Pakistan or face war crimes accusations at the International Criminal Court”. Other publications have also mentioned that Australia may be liable for prosecution as a party to the Rome Statute (the treaty that governs the operation of the ICC).
At the heart of Akbar’s claim are allegations regarding the involvement of the US Pine Gap spy base with the targeted killings of al-Qaeda and Taliban fighters. It is alleged that Australia has provided surveillance assistance that the US has relied on to launch the drone strikes. In the course of these strikes, however, hundreds of civilians have allegedly also been killed. Akbar has documented the deaths of these civilians, including children.
The recent commentary has relied on a decision handed down by the Peshawar High Court in May denouncing the civilian casualties as “war crimes” and declaring the drone strikes to be illegal. It has been alleged that the court ordered the Pakistani government to pursue Australia at the ICC. For the record, the court decision mentions neither Australia nor the ICC.
Nevertheless, Akbar is campaigning for this course of action, and so it is important to examine the complexities, legalities and realities of such an option. In our view, any ICC prosecution against Australians for their alleged involvement with US-led drone strikes is highly unlikely, for several reasons.
First, Pakistan is not a party to the Rome Statute. This is not an obstacle in and of itself, because a state that is not party to the statute can still accept the jurisdiction of the ICC with respect to crimes committed on its territory, and request the Prosecutor to investigate. If Pakistan does refer the situation to the ICC prosecutor, however, any statute crimes committed on that territory – including any committed by Pakistani nationals – would be open to investigation. Pakistan may be reluctant to go down this path.
The second issue is whether the ICC would have subject matter jurisdiction in this case – whether a “crime”, as defined under the Rome Statute, has actually occurred. “Statute crimes” include war crimes, crimes against humanity and genocide. Akbar is pursuing international criminal justice on the basis that the civilian deaths arising from the drone strikes constitute war crimes.
However, war crimes can only be committed during an armed conflict. Questions remain about whether an armed conflict actually exists in Pakistan.
Third, and importantly, “Australia” cannot be prosecuted by the ICC. The ICC is based on a rationale of individual – not collective – criminal responsibility, and it is only people, not countries, that can be put on trial. The purpose of international criminal justice and the practicalities of an international court mean that the ICC prosecutes those individuals who are most responsible for the crimes.
The US has a Bilateral Immunity Agreement with Pakistan to ensure that no Americans accused of committing international crimes in Pakistan can be sent to an international tribunal. Such agreements are recognised by the ICC, meaning that Americans would be immune from prosecution in any Pakistani situation investigated by the ICC Prosecutor. Given the absence of potential American defendants, it may be that the ICC Prosecutor would not consider the alleged role played by Australians in the drone strikes as sufficiently important to warrant investigation and prosecution.
If these hurdles could be overcome, and an ICC investigation into the role of Australians in the drone strikes did occur, there are further questions of who would be liable, and for what. The prosecution of war crimes committed by the use of drones is untested. The ICC Prosecutor would need to be able to identify which people were responsible for Australia’s involvement in these drone strikes, and the degree and type of involvement in these strikes. They would need to establish the extent of that person’s knowledge and intention with respect to these strikes.
It may be difficult to establish culpability for deaths that result from drone strikes unless it can be proved that Australia assisted with those strikes in particular. It is not clear how many drone strikes Australia may have been involved with. Finding enough evidence to investigate – let alone form an indictment, and let alone run a successful prosecution – is unlikely.
Finally, it is important to acknowledge that the ICC operates as a court of last resort. This means that Australia would be obliged to investigate and prosecute any Australians accused of committing Rome Statute crimes. Only if Australia was “unwilling or unable” to do so, would the ICC step in.
Shahzad Akbar’s claims about the number of civilian deaths in drone strikes are deeply concerning. If it's true, as he claims, that 30 civilians are killed for every military target, drone strikes are clearly not a proportionate response. Such claims – and Australia’s involvement in drone strikes – must be rigorously investigated.
We agree with the calls for more transparency about Australia’s alleged assistance in these strikes. However, it remains highly unlikely that Pakistan would refer the situation in Waziristan to the ICC – or if it did, that this would ever result in a prosecution of an Australian.
Certainly, it is not as simple as Pakistan “taking” Australia to the ICC. ICC jurisdiction is complex and the limitations on it are necessary, partly in order to make the most appropriate use of the institution’s resources. It is not helpful to expect more of the institution than it is legally or practically able to achieve. Exploring alternative accountability options, including other legal avenues, is more appropriate.
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