Experts Urge Australia To Pay Compensation Owed To Victims Of War Crimes In Afghanistan

GENEVA (7 August 2024) – A group of independent experts* today called on Australia to immediately fulfil its commitment to compensate the families of 39 murdered victims of war crimes committed by the Australian military in Afghanistan.

In 2020, a military inquiry found that Australian soldiers killed 39 unarmed prisoners in Afghanistan, when deployed in the NATO-led International Security Assistance Force. Some victims were tortured before being killed.

“Australia has a duty to compensate victims of summary executions and torture under international human rights law and international humanitarian law,” the experts said. “It is unconscionable that families of deceased victims such as Mr. Nazar Gul, Mr. Yaro Mama Faqir and Mr. Ali Jan, all murdered in 2012, have been left destitute in the harsh living conditions of rural Afghanistan for over a decade.” Gul had three wives and 17 children depending on him.

The experts acknowledged that the Australian Government is making genuine, albeit slow, efforts to criminally investigate and prosecute the perpetrators and has pledged to compensate the victims.

“The inquiry established that compensation is owed to the victims and their families and as such, it is unacceptable that compensation has still not been paid almost four years since the Australian Government agreed to pay, and 12 years since some murders occurred,” they said.

In July 2024, Australia finally adopted regulations to enable compensation. However, Australia approaches compensation as a form of charity at the discretion of its military, not as a legal right of victims under international law.

“The scheme fails to provide an enforceable right to compensation, there are no clear and human rights-consistent criteria as to the grounds and amount of compensation, due process and judicial safeguards are inadequate, and there is no requirement to provide information to or consult with the victims,” the experts said.

In addition to compensation, international law requires Australia to provide measures of rehabilitation including medical and psychological care, legal assistance and educational or other support to the victims’ families, including their children, spouses, and other family members recognised under Afghan law. Full recovery and rehabilitation may also require acknowledgement of the truth, apologies, and public commemoration of the victims.

“Regrettably, Australia has not directly apologised to the victims and their families or informed them about its investigations, prosecutions or military reforms, and has not yet enabled their families to participate in Australian proceedings”, they said. “The Australian War Memorial even publicly recognizes one person found responsible for murders in a civil case as a war hero, ignoring and degrading the victims.”

The experts acknowledged the challenges of paying compensation given the political and security environment in Afghanistan and the lack of diplomatic relations with the de facto authorities. “However, there are feasible solutions available to facilitate compensation. We offer our assistance to that end,” they said.

The experts also urged other states who fought in Afghanistan to thoroughly review their own activities, especially any allegations of war crimes, with a view to ensuring criminal accountability and reparations.

The experts are in contact with the authorities on this matter.

*The experts: Ben Saul, Special Rapporteur on the promotion and protection of human rights while countering terrorism; Richard Bennett, Special Rapporteur on the situation of human rights in Afghanistan; Laura Nyirinkindi (Chair), Claudia Flores (Vice-Chair), Dorothy Estrada Tanck, Ivana Krstić, and Haina Lu, Working group on discrimination against women and girls; Bernard Duhaime, Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence; Morris Tidball-Binz, Special Rapporteur on extrajudicial, summary or arbitrary executions; and Alice Jill Edwards, Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.

The Special Rapporteurs are part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN Human Rights system, is the general name of the Council’s independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organisation and serve in their individual capacity.

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