Yazidi women fail in claim for compensation in Australia for actions of Isis fighter Khaled Sharrouf
Five Yazidi women who say they were held as slaves by the notorious Australian terrorist Khaled Sharrouf have failed in a high court bid for compensation.
Lawyers for the women have told the Guardian they are now considering lodging a complaint with United Nations bodies focusing on “Australia’s duty to provide an effective remedy” for survivors of sexual violence and slavery.
The lawyers have also written to the foreign minister, Marise Payne, seeking details of “any assets owned by or related to Sharrouf which have been frozen by the Australian government” as part of their ongoing battle for compensation.
Sharrouf – an Isis fighter who made international headlines in a photograph standing next to his young son holding a severed human head – is presumed to have died in 2017 in a US airstrike.
He had fled Australia in December 2013 using his brother’s passport with the apparent intention of travelling to Syria, ministers have previously told parliament.
The five women of Yazidi ethnicity at the centre of a protracted legal battle say they were victims of acts of violence in the Syrian city of Raqqa and northern Iraq in 2014.
The women allege that they were “kept as slaves” in Sharrouf’s home, according to documents submitted to the New South Wales civil and administrative tribunal.
The women say Sharrouf subjected them “to degrading treatment, physical and emotional threats, attempted rape, threats of being raped, threats of being killed, being hit with a cable and attempted hitting”, the tribunal documents show.
The women also maintain that they have been helping the Australian federal police with its investigations since 2016.
They sought help under NSW’s Victims Rights and Support Act, which entitles victims of an offence involving “acts of violence” to a payment of up to $10,000 and other forms of support such as counselling.
While the women do not live in Australia, and have been granted refugee status by another country, their lawyers have argued Sharrouf’s acts of violence should be interpreted as falling within the NSW scheme’s scope.
Their lawyers noted the Sydneyborn Sharrouf was an Australian citizen whose last known place of residence in Australia was NSW. They also argued Sharrouf ’s acts were offences against NSW law, including the identityrelated offences behind his departure from Australia.
But those arguments failed to persuade the civil and administrative tribunal or the NSW court of appeal, prompting the women to seek special leave to appeal to the high court of Australia. That request was rejected by the high court last month.
Yasmin Waljee, a London-based partner at the law firm Hogan Lovells International, which is representing the women on a pro-bono basis, said they had argued the legislation “should not be interpreted in such a restrictive manner”.
“We argued that ‘act of violence’ can and should be interpreted as extending to all violent acts which constitute offences under the law of NSW and of the Australia commonwealth – where such offences would be triable in the courts of NSW because they attract extraterritorial jurisdiction,” Waljee told the Guardian.
“Both NSW and Australia have recognised that war crimes, crimes against humanity, terrorism and genocide crimes, recognised also under international law, are so serious as to warrant the exercise of extraterritorial jurisdiction, so it is unjust to deny access to the compensation scheme to victims of those crimes solely because of the absence of a physical geographical nexus.”
However, in dismissing the application, the high court justices Stephen Gageler and Patrick Keane wrote that there was “insufficient reason to doubt the correctness” of the lower court’s reasoning. They also ordered that the women pay the legal costs.
Waljee, an international human rights lawyer, said the legal team was considering applying to the UN committee against torture or the human rights committee using procedures under human rights treaties.
The focus of any application would be on the duty of states to “provide and finance an effective remedy for survivors” of sexual violence, torture, terrorism, genocide and slavery, “particularly when perpetrated by their own nationals”, Waljee said.
She cited the UN basic principles on the right to remedy and reparations for victims of gross violations of human rights. Such an application would highlight Australia’s duties but would have “wider implications for all states, particularly, where foreign fighters were engaged”.
Waljee said although countries had committed to providing reparations for survivors of genocide, terrorism and torture at an international law level, “there is a failure to implement that commitment at a domestic level as shown by this decision”.
This was, she said, despite the fact that countries “regularly freeze assets and confiscate the assets of those involved in these violations and also regularly impose substantial penalties for breach of sanctions imposed in respect of violations of human rights”.
A leading global human rights advocate, Dr Agnès Callamard, said she was “disappointed to see that Australia did not make available victims’ assistance for the gross violations of human rights endured by these women”.
Callamard – who is now head of Amnesty International but until last month served as UN special rapporteur on extrajudicial killings – said the world needed to discuss “how reparations should be funded, particularly in the light of the involvement of many thousands of foreign fighters in the Daesh atrocities”.
Esther Dingemans, the acting executive director of the Global Survivors Fund, said survivors of conflict-related sexual violence and other crimes had been “waiting for compensation and reparations for a long time”. She described it as “a global and collective moral imperative”.
Taban Shoresh, the founder of Lotus Flower, an organisation that runs programs in refugee camps in Iraq and has supported the women, said in a statement: “It feels like the women have little state support or sympathy.
“The world’s headlines are no longer reporting on the lack of justice for Yazidi women but we … will continue to support [them].”