By Mary Flanagan
An Office of Special Investigator has been established to investigate alleged war crimes committed by Australian Defence Force personnel in Afghanistan. The development follows an unprecedented investigation by the Inspector-General of the Australian Defence Force into alleged criminal conduct of Australian Special Forces. While the investigations to date have been extensive, there has been little public discussion regarding the participation of victims and their families in the investigations and their ability to participate in the potential criminal prosecutions. This article outlines the legal jurisdictions in which Australian Defence Force personnel could be prosecuted in Australia and explores the legal framework for victim participation in those jurisdictions, including alternative third-party participation avenues such as amicus curiae and intervener applications.
The limited participation rights available for victims in Australian proceedings is contrasted with the wide-ranging participation rights that victims have in proceedings before the International Criminal Court. The underlying principles of the victim participation model at the ICC is explored as well as criticisms of the ICC model. In assessing both jurisdictions, the article considers the status of the victim in the proceedings; the stage of proceedings at which victims are permitted to participate; the scope of the victims’ ability to contribute; the provision of legal representation; and the overall impact victims can have on the outcome of proceedings. Insights are drawn from the practical experience of victims in each jurisdiction including the physical location of trials, the process and scope for requesting reparations, the relative complexity of each victim participation model and the likely delay victims would encounter when attempting to participate in each jurisdiction. The article concludes that, while the ICC model for participation is subject to many criticisms, it provides greater agency and control for victims than the participation model provided in the Australian legal system. Overall, the ability of Afghan victims to meaningfully participate in potential criminal proceedings in Australia will be limited.
Keywords: Australian war crimes prosecutions, victim participation, victim reparations, third party intervention, amicus curiae, intervenors, International Criminal Court