Of the countries who have had nationals detained at the facility run by the United States at Guantanamo Bay in Cuba, almost half have been able to negotiate the release of their citizens. Even the US is preparing to release its own detainee, Yaser Hamdi. Yet there is no sign of release for the Australian citizens held at Guantanamo Bay. Australia is the only nation with a Guantanamo detainee facing trial by a US military commission whose government has endorsed the process. This is despite the widespread condemnation of the interrogation facility at Guantanamo and its show trials. That condemnation has come from a virtual who’s who of the international legal and humanitarian communities. The Australian government has a fundamental responsibility to protect its citizens abroad. The Department of Foreign Affairs and Trade is responsible for the provision of consular services to Australians abroad, and begins its Consular Services Charter with the following words: ‘The Department of Foreign Affairs and Trade, through our network of overseas offices, help [sic]Australians in trouble overseas.’ The Charter goes on to state: ‘Our aim is to meet the needs of our consular clients and their families in Australia, to the maximum extent possible within international rules governing consular work … We are committed to providing effective, prompt and courteous consular service to all Australian citizens … We undertake to deal with you fairly, honestly, equitably and courteously.’ The Department of Foreign Affairs and Trade website also tells us what to expect if we are arrested overseas. The section what Australian consular officials can do for you includes the promise that consular officials: ‘Can provide assistance to you if you are arrested, notify next of kin, provide a list of local lawyers, conduct prison visits, and ensure an Australian receives the same treatment as could reasonably be expected by the host country’s own citizens.’ Statements of this sort have been held in the United Kingdom (Abassi case November 6, 2002) and Canada (Khadr case August 18, 2004) to create a legitimate expectation in citizens that their government will not unreasonably fail to act to protect them. As the English Court of Appeals put it: ‘It must be a ‘normal expectation of every citizen’ that, if subjected abroad to a violation of a fundamental right, the British Government will not simply wash their hands of the matter and abandon him to his fate.’ This role of governments in protecting their citizens abroad is reflected in the Vienna Convention on Consular Relations (1963). That legal document defines consular functions to include the protection of a country’s nationals abroad, within the limits of international law. Article 36 of the Vienna Convention states that any person who is detained abroad will, without delay, be given the opportunity to contact their consulate. It also guarantees consular access to that person, to ensure adequate protection of the interests of their national. This did not happen in the case of Australia’s Guantanamo detainees. When Australian officials were given the opportunity to see David Hicks and Mamdouh Habib, the Australian government sent interrogators, not consular officials. This is part of a disturbing pattern of conduct by the Australian government – a pattern of ignoring, failing to protect and even undermining the rights of its nationals overseas. In March of this year a court in Singapore sentenced a 22-year-old Australian, Van Nguyen, to be hung by the neck until dead after he tried to bring drugs in to Australia. (Public Prosecutor v Nguyen Tuong Van, March 10, 2004). In an apparent breach of the Vienna Convention, this Australian was held incommunicado and interrogated for more than twenty hours without ever being advised of his rights, and without the Australian High Commission being notified of his arrest. The court in Singapore nevertheless sentenced Van to death. It was of the view that, as the Australian government appeared unconcerned with the delay in consular notification in this case, the Singaporean authorities could be similarly unconcerned. The Australian government has since protested the death penalty in Van’s case. But its efforts have been too little, too late. In other capital cases in Vietnam, there is evidence that Australian Customs and Federal police officers have been ordered to assist in investigations exposing Australian nationals to the death penalty. These are extraordinary developments for Australia as a country that has signed the Second Optional Protocol to the International Covenant on Civil and Political Rights (1989). The Second Optional Protocol is the pre-eminent international civil rights instrument uniting opposition to the death penalty world wide. By signing it, Australia undertook ‘an international commitment to abolish the death penalty’. As Australia’s High Court made clear in the Teoh case in 1995, when our government makes these undertakings it makes a positive statement to Australia and the rest of the world that it will act in conformity with them. In November 2001 Australian Mamdouh Habib was detained in Pakistan, along with two Germans, as they sought to flee the country ahead of the US invasion of Afghanistan. The German government protested and just weeks later its citizens were returned home. Far from protesting, the Australian government merely sent an interrogator to Islamabad to question Mr Habib. Mr Habib was then sent to Egypt for six months of abuse and torture. Australia failed to stop this move, which came only weeks after the United Nations Committee Against Torture had issued a report expressing concern at ‘the widespread evidence of torture and ill-treatment in administrative premises under the control of the State Security Investigation Department’. The Committee’s report echoed the findings of Amnesty International in its February 2001 report Egypt: Torture remains rife as cries for justice go unheeded and their web-based video on torture in Egypt, which includes testimonies of torture survivors and human rights activists. In February 2003 Vince Cannistraro, the former CIA director of counter-terrorism, described the case of an uncooperative detainee who had been sent to Egypt and had his fingernails torn out. Even then, the Australian government took no action to protect Mr. Habib. Detained at Guantanamo Bay for the last two years, this Australian citizen is still waiting for the Australian government to keep its promise to provide him with consular services and protection. Today, it seems, individual Australians abroad are an expendable commodity. The protection of their liberty, dignity and other basic human rights has become a matter of government indulgence, rather than a core responsibility. Anyone who thinks this failing is limited to suspected terrorists or criminals should look at the Sosa case, decided earlier this year by the US Supreme Court. Sosa v. Alvarez-Machain, 124 S. Ct. 2739 (2004). The Australian government filed a brief in the US Supreme Court, which, i
f accepted, would have prevented Australians from suing in US courts for terrorist acts, apartheid wrongs, murder, imprisonment, torture and other grave breaches of international humanitarian law. Fortunately for Australians, in June this year the US Supreme Court rejected Australia’s argument, and our right to sue remains. Given all this, it was no surprise to hear Prime Minister John Howard announce the Guantanamo military commissions were consistent with the Australian criminal justice system. Legally speaking, this is complete nonsense, as the British Attorney-General, Lord Goldsmith, reminded us in June this year: ‘There are certain principles on which there can be no compromise … Fair trial is one of those – which is the reason we in the UK have been unable to accept that the US military tribunals proposed for those detained at Guantanamo Bay offer sufficient guarantees of a fair trial in accordance with international standards.’ While John Howard’s acceptance of the Guantanamo military tribunals may be legal nonsense, politically speaking it’s just business as usual. David Hicks is a sacrificial lamb offered up by the Australian government to a military commission show trial, to try to give our biggest ally some credibility in its so-called War on Terror. It’s not the first time this has happened, of course. Remember Australia’s other famous victim of a military commission show trial? Breaker Morant, a colonial soldier sacrificed to lend credibility to our great and powerful ally of that time, Great Britain, to justify its conduct of the Boer War. Morant’s wrongful execution helped spur Australia to resolve to never place our troops wholly under foreign command again. I can only hope that the maltreatment of David Hicks and Mamdouh Habib will help us resolve to never surrender responsibility for protecting the human rights of our citizens again.
This is a summerised version of Eva Cox’s paper How Do We Define Fair?, which can be read in full here.
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