HUMAN RIGHTS AND
THE WAR ON TERRORISM
CHRIS SIDOTI
NATIONAL SPOKESPERSON
HUMAN RIGHTS COUNCIL OF AUSTRALIA
MULTICULTURAL COUNCIL
OF THE NORTHERN TERRITORY
DARWIN NT
25
MARCH 2003
Introduction
Last Friday, 21 March,
Australians celebrated Harmony Day, the day still known internationally as the
International Day for Action Against Racism although
its name was changed in Australia
some years ago. This year there was particular irony in the celebration.
Harmony Day coincided with the third day of the War Against
Iraq. It is difficult to imagine a less harmonious event, a starker reminder
that relations across cultures, religions, political systems and national
boundaries are as complex as they ever were. The coincidence of these two events
is a timely reminder of Harmony Day’s origins as a day directed towards
addressing the hard issues of racism and racial discrimination.
Tonight I will speak about issues
of disharmony that are related to these events, about terrorism. The United
Nations General Assembly Declaration in 1995 defined terrorism as “criminal
acts intended or calculated to provoke a state of terror in the general public,
a group of persons or particular persons for political purposes”. On that
basis, I am unsure whether my topic should be human rights and the war on
terrorism or human rights and the terrorism of war. Either way I must begin on 12 September 2001.
12 September 2001
That day produced fundamental
changes in our world. It was the day that United States President George W Bush
declared war on terrorism and set in place the pillars of that war.
The events of the preceding day, 11 September 2001, were truly
appalling in their enormity. They were tragic in the huge loss of life. They
were extraordinary in their planning and execution. They were unique in each of
these ways but they were not unique in themselves. They were not unique as
terrorist acts. There had been terrorist acts before – hijacks, bombings,
kidnappings and murders. Certainly no single act had resulted in such a heavy
toll in death and injury but there had been single acts, such as the Lockerbie
bombing in which many hundreds had died and there had been terrorist campaigns
waged over years or decades in which thousands had died. Nor were the events of
11 September unique as terrorist acts on US
soil. There had been many terrorist acts in the United
States, including the Oklahoma
City bombing in which hundreds of Americans had been
killed. But almost all of the previous terrorist acts on US
soil had been committed by home-grown terrorists, almost always militant far
right extremists, both religious and secular.
What was most unique about the
terrorist attacks of 11 September were not the acts themselves but the response
to them, beginning with the US President’s response on 12 September. No war on
terrorism had been declared after the Oklahoma City
bombing. There had been no round-up of hundreds of right wing militia members
or of Christian or ideological extremists. There was no suspension of
fundamental constitutional protections and no rush to legislate even greater
restrictions. No indefinite detention without charge or trial. No denial of
legal advice and representation. No suggestion that torture should be permitted
and authorised. The US President’s response on 12 September was truly unique,
unleashing a global commitment to fight terrorism without regard for national
boundaries or international law.
Worldwide sympathy for the United
States and worldwide condemnation of
terrorism followed the attacks on 11 September. There is no dispute about the
nature of terrorism or about its intrinsic evil. But there is grave dispute
about the nature of the response to terrorism, most manifest now in relation to
the War against Iraq.
Responses to terrorism
Around the world the war on
terrorism has led to increased security, increased surveillance of the general
population and of specific groups and increased powers for police and
intelligence agencies.
The United
States led the way with the mass detentions
of hundreds of immigrants who were West Asian or North
African in origin or Islamic in belief. Very few of these people were charged
with any criminal offence. Many were held for periods of many months on
immigration grounds. They were denied their right to silence, denied access to
legal advice and representation, prevented from contacting their families and
brought before closed courts to be dealt with in secret. The United
States also led the way with new legislation
to restrict human rights. [US
laws have far more colourful names than Australian
laws. In this case the law has a very long title that produces the acronym USA
PATRIOT Act.]
The most extreme expression of
this new US
approach is found in the situation in Camp
X-ray at the US
base at Guantanamo
Bay in Cuba.
Captured Taliban and Al Qaida suspects are held there
without the protection either of international humanitarian law or
international human rights law. The US Administration has said that the
provisions in Geneva Conventions on the treatment of prisoners of war do not
apply to these detainees. And so those protections have been violated.
Detainees have also been denied the protection of rights guaranteed under the US
constitution and the US
courts have refused to intervene. They are held in inhumane conditions,
subjected to inhuman and degrading treatment and perhaps torture and denied due
process rights, including the right to legal advice and representation and the
right to be charged and tried openly before an independent tribunal. They have
been there now for well over 15 months and still await determination of their
fate.
Australian governments have also
proposed new laws and our parliaments have enacted many of them. These laws are
not as extreme as the US
laws but they reflect many of the provisions in the US
laws. Federal anti-terrorism legislation has created new criminal offences of
committing terrorist acts, financing terrorist acts and belonging to a
terrorist organisation. They have also widened the scope of telecommunications
interception. Because of doubt about the constitutional basis for these laws,
the states have agreed to an unprecedented referral of power to the
Commonwealth to ensure their validity. Many states have also enacted their own
legislation to extend the powers of their police forces to deal with presumed
terrorist acts or threats of terrorist acts.
The Howard Government’s most
extreme measures are contained in a bill to extend the powers of the Australian
Security Intelligence Organisation. The bill would authorise
- ordinary searches of anyone, even very young
children
- strip searches of persons as young as 10 years
- detention for questioning for up to 7 days for
persons as young as 14 years, without charge and without even a suspicion
that the person may have committed or is planning to commit a criminal
offence
- denial of all access to a lawyer for the first 48
hours of the period in detention and after that access only to a lawyer
approved by the government
- forced removal of persons
from premises “for as long as reasonably necessary”.
Last year the opposition Labor
Party and the minor parties in the Senate refused to pass this legislation in
the form wanted by the Government. There was irony in this for the Labor Party.
In NSW the state Labor Government introduced and forced through parliament
legislation that gives the NSW police force essentially the same powers as the
federal Labor Party is opposing for ASIO. The Senate passed an amended bill in
December but the Howard Government refused to accept it. Now the Government has
re-introduced the original bill in the hope of forcing it through in the
atmosphere of crisis generated by the War against Iraq. I hope that the non-government parties stick to the positions they adopted last December
and reject this legislation once again.
In making these critical comments
about these new laws, I must add that I do not argue that all legislation
restricting human rights is always unacceptable. On the contrary international
human rights law itself permits restrictions on the enjoyment of human rights
in emergency circumstances. Article 4 of the International Covenant on Civil
and Political Rights provides that some human rights may be restricted in
“time of public emergency which threatens the life of the nation” provided that
the emergency is officially proclaimed and is notified to the United Nations
Secretary General, that measures taken under the state of emergency are no more
than what is “strictly required by the exigencies of the situation” and that
the measures do not discriminate on the basis of race, colour,
sex, language, religion or social origin.
The Australian Government and
other Western governments have been quite willingly to pass laws that restrict
fundamental human rights but they obviously do not consider that there is any
emergency that warrants an official proclamation. In failing to take the proper
course of action prescribed in international law and to accept international
accountability under it for their actions, they expose the hypocrisy of their
motives. If there is no “public emergency which threatens the life of the
nation”, then these laws are not justified.
The laws are also not justified
if they are a disproportionate response to the emergency and if they
discriminate. Yet these laws are being applied almost exclusively against
people of West Asian and North African background and those who are Muslim.
The War on Terrorism has
generated more general concerns beyond concern for the specifics of legislation
proposed or enacted in its name. The first is a concern about the new debate on
torture.
Under international law torture
is one of the most serious violations of human rights. It is considered
unacceptable anywhere in any circumstances. It is one of the rights that can
never be restricted, even in “time of public emergency which threatens the life
of the nation”. Yet the War on Terrorism has included debate about the use of
torture and, it seems reasonable to conclude, extended use of torture. US
Administration officials have admitted that unusual methods are being used in
interrogation under the present circumstances but they deny that these measures
constitute torture. Past and present US intelligence agents have admitted that
torture is used and argued that its use should be extended as a means of
obtaining information about terrorists and about potential terrorist attacks. A
leading US academic, an internationally recognised human rights expert, has
said that the elimination of torture is impossible and perhaps even undesirable
when terrorist attacks are possible and so, he has said, the law should seek
not to prohibit torture but to control it by providing for its use to be
authorised only at the highest level of government and only subject to measures
of public accountability. This proposal is totally unacceptable because torture
is totally unacceptable. Some police and military officers have argued against
torture on pragmatic grounds, that information
obtained under torture is inherently unreliable and so acting on it may lead to
grave error. That’s true. But far more
important is the principle that torture is never acceptable, that it is always
a serious violation of a fundamental human right.
The second concern is Australian
policy on capital punishment. Australian governments of both political
complexions have had a common policy of total opposition to capital punishment
since the early 1970s. They abolished capital punishment in all Australian
jurisdictions. They ratified the Second Optional Protocol to the International
Covenant on Civil and Political Rights which imposes a continuing
obligation not to re-introduce capital punishment. They objected repeatedly to
executions in all countries, including China,
Vietnam, Malaysia
and the United States.
They refused to extradite criminal suspects to jurisdictions that permit
capital punishment with an express assurance that those extradited will not be
executed. They co-sponsored resolutions in United Nations forums urging all
states to abolish the death penalty.
Since 11 September 2001 and even more since 12 October 2002, the Bali
bombing, the Prime Minister has abandoned this longstanding policy. When asked
about the possible execution of the Bali bombers if and
when convicted, he said that Indonesian law provided for the death penalty and Australia
respected and would not interfere with Indonesian law. When asked on US
cable television on 6 March this year whether he would kill Osama
bin Laden if he is captured, the Prime Minister replied, “I think he would be
dealt with in accordance with United States
law and that does provide for capital punishment”. The interviewer pressed him,
asking, “Would you welcome that?” and he replied, “Oh, I think
everybody would”. He is the first mainstream Australian political leader to
voice support for the death penalty in three decades.
The War on Terrorism then has
resulted in challenges to some of the most deeply held moral and ethical values
and the observance of some of the most fundamental human rights. And now we
have the War against Iraq.
The War against Iraq
The War on Terrorism and the War
against Iraq
are two quite distinct matters even though both the US Administration and the
Australian Government frequently elide and connect the issues. The War on
Terrorism is a response to actual events, not only the attacks of 11 September 2001 in the United
States but also terrorist attacks before and
after that in many parts of the world, including the Bali
bombing. Although there is sound debate about the nature of the response and
its proportionality, there is no doubt that a response is legitimate and
lawful.
The War against Iraq,
on the other hand, is presented as a pre-emptive war under a new doctrine
enunciated by the present US Administration. Unfortunately for the United
States, international law does not recognise this new doctrine of pre-emption. International
law permits resort to war in two circumstances only, when authorised by the
United Nations Security Council in response to a declared threat to
international peace and security and when there is an actual attack or an
immediate threat of an actual attack but then only until such time as the
Security Council takes charge of the situation. Neither of these conditions have been met and so the War against Iraq
is unlawful.
That is the near unanimous view
of international lawyers here and overseas. In Australia
43 international lawyers, almost every significant international lawyer in the
country, made a joint statement last month that “[t]he initiation of a war
against Iraq by
the self-styled ‘coalition of the willing’ would be a fundamental violation of
international law”. More recently the top international lawyers in the United
Kingdom issued a similar joint statement. In
the United States
individual international lawyers have made their own statements, almost all
again expressing the view that this war is unlawful. About the only
international lawyers to defend the lawfulness of the actions of the United
States and its allies have been those
providing these governments with the advice they wanted. This is far more than
an academic argument when thousands of lives are at stake.
The bottom line of course is that
the governments of the United States,
the United Kingdom
and Australia
simply do not care whether the war is lawful or not. They are determined to
wage war and all this legal debate is merely a distraction to them. Had they
been sincere in their protestation that the war is lawful, in the face of firm
views to the contrary by the acknowledged experts, these governments would have
sought the opinion of the one body established with authority to give a
conclusive view, the International Court of Justice. The UN Charter establishes
the Court to decide issues like these. But not one of the “Coalition
of the Willing” has sought the Court’s ruling on the issue. Under the
circumstances we are entitled to conclude that they are insincere when they
express commitment to observing the law and untroubled by the prospect of
waging an unlawful war.
The war has begun now. The
lawfulness of the war is not an issue that will go away. Indeed it will hang
around to haunt those responsible for this war for decades to come. But it is
no longer the most urgent matter. The most urgent issue now is the actual
conduct of the war. International humanitarian law governs how nations and
their armed forces should conduct themselves during war. All the nations in the
US coalition
are bound by international humanitarian law and so must ensure that civilians
are not deliberately targeted, that actions that might endanger civilians are
avoided, that prisoners of war are treated properly and so on.
The Australian forces have rules
of engagement different from those applying to the US
forces. The Australian rules are more restrictive than the US
rules, reflecting Australia’s
ratification of more international treaties than the United
States. It is important for those rules to
be released publicly so that Australians can be satisfied that they meet Australia’s
obligations under international law. The Government has not released them. It
expects us to trust it to do the right thing but it has betrayed the national
trust too many times in the recent past for that to be possible or acceptable.
One issue of especial concern is
the handling of Iraqi prisoners of war by the Australian forces. The Australian
Defence Force announced a few days ago that Australian forces had captured a
number of prisoners and had handed them over to US forces. This may place Australia
in violation of international law. We know about the US
debate on the use of torture. We know how prisoners at Guantanamo Bay
are being treated by the United States.
We know that two prisoners of war died recently in suspicious circumstances in
a US military
prison in Pakistan.
And we know that the US
is handing suspected Taliban and Al Qaida prisoners
to the security forces of other states that are notorious torturers for the
purposes of interrogation. Australia is bound by both humanitarian law and
human rights law not to practise torture or other cruel, inhuman and degrading
treatment or punishment and not to hand prisoners over to another state or the
forces of another state where there is a risk that they will be tortured. There
is a very real risk that Iraqi prisoners handed to US forces will be tortured
or otherwise mistreated in ways that violate human rights and humanitarian law.
Australia will
be responsible if that occurs.
The fundamental issue
The matters I have raised tonight
lead to a fundamental issue. Ultimately, are we any better than those who seek
to harm us, than those we oppose? The United States Administration complained
bitterly this week about Iraqi treatment of US prisoners but it has shown
absolutely no commitment whatsoever to international law in its own actions in
relation to Taliban, Al Qaida and Iraqi prisoners.
The War on Terrorism has killed many more people than the terrorist attacks of 11 September 2001. The War against Iraq
will kill many times that number again. Our side, “the goodies”, might not be
appalling dictators of the ilk of Saddam Hussein, our leaders are not his
immoral equivalent, but fundamentally are we any better?
The Australian Prime Minister has
told us repeatedly in recent weeks about the vicious human rights violations
committed by the Iraqi regime and all the time Australia
has Iraqi men, women and, worst of all, children trying to flee this barbarous
regime locked up behind razor wire fences in inhumane conditions. Children
locked up now for over a year and a half. The Australian Navy that is
participating in the liberation of Iraq
has ships at the same time patrolling the edge of Australian territorial waters
just in case anyone fleeing Saddam Hussein might be so unwise as to seek to
come here for protection. The Australian Air Force participates in bombing and
missile raids on this oppressive regime while Navy ships have instructions to
fire across the bows of leaky, overcrowded boats bearing those who manage to
escape. We Australians, every one of us, are diminished by this hypocrisy. Our
rightful moral superiority to terrorists and evil-doers is defeated by our own
actions.
When we disregard our obligations
under international human rights law we leave others free to disregard theirs.
That in fact may be the real long-term consequence of this war. If the United
States and its allies can mount a pre-emptive war against Iraq in the absence
of any imminent threat, then why cannot India or Pakistan, armed with nuclear
weapons, claim the same right against each other? And North
Korea, similarly armed, when the threat
against it is so much more real and imminent? We have participated in
unleashing a new world order the nature and consequences of which are beyond
our imagining.
A better way
The tragedy is that there is a
far better way, the way of human rights.
Human security is a major
pre-occupation in today’s world. That is understandable. The horrific attacks
of 11 September 2001 on the
United States
and their aftermath raised levels of anxiety and insecurity worldwide. This was
reinforced for Australians and others in this region by the Bali
bombing on 12 October 2002.
Ensuring security for every human being around the world is one of the major
challenges facing us. In addressing these concerns we need to enhance the
search for common ground. Human rights provides that
common ground. We need to build commitment to observing human rights law, not
to violating it. We need to build commitment to addressing causes, not only
symptoms and consequences.
The true weakness in the face of
terrorism lies in compromising our values. When we betray ourselves, the
terrorists win. The dark days in which we now find ourselves require
re-affirmation of our values, our commitments and our legal obligations, not
their repudiation. The way of human rights is the only effective path to
ensuring our security and the security of others, the only effective road to
maintaining our national and personal integrity.