By Dr George Venturini
The Vivian Alvarez Solon case
In July 2001 Ms. Vivian Alvarez Solon, an Australian, while visibly unwell and mentally frail, was forcefully deported to the Philippines by officers of the Department of Immigration and Multicultural and Indigenous Affairs, D.I.M.I.A.. She ‘looked’ Filipino and the assumption was that she had been brought to Australia to perform as a whore.
The operation was so secret that only in May 2005 it became public knowledge that she had been deported. D.I.M.I.A. was conscious of the fact that the deportation had been illegal since 2003, but kept quiet. The Solon’s family had listed her as a missing person since July 2003, and until May 2005 did not know that she had been deported. The circumstances surrounding Solon’s unlawful deportation caused considerable controversy in the Australian media.
On an agreement on the form of a private compensation, on 30 November 2006 retired High Court Judge Sir Anthony Mason awarded Ms. Solon an amount which was not disclosed but seems to have been of AU$ 4.5 million. The Howard Government refused to confirm the amount citing privacy reasons. It knew nothing and said nothing about the case.
The Cornelia Rau case
Ms. Cornelia Rau, a German citizen who was in Australia as permanent resident, was unlawfully detained for a period of ten months in 2004 and 2005 as part of the Australian Government’s mandatory detention programme.
Her detention became the subject of a government inquiry which was later expanded to investigate over 200 other cases of suspected unlawful detention by D.I.M.I.A. the Australian government’s Department of Immigration and Multicultural and Indigenous Affairs.
She disappeared from Manly Hospital on 17 March 2004, and, in February 2005, it was revealed that she had been unlawfully detained at Brisbane Women’s Correctional Centre – a prison, and later at Baxter Detention Centre, after being classified as a suspected illegal immigrant or non-citizen by the Immigration Department when she refused to reveal her true identity.
On 9 February 2005 the Minister for Immigration and Multicultural and Indigenous Affairs announced an inquiry, and on 2 May the inquiry was extended to investigate the Vivian Solon case.
A report issued on 14 July 2005 provided the occasion for the Minister and Prime Minister Howard to apologise to both Ms. Rau and Ms. Solon. Compensation to Ms. Rau, promised in July 2005 and later but not delivered, followed in February 2008 to the tune of A$2.6 million.
The Solon and Rau scandals had been almost completely domestic, hence subject to easy deniability – Nixon style, although the Watergate-president had not invented the technique.
The MV Tampa case
The MV Tampa case would be different, in a way, in that it involved not a person but another country: Norway. But Howard saw no problem with it from the beginning. Au contraire!
Howard was looking for an opportunity to show his ‘decision making power’: 2001 was an election year and the prognosis was not that good.
In the years leading up to 2001 increasing numbers of people attempted to travel to Australia by boat to seek asylum as refugees. Many of these arrived off Christmas Island, an Australian territory in the Indian Ocean, some 2,000 kilometres off the north-west coast of Australia and 500 kilometres south of Jakarta, Indonesia. Hundreds of people arrived on tightly packed, often unseaworthy vessels, and many paid large amounts of money to ‘people smugglers’ for their passage to Australia.
At dawn on 24 August 2001 a 20 metre wooden fishing boat, the KM Palapa 1, with 438 persons – 369 men, 26 women and 43 children – mainly Hazara, an Afghanistani/Pakistani ethnic group, became stranded in international waters about 140 kilometres north of Christmas Island.
On 26 August the Rescue Coordination Centre Australia requested all ships in the area to respond. R.C.C. sent a fax to the Indonesian Search and Rescue Agency, BASARNAS on the night of 25 August but received no response.
Captain Arne Rinnan of the MV Tampa, a Norwegian roll on/roll off freighter, responded to the mayday call: “We are on a voyage from Fremantle to Singapore via Sunda Strait … We have changed course and are headed for position of distress … Please advise further course of action. A Rinnan, Master.” After an hour of setting course for the vessel, Rinnan received a direction from R.C.C. apparently attempting to disown the rescue operation: “Please note that Indonesian search and rescue authorities have accepted co-ordination of this incident.”
Of the ships which acknowledged the request, the MV Tampa rescued 433 people from the KM Palapa 1.
The Palapa had been at sea for three days, having set out from Java in an attempt to reach Christmas Island where passengers were intending to lodge claims for asylum. Australian authorities had sent out the call for the boat to be rescued.
The Tampa was given leave by Indonesian authorities to disembark the rescued passengers at the port of Merak, but due to intense requests by a number of the asylum seekers and subsequent concern for the safety of those onboard, Captain Rinnan opted to sail for Christmas Island.
According to international law, survivors of a shipwreck are to be taken to the closest suitable port for medical treatment. The closest suitable port, Merak, was twelve hours away. Christmas Island was six or seven hours closer, although it was not equipped to receive large shipping freighters.
This was not going to be the sole problem for Captain Rinnan. The Captain requested the Australian Government’s permission to unload the asylum seekers at Christmas Island, arguing that the ship could not sail to Indonesia, because it was unseaworthy – the ship was not designed for 438 people, only its 27 crew; and there were no lifeboats or other safety equipment available for the asylum seekers in the case of an emergency. The Australian Government refused permission for the ship to enter Australia’s territorial waters, and threatened to prosecute Captain Rinnan as a ‘people smuggler’ if it did so.
Pettifoggers went to work: the Australian Government cold deny any obligation under international law as Christmas Island lies within a zone designated as ‘responsibility for rescue’ according to an agreement made in 1990 between Australia and Indonesia. Indonesia had also accepted co-ordination of the rescue, and the closest suitable port was Merak in Indonesia.
The position was confirmed in the Australian Parliament and at the United Nations.
Faced with Australia’s threats of prosecution, Captain Rinnan agreed to turn slowly back towards Indonesia in the hope that the asylum seekers would not notice. About half an hour into the turn, however, some of them noticed and, rather agitated, approached Captain Rinnan. The Captain was concerned that if the ship continued to sail to Indonesia the asylum seekers could jump overboard or riot and harm the crew. He decided to head back towards Christmas Island.
As the ship approached the boundary of Australia’s territorial waters, Captain Rinnan pleaded for permission for the ship to dock at Christmas Island. He reported that several of the asylum seekers were unconscious, and others were suffering from dysentery. The doctor would later report that many of the asylum seekers were generally dehydrated and malnourished. Many were suffering from exhaustion and minor ailments including sixty one cases of scabies, forty six of head lice, and twenty four of gastroenteritis. There were also four pregnant women.
All this was later confirmed by the physician of the Special Air Service Regiment, dispatched by the Australian Government. The government would know better: it disputed the opinion of the physician.
The government offered medical assistance and food, but was still refusing permission for the ship to enter Australian territorial waters – twelve nautical miles from Christmas Island.
On 29 August, three days after the rescue, Captain Rinnan, increasingly concerned for the safety of the asylum seekers and the ship’s crew, declared a state of emergency and proceeded to enter Australian territorial waters without permission. He informed the Australian Government and waited for the worst.
It came with the reply of the government which sent the Special Air Service Regiment with the order to board the ship and prevent it from approaching any closer to Christmas Island.
The Australian troops instructed Captain Rinnan to move the ship back into international waters, but he refused on the ground the ship would have been unsafe to sail until the asylum seekers had been offloaded. The board of the Wilhelmsen Lines Shipowning agreed with the captain’s decision, and the Norwegian Government warned the Australian Government not to seek to force the ship to return to international waters against the captain’s will.
In time the Norwegian Government denounced the action of the Australian Government to the United Nations, the United Nations High Commissioner for Refugees, and the International Maritime Organisation for failing to obey its duties under international law, though it did not ask for the assistance of these organisations.
Captain Rinnan, an experienced mariner, then with 43 years of service, including 23 years as a captain, received the highest civil decoration in Norway as a result of his handling of this difficult incident. Of it Rinnan would say: “I have seen most of what there is to see in this profession, but what I experienced on this trip is the worst. When we asked for food and medicine for the refugees, the Australians sent commando troops on board. This created a very high tension among the refugees. After an hour of checking the refugees, the troops agreed to give medical assistance to some of them… The soldiers obviously didn’t like their mission.” (‘Tampa affair’ – Wikipedia).
The behaviour of the Howard Government represents a significant moment in the history of Australian asylum policy, political debate and international and migration law. There is sufficient evidence that John Howard had received advice from the Attorney-General’s Department that refusing the asylum seekers entry into Australia would breach international law. He ignored the advice to gain public support in the then upcoming election. Nor did he care much that Australia is party to the Convention relating to the Status of Refugees (1951); the International Convention for the Safety of Life at Sea (1974); the International Convention on Maritime Search and Rescue (1979) and the United Nations Convention on the Law of the Sea (1982).
The refusal of the Australian Government to allow the Tampa to disembark the asylum seekers on Christmas Island, and the subsequent boarding of the vessel by Australian Special Air Service Regiment and ultimate removal of most of the asylum seekers to a hurriedly established offshore detention centre on Nauru helped to ensure that the deterrence of asylum seekers became a leading issue in the 2001 Australian federal election campaign – and in later elections, and contributed to the execrable rationale for the system of offshore processing and the policy of turning back boats which have developed since.
It all started with Howard declaration at the launch of his election speech on 28 October 2001 that: “ … we will decide who comes to this country and the circumstances in which they come.” Neither the Coalition nor the Labor Opposition has moved one millimetre from such cruel position.
On the other hand, the United Nations High Commissioner for Refugees granted the Nansen Refugee Award to the captain, the crew and the owner of the Tampa, who “demonstrated personal courage and a unique degree of commitment to refugee protection.” (‘Refugees: The Tampa case’, Julian Burnside; see also: ‘Tampa affair’, National Museum of Australia; and A. Reilly, ‘Australian politics explainer: the MV Tampa and the transformation of asylum-seeker policy’, theconversation.com, 27 April 2017).
In response to the ‘Tampa affair’, the Howard Government established offshore processing and called it the ‘Pacific Solution.’ It is the predecessor to the current policy – rather, tragedy – of ‘offshore processing’ on Manus Island and Nauru.
The David Hicks case
David Mathew Hicks, born in 1975, was a restless child from Adelaide, South Australia. He left school before turning 15 and moved between various jobs, including factory work and working at a series of outback cattle stations in the Northern Territory, Queensland and South Australia.
He converted to Islam as he would reveal more for a search for somewhere to belong than for a religious inspiration. He would later renounce his faith.
Sometime in early 1999 he went to Albania to join the Kosovo Liberation Army, but one month after his arrival the Kosovo war ended and so, later in November 1999, Hicks travelled to Pakistan. The following year he moved to a border region between Pakistan-controlled Kashmir and Indian-controlled Kashmir, where he engaged in hostile action against Indian forces.
In the process he learned about the use of different types of modern weapons and in January 2001 Hicks was provided with funding and an introductory letter from Lashkar-e-Taiba. Later on he travelled to Afghanistan for further training.
In December 2001 Hicks was captured by the Afghan Northern Alliance and sold for a US$ 5,000 bounty to the United States military. He was transported to Guantanamo Bay where he was designated an enemy combatant. During his detention, he was tortured.
In an affidavit, dated 5 August 2004 and released on 10 December 2004, Hicks alleged mistreatment by United States forces, included being: 1) beaten while blindfolded and handcuffed; 2) forced to take unidentified medication; 3) sedated by injection without consent; 4) struck while under sedation; 5) regularly forced to run in leg shackles causing ankle injury; 6) deprived of sleep “as a matter of policy”; 7) sexually assaulted; 8) being made to witness to use of attack dogs to brutalise and injure detainees.
He also said he met with U.S. military investigators conducting a probe into detainee abuse in Afghanistan and had told the International Red Cross on earlier occasions that he had been mistreated. Hicks told his family in a 2004 visit to Guantanamo Bay that he had been anally assaulted during interrogation by American soldiers in Afghanistan while he was hooded and restrained. According to conversations with his father, Hicks said he had been abused by both Northern Alliance and U.S. soldiers. In response, the Australian Government blandly announced its acceptance of U.S. assurances that David Hicks had been treated in accordance with international law.
The United States first filed charges against Hicks in 2004 under a military commission system newly set up by Presidential Order. Those proceedings failed in 2006 when the Supreme Court of the United States ruled, in Hamdan v. Rumsfeld, 548 U.S. 557 (2006), that the military commission system was unconstitutional. The military commission system was re-established by an act of the United States Congress.
Only on 15 August 2006 Attorney-General Philip Ruddock announced that he would seek the return of Hicks to Australia if the United States did not proceed quickly to lay substantive new charges. As a result of the Supreme Court decision, the United States Congress passed the Military Commissions Act of 2006 to provide an alternative method for trying detainees held at Guantanamo Bay. The Act was signed into law by President Bush on 17 October 2006.
On 6 December 2006 Hicks’ legal team lodged documents with the Federal Court of Australia, arguing that the Australian Government had breached its protective duty to Hicks as an Australian citizen in custody overseas, and failed to request that Hicks’s incarceration by the United States comply with the Geneva Convention, the International Covenant on Civil and Political Rights and the Universal Declaration of Human Rights.
Revised charges were filed against Hicks in February 2007 before a new commission under the new act. The following month, in accordance with a pre-trial agreement struck with convening authority Judge Susan J. Crawford, Hicks entered an ‘Alford plea’ (This is a guilty plea in which a defendant maintains their innocence but admits that the prosecution’s evidence would likely result in a guilty verdict if brought to trial) to a single newly codified charge of providing material support for terrorism. Hicks’ legal team attributed his acceptance of the plea bargain to his “desperation for release from Guantanamo” and duress under “instances of severe beatings, sleep deprivation and other conditions of detention that contravene international human rights norms.”
On 9 March 2007 his lawyer said that David Hicks was expected to bring a case seeking to force the Australian Government to ask the American Government to free him.
In April 2007 Hicks was returned to Australia to serve the remaining nine months of a suspended seven-year sentence. During this period he was precluded from all media contact. There was serious criticism that the Howard Government delayed his release until after the 2007 Australian election. Colonel Morris Davis, the former Pentagon chief prosecutor, later alleged political interference in the case by the Bush Administration in the United States and the Howard Government in Australia. He said that Hicks should not have been prosecuted.
Hicks became one of the first people charged and subsequently convicted under the Military Commissions Act. There was widespread Australian and international criticism and political controversy over Hicks’ treatment, the evidence tendered against him, his trial outcome, and the newly created legal system under which he was prosecuted. In October 2012 the United States Court of Appeals ruled that the charge under which Hicks had been convicted was invalid because the law did not exist at the time of the alleged offence, and it could not be applied retroactively.
In January 2015 Hicks’ lawyer announced that the United States government had acknowledged that it does not dispute Hicks was innocent and his conviction was not correct. (David Hicks: Former Guantanamo bay detainee, foreign fighter, author, www.abc.net.au, 23-01-2015; see also: David Hicks – Wikipedia).
The Law Council of Australia took a close interest in Hicks’ case and played a prominent role in bringing his plight to the attention of Australian public. Throughout his period of detention – January 2002 to May 2007 – the Law Council was highly critical of: 1) the inability of Hicks to effectively challenge the legality of his detention; 2) Hicks’ treatment in detention; 3) the flawed and inherently unjust rules of procedure and evidence of the military commissions; 4) the lack of any legal foundation for the charges initially pursued against Hicks; 5) the retrospective nature of the charge eventually pursued against Hicks; 6) the acquiescence of the Australian Government in Hicks’ detention without charge; 7) The acquiescence of the Australian Government in Hicks’ trial before a military commission; 8) the terms of Hicks’ plea agreement; and 9) the unnecessary imposition of a control order on Hicks upon his release.
Over this period the Law Council issued more than twenty press releases, public letters to Parliament and reports, including three reports from the Law Council’s Independent Observer at Hicks’ trial.
In early 2014 Hicks appealed against his 2007 conviction. In an eight-page majority decision delivered on Wednesday 18 February 2015, the United States Court of Military Commission Review set aside the guilty plea and sentence, and vacated Hicks’s sentence. (‘David Hicks’ – Law Council of Australia).
Through such ordeal, and for all practical purposes, the Howard Government acquiesced to the trials and tribulation of David Hicks – and one understands why: Hicks was a Muslim, and by conversion to boot, fighting with the terrorists against Australia’s Great and Powerful Friend.
That Hicks was treated abominably both by the United States and the Australia’s authorities was confirmed in the decision by the United Nations Human Rights Committee. Hicks had served seven months of his sentence in Adelaide pursuant to a Prisoner Transfer Agreement between Australia and the United States. A violation of Article 9(1) of the International Covenant on Civil and Political Rights, which proclaims the right to be free from arbitrary detention, was found by the U.N.H.R.C. majority and charged to Australia in respect of that period of detention.
Hicks had submitted his complaint to the Committee in Hicks v. Australia on 10 September 2010. The long time between submission and decision would reflect the complexity of the case. (Hicks v Australia (20052010) – Australian Government response).
The United States is a party to the I.C.C.P.R. However, it is not a party to the Optional Protocol to the I.C.C.P.R., which enables individual complaints against signatory states. Hence, it was not possible for Hicks to submit a complaint to the U.N.H.R.C. about his treatment by the United States. Australia has ratified the Covenant without any reservation – for what that is worth.
The decision of the U.N.H.C.R. majority noted that Australia had made no attempt to negotiate a transfer deal which was compatible with the I.C.C.P.R., even though it “exercised a significant degree of influence over the formulation of the plea agreement, upon which [Hicks’] immediate return to Australia was contingent.”
The decision unequivocally condemned Australia’s co-operation with the United States in the disgraceful enterprise of Guantanamo Bay. (S. Joseph, ‘Australia found to have breached the rights of David Hicks’, The Conversation, 25 February 2016, independentaustralia.net).
Continued Wednesday – The Dr Mohamed Haneef case
Previous instalment – Beyond the ‘Palace Letters’ (part 3)
Dr. Venturino Giorgio Venturini devoted some seventy years to study, practice, teach, write and administer law at different places in four continents. He may be reached at George.firstname.lastname@example.org.
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