Will the government never learn? The Balibo Five case demonstrates that the truth will come out, even if it takes 30 years. Now the Commonwealth is trying to deny Australian Mamdouh Habib his day in court over torture allegations by resorting to dubious legal argument. Even if the government wins in court, it loses in the court of public opinion…because one day the full facts will emerge.
Courts should go where Parliament fears to tread
It is a fundamental principle of justice that for any breach of the law there should be a remedy. And the law, applied equally to all, should not offer protection to torturers, be they agents of the state or not and regardless of where the offence was committed.
Yet, the Commonwealth Solicitor-General Stephen Gageler SC has argued that the Federal Court should not examine whether Australian or foreign agents tortured former Guantanamo Bay inmate and Australian citizen Mamdouh Habib.
His reason? That court should not pass judgment on his alleged foreign torturers because the court’s decision could damage Australia’s relations with other states! He cites in support of his argument the ‘Acts of State’ doctrine, which holds that matters involving relations with, or actions by, foreign governments are ‘non-justiciable’ in local courts. Simply put, that the Commonwealth Executive should have a free reign when dealing with other nations and the courts should stay out of foreign affairs.
Mr Habib has frequently alleged that, following his abduction by Pakistani authorities and subsequent rendition to Egypt, he was tortured in the presence of Australian Federal Police and an ASIO officer. In 2002 a report of Mr Habib’s treatment Australian Government Visit to Guantanamo Bay: Welfare Aspects was sent to then Prime Minister John Howard and foreign minister Alexander Downer. In the report Mr Habib listed some of the techniques allegedly used by his tormentors and, it seems, perhaps tacitly approved by the Australian officials. They included:
- sleep deprivation;
- electric shocks;
- being hung upside down and beaten, resulting in broken ribs, two broken toes and bleeding from his penis; and
- being made to listen to noises that resembled the sound of his wife being raped and children being beaten
These abuses were supposed to have been committed mostly in Egypt where Mr Habib was interrogated but mistreatment continued during his long incarceration (without charge) in Guantanamo Bay. It would appear that Egyptian, Pakistani, US and Australian officials may have all been complicit in the torture and wrongful treatment of Mr Habib.
Yet the Australian Government, whose role and/or knowledge of Mr Habib’s torture has long been suspected (even though denied), now says that Australian Courts should stay out of the matter, lest we offend foreign officials. This flies in the face of Australia’s obligation under the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and its own Crimes (Torture) Act 1988. It is also an abuse of power for the government to deny a citizen a legal remedy to which he is entitled because a foreign state may be offended.
The Crimes (Torture) Act 1988 defines torture as:
‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for such purposes as:
(i) obtaining from the person or from a third person information or a confession;
(ii) punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(iii) intimidating or coercing the person or a third person; or
(b) for any reason based on discrimination of any kind;
Acts of torture can be committed by a public official or someone ‘acting at the instigation, or with the consent or acquiescence, of a public official’, which may extend to the Australian officials involved in Mr Habib’s rendition and subsequent treatment.
Torture (along with slavery, and genocide) is one of the most entrenched crimes at international law and, unlike many crimes against humanity, does not need to be set against the backdrop of war or internal conflict. A torturer cannot claim in their defence that they were acting under orders, and ‘no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture’. It is, therefore, ‘jus cogens’: a principle of international law, imposing obligations on all nations, which cannot be derogated from. Torture is a crime of ‘universal jurisdiction’ and any nation can punish a perpetrator, whether or not the torture occurred domestically or abroad.
Australia is obliged under the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to investigate any possible breaches of the convention. The Solicitor-General’s argument that the Court has no business in the matter is in direct conflict with Article 14 of the Convention which states:
1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. …
Unfortunately, the very law which makes it an offence for a government official to commit an act of torture also depends upon the consent of the Attorney-General before that official can be brought to justice. With the Commonwealth Attorney-General unwilling to investigate the matter further, what option does Mr Habib but to seek justice through the civil courts?
Mr Habib has yet to prove his allegations in court, and it may be that his version of events has been affected by years of imprisonment, solitary confinement and poor treatment. He may be motivated by malice or anger but he may also just be seeking his day in court, a chance to expose the Australian Government’s complicity in a shocking violation of his rights. Similar stories of abuse and torture of other Guantanamo Bay inmates suggests there is merit in investigating Mr Habib’s claims.
In this instance, the Solicitor-General’s reliance on the ‘Acts of States’ doctrine is misplaced. Torture is not an action which should come within the traditional ‘acts of states’ doctrine. Those cases have generally involved negotiating international borders or treaties or the domestic validity of a foreign law which purports to apply to Australians within Australia.
But in this case, Parliament and the International Community have held that governments cannot do what they want with their prisoners. They cannot treat them inhumanely or subject them to torture. Parliament, through the Crimes (Torture) Act 1988, has curtailed the power of the Executive to ignore the crimes of foreign governments.
If Australia’s relations with foreign powers, be they Egypt, Pakistan or even the US, suffer because we sought to protect Australian citizens from torture and inhumane treatment then so be it. To sit in silence while torture continues is to justify the on-going abuse of individuals and the violation of basic human rights. To not investigate Habib’s allegations is to deny him his long sought after and long denied justice.
– Tim Vines, CLA Media Spokesperson, September 2009