Talk It Out

Taking the humanity out of humanitarian migration

Every time I think that this government cannot sink any lower I'm in for an unpleasant surprise. Kevin Andrews' comments about African refugees are as low as they come, but as the election looms closer and no credible excuse for the extremes of wedge politics is found, the government is sure to come up with more and more extreme attempts to re-create its Tampa "success".

Andrews claims that the government reduced the African humanitarian migrants intake because they have "additional challenges" integrating. It's a real problem you see. No matter what we do those bloody African refugees still have black skin, dark eyes, lack blond hair, some of them speak with an accent and many can't even name the birthday and star sign of Sir Donald Bradman. That's just not good enough, that's un-Australian. Whatever we do, we can't make them exactly like us, goddamn it!

But sarcasm aside, Andrews' argument for cutting African intake is that:

"We know that they have on average low levels of education, lower levels of education than almost any other group of refugees that have come to Australia. We know that many of them, if not most of them, have spent up to a decade in refugee camps and they've spent much of their lives in very much a war-torn, conflicted situation."

Perhaps little Kev was away sick when they taught the meaning of "humanitarian" at school, because what he is saying is that precisely the factors that call for humanitarian intervention are the factors that are used to reduce humanitarian intake. The fact that African refugees are more disadvantaged than others has become the reason for doing less to redress that disadvantage.

This perverse reasoning turns the rationale for humanitarian programs on its head, it takes the humanity out of humanitarian migration. Rather than focusing on human welfare, as humanitarian ideals demand, Andrews' approach suggests we should take the "easier" refugees, the ones who are more like "us". Forget about those most at need. Don't you see the attractiveness of that argument? They are black, aren't they? They are foreign, they are strange, they are refugees. If you don't think of them as humans you don't have to worry about humanitarianism!

October 4th, 2007 Posted by Unsilenced | Human rights, Howard government, Refugees and asylum-seekers | one comment

Pinheaded excuse for badgeless police

An internal investigation cleared police officers who failed to wear name badges while policing APEC protests. The excuse? Pins on badges could be used as "weapons" against the officers. Naturally it is important to guard against the danger of police officers being pin-pricked to death. But don't cops usually wear Velcro badges in these sorts of circumstances?

Lets take a look at the photos of cops at APEC (source: ABC):

Here's a pic of a number of cops 

  See those little black rectangles on the uniforms? How about a closer look:

Yep, that's a Velcro strip for attaching one's name badge. No need for pin backed badges, no threat of death by pinpricks, just a bit of accountability and transparency. Such as maybe knowing the name of the officer who beats you up.

But even the pinheaded excuse about the dangers of wearing badges looks better than the likely real reason for the practice of officers not wearing identification. 

September 18th, 2007 Posted by Unsilenced | Human rights, Police | one comment

Haneef and the true dangers of anti-terrorism measures

After a four week ordeal, Mohamed Haneef has finally left Australia. Kevin Andrews refused to reinstate his visa, but allowed him to go back to India. This "generosity" comes at a price - Haneef is free to leave only on the condition that he doesn't talk to the media or allow his picture to be taken. The government is clearly hoping that if Haneef leaves quickly and quietly the whole affair and the government's role in it will be forgotten.

The Haneef affair should be remembered, not because it is undoubtedly a source of acute embarrassment to the government, but because it demonstrates the dangers of overzealous anti-terrorism laws, combined with the willingness of the government (with the blessing of the opposition and most of the electorate) to undermine the rule of law and trample civil rights in its "war on terror" (or more accurately in its attempt to make political mileage out of the "war on terror"). Ruddock may have the gall to say "I think that what we have seen is that the system worked as was intended", but what we have seen is the failure of "the system" to do what it is supposed to do - ensure that in our pursuit of the guilty we protect the innocent.

Civil rights, separation of powers and the rule of law are core Australian values, they are there to protect everyone one of us. Dismantling them to go after suspected terrorists puts us all in danger. I think this rationale was best described by Robert Bolt in his play about Sir Thomas More - "A man for all seasons":

Roper: … you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast - man's laws, not God's - and if you cut them down - and you're just the man to do it - do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

In our haste to get after the Devil of terrorism we have allowed our government to cut down laws protecting our civil rights, to undermine the rule of law and the separation of powers. When you add into the mix the political interests involved and the pressures resulting from them, standing upright in the winds is becoming increasingly more difficult, and the Haneef affair is a good illustration of the results that follow.

Haneef was arrested in the thoroughly suspicious act of trying to board a plane to India, where his wife had just given birth, without having a return ticket and while looking Muslim. After being held and questioned for two weeks, while his lawyers weren't even given enough information to know what the evidence against him was, Haneef was charged under section 102.7(2) of the Criminal Code Act 1995 (Cth):

102.7 Providing support to a terrorist organisation
…
(2) A person commits an offence if:

(a) the person intentionally provides to an organisation support or resources that would help the organisation engage in an activity described in paragraph (a) of the definition of terrorist organisation in this Division; and (b) the organisation is a terrorist organisation; and
(c) the person is reckless as to whether the organisation is a terrorist organisation.

Penalty: Imprisonment for 15 years.

This provision was included in the Criminal Code as part of a host of anti-terrorism measures hastily legislated by the government. So hastily in fact that the legislation does not even define what "support" or "resources" mean. Quite extraordinary for an offence that carries such severe penalty. In the case of Haneef it was decided that providing a SIM card to a relative, who later happened to be charged with concealing knowledge of a terrorist act, was sufficient to charge him with the offence.

To add to the peril of undefined nature of the offence, bail can only be granted for a person charged with a "terrorism offence" in "exceptional circumstances". Nonetheless, a Brisbane magistrate ordered that Haneef be released on a reasonably low ($10,000) bail. What happened as an immediate consequence of that decision is perhaps the best clearest illustration of the government "cut[ing] a great road through the law" - the executive intervened to subvert the court decision and keep Haneef incarcerated using the migration powers. 

Government interference in the process of justice is the greatest threat to the rule of law and to the protection of our civil liberties. Failure to maintain a strict separation of powers between the executive and judicial arms means that political interests of the government are allowed to take the place of justice. It means that decisions affecting our rights a liberties are made not in the open forum of the courtroom, after presentation and consideration of the various arguments, but in the secretive confines of a ministerial office (in this case Kevin Andrews'), based on one sided information, without an opportunity for argument or appellate scrutiny. 

The fact that the government was able to take that measure with not a whisper of protest from the Opposition and very little concern on part of the electorate demonstrates just how much danger the rule of law is in when it comes to anti-terrorism measures. An individual accused of a terrorism offence may find himself deprived of all the normal protections that the law gives a person (and lets remember that the person is innocent unless they are proven guilty).

Lets recall that at the same time stories were circulating in the media, fueled by various statements made by the AFP and the government: that Haneef the SIM card was to be used to set off the bomb, that the SIM card was found in the burning vehicle at Glasgow, that Haneef lived, worked and associated with the UK terrorists and so must have known what they were up to, etc. All these allegations have now been proven to be false. Ruddock was publicly stating that courts should be prevented from granting bail for terrorism offences altogether (the implication being that people as clearly guilty as Haneef should not be released) and Andrews was hinting that there is "secret" evidence, known only to the AFP and himself, that must prove Haneef's guilt.

When Haneef's lawyers took a page out of the government's book and released a transcript of his interview, they were publicly and viciously condemned by government ministers, including Howard who contended that now Haneef wouldn't be able to have a fair trial (you don't say!) and Ruddock who was threatening to have Stephen Keim QC prosecuted for daring to release a document with the potential to counter the misinformation leaked by the government.

Haneef is now free in spite of the "system", not because of it. He is free because because his legal team had the courage to fight the government in its own arena of public opinion, rather than their traditional arena of the courtroom, because release of Haneef's interview allowed public scrutiny of the gaps in evidence, because of heightened media interest and because, unlike the cowardly stance adopted by Rudd, Peter Beattie continually questioned the process. A bit of luck probably helped too.

Consider the situation: an individual is charged with a very serious offence, the scope of the offence is not clear, his legal team are not given access to all the information required to defend him, he is being held by virtue of a ministerial decision which cannot be appealed on merits and in relation to which he was not given the right to be heard, he is being vilified in the media by the same government that has locked him up and his lawyers are being personally attacked by the government for daring to defend him.  So much for natural justice, so much for presumption of innocence and so much for the rule of law.

Every one of us can become that individual, because we have allowed the government to undermine the rights and values that are there to protect us all. This is the true danger of anti-terrorism measures - the protections for the innocent have been dismantled. Before we allow our leaders to continue cutting the road through the law, we should ask what will protect us from the winds. And our leaders would do well to ask themselves whether undermining public confidence in anti-terrorism laws advances Australia's fight against terrorism.

July 29th, 2007 Posted by Unsilenced | Australian politics, Law, Human rights, Howard government, Terrorism and war on terror | one comment

A clear case of prejudice

Two days ago the Democratic Audit of Australia released a report titled "How well does the Australian democracy serve sexual and gender minorities?". The answer is not very well at all, really. While significant advances have been made at State and Territory level, little advancement in rights of sexual minorities occurred at federal level. The report found:

… significant areas in which inequality and discrimination persist, most damningly in the area of relationship recognition in the federal sphere. Here Australia lags well behind many other comparable countries, with the current federal government demonstrating considerable political hostility towards these equality claims. This persistent antagonism to claims for equality and same-sex relationship recognition suggests that reform at the federal level is unlikely to advance any further at least until a change of government. In contrast,the States and Territories have, for the most part, been responsive to demands for legislative and policy change.

This finding is entirely consistent with the findings of the HREOC Same Sex, Same Entitlements Inquiry which found 58 federal laws that discriminate against same sex couples in almost every conceivable area of life. In response to the Inquiry Howard protested "We certainly aren't a government that supports discrimination", but in the next breath declined to do anything about the discriminatory laws which, as HREOC found, could all be remedied by one simple amendment. John Anderson did one better, stating that, apart from marriage, he couldn't think of any laws that discriminated against same sex couples (obviously reading the HREOC report was out of the question)

The government's failure to do anything about the persistent and unjustifiable discrimination against gays and lesbians can only be explained by an ideological hostility to same-sex relationships. In short - the government is driven by prejudice. Whether that prejudice is described as homophobia or as something else - it is not rational, it is not just, it is a violation of human rights of a sizable minority of Australians and it has no place in the modern society.

If any more evidence was needed that the government's approach is motivated by prejudice - consider Ruddock's response to a request from Justice Michael Kirby to change the law so that his partner of 38 years can access his pension on the same basis as the heterosexual partners of the other judges. what exactly would be the harm in reviewing the law? It is not even a situation where the government could cry "think of the children" as it has done in response to other proposed changes. There can only be one reason not to do so and that is that the government is content to allow discrimination to continue because it is in line with its ideological position.

Unfortunately rights of sexual minorities are unlikely to be an election issue, precisely because they are "minorities". However, before casting our vote, the rest of us would do well to remember that prejudice and discrimination against a minority within our society devalues our society as a whole. 

July 25th, 2007 Posted by Unsilenced | Human rights, Howard government, Gays and Lesbians | 2 comments

Re-creating Tampa

Once upon a time the Howard government was dangerously close to losing an election. But its fairy godmother delivered it a special election time gift - a ship called Tampa, with its cargo of a couple of hundred desperate bedraggled refugees rescued from their sinking boat. It's arrival saved the government. The carefully stirred fear of inundation by the threatening "otherness" of the asylum-seekers, the not-so suppressed echoes of the White Australia mentality, "border protection" and border excision, military deployment to export the unwanted human cargo to vulnerable and easily bribeable neighbouring islands, all incited voters to turn to the government as the only thing that could "protect" them. Fear is a powerful emotion, so powerful that we don't stop to examine just how irrational our fear may be, so powerful that we forget to be outraged about lies, deception and truth being thrown overboard.  When it comes to election strategy - fear is king!

Now, with election swiftly approaching, the government popularity at all time low and no ship full of convenient scapegoats visible on the horizon, the government had to re-create Tampa by another way. 

Haneef is a rather poor substitution for a boat-full of refugees, but desperate times obviously called for desperate measures. I have previously criticised the actions of the government in relation to Haneef, but I'd like to draw some parallels between the government's previous strategy to capitalise on the fear of asylum seekers and its present strategy to capitalise on the fear of terrorism.

1. Abuses of power

Treatment of asylum seekers was characterised by abuses of power, non-compliance with our international treaty obligations (eg. under the Refugee convention), violations of human rights (eg. by lengthy detention at the pleasure of the executive) and avoidance of legal remedies (eg, by ousting jurisdictions of courts or giving wide discretionary powers to decision makes to make decisions almost impossible to review).

The same abuses are evident in the case of Dr Haneef - lengthy detention prior to laying of charges, lack of clarity in the charges, denial of natural justice by withholding of information from Haneef's lawyers and subverting the legal process by utilising Migration Act powers are a few examples.

2. Lies, damn lies and the government

Anyone remember the children overboard affair? The government lied and it got away with it. A neat trick if you can pull it off.

Haneef's case, we now discover is also plagued by what appear to be deliberate lies or untruths. The AFP told the court (and the public) that Haneef admitted to living with the two UK terror suspects when he was in UK himself. In fact, Commonwealth Prosecutor Clive Porritt told the court that Haneef must have had some knowledge his cousins' links to terrorism because "These are people who he lived with, may have worked with and certainly associated with."

Now we find out that Haneef did not in fact live with the UK terror suspects. That's one hell of a mistake to make. 

The AFP also told the court that Haneef had no explanation for not having a return ticket from India to Australia, when the transcript of Haneef's interview, bravely released by his legal team, shows that he did in fact give a detailed and reasonable explanation. 

And perhaps the biggest "untruth" of all - the entire case hangs on the SIM card that Haneef is alleged to have given to his cousin and that was supposedly found in the burnt out Jeep that crashed into Glasgow airport. Well, new revelations indicate that the SIM card was not found in the Jeep at all, but was seized some eight hours later and was in possession of Sabeel Ahmed, who is accused of concealing information about the terrorist act, but not of actually committing it.

It's the truth overboard affair all over again and the government is up to its eyebrows in it.

3. Fear of exposure

In its (mis)treatment of asylum seekers the government went to great lengths to avoid exposure and conceal information. From gagging parliamentary debate to establishing off-shore detention centres, from whence troublesome journalists or lawyers could be excluded by visa requirements as well as barbed wire, the government ensured that secrecy ruled. One suspects there were at least two reasons for it. The first is that it is easier to dehumanise a group of people when they are physically separated from us. The other is to control public discourse on the issue in a way that suited the government. 

The same is true in the Haneef situation. There are the claims about "secret" evidence that no one is allowed to see and which is therefore immediately presumed to be damning. The crackdown on release of information, including unjustified and hypocritical attacks on Haneef's legal team who dared to release the transcript of his interview (which is how we found out about the lies set out above), combined with carefully planned leaks and public statements by the government create the conditions for control of public discourse about the issue.

Just how important this control is was evidenced by the extraordinary reaction to the release of Haneef's interview transcript, a reaction which included vilification and, arguably, threatening statements by very senior government ministers (including the PM) and pressuring the editor of the Australian to withdraw the online copy of the transcript (the pressure must have been great because the Australian complied). The message is clear - the government wants to be in control of the discussion, it wants darkness where fear can grow and fester, undisturbed by the cleansing rays of light.

4. Labor party response - the shadow

Just like with the asylum seeker situation, Labor has been forced to become a yes-man to the government. Whatever its own ideological standing is on the issue (and unfortunately it is probably not too far from that of the Howard government), if it does anything other than support the government's position it will be swept away by the tidal wave of fear.

It allows the government to lead, with Labor reduced to making weak statements of support. For a government that has been on the back foot, it is a good election strategy.

Haneef case has become the government's chance to re-create Tampa and to bring fear to its aid at a time when rational approach to electoral choices is not in its favour. In doing so, it is again victimising someone who is vulnerable to abuse of power and undermining long established principles that are designed to protect us all. It is once again morally impoverishing Australia.

July 20th, 2007 Posted by Unsilenced | Australian politics, Human rights, Howard government, Terrorism and war on terror, Misconduct in politics | no comments

The true face of terrorism measures

Earlier today a magistrate ordered that Dr Haneef be released on $10,000 bail, pending his trial on charges of recklessly providing resources or support to a terrorist organisation (aka giving his cousin a SIM card that wasn't even used in the attempted attacks). Given that obtaining bail in matters concerning a "terrorism offence" is very difficult indeed, Haneef's release on bail says something about the evidence against him.

But Haneef didn't get much time to enjoy his freedom after two weeks of confinement and interrogation. Shortly after the court decision, Kevin Andrews, the Minister for Immigration cancelled Haneef's visa on "character grounds" and ordered that he be locked up in immigration detention to await his trial at the end of August.

Section 501(6) of Migration Act empowers the Ministerto cancel a visa where he believes that a non-citizen "has or has had an association with someone else, or with a group or organisation, whom the minister reasonably suspects has been or is involved in criminal conduct."

Andrews stated "In turning my mind to the information and advice provided to me by the Australian Federal Police, I have come to the conclusion, I reasonably suspect, that Doctor Haneef has or has had an association with persons involved in criminal conduct."

Naturally, "association" (which is not defined in the Act) can be guilty, for example where a person knows of their associates' criminality, or entirely innocent, such as association with a relative who unknowingly to the person happens to be a criminal. The fact that Haneef was charged with "recklessly" providing support/resources to a terrorist organisation, suggests that the AFP do not think (or cannot prove) that Haneef knew of his cousin's terrorist inclinations. Kevin Andrews refused to be drawn on the issue when questioned about it on the 7.30 Report.

Conceptually it is difficult to understand how "associating", whatever that means, with a relative, without being aware of his criminality, automatically makes you a person of bad character. It is also difficult to reconcile Andrews' action with according Haneef the presumption of innocence that the PM spoke about. However, this is not the biggest issue with what Andrews has done.

What occurred here is a subversion of judicial process (the only process that can guarantee some sort of impartiality and objectivity in such a matter) by the executive arm of government. Not only is this branch of government, through the AFP, involved in prosecution of Haneef, it also has a vested political interest in the outcome of the proceedings - it would be quite embarrassing for the government if its crackdown on terrorism netted an innocent person. Such an eventuality would also vindicate the concerns about anti-terror laws that have been expressed by those who remain concerned about the erosion of civil liberties.

The government waited for the outcome of the bail hearing and when a desired judicial outcome was not achieved, it took matters into its own hands, exercising immigration detention powers. The purpose of those powers is to detain a person while their visa status is determined or pending deportation. Their use as a substitute for pre-trial detention smacks of illegitimate circumvention of legal process and abuse of power. The fact that Haneef's lawyers were apparently assured that such action would not be taken casts further doubts over the legitimacy of the government conduct.

Kevin Andrews' action reveals the true face of terrorism measures. Dangers lurk not only in extraordinary detention powers, restrictions on ability to obtain bail and ill-defined offences with very severe penalties, they also lurk in the readiness with which the executive branch of government subverts the protections accorded to the accused by the legal process, the willingness that it shows to ignore the doctrine of separation of powers and its ability to become the judge and jury as well as the investigator and prosecutor. Labor's support for this action suggests that this phenomenon is party-neutral. No matter what party is in power, those suspected of terrorism offences (be they attempting to blow up buildings or sharing a SIM card) will find themselves squeezed from all sides with few legal protections available to them. 

July 16th, 2007 Posted by Unsilenced | Law, Human rights, Terrorism and war on terror | 3 comments

Sacrificing the rule of law at the altar of fear

        Inscriptions on the Statue of Liberty

Americans are good at coming up with inspiring slogans. Slogans are not sufficient however for a country to truly remain the "land of the free". They are not an adequate antidote to the fear-driven knee-jerk reactions threatening to compromise essential tenets of rule of law and freedom, not only in America, but also in other democracies.

A few days ago a prominent US judge - Richard Posner, gave a speech to a conference of Australian lawyers in Chicago, in which he reportedly advocated secret trials for terror suspects, increased surveillance and crackdown on US and Canadian Muslims. More frightening still was Posner's suggestion that anti-terrorism efforts should not be "hog-tied" by the Constitution and that US "over invested" in the "traditional concepts of criminal justice." 

I have not been able to find a full copy of Posner's speech, but his speech is said to have shocked the attending Australian lawyers. Posner's position is indeed a worrying reminder of how dangerous a motivator fear is. What we have is a US judge essentially suggesting tearing up the constitution and discarding the principles that form the foundation of the American justice system and the rule of law because he (along with many others) is afraid. We are not talking about someone who is a fool or a right wing extremist. Posner is a highly regarded jurist. Whatever one may think of his economic theory of law (it doesn't appeal to me personally, but each to his own), there is no point denying his capabilities.

That a jurist of his caliber would suggest abandoning the carefully crafted protections and principles that we treasure as cornerstones of our legal (and political) systems, because "the US temper and culture could not sustain repeated terrorist attacks" points to the fragility of our liberties. The country that proudly proclaims itself to be "the land of the free" is willing to destroy its freedoms because of fear. No terrorist action is needed to destroy the American "way of life" - they appear to be content to do so themselves. 

It is not my contention that the fear is unjustified or that the threat of terrorism ought to be ignored. But if we (Western democracies) are to destroy the cherished liberties and principles that make "our way of life" what it is - then what is it that we are fighting for? Do we really want to defend ourselves by destroying who we are? Do we want to abandon the protections and liberties that were achieved through decades or centuries of struggle and sometimes bloodshed? If the answer is yes, then the "war on terror" has already been lost.

One other comment that Posner reportedly made is that the measures he proposed would not "endanger liberty and undermine the political system" because a "very aggressive media" and government whistle-blowers made it impossible for governments to conceal what they did. It is quite extraordinary that a judge would propose media as a substitute for the protections enshrined in the legal system. Leaving essential liberties to the mercies of what journalists wish (or dare) to report and to the possibility that a government employee would be sufficiently disgruntled and courageous to blow the whistle, borders on absurd. It is not to say that the media does not play an important role in government transparency, but it is not an antidote to abuse, as is evidenced by the documented atrocities in the "war on terror". Further, revealing abuses, possibly years afterwards, is not the same as preventing them from happening in the first place.

America's rush to destroy its founding principles is very disturbing. If it continues on that road, the inscriptions on the base of the Statue of Liberty will stand as no more than sad reminders of proud and cherished values willingly sacrificed at the altar of fear. 

July 2nd, 2007 Posted by Unsilenced | World politics, Law, Human rights, Terrorism and war on terror, United States | no comments

We don’t support discrimination, we just practice it

Last Thursday the Human Rights and Equal Opportunity Commission (HREOC) released the report of the Same-Sex: Same Entitlements Inquiry - a year long audit of federal laws that discriminate against same-sex couples and/or their children and the impact of these laws.

The Inquiry found that:

The discrimination covers areas as diverse as superannuation and pensions, employment entitlements, taxation, Medicare, social security and family laws.

The good news is that discriminatory laws are easy to fix - all that is needed is a change of definition to include same-sex couples within the meaning of de-facto. In recommending that changes be made, HREOC stated:

There is no need to rewrite federal tax legislation, superannuation legislation, workers’ compensation legislation, employment legislation, veterans’ entitlements legislation or any other major area of federal financial entitlements. There just needs to be some changes to a few definitions at the front of each relevant piece of legislation.

The other bit of good news is that the vast majority of Australians support equal rights for same sex couples. A survey of 1100 people, commissioned by GetUp and conducted by Galaxy found that 71% of Australians support the idea that same-sex couples should have the same rights as those in heterosexual de-facto relationships.

Now for the bad news. The Howard government is, not surprisingly, not interested in effecting any change. It does not care that 58 federal laws treat people as second-class citizens simply on the basis of who they love. Responding to the GetUp survey, Howard said "We certainly aren't a government that supports discrimination". And in the next breath "We are not in favor of discrimination, but of course our views on the nature of marriage in our community are very well-known and they won't be changing."

That's right - we don't support discrimination, but we practice it and we won't be changing that! We aren't prejudiced, we just don't think that a same-sex relationship is on par with a heterosexual relationship. It's not prejudice, is it? We believe in equality before the law for everyone, except gays and lesbians. We care about the best interests of the child, except the children of gay parents disadvantaged by discriminatory laws.

GetUp is running a campaign, gathering signatures for a petition to reform discriminatory laws. Please take a moment to sign it and tell the government that it is time for Australia to leave the 1950s and enter the 21st centry. 

Please also take a look at the great comment on this post which contains more information and an interesting campaign to inform Mr Anderson (who reportedly doesn't believe there is any discrimination against same sex couples). 

June 24th, 2007 Posted by Unsilenced | Law, Human rights, Howard government, Gays and Lesbians | 3 comments

Can you justify torture?

There is an excellent article by Sally Neighbour in the Australian, titled "Asking the painful questions", which deals with use of torture by the West in the "war on terror".

The article mentions the dilemma formulated by the US legal academic Dershowitz. Imagine this scenario:

"A massive bomb has been set to go off in downtown New York or Sydney. A member of the terrorist cell has been captured. It's believed he has information that could avert the attack, saving hundreds, possibly thousands, of lives. Should he be tortured to get that information?"

Would it be, for example, acceptable to force a sterilised needle under the nails, causing excruciating pain but no permanent damage?

It is very tempting to answer yes to this question. After all, we are talking about a potential mass murderer. There are hundreds of lives at stake. Surely, saving hundreds of lives balances favourably against causing temporary pain to a member of a terrorist cell?

Of course there is a little problem in that, if the person does reveal information under torture, you have no way of knowing whether information is reliable. They would no doubt would be delighted to send the authorities on a wild goose chase. In the meantime our timebomb may very well go off.  This particular argument against use of torture is entirely pragmatic - while it may be effective to force a confession to matters suggested to the victim (for the history buffs - consider the formulaic confessions given by those accused of witchcraft), but it is not all that effective at getting to the truth.

Pragmatic considerations aside, there is a much more important reason why torture is never legitimate. Consider this:

What if the building with a ticking time bomb contains dozens of people, not hundreds. Is use of torture justified then? Does it matter if they are "nice" people we feel sympathy for (eg. if this is a kindergarten building) or if they are not so nice people (eg. if this is a prison building)? What if it is only two people? Or one person? Is every life not equally precious? If it is ok to torture a person to save hundreds of lives, why is it not legitimate to save dozens of lives or to save one life? Where do you draw that line?

What if you don't know that there is a ticking bomb set to go off just yet, what if you just suspect it may be some time in the future. Is it ok to torture your terrorist suspect then? Does it matter if s/he is not personally involved in the plot but is merely protecting someone who is (eg a family member)? Does it matter if they are a child or elderly or ill?

Why would we restrict it to terrorism. How about an accomplice of a serial killer? Should they be tortured to reveal the identity or whereabouts of someone who may murder one or more people? What about a suspected serial killer against whom there is not enough evidence and s/he will go free to kill again - is it legitimate to torture them for a confession? 

The point of these questions is that once you step on the slippery slope, there is no return. There is no stop sign. If torture is legitimate in any circumstances, it will be legitimate in many circumstances.

The article cites a proposition from Dershowitz to make use of torture more transparent (acknowledging the reality that governments do use it), but creating a "system of torture warrants, whereby US President George W. Bush or Prime Minister John Howard would have to sign off on a warrant issued by a judge to authorise torture."

Quite apart from the fact that no political leader would be honest enough or stupid enough to put their signature on such a warrant, the proposition is quite repulsive. Firstly, torture is so antithetical to our common law, to international law and to all notions of decency and humanity, that any judge who does sign such a warrant would be unworthy of their position. An even greater problem is that to officiate torture is to legitimise it. To give an express right to political or judicial officers to approve its use is to sound the death knell for the universal prohibition on torture. The prohibition is reduced to saying that it is not ok, unless we say its ok, which is no prohibition at all.

Dershowitz's argument is pragmatic. "We live in a world where we have to choose evils," he argues. "We can't just declare suddenly, 'Let's not have torture', the way some human rights organisations do, and hope it will go away. It's not going away."

Practically speaking he is right. However, ideologically he is not. The world said "let's not have torture". Almost 130 countries said it when they ratified the Torture Convention, almost 150 countries said it when they ratified the ICCPR. Prohibition against torture is now firmly entrenched as a jus cogens rule of international law - meaning that the prohibition is a peremptory norm which no treaty or law can abrogate. It is absolute.

The cause of eliminating the use of torture in practice cannot be advanced by undermining this absolute prohibition. Why should we allow those who do engage in or authorise this inhumanity to hide behind a warrant? Let them fear revelation and political consequences while in office. Let them fear the legal consequences once out of it. Let them remember Pinochet and have no delusions of impunity. And let them spend the rest of their lives looking over their shoulder for their own Balthasar Garzon.

It is not perfect, it will not make torture go away, not today, not tomorrow, not in the next decade. But is it not better than giving up the fight and, for reasons of pure pragmatism, legitimating activity which can have no legitimacy?

June 18th, 2007 Posted by Unsilenced | World politics, Law, Human rights, Terrorism and war on terror | 2 comments

Not committed to preventing genocide

The Howard government has reportedly rejected the UN request to contribute troops to an international force for Darfur. Since February 2003 the genocidal conflict in Sudan has claimed as many as 450,000 lives (although the figure of 200,000 is often utilised) and created some 2.5 million refugees.

One might question the adequacy of the UN and international community response to the conflict as well as the adequacy of UN response to genocide generally (the genocide in Rwanda being the prime example). However, the Austrian government has not claimed that the proposed UN peacekeeping mission is likely to be ineffective or is too little too late - it rejected the request for troops because Australian Defence Force (ADF) has other commitments.

According to Howard, contributing to the UN force to stop genocide would require pulling ADF personnel from their other engagements. These "commitments" reportedly include: 1100 troops in East Timor, 970 in Afghanistan, 1575 in Iraq and 450 "monitoring Australia's maritime approaches".

The government previously described the genocide in Darfur as "one of the world's worst humanitarian disasters" and in 2004  Downer stated that "We shouldn't just turn our backs and say that doesn't matter", but talk it easy, action on the other hand requires true commitment.

The government prefers to have 450 troops making sure that no refugees from Sudan arrive on the Australian mainland (that's what "monitoring Australia's maritime approaches" means) rather than help put an end to the crisis that is forcing people to seek refuge. It prefers to contribute over one and a half thousand troops to a war that was based on lies and has already claimed hundreds of thousands of civilian lives in Iraq, rather than help to put an end to genocide which may have claimed as many as half a million lives.

If the refusal of the UN request is motivated by doubts as to the efficacy of the proposed UN action or by an Australian equivalent of the Mogadishu factor (ie not willing to risk Australian lives in an oversees conflict), then it should say so. If it is a question of priorities - what can be more important than putting a stop to the ultimate evil of genocide?

June 16th, 2007 Posted by Unsilenced | Australian politics, World politics, Human rights, Refugees and asylum-seekers, United Nations, Darfur | no comments