25 MARCH 2003



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.