AS A joint “occupying power” in Iraq, Australia has a legal responsibility to all detained civilians and prisoners, according to an international law expert. This view is also held by Australian Lawyers for Human Rights.
Recent news of prisoner abuse in Iraq’s Abu Ghraib prison led to an onslaught of opinions in Australia’s press. An international law expert at the University of Sydney told The Australian that it was “perplexing” that Australian military lawyers appeared not to have reported concerns for the prisoners to superiors.
Apologies from Prime Minister John Howard that he was not informed of prisoner abuse documents were criticised by Greens Senator Bob Brown, who argued the PM’s anger should be self directed.
“He flew to Baghdad for Anzac Day with knowledge of abuse claims by Amnesty International and the Red Cross and with US Army Major-General Taguba’s incendiary report already months’ old,” Brown said.
“Howard failed to make it his business to ask. Once again he took the ‘don’t ask, don’t be told’ option. He left Australia’s interests to the US command.”
Australia now stands in breach of the Geneva Convention, according to some commentators.
However, Australian Lawyers for Human Rights (ALHR) president Simon Rice argued this was a matter of opinion.
In an interview with Lawyers Weekly, Rice said if one’s opinion was formed by the Geneva Convention, one would say that because Australia joined the coalition of states in the invasion of Iraq, and took up the responsibility to occupy Iraq, then it should have asked questions it would not normally ask, including those relating to the treatment of prisoners.
If Australia was aware of the allegations and did nothing about them, then it would stand in breach of the Geneva Convention, Rice said.
He said the ALHR viewpoint had been expressed well by Professor Gillian Triggs, Director of the Institute for Comparative and International Law at the University of Melbourne.
As a member of the coalition of states in Iraq, Australia was responsible as a joint occupying power for the treatment of those detained as a consequence of the conflict, Triggs advised.
Australia’s continuing obligations as a joint occupying power were not altered by Security Council Resolution 1483 (SC Res 1483), in the absence of express termination of its status in relation to future acts, Triggs said. And, even if SC Res 1483 had the effect of ending Australia’s status as a joint occupying power, she said Australia remains responsible for the treatment of prisoners of war under the general principles of state responsibility.
The Shadow Minister for Foreign Affairs and International Security Kevin Rudd stated in Parliament last month that from the beginning of hostilities in March and April last year, Australia had a responsibility, as did the US and the UK, to ensure that a regime for the proper treatment of prisoners was put in place in Iraq. The Howard Government had conceded at this time that Australia had the responsibilities of an occupying power under the Geneva Conventions, Rudd said.
But Minister for Foreign Affairs, Alexander Downer, claimed Australia had not captured anybody, Rudd said. Fault with this argument could be found in Senator Hill’s statement in May last year that Australian forces had “apprehended” 59 Iraqis. The word apprehended, in any language, meant captured, Rudd said.
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