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Issue #1535      15 February 2012

Australia breaks Geneva Convention on prisoner treatment

According to the UK Guardian newspaper last week, under a covert US/Australia agreement, prisoners of war captured by Australian forces in Iraq were transported to secret US prisons for interrogation and torture. A similar arrangement may still operate in Afghanistan.

The US military’s abuse of prisoners of war, and the complicity of the Australian military and political leadership in that abuse, are contrary to the spirit and purpose of the Geneva Convention on the treatment of prisoners of war, and almost certainly constitute war crimes.

The Australian human rights organisation the Public Interest Advocacy Centre (PIAC) has battled over many years to obtain documents confirming these matters under Freedom of Information laws. The sequence of events which they describe, and which preceded last week’s revelation, is as follows:

In 2004 Australian military lawyer Major George O’Kane supplied advice to US forces over the abuse of prisoners in the notorious Abu Ghraib prison. Copies of his reports were forwarded to Australian military leaders.

The public was unaware that prisoners handed over by Australian forces to the US were to be taken to secret “black site” prisons, where they would be spat on, sexually humiliated, and/or subjected to “waterboarding”, sleep deprivation, diet “manipulation”, sensory deprivation, electric shocks and other forms of torture.

O’Kane advised that interrogation methods at Abu Ghraib “substantially complied” with the Convention - but not fully, because there was no time limit for their use, so the system was open to abuse. It certainly was. Ten seconds of being water boarded is very different from being effectively drowned, then forcibly revived, over ten minutes.

Australian military and political leaders quoted O’Kane’s statement about substantial compliance with the Convention, but didn’t mention his reservations.

According to the PIAC, O’Kane’s advice also concerned the US practice of systematically blocking visits to prisoners by the International Committee of the Red Cross (ICRC) on the pretext they were undergoing active interrogation. Under the Convention visits can only be blocked for imperative military reasons, as a temporary measure.

In 2010, the PIAC revealed that Australia handed over prisoners to the US without taking the necessary follow-up procedures to ensure they were treated in accordance with the Geneva Convention.

In July last year information emerged that prior to the death of Tanik Mahmud, a 43-year old Iranian prisoner captured by Australian infantry in 2003, he had been savagely beaten by British soldiers.

Britain waives the rules …

As reported in the UK Guardian newspaper last Wednesday, a US field inquiry report claimed a British military unit had been one of two military groups operating under US tactical control, as “an integral part of operations at H1”.

According to the newspaper’s unnamed sources, Britain’s espionage organisation MI6 and the US Central Intelligence Agency interrogated prisoners at H1. Mahmud was one of two prisoners who died on route to H1.

The evidence indicates that both Britain and the US break the spirit of the Geneva Convention in their overseas military operations, when it suits them.

… and so do we

The US field inquiry report stated that the Australian SAS squadron was Britain’s partner in the covert handover of prisoners to the US for transport to the “black sites”.

The two Iraqi prisoners who died on route to H1 were among 64 prisoners captured by Australian SAS soldiers and handed over to the British Royal Air Force for transportation by helicopter.

The Australian Department of Defence previously denied that Australian troops ever sent prisoners to H1. However, a now-declassified 2003 military document states that 64 prisoners “were handed over to the UK extraction FE (military forces) and UK aircrew for transit to an EPW (enemy prisoners of war) handling facility at H1”.

Defence seeks cover behind legal fiction

When presented with the documentary evidence of Australia’s complicity in the transport of its prisoners to H1, the Department of Defence declared: “Australia was not the detaining power during operations in Iraq in 2003 (and) therefore was not responsible for the transfer or detention of any detainee.”

The curious argument that Australia was not the “detaining power”, even though its troops captured 64 prisoners, derives from a major difference of opinion between the US on the one hand, and Britain and Australia on the other, over the Geneva Convention’s legal obligations.

The “Trilateral Arrangement”, an agreement between Britain, Australia and the US on the transfer of prisoners, was worded in accordance with the Convention, to which all three countries are signatories.

However, all the military prisons were controlled by the US, so Britain and Australia had to hand over their prisoners to the US for confinement. This presented a problem, because the US leadership regarded the terms of the Convention as less binding than Australia or Britain did, and it also designated its prisoners as “unlawful combatants”, rather than enemy soldiers as described in the Convention.

The Australian military leadership feared this would not stand up in court, and that transferring their prisoners to US custody would be seen as violating the Convention. The US therefore agreed to include with British and Australian combat forces at least one US soldier, who would be nominated as responsible for the capture of prisoners.

The Australian government and military authorities believed this legal fiction would defend them against prosecution for breaches of the Convention. Accordingly, in the case of Tanik Mahmud, Defence claimed the US was the detaining power, not Australia, so no transfer had taken place and the Trilateral arrangement was inapplicable.

However, author Leigh Neville has cited a US defence memorandum, which observes:

“Under the circumstances some doubt exists as to which party is the Detaining Power for the purposes of responsibilities under the Geneva Convention. … all parties will be jointly responsible until the detaining power has by mutual arrangement been determined.”

The US might therefore disclaim responsibility for the treatment of transferred prisoners, preventing determination of a “mutual arrangement” and leaving Australia or Britain to share the guilt with the US.

Meanwhile, last Wednesday’s report confirming Australia’s complicity in prisoner abuse is another reminder of the guilt of the Howard government and subsequent Labor governments in the barbaric and unjustified invasion of both Iraq and Afghanistan at the behest of the United States.

As Edward Santow, Chief Executive Officer of the Public Interest Advocacy Centre commented bluntly: “The report highlights clearly that Australia had clear obligations under the Geneva conventions and it deliberately sought to avoid them.”  

Next article – Editorial – RBA head in the sand … again

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