MATTERS OF PUBLIC IMPORTANCE: Iraq: Geneva Conventions

Mr RUDD  (Griffith) (3.34 p.m.) - This is no ordinary matter of public importance. The reason is that it is about people whose lives are at stake as we speak: people in Iraq, people in Afghanistan and people at Guantanamo Bay. What I propose to do today is not engage in a polemic; I wish starkly to outline to the parliament the international legal obligations of this government, and how those obligations are not being met by this government.

We have the Geneva conventions, in large part, because of the way civilians and prisoners were treated in World War II, including Australian prisoners of war - all 34,000 of them, including the thousands who lost their lives at the hands of the Japanese in prisoner of war camps. That is why the international community came together in 1949 to negotiate a better protective regime for the future - the Geneva conventions. Australia ratified the conventions in 1958. Menzies was the Prime Minister and Casey was the foreign minister, after whom this government has named the Department of Foreign Affairs and Trade building. One member of parliament noted in a parliamentary debate in December 1957, `This bill represents a milestone in the history of humanity and in the history of international law.' That member of parliament was E.G. Whitlam. Another MP agreed, adding, `It touched the most fundamental concepts of humanitarian motives.' That member of parliament was Jim Killen, the Liberal member for Moreton. Here we now stand, nearly half a century later, confronting the obscenities that have occurred, most recently in detention centres in Iraq, as if we had learnt nothing.

What precisely did the Geneva conventions have to say about the protection of prisoners? The cornerstone of the Geneva conventions is the definition of the responsibilities of an occupying power. The term occupying power refers to a state which has invaded another state and remains party to the military occupation of that second state. The third Geneva convention outlines the responsibilities of an occupying power for the humane treatment of prisoners of war and other prisoners. The governments of the US, the UK and Australia have explicitly acknowledged that the third and fourth conventions apply to Iraq. So how does the third convention apply specifically to the treatment of prisoners? Article 3 imposes a general responsibility on occupying powers to specifically prohibit outrages on personal dignity, in particular, humiliating and degrading treatment. Article 13 of the convention states:

Prisoners of war must at all times be humanely treated.

Article 14 of the convention states:

Prisoners of war are entitled in all circumstances to respect of their persons and honour. Women shall be treated with all the regard due to their sex and shall in all cases benefit by treatment as favourable as that granted to men.

Beyond these general provisions, the Geneva convention outlines in article 12 specific provisions relating to the transfer of prisoners between what the convention describes as the detaining power and the protecting power.

Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. ... the Detaining Power is responsible for the treatment given them.

This is of fundamental importance in this debate because it explicitly recognises that ultimate legal responsibility is borne by the high contracting parties to the convention - that is, the governments of the countries concerned, not the individual units of the armed forces of those countries. What article 12 details is that, if an invading state captures prisoners and then decides to hand over those prisoners to another invading state for the purposes of incarceration, the ultimate legal responsibility for the wellbeing of those prisoners lies with the country which captured those prisoners in the first place. The convention also, in article 131, defines as a grave breach of the convention acts involving the inhuman treatment of prisoners as well as other acts.

Furthermore, grave breaches of the third Geneva convention potentially fall within the purview of the International Criminal Court and the Rome statute. The United States is not a party to the ICC, but Australia and the UK are. The provisions of the third and fourth Geneva conventions were ratified by Australia in 1958. They were supplemented by the first protocol to the Geneva convention in 1977, which Australia ratified in 1991. The first protocol adds, significantly, a specific prohibition on violence, including mental and physical torture and `outrages upon personal dignity, in particular humiliating and degrading treatment ... and any form of indecent assault'. This, then, is the legal framework within which these revolting, degrading and disgusting instances of the inhuman treatment of prisoners must now be formally examined by this parliament.

In the last two weeks the Prime Minister, the Minister for Foreign Affairs and the Minister for Defence have been all over the shop on the question of Australia's legal obligations. The only thing that has been common in their various statements is this: it ain't our problem. The political strategy of the Howard government has been quite clear: this is a Tony Blair problem and a George Bush problem, but it is not a John Howard problem. The Howard political strategy has been to turn up for all of the military parades and take whatever political benefit the government could get out of the war but be missing in action when it comes to Australia's legal responsibilities, having participated in the Iraq war in the first place, as far as the treatment of the civilian population and prisoners are concerned.

The unsettling truth for John Howard is that Australia does have formal international legal responsibilities for the treatment of Iraqi POWs. It is my responsibility in this parliament to explain how. The cornerstone of Australia's legal responsibilities in Iraq derives from our status as an occupying power. John Howard stated, on 17 April 2003:

We-

that is, Australia - have the obligation of an occupying power under the Geneva Convention. We, along with the Americans and the British have responsibilities, certainly, and we won't neglect those responsibilities.

Foreign Minister Downer has subsequently argued that our occupying power responsibilities mysteriously ceased on 22 May 2003, when the UN Security Council adopted resolution 1483. The foreign minister's argument is that, because the Security Council resolution does not specifically mention Australia as an occupying power, we are magically off the hook as far as our obligations under the convention are concerned. Put more crudely, because the Howard government did not have the guts to own up to its continuing responsibilities, like the Americans and the British, by sending a letter to the President of the Security Council, the government was home free.

Mr RUDD  - What stunning irony - the Howard government, which defied the UN Security Council in going to war in the first place, then turns around and seeks to use the UN Security Council to remove itself from its legal obligations under the Geneva convention! What stunning hypocrisy! When it comes to Australia's status as an occupying power, the problem with the foreign minister's tactic is that it is legally meaningless. Firstly, Australia's occupying power status is defined by the fact of our invasion of Iraq and the fact of our continued military presence in Iraq. These are facts which give effect to our obligations under the Hague and Geneva conventions. Secondly, Howard and Downer cannot simply legislate away these continuing occupying power responsibilities by trying to have a Security Council resolution concocted which turns a blind eye to Australia's involvement in the occupation and in the invasion. Thirdly, Security Council resolution 1483 does not purport to be an exhaustive list of occupying powers as it simply notes correspondence received from two of them - namely, the US and the UK, not Australia. Fourthly, the authority referred to in Security Council resolution 1483 is the Coalition Provisional Authority - the vehicle for the political administration in Iraq of the occupying powers, in which Australia today continues to have high-level representation. In other words, you cannot pretend not to be an occupying power on the one hand while having direct representation in the political vehicle of the occupation - namely, the CPA - on the other. Senator Hill himself last October in the Senate described Australia as `a member of the Coalition Provisional Authority'.

For the purposes of the argument, let us assume for the moment that the foreign minister's minimalist definition of the time frame for Australia's responsibilities as an occupying power - that is, from March to May 2003 - is valid. By the government's own definition, Australia, together with the US and the UK, had conjoint responsibilities at that time as occupying powers under the Geneva convention for the protection of both POWs and the civilian population. The Howard government's first responsibility under law, therefore, was to ensure that a comprehensive regime was established for the humane treatment of all prisoners of war and for the proper protection of civilians from the outset of hostilities

Australia's second set of legal responsibilities under the Geneva conventions in Iraq are much more specific. They are obligations that arise under article 12, which concerns the detention and protection of prisoners. That is why the ADF negotiated with the British and the Americans an arrangement for the transfer of prisoners dated 23 March 2003 - in other words, at the outset of hostilities. Remember that article 12 of the third Geneva convention outlines clearly the responsibility of the detaining and protecting powers - that is, those who capture prisoners in the first place and those who incarcerate prisoners in the second place. Remember that article 12 says that a detaining power or the capturing power is responsible for the treatment given to prisoners. Furthermore, if prisoners are then transferred to another power - in this case, the United States - and the Americans subsequently fail to carry out the provisions of the convention in any respect, the country which handed those prisoners to the Americans for incarceration is required to `take effective measures to correct the situation or ... request the return of the prisoners'.

So the practical question arises: did Australia detain prisoners during the Iraq war and did they do so during the period when the Howard government itself acknowledges that it was an occupying power under article 12 of the convention? The answer is yes. We know from the Senate Hansard that up to 59 Iraqis were taken prisoner by Australians. The minister indicated tonight that it was possibly up to 100. The practical question which then arises is: what mechanisms did Australia put in place to ensure that the prisoners it captured, detained and then handed over to the Americans for incarceration were protected in accordance with the Geneva convention? Were liaison officers appointed? What monitoring arrangements were put in place with the Red Cross?

There is not the slightest shred of evidence to date that any individual from the ADF mistreated prisoners, but there is little evidence to date that the Howard government put in place proper protective measures to ensure that its obligations under the convention were met. This is the responsibility of the Howard government as a high contracting party to the convention.

The trigger mechanism under article 12 of the convention is when Australia became aware of any maltreatment of Iraqi POWs. This leads us to the comedy and tragedy of the conflicting statements by the foreign minister and the Minister for Defence as to when they first knew of allegations of prisoner abuse. When first asked this, the defence minister said he only found out in late April. When the foreign minister was asked this he said he found out in the middle of January. The truth, of course, is that the US military on 16 January issued a statement outlining allegations of detainee abuse in Baghdad. This was reported by the ABC on 17 January. Furthermore, on 20 March the Coalition Provisional Authority, of which Defence Minister Hill says we are a member, issued a statement indicating that personnel had been charged with crimes including maltreatment of and cruelty to prisoners.

But the unexploded time bomb in the middle of all this is the Red Cross report of February 2004, a report which covers the whole period of March 2003 through to November 2003. It reveals a picture of systematic abuse. So when do the Australian government acknowledge that they received this February 2004 report? Answer: February 2004. So what do they do once they have received it? Answer: nothing, because their argument is that it was directed to the US and the UK. The question rightly arises, once they became aware of the existence of this report - which they said they did in February 2004 - why they did not immediately request a copy of it and then take action arising from the contents of the report in terms of the tale of prisoner abuse that it contained. Why did they not do that? To date, the government have indicated that they took no action in response to that report. This constitutes a gross failure on the part of the Howard government to honour their obligations under the Geneva conventions.

So what should the Howard government now do?

There are four core questions that the minister must answer in his reply. I am glad you find this funny and amusing, Minister! As people are tortured and people are placed in detention and subjected to degrading and inhuman treatment you find it a jolly good giggle, do you? You are a disgrace to this parliament! There are four questions that the minister must answer in reply.

First, he must detail all the arrangements and agreements and protocols put into place in March and May 2003 for the proper protection of Iraqi POWs

Second, the Australian government must detail all monitoring actions it took independently or in conjunction with the Red Cross to ensure that these arrangements under the Geneva convention standards were properly applied.

Third, it must detail when it found out that the ICRC had concerns about prisoner abuse and what actions this government took in response to that. Fourth, will the government now agree to initiate a formal inquiry into this sordid affair, consistent with its powers under article 132 of the Geneva convention itself?

Against all these criteria this government stands condemned. This debate is not a matter of politics. This is a debate which is a matter of morality; it is a debate which is a matter of legality. It is a matter about this country honouring its international treaty obligations. It is about what is right and wrong in this country's international relations. Against these criteria this government stands condemned.