Is Australia’s mandatory, indefinite detention system a crime against humanity ?

- Extracted item from www.crikey.com.au , 16 February 2004

Thanks to www.crikey.com.au for their important piece of news reporting, copied below, that you perhaps won’t read or hear anytime soon in mainstream media. Before a prestigious audience at a Rotary breakfast at the Royal Automobile Club of Victoria in Melbourne on 16 February 2004, leading Q.C. barrister Julian Burnside put it directly to his fellow speaker, Immigration Minister Amanda Vanstone, that the Australian Government’s present system of indefinite mandatory detention [TK – of boat people asylum-seekers] is a crime against humanity, as defined in section 268.12 of the Australian Criminal Code , a law passed pursuant to Australia’s accession a few years ago to the treaty setting up the International Criminal Court

As Crikey commented, it was an extraordinary debate. Burnside accused Vanstone and her fellow government ministers Howard and Ruddock of crimes against humanity. I don’t find Burnside’s claim "rather extraordinary". But I do find it extraordinary that Minister Vanstone had no reply to offer.

I salute Burnside’s courage in opening up his case against the government for public debate. Now who will respond, and how will they respond ? And who will support Burnside ?

* * *

When I opened this website a few months ago, I wrote in the "About this Site" section

http://www.tonykevin.com/about.html

about my hope that one day a similar legal logic might be applied to the case of the 353 drowned victims on SIEV X. I believe that the passengers on SIEV X were a "civilian population" as defined in this law, and if my analysis of the public evidence is correct , a "systematic attack" was directed against them, that may have had general encouragement and/or logistical support from Australian national security agencies engaged in covert activities under Australia’s people smuggling disruption program in Indonesia.

Gradually but inexorably in years to come, the legal net will draw tighter around the SIEV X alleged crime against humanity also.

Tony Kevin, Canberra, 17 February 2004

COPY:

"Vanstone vs Burnside as the Accusations fly",

- by Crikey’s spy at the RACV Club

(from Crikey.com.au, Monday Feb 16 2004)

 

It was a full house when Julian Burnside QC, one of the most vigorous opponents of mandatory detention, went face to face against Immigration Minister Amanda Vanstone at a Rotary breakfast in held at the RACV Club in Melbourne this morning.

It was an extraordinary debate as Burnside directly accused Vanstone of crimes against humanity but the Minister failed to respond.

Burnside’s argument was that in 2002, along with more than 80 other nations, Australia acceded to the Rome statute by which the International Criminal Court was created.

This permanent court has jurisdiction to try war crimes, crimes against humanity and crimes of genocide regardless of the nationality of the perpetrators and regardless of the place where the offences occurred.

Australia has introduced mirror legislation into the domestic law so, for the first time since Federation, Australia now recognises genocide and various war crimes.

Burnside then latched onto section 268.12 of the Australian Criminal Code which promises up to 17 years jail if:

• the perpetrator imprisons one or more persons or otherwise severely deprives one or more persons of physical liberty; and

• the perpetrator's conduct violates article 9, 14 or 15 of the Covenant; and

• the perpetrator's conduct is committed intentionally or knowingly as part of a widespread or systematic attack directed against a civilian population.

(The Covenant referred to is the International Covenant on Civil and Political Rights, the ICCPR.)

The elements of these offences are relatively simple:

• The perpetrator imprisons one or more persons;

• That conduct violates Article 9 of the ICCPR;

• The conduct is committed knowingly as part of a systematic attack directed against a civilian population.

Burnside argued that Australia's system of mandatory, indefinite detention satisfies each of the elements of that crime and that The United Nations Working Group on Arbitrary Detention has found that the system violates Article 9 of the ICCPR.

With Vanstone listening intently just metres away, Burnside then said the following:

"If moral arguments have no purchase, it remains the fact that our government is engaged in a continuing crime against humanity when assessed against its own legislative standards. I accuse Mr Howard and Mr Ruddock of that crime.

"I accuse Senator Vanstone of that crime. I expect that they will ignore this accusation, since the only person who can bring charges is the Attorney General of the Commonwealth."

Amazingly, Vanstone then rose to her feet and spoke for a few minutes without once trying to rebut or defeat this rather extraordinary claim by Burnside.

The silence was deafening."

COPY ENDS