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Laws in Australia and Human Rights in Guantanamo Bay: A Comparative Study

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Section I – Law & Justice

The Concept of the Rule of Law in Australia

The concept of the rule of law is based on an ideal of fairness between individuals and between individuals and the State – that is, what would be fair in a particular situation. That then has to be applied consistently without reference to the status of an individual or whether it is an individual or the State, which is being considered. Therefore according to the rule of law, the law must apply equally in all situations.

Although the populace elects governments to make laws to govern the community, those laws must apply not only to the community, but also to the government. Similarly, laws are applied equally regarding State instrumentations such as the Police and those given investigative powers under law (eg. Occupational Health & Safety investigators).

To ensure that the rule of law is applied consistently and equally, courts and tribunals are established and charged with applying the laws without fear or favour. The courts and tribunals are separate from the legislature and executive so that they can adjudicate issues concerning the State and an individual fairly.

Regarding administrative decisions, or for example Police actions, independent bodies such as the ICAC and Office of the Ombudsman allow a citizen to complain about a decision or action by a State instrumentality and for that body to investigate, report and make recommendations on the issue.

Even regarding proposed criminal proceedings by the State against an individual, the decision whether to prosecute is vested in an independent body, the Director of Public Prosecutions.

To ensure accountability of both instrumentalities (State, Councils, Police etc.) and the courts/tribunals, most actions are public and are open to media scrutiny. This entitles citizens to know what the instrumentalities and tribunals are doing and then raise concerns.

Examples of the Rule of Law

If a criminal’s sentence is though to be insufficient, complaints can be made to parliamentarians who in turn can raise it with the Director of Public Prosecutions whether there should be an appeal.

If a local Council decided to allow a particular development, complaint can be made to ICAC if it is considered corrupt OR challenge can be made in the Land and Environment Court on planning or legal grounds (eg. zoning errors)

In a commercial dispute:

  1. Laws are applied equally (eg. contracts, sale of goods, trade practises, etc)
  2. Decided by an independent court or arbiter
  3. The status/size of the parties does not matter, except regarding legal costs.
  4. Example of a Breach of the Rule of Law in Australia

Detention centres in Australia hold people (non-citizens) against their will, without access to courts, on the basis of an assumption that they are illegal immigrants. Their cases are decided by immigration officers, and appeals are restricted to questions of law.

However, it is also illegal to detain these immigrants if they are “refugees”, as Australia is a member of the United Nations and must uphold the Universal Declaration of Human Rights, under which “everyone has the right to seek and to enjoy in other countries asylum from persecution” (Article 14 (1)).

The Doctrine of Natural Justice

The doctrine of natural justice consists of two main rights: The right of the accused/defendant to know specifically what issue is being raised and the right of the accused/defendant to have the issue dealt with fairly. This means that he/she/they have the right to be heard by an impartial arbiter who is free of bias and not subject to influence, to have their case heard (i.e. to bring their own evidence before the tribunal and to be able to cross examine to test the evidence supplied) and to have the appeal the decision if errors are made. It is essential for reasons to be given regarding every decision/action taken so that its “correctness” can be tested in order to respect natural justice.

Unfair treatment of a citizen would occur if his/her rights were challenged by another citizen or the State without proper definition of the charge/issue/entitlement to be heard by a tribunal in a hearing. If a citizen is charged with a criminal offence, he/she has the right to know the specific charge and its essential details.

For example, a charge of “You are an undesirable” could not be defended or proven incorrect, as the label “undesirable” is a matter of opinion. On the other hand, a charge that on a particular date, at a particular place, the defendant contravened a particular statute could be defended as the citizen could call evidence in his/her defence, (eg. that he wasn’t there or that the circumstances did not satisfy the particulars of the statue, or that they had a good reason (such as self defence)).

Example of Natural Justice Applied in Australia

An example of Natural Justice in Australia is the protocol regarding pleadings in court. For example in a criminal case, the charge has to specify the date and place of the alleged offence, the section of the criminal code relied on and sufficient particulars to identify the alleged circumstances.

i.e. “You are charged that: On the 22/6/04, at Bondi, you, Fred Bloggs did murder Jane Doe contrary to Section 18 of the Crimes Act, 1900.”

Section II – Human Rights

Difference Between Domestic and International Rights

Domestic and international rights differ in significant ways. These include:

Domestic rights apply only to people within the jurisdiction in which they are made, and can vary between nation States. International rights, however, apply equally to all human beings, regardless of where they live.

Domestic rights are relatively easy to enforce, whereas international rights are virtually impossible to enforce without interference with the sovereignty of a nation State.

Some rights within a nation State only “exist” when they are recognised or protected by domestic legislation. International rights are indivisible and inalienable; they exist whether or not they are ratified by individual nation States’ domestic legislation.

Examples of Domestic and International Rights Differing

Domestic laws regarding immigration are often in conflict with the international right to freedom of movement. Whereas individual nation States often limit the number and type of people who may enter their country and stay, the international right of free movement would suggest that people should be able to live where they wish.

Also the international “right to freedom of thought, conscience and religion” (UDHR Article 18) is often disregarded by individual nation States as they enforce their chosen ‘official State religion’, such as in Iran, Spain & Pakistan.

However, in Australia the Commonwealth can be a signatory to an international treaty under the Foreign Affairs’ powers, and use this as a basis for making laws in ratification of that treaty. For example, because Australia is a signatory to the International Covenant on Civil and Political Rights, the Commonwealth Government had the power to enact the Human Rights and Equal Opportunity Commission Act 1986.

Contemporary Human Rights Issue –

  1. Outline the issue and clearly state the human rights dimension of it
  2. Describe which human rights are being abused and its effect on the people most influenced by the issue
  3. Evaluate the seriousness of the issue and suggest ways in which there could be a resolution to the issue.

Incarceration & Arbitrary Detention in Guantanamo Bay

Guantanamo Bay, Cuba is home to 116km” of land leased to the United States of America. The US uses this land as a military base that includes a detention facility. The incarceration and detention of 650 foreign nationals from a range of countries captured during and after the war in Afghanistan is the human rights issue. These detainees are held in the Guantanamo Bay complex for indefinite periods of time on vague, unprovable and unevidenced charges, and often without charge at all. During their time at “Camp Delta”, these detainees are denied trial, access to legal representation, and the option of communication either with their families or their consuls. If they are tried, it is before a US military tribunal. Since the facility is not on “US soil” the arbitrary detention and human rights abuses that are carried out, that would be illegal if on US soil, are “beyond US jurisdiction”. This means that the US judiciary hold no power over the activities of the base – it is completely run and held by the military under the command of US President George W. Bush. Also, though they were incarcerated as a result of the war in Afghanistan, the Guantanamo Bay detainees are not given Prisoner of War status, denying them protections otherwise available under the Geneva Convention.

Obviously there are many human rights abuses carried out in the base in relation to the incarceration of these detainees (as above), as well as numerous breaches of international law.

b) The human rights that are being abused most flagrantly are (from the Universal Declaration of Human Rights):

Everyone has the right to life, liberty and security of person, (Article 3)

No one shall be subjected to arbitrary arrest, detention or exile, (Article 9)

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him, (Article 10)

Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence, (Article 11(a))

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks, (Article 12)

Everyone has the right to freedom of movement and residence within the borders of each state & Everyone has the right to leave any country, including his own, and to return to his country, (Article 13(1&2))

Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality, (Article 22)

Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control, (Article 25(1))

In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. (Article 29(2))

These rights are abused in the Guantanamo Bay detention complex through:

  • The nature of the incarceration of foreign nationals
  • Holding these people for indefinite periods of time
  • Holding them on little (usually unprovable) charge or no charge at all
  • Not allowing detainees access to representation or consular communication
  • Not trying them before an independent tribunal
  • Not providing adequate shelter, privacy or access to information

This kind of treatment would have both severe psychological, physical and economic effects on both the detainees and their families. The psychological trauma of being incarcerated for an indefinite period of time, without defined sentence, proper shelter or contact with the outside world would be significant, especially if the detainee was from a society where incarceration is a punishment for committing a serious offence.

Detention in circumstances such as those in Camp Delta is highly disturbing and scary. Also, being under mental, emotional and physical duress could lead to severe physical illness or mental disturbance. A detainee would feel disconnected from the world, distrusted and undervalued (if they had no evidence of their governments attempting to repatriate them), especially if he/she has committed no offence.

Families of detainees are also affected in that they are often unaware of where the detainee is, why he/she is there and for how long the detention is expected to last. They are left isolated, fearful and often under economic duress, especially if the detainee was the main income earner of the family.

Medical reports by independent investigators of the facility in Guantanamo Bay show that detainees are often under extreme physical, emotional and mental stress, and that much of the Camp Delta experience will leave the “long-term” (6 months +) detainees with psychological disorders. 97% of detainees are “long-term”.

In addition, there have been allegations of torture by way of physical violence, sleep deprivation, and humiliation. This would violate Article 5 of the UDHR (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment)

c) There are not many things more serious that arbitrary detention, let alone incarceration directly adverse to international and domestic law where so many human rights are denied and detainees are held with either vague or no charges. Worse, perhaps than the nature and conditions of detention in Guantanamo Bay might be torture, mutilation or death. (N.B. There are allegations that instances of these crimes are carried out in the Guantanamo Bay complex). Therefore the issue of arbitrary detention and incarceration is a very serious matter.

There are multiple paths that could be taken to resolve the issue. These include:

  • Laying charges on the detainees/releasing detainees who have no charge,
  • Trying them by the military tribunal in Guantanamo Bay,
  • Sending the detainees to the USA to be tried before an impartial court and allowing them the rights afforded to US citizens,
  • Supplying legal advice and representation to the detainees,
  • Providing them communication with their consuls and families,
  • Providing access to current affairs information,
  • Repatriating detainees and allowing them to be tried under their own laws.

In laying charges on the detainees and releasing those who cannot be charged due to lack of evidence would eliminate at least two factors of the human rights issue. The detainees would not be being held without charge and, if charged they would have to have their case heard by the military tribunal in Guantanamo Bay. However, most of the detainees are held under “suspicion of terrorism”. “Terrorism” is a very vague and broad term, and one that is virtually impossible to prove. Due to this, these detainees are unlikely to be charged, as there is no evidence available that would hold up in a tribunal – military or not. Also, if they were tried by the military tribunal, the verdict/sentence is likely to be highly biased, as would any legal advice or representation, contravening the concept of natural justice.

By sending the detainees to the US to be tried before an impartial court, they would have to be charged and the military would have to supply sufficient evidence to justify the incarceration of the defendants. To do this the military would have to reveal the agents or “spies” who discovered that the detainees were committing acts of “terrorism” (if there were any). This would compromise the agent’s “cover” and their ability to work. Also, an inquiry would almost certainly be conducted into the legality of the complex in Guantanamo Bay and the conditions there. Such an inquest would reveal the conditions and activities of the complex, which would compromise the status, and raise questions into the integrity of the military. Also, if it was revealed that the US was contravening UN declarations and conventions that it is a signatory to, the precedent would have been set by a “major superpower” that such declarations/conventions would substantially decrease the power/status of the UN and UN declarations and conventions.

There are no particular reasons why the detainees can not be given access to communication with their consuls and families, current affairs information, or proper shelter and treatment, other than that such information/communication may affect the results of interview/interrogation of the detainees and afford them some basic human rights.

Many of the detainees cannot be repatriated to be tried by their own laws as they had not done anything contrary to their law at the time of their arrest. For example David Hicks of Australia could not be repatriated as at the time of his arrest in Afghanistan there was no Australian law against “acts of terrorism” or “consorting with terrorist cells”. Consequently the US military refuses to send him home to be tried, as there is nothing he can be tried by.

Therefore, although there are numerous ways in which the issue could be resolved (at least to some degree), almost all of them compromise the position/integrity of the US military. Due to this, the detainees are unlikely to be released, repatriated, moved onto US soil, tried (justly, if at all) or be allowed those basic human rights denied through arbitrary detention and incarceration in Guantanamo Bay.

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