The shooting down of Malaysia Airlines flight MH 17 over Ukraine has left many of us deeply distressed and without understanding. Innocent lives lost in the time of conflict can never be justified, from the mass bombings of cities in World War II through to recent event in Ukraine.
Ukraine is a complex situation, both locally and in terms of broader international politics. Clearly, the wreckage of the plane and the human remains are located in a hot and contested zone where, unfortunately, there is no immediate or obvious solution.
The posturing and positioning of international leaders around this incident has been without parallel because so many different countries are involved. While some very emotive language has been used over recent weeks, I only comment on the role taken by Australian Prime Minister Tony Abbott.
Last week Abbott took Australia right into the fray with Julie Bishop presenting a motion to the UN Security Council and after some high level negotiation getting it passed unanimously. A week later we see the intractable problems involved in getting all the players to abide by that resolution.
While we all rightly condemn the shooting down of this civilian plane; it is worth considering the role that Australia is taking. It is intriguing that Abbott has proceeded down the United Nations route given the contempt with which Abbott and his colleagues have viewed various UN conventions in relation to Australia’s treatment of asylum seekers and refugees. Simultaneously with the situation in Ukraine, Australia was holding 157 people incommunicado, including approximately 50 children, at sea on the customs ship Ocean Protector. More recently, they have been brought to the Australian mainland and sent to the remote Curtin detention centre.
Countries do not have the right to frustrate the movement of asylum seekers. Any measures of immigration control must be exercised within the scope of international law. This applies not only to refugees within a country’s own territory, but also those subject to acts of enforcement taken outside its territorial jurisdiction. It requires countries to ensure that refugees are not returned in any manner to territories in which they face persecution, torture, or other cruel, inhuman or degrading treatment or punishment; and, if sent elsewhere, that they have access to protection and durable solutions.
This is not something forced upon Australia by the UN, but a commitment we made voluntarily.
Australia is also prohibited from returning people to places where they face a real risk of being arbitrarily deprived of life, subjected to the death penalty, tortured, or subjected to cruel, inhuman or degrading treatment or punishment.
Australia’s duty arises by our ratification the following treaties:
• the 1951 Refugee Convention
• its 1967 Protocol
• the 1966 International Covenant on Civil and Political Rights (ICCPR,) and
• the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
These obligations are involved wherever Australia exercises control over asylum seekers – whether within Australian territory, in another country, or on the high seas. Asylum seekers must have access to a fair and rigorous status determination process. The UNHCR’s Executive Committee (which includes Australia) has set out minimum standards that countries should observe.
International standards require that individuals have access to legal advice and representation; access to up-to-date, authoritative, and public country-of-origin information; written reasons for decisions; and an opportunity for appeal on matters of fact and law.
Holding asylum seekers at sea without permitting appropriate contact with lawyers or others remains a serious problem. Subjecting asylum seekers to cursory screening interviews while at sea (as Australian recently did) does not meet these procedural guarantees. While landing the asylum seekers in Australia may have resolved that problem in the short term; the problem must be addressed and should not re-occur as international law prohibits countries from detaining people without access to legal representation or the courts.
Perhaps Abbott’s team of international law experts need to spend as much time considering this and the role of the UN and its conventions, as it did in its UN manoeuvrings around the situation in Ukraine.