Super department a bad sign for justice and the rule of law

Earlier today, Prime Minister Malcolm Turnbull announced the launch of a new ‘super department’ along the lines of the UK Home Office or the US Department of Homeland Security.

The move was not recommended by the recent review of the national security architecture by respectected Michael Le’Strange, was not endorsed by cabinet and has split the National Security Committee. The new department will capture the Australian Secret Intelligence Organisation, the Australian Federal Police, Border Force and the Department of Immigration. It will be headed by the Immigration Minister Peter Dutton.

Many commentators have argued the only reason to create such a department is political, providing Peter Dutton with additional power as a means of steering him away from a leaderahip challenge. Although the government has not stated what benefits such a department would bring to national security, the new department would presumably be responsible for strategic planning and coordination of the agencies in its purvue. This is most concerning. 

The Australian Federal Police has historically been under the remit of the Justice Minister with a strong relationship to the Attorney-General’s Department. The Australian Federal Police are not only used for counter-terrorism and border control activities. The AFP has personnel deployed on operations all over the globe including on peace support operations with the United Nations. They are a significant tool in Australia’s strategic investment in a rules based global order more closely aligned with the work of the Department of Foreign Affairs and Trade and the Australian Defence Force.

On the other hand, Border Force and Australia’s immigration policies, particularly those relating to refugees and asylumn seekers, are broadly condemned as breaching international legal norms and human rights standards.

The AFP are the authority responsible for investigating and prosecuting such international crimes as war crimes, crimes against hanity and genocide when they fall under Australian jurisdiction. Each of these crimes is outlined under domestic legislation and has been included in the Criminal Code Act. Even though it is known that Australians have perpetrated these crimes while fighting with Da’esh in Iraq and Syria, no investigations of prosecutions have yet occurred. 

Indeed, rather than meeting our obligations to investigate and prosecute these crimes, Australia has supported impunity for sexual violence in armed conflict by revoking the citizenship of a key perpetrator known to have committed these crimes. That decision was made by the very man now given authority over all the agencies within thisnew department.

Amy Maguire has argued that Australia’s human rights obligations now need to be rechecked under the new departmental structure. I could not agree more.

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Citizenship revoked

A few months ago, the Abbott government developed several proposals to strip Australian dual nationals of their citizenship should they join Daesh in the Middle East. They released a discussion paper which stated that “citizenship is a contract by which we all abide.” The paper talks about citizenship as a privilege that is “fundamentally linked to an ongoing commitment to Australia and participation in Australian society.”

First of all, citizenship is neither a privilege nor a contract. Citizenship is a right. Every human being has a right to statehood. Article 15 of the Universal Declaration of Human Rights provides that “everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” Arbitrarily depriving someone of their nationality engages consideration of a legitimate objective, proportionality and due process. Each of these three considerations is questionable in this context.

It surprised me that this whole discussion began on the 800th anniversary of the signing of the Magna Carta, a document credited with the beginning of a western tradition of human rights and limitations on state power. Australia has the only copy of the Magna Carta in the southern hemisphere and it is permanently displayed in Parliament House. The most famous passage contained in this historic document can be found in Chapter 39 and states that, “no free man shall be taken or imprisoned, or dispossessed or outlawed or exiled or in any way ruined, nor will we go or send against him except by the lawful judgement of his peers or by the law of the land.”

The right to citizenship is not one that can be revoked by Ministerial decree. This matter has been tested by courts in other jurisdictions. In 1958, in the Tropp v Dulles judgement, the United State Supreme Court stated “citizenship is not a licence that expires on misbehaviour… and the deprivation of citizenship is not a weapon that the government may use to express its displeasure at a citizen’s conduct, however reprehensible that conduct may be.” In that case, the Chief Justice, joined by Justices Black, Douglas and Whittaker concluded that “citizenship is not subject to the general powers of the National Government, and therefore cannot be divested in the exercise of those powers.”

In a recent article in The Conversation, Rayner Thwaites went beyond legal questions of the government’s proposals. He asked if revoking citizenship would be an effective “means of expressing moral opprobrium about terrorism?” I would argue that revoking citizenship is not a suitable means of addressing moral contempt of terrorism.

Captured women and children were treated as

Captured women and children were treated as “spoils of war”, the UN report said.
(Photo by AFP: Ahmad Al-Rubaye)

If an Australian citizen chooses to travel to Iraq or Syria and fight with Daesh and then chooses to return to Australia, they should be charged with the relevant criminal offences and prosecuted. Such offences could include treason, genocide and war crimes. In 2013, the Commonwealth Crimes Act was amended to update the definition of treason which could now cover acts undertaken by Australians fighting with Daesh in Syria or Iraq. The United Nations has suggested that Daesh is committing genocide against the Yazidi people. Genocide has been a crime in Australia since 2002, when the government finally passed the Genocide Convention Act of 1949.

There is also a vast body of evidence to suggest Daesh are committing a range of war crimes, or grave breaches of the Geneva Conventions. A recent report by the Human Rights Council recorded the following acts which are defined as war crimes in the Rome Statue: murder, cruel or degrading treatment and torture; directing attacks against civilians or humanitarian workers; taking hostages; summary executions; rape, sexual slavery, forced prostitution or forced pregnancy. The report documented particularly egregious violations against women and girls. As a result of this report, the Office of the High Commissioner for Human Rights has asked the Security Council to refer perpetrators to the International Criminal Court for further investigation and possible prosecutions.

In Australia, these acts are criminal offences under the Geneva Conventions Act 1957 (last updated in 2009) and the War Crimes Act 1945 (last updated in 2010). These two acts have been incorporated in Division 268 of the Criminal Code Act 1995. Under the principle of complementarity of the International Criminal Court, signatories to the Rome Statue have the obligation, if they are willing and able, to investigate and prosecute these crimes themselves. If such crimes have been committed by Australian citizens, we will certainly have the jurisdiction, and should show a willingness and ability to investigate and prosecute.

During the late 1980s, concern “that a significant number of persons who committed serious war crimes in Europe during World War II may have entered Australia and become Australian citizens or residents” gave rise to the establishment, in 1987, of the Special Investigations Unit. The unit investigated Nazi war crimes, and was later used in investigations of crimes in the Balkans. But there has been a “lack of political will to cover the necessary financial costs” and the unit no longer exists. When Australian soldiers were accused of unlawfully killing civilians in Afghanistan, the body of law used in their prosecution was not the Geneva Conventions, but civil law relating to duty of care.

A just response to Australians choosing to join Daesh, one that falls within the human rights framework and supports the rule of law, would be to find sufficient evidence, charge the individuals in question, and prosecute them. Justice would be much better served if the Australian Government mandated, maintained and supported the relevant institutions and units required for this task. This is particularly pertinent given Australia’s public stance against impunity for sexual and gender based violence in conflict and would certainly go some way to meeting our obligations under the suite of United Nations Security Council Resolutions on Women, Peace and Security and Australia’s National Action Plan on Women, Peace and Security 2012-2018.

Beijing +20

In 1995, people from around the world gathered in Beijing for the United Nations’ Fourth World Conference on Women. Over 17,000 delegates and 30,000 activists attended. By the end of the conference, 189 participating countries had developed the most progressive blue print for women’s rights ever. The Beijing Platform for Action remains the gold standard for implementing women’s rights around the world. It comprises commitments under 12 critical areas of concern:

A. Women and poverty
B. Education and training of women
C. Women and health
D. Violence against women
E. Women and armed conflict
F. Women and the economy
G. Women in power and decision-making
H. Institutional mechanisms for the advancement of women
I.  Human rights of women
J.  Women and the media
K. Women and the environment
L. The girl child

This year, at the United Nations’ 59th Commission on the Status of Women, we are celebrating the 20th anniversary of the Beijing Platform for Action. It was hoped that the Ministers in the General Assembly would release a Political Declaration on accelerated action on the Beijing Platform for Action, prioritising human rights and women’s empowerment, calling for irreversible progress on women’s rights by 2030. I would have liked to see references to violence against women and girls as a key issue for equality and development, and a reinforcement of the women peace and security agenda. Other important issues in the women’s movement include the protection of sexual and reproductive health rights, climate change, and indigenous rights.

Released in the opening session of the Commission on the Status of Women, the Political Declaration was none of these things. It was merely a bland statement of support for the Beijing Platform for Action. During negotiations, specific needs and issues were shut out for fear of creating an unwieldy and unhelpful list of specificities. So there is no mention of disability; intersectionality; or women, peace and security. The Holy See, Russia and Member States in the G77 including China and Iran pushed to remove all references to human rights. Only three such references remain. There has certainly been discussion among civil society of the men in frocks wanting to take away women’s control of their own bodies.

The final document did maintain a reference to the specific goal on gender equality expected from the new development framework, the Sustainable Development Goals, which will replace the soon to expire Millennium Development Goals. Some of our Pacific neighbours fought hard to maintain references to the valuable work of non-government organisations and civil society in attaining gender equality. The Political Declaration also outlined the important role of UN Women in this process, which did not exist when the Beijing Platform for Action was developed, but now has the mandate to lead and coordinate the UN system’s work on gender equality.

Many people have been disappointed by the Political Declaration, and there is much hope that the General Assembly resolution on the working methods of the Commission on the Status of Women will keep the space open for non-government organisations to participate and advocate on women’s issues. Governments and civil society both need to be proactive to ensure the voices of young women and indigenous women are heard in these fora. It all goes to show what can be done when political and social movements seize the moment, as was done in Beijing. Now, the women’s movement needs to coalesce around what we do have, the Beijing Platform for Action and continue to push for its implementation. Rather than necessarily seeking new commitments, we need to see the implementation of the existing ones.

For ongoing updates from #CSW59, follow me on Twitter @SusansOpine.

I am participating in CSW59 as a member of the delegation from the Women’s International League for Peace and Freedom, of which I am a member of the Australian Section and convenor of the ACT Branch.

I have been able to travel to New York to participate in CSW59 thanks to a grant from the Australian National University Gender Institute as well as funding from my College of Arts and Social Science.