The War on Human Rights in the War on Terror
On 18 August 2006, the Victorian Court of Appeal quashed convictions against Jack Thomas for receiving funds from a terrorist organisation and possessing a falsified Australian passport. Mr Thomas had previously been found guilty of these offences on the basis of self-inculpatory admissions made during an interview conducted by Australian Federal Police (‘AFP’) in Pakistan on 8 March 2003. The Court of Appeal quashed the convictions because these admissions constituted the only evidence to incriminate Mr Thomas. They ruled that the circumstances in which the interview was conducted were such that the admissions could not be said to have been made voluntarily. They also said that to admit such evidence would be unfair and contrary to public policy. The decision of the Court of Appeal has been repeatedly and misleadingly criticised by conservative commentators – such as Chris Merritt, Andrew Bolt, Piers Akerman and Janet Albrechsten – who claim that the admissions were excluded on the basis of a legal technicality; namely, that the interview was conducted in the absence of legal representation. The same commentators seem to have conveniently overlooked or ignored the broader circumstances in which the interview was conducted; circumstances which were central to the Court of Appeal’s decision. They were circumstances which irreparably damaged the probity, reliability and integrity of the evidence and which, moreover, clearly placed our allies in the so-called ‘War on Terror’ – the US and Pakistan – in violation of the very human rights they purport to protect. Most disturbingly, the circumstances of Mr Thomas’ detention, the conduct of the interview, the prosecution of Mr Thomas on the basis of that interview and, most recently, the imposition of a ‘control order’ on Mr Thomas, clearly signal that Australian authorities are prepared to repudiate fundamental human rights in this ‘War on Terror’.
So what exactly were the circumstances in which the interview was conducted? The following facts were accepted by both the Supreme Court and the Court of Appeal. Many of them were not even contested by the prosecution.
Mr Thomas was apprehended in Pakistan in January 2003 and detained by Pakistani authorities for almost six months. He was not charged with any offence and was not allowed access to a lawyer. Prolonged detention without charge, and without any ability to contest the legality of such detention, is a clear violation of art 9 of the International Covenant on Civil and Political Rights (‘ICCPR’), which prohibits arbitrary detention.
The conditions of Mr Thomas’ detention also violate fundamental human rights and should affront good conscience. During the six months of detention, Mr Thomas was held for extended periods in solitary confinement, including being detained in ‘dog-kennel’ like conditions and deprived of food and water for up to three days. He was hooded, shackled, manacled, and threatened with electrocution and execution. On one occasion he was strangled with the cord of his hood so that he could not breathe. He was threatened with bashings and, on at least one occasion, was bashed by a US official. He was told that his testicles were going to be crushed. He was urged to cooperate fully with Pakistani and US interrogators who told him, ‘We’re outside the law. No one will hear you scream.’ They threatened to rape his wife. The prohibition on torture and other cruel, inhuman or degrading treatment or punishment is enshrined in the Convention against Torture(‘CAT’) and art 7 of the ICCPR. It is also a non-derogable norm of international human rights law. The prohibition extends to giving effect to acts of cruel, inhuman or degrading treatment, including by admitting evidence obtained in contravention of the norm.
The conditions of Mr Thomas’ detention also violate fundamental human rights and should affront good conscience. During the six months of detention, Mr Thomas was held for extended periods in solitary confinement, including being detained in ‘dog-kennel’ like conditions and deprived of food and water for up to three days. He was hooded, shackled, manacled, and threatened with electrocution and execution. On one occasion he was strangled with the cord of his hood so that he could not breathe. He was threatened with bashings and, on at least one occasion, was bashed by a US official. He was told that his testicles were going to be crushed. He was urged to cooperate fully with Pakistani and US interrogators who told him, ‘We’re outside the law. No one will hear you scream.’ They threatened to rape his wife. The prohibition on torture and other cruel, inhuman or degrading treatment or punishment is enshrined in the Convention against Torture(‘CAT’) and art 7 of the ICCPR. It is also a non-derogable norm of international human rights law. The prohibition extends to giving effect to acts of cruel, inhuman or degrading treatment, including by admitting evidence obtained in contravention of the norm.
On 8 March 2003, Mr Thomas was interviewed by AFP officers. Contrary to both Australian law (the Criminal Code) and international human rights law (arts 9 and 14 of the ICCPR), he was not permitted access to a lawyer during this interview and it was implied that if he did not cooperate he faced the prospect of indefinite detention in Guantanamo Bay, or worse. Mr Thomas made a number of self-inculpatory statements in the course of the interview. He also told his interrogators that he had ‘absolutely no’ intention of engaging in any kind of terrorist activity.
Mr Thomas was released from custody in Pakistan, without charge, in June 2003 and returned to Australia. Eighteen months after his return, Mr Thomas was charged with the offences of receiving funds (in the form of a plane ticket) from a terrorist organisation, providing assistance to a terrorist organisation, and falsifying a passport on the basis of the interview of 8 March 2003.
At trial, before the Supreme Court of Victoria, Mr Thomas was convicted of the offences of receiving funds and tampering with a passport. He was acquitted of the charges of assisting or providing support or resources to a terrorist organisation. The jury found that he had no intent of engaging in any terrorist activity, a finding supported by the recent admission from the head of counter-terrorism at the AFP that ‘there is no evidence at all that Mr Thomas, at any stage, planned any particular terrorist acts in Australia’ (The Age, 22 September 2006). This fact is again conveniently overlooked by conservative commentators, who persist in misleadingly labelling Mr Thomas a ‘terrorist’ or ‘alleged terrorist’.
In allowing the appeal and quashing the convictions, the Court of Appeal held that the conditions and impact of detention – conditions that were so torturous as to cause Mr Thomas profound psychiatric harm – combined to mean that Mr Thomas did not make the statements voluntarily and that it would be unfair and against public policy to admit them. This decision is both courageous and compellingly correct.
We are told that the so called ‘War on Terror’ is a war against fundamentalists and extremists who seek to deny us the rights to liberty and security of person. They do not recognise or respect our common humanity and inherent dignity. They seek to torture and subject to cruel treatment those who resist them. They certainly do not respect rights to freedom from arbitrary detention, to access to legal representation and to a fair trial. As signalled by Australia’s ratification of the ICCPR and the CAT, from which these rights are derived, human rights matter deeply and are worth fighting for. In the aftermath of the last truly global war, World War 2, respect for human rights was recognised as the foundation of peace and justice.
Yet these are the very rights that Mr Thomas’ captors and interrogators themselves violated and denied. Had the Victorian Court of Appeal admitted evidence obtained in breach of these fundamental rights and freedoms, it would have given effect to the human rights violations. This would have been repugnant to justice and humanity and in violation of Australia’s human rights obligations.
By allowing the appeal and quashing the convictions, the Court of Appeal has signalled that the ‘War on Terror’ does not permit a ‘War on Human Rights’. We must not succumb to the invidious temptation and hypocrisy of exporting human rights and democracy, and of demanding compliance with human rights by others, while not respecting human rights at home.
Philip Lynch is the Director of the Human Rights Law Resource Centre