In the grand scheme of human rights law, some rights are more equal than others. Consider, for example, the right to life in art 6 of the ICCPR. The UN Human Rights Committee calls it the ‘supreme right’ from which no derogation is permissible. Nothing justifies a State’s failure to guarantee it. Few human rights compare for gravity. But at least one other does: the right to freedom from torture, or cruel, inhuman or degrading treatment or punishment contained in arts 7 and 10 of the ICCPR and elsewhere.
In the Human Rights Committee’s view, it admits of no restriction or limitation under any circumstances – not even in situations of public emergency. This is as emphatic a jurisprudential statement as it is possible to make. And rhetorically, no human right carries more force. Indeed, given the post-World War II environment that so profoundly informed the development of international human rights, freedom from torture and other heinous treatment is easily seen as the very reason that the concept of human rights exists at all.
Now consider three separate cases, each with a clear connection to Australia, and each of which concerns the treatment of detainees, that must surely call into question the extent to which a culture of human rights negligence has taken root in the Australian public consciousness.
In January 2002, David Hicks was captured fighting alongside the Taliban in Afghanistan and sent to Guantanamo Bay, Cuba, where he has been detained since. The details of the conditions of Hicks’ detention are largely secret, and unsurprisingly therefore, contested.
On Hicks’ version, he has been tortured: shackled, blindfolded, beaten severely with fists and rifle butts, and subject to anal penetration with objects. He has experienced eight months of solitary confinement, which an FBI agent at Guantanamo says has induced behaviour consistent with extreme psychological trauma in other detainees in a much shorter period. Hicks has considered suicide by smashing his skull against the walls of his cell. Today he remains in a cement room with little light for 22 hours per day.
There are, of course, governmental denials in Australia and the United States that Hicks has been tortured. But what we do know is that the US government has sought, and obtained, legal advice that Guantanamo Bay detainees were not subject to the protections of the Geneva Convention, and that the infliction of pain of up to anything short of ‘organ failure’ was legal. We also know Defence Secretary Donald Rumsfeld has issued instructions for carrying out what is euphemistically called ‘coercive interrogation’. Such measures were so controversial they were suspended for debate. Then restored. The UN Human Rights Committee and various UN Special Rapporters have labelled the treatment of Guantanamo detainees ‘torture’.
This is why UN Secretary-General Kofi Annan called for the detention facility to be closed. Senior politicians in Britain, Germany and the European Parliament, as well as the UN Committee on Torture, have expressed similar sentiments. Former Guantanamo detainees claim that Hicks has suffered more than most. Whatever the truth of Hicks’ experience, the signs are not encouraging.
Indeed, they were discouraging enough for almost every nation with citizens detained in Guantanamo, to demand their release. Almost. Unlike Britain, Saudi Arabia, or even Afghanistan, Australia has been almost mute. It has resolutely ignored expert condemnations of the Guantanamo detention facility, and the tribunal designed to try detainees away from the scrutiny of US courts and the rules of evidence. Certainly it has not protested their treatment. The Australian government has devoted far more energy to defending its inaction than remedying it.
Now, symbolically, Hicks is seeking a means of escape by claiming British citizenship.
Closer to home, 13 men are being detained at HM Barwon Prison in Melbourne awaiting trial for terrorism-related charges. According to their lawyers, here too, the detainees are being held in solitary confinement, and denied physical contact with their family.
In the course of a bail application for one detainee, Justice Osborn noted the ‘seriously confined conditions…with very little access to the open air’ where the detainee’s ‘opportunities for outside contact are materially limited.’ Justice Osborn who had personally observed the conditions in question, stated judicially that ‘these are not [conditions] in which ordinary Australians would expect any member of the public to be held on remand for extended periods of time when charged with no more than membership of an organisation.’ Perhaps, but no one seems to have expressed any alarm. Neither federal nor state governments have given any indication that this concerns them even slightly. And no one has asked.
Meanwhile, asylum seekers continue to be detained in remote centres conditions harsh enough to have contributed to several cases of sustained psychological damage and attempted suicide. The UN Human Rights Committee has specifically found that, in the cases that have come before it, this detention regime is a violation of art 7 of the ICCPR. Far from retreating from these arrangements, the Australian Government is now pushing a Bill that would export it; sending unauthorised arrivals on the Australian mainland to detention centres in Nauru while their applications are processed without the protection of judicial oversight.
Detention is an unpleasant, but often necessary business. It carries with it a degree of unavoidable harm. But this only serves to emphasise the necessary vigilance we must have to ensure that harm is limited only to what is necessary. This could not be said of any of these three cases.
None of the detainees discussed has been convicted of a crime. In the case of asylum seekers, no charges are even laid. Yet all have claims to having been denied their most fundamental of human rights. At best, their treatment can properly be called cruel, inhuman or degrading. At worst, it can, and in the case of Hicks has, been called torture. Australia’s responses, federal, state and even public, taken collectively, make a mess of the ICCPR’s most inviolable provisions.
Why is this possible? How is it that the most rhetorically forceful of human rights has been rendered so rhetorically impotent? Perhaps it is that we apprehend these detainees, not as human, but as the embodiment of a threat. A threat – notwithstanding the absence of conviction – that permits us to violate the very principles we espouse. Yet these are precisely the circumstances where human rights assume heightened importance.
In the meantime, such people can have no human rights, because we refuse to see them as human.
Waleed Aly is a secondee solicitor with the Human Rights Law Resource Centre