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Navy burns: the government’s obligation to investigate

The government should have focused on a proper investigation into allegations that asylum seekers’ hands were deliberately burned by the Navy. ABC

The Abbott government has reacted indignantly to allegations by Sudanese asylum seeker Yousif Ibrahim Fasher that asylum seekers were mistreated and had their hands deliberately burnt by Australian Navy personnel.

In an interview with Fairfax Media published today, Fasher added considerable detail to his previous claims, including allegations that Navy personnel restricted asylum seekers’ toilet access. Prime minister Tony Abbott refused to provide any Navy-recorded footage of the alleged incidents. He maintained this morning that:

I don’t want to do anything that would cast aspersions on the professionalism of our naval and customs personnel. I have nothing but respect for them … and I have seen nothing that credibly casts any doubts on that professionalism.

The facts of the incident remain contested. There is, however, a clear legal answer to what should have happened once the allegations were made.

Under international law, Australia has an obligation to impartially investigate allegations of torture or other cruel, inhuman or degrading treatment, to criminally punish perpetrators, and to provide effective remedies (including compensation) to victims. These obligations arise under treaties to which Australia voluntarily committed itself: the United Nations Convention against Torture, and Article 7 of the International Covenant on Civil and Political Rights.

These obligations were enacted into Australian domestic law a few years ago. The federal crime of torture is set out in Section 274.2 of the Commonwealth Criminal Code.

Under both Australian and international law, torture is defined as the intentional infliction, by a public official, of severe physical or mental pain or suffering, for the purpose of intimidating, coercing, punishing, discriminating against, or obtaining a confession from any person.

The crime of torture has extraterritorial effect, meaning that it is still an offence even if it is committed by Australian personnel outside Australian territory.

The reported allegations of hand-burning by the Navy come within this definition, in particular by punishing asylum seekers for visiting the toilet, and thereby also intimidating others to not go to the toilet. The accidental burns also reported are not torture.

Faced with such allegations, the proper course of action for any responsible government should have been to call on the Navy to conduct a full and impartial investigation to determine if there was any breach of the Navy’s operational and disciplinary rules. The government should also have referred the allegations to the Australian Federal Police to investigate whether there is evidence of the federal crime of torture.

The government should then have publicly stated that Navy personnel are entitled to the presumption of innocence pending the outcome of investigations, and that the asylum seekers are entitled to have their allegations properly investigated. It should also have said that the government will not give a running political commentary on matters under investigation.

This is what a responsible government committed to military discipline, the rule of law and human rights would have done.

Instead, the government has childishly asserted that the Navy can do no wrong, that asylum seekers are liars and that the ABC has it in for them. There has been no impartial, credible investigation.

The Navy and the Australian Federal Police have not bothered to interview those making the allegations or other asylum seeker witnesses. It is little wonder that the government takes the side of the alleged perpetrators when it has ignored the alleged victims.

The government’s hyper-patriotic defence of the Navy is dangerous. It signals to military personnel that they are above the law and fosters a culture of impunity. It dehumanises asylum seekers as people whose suffering means nothing to us. It sacrifices the Australian values of human rights and legality on the pitiless altar of “border protection”.

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