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Fixing Australia

Australia is broken. Democracy has holes in it, cracks in it, and it needs fixing. Since the 2004 Federal election we know that our government is not going to fix it. I think we need to do that fixing, and this blog is a start of getting some ideas together.

Tuesday, November 23, 2004

SIEV X: Where Do We Go From Here Now?

Reflections and a proposed strategy, on the occasion of the third anniversary of the sinking of SIEV X

website commentary
by Tony Kevin
Sunday 17 October 2004

This is unavoidably a longer commentary than usual - but it is probably the most important thing I have ever put up on my website. Please, give it wide distribution to anyone who might be interested and in a position to contribute to the planned strategy as outlined here. TK.

Three years ago, 353 people drowned on 19 October 2001 when their criminally overloaded refugee boat sank 60 nautical miles south of Sunda Strait, in international waters that were being intensively patrolled and monitored at the time by Australia's defence force, under the major declared border protection exercise Operation Relex.

This boat, and its organiser Abu Quassey, had for months been closely monitored by an undeclared Australian government people smuggling disruption program, that was being jointly conducted out of the Australian Embassy in Jakarta, by officers of the Australian Federal Police and DIMIA (possibly also with covert help from Australia's spy agency ASIS, according to sources cited by David Marr and Marian Wilkinson's book Dark Victory).

To quote Senator Brandis on BBC World Service Radio recently, "the disruption operation was an onshore [Australian] policing operation [in Indonesia] to attack and dismantle the networks of people smugglers".

AFP Commissioner Mick Keelty's own Senate evidence in 2002 has admitted that at the time SIEV X sank, this disruption program was operating illegally: because Indonesian government approval for the Australian police program had been cancelled six weeks before SIEV X sank.

Australian authorities, from John Howard down to Mick Keelty, have claimed since the sinking became public news on 23 October 2001, that they had no knowledge of the distress at sea of the people on board SIEV X until it was too late to try to save them. The ADF admitted in Senate evidence that no Australian search and rescue operation was ever mounted.

John Howard claimed that SIEV X sank in Indonesian waters and that Australia was in no way involved. His claims were subsequently - but too late to affect the 2002 Senate inquiry - found conclusively, by Australian official evidence itself, to be false. These were only the first of three years of official lies about SIEV X.

The Australian Government's lies about where the boat sank, and about how much it knew about the deaths of these 353 people, and how and when it came to know it and from whom, have been protected over the past two years - with declining credibility - by an ADF, AFP and senior public service all marching in lockstep to sustain what is by now a very convoluted and threadbare cover-up.

With the exception of the stolen aboriginal children, a different kind of ongoing gross abuse of human rights, there has never been an official lie as big as this, and so well protected and obscured by so many different people on the public payroll, in Australia's history.

It is an utter disgrace. This was not just a bit of unavoidable minor collateral damage from a necessary [sic] covert policy of deterrence of illegal immigration. This was the taking of 353 mostly young lives, mostly women and children, who should have had their whole lives to look forward to in the happiness of their reunited families, but whose lives were instead brutally and horribly cut short. At best, what happened to the people on SIEV X may have been a result of a reckless disregard for other people's lives. At worst, it may have been deliberate state-sponsored murder.

The very improbability - in terms of normal public assumptions of how Australian governments would or should behave - of the questions I have asked about Australian official conduct in relation to the sinking of SIEV X, has been the Howard Government's greatest protection. Faced with the growing weight of evidence-based questions arising out of Senate enquiries, the Government has had recourse to repeated personal abuse of those who raised these questions, or to vehement and outraged protestations of innocence. None of the questions have ever been answered.

Yet, revealingly, at no time have I ever been warned of litigation arising out of my questions. This suggests to me a strong probability that much of what I have written or said about SIEV X and the disruption program is on the right track, because any process of litigation against me would inevitably focus public attention on the questions of official misconduct that the SIEV X public history raises.

Australian investigative journalism, overburdened over the past few years with so many manifest abuses of proper government process and accountability that such abuses have by now almost become accepted as "business as usual", has not been up to the task of uncovering what really happened in the drowning of 353 people on SIEV X. The mainstream media's fear of the subject, and its exhausted silence in the face of manifestly implausible official whitewashes, has become part of the problem.

A few days ago, celebrating his fourth election victory, John Howard promised the Australian people that his renewed mandate "is not a mandate to do reckless, disruptive things and we don't intend to do either."

It is strange how sometimes our very choice of words can betray us. I believe it was precisely the recklessness with human lives of the Government's people smuggling disruption program in Indonesia in 2000-2001, which won Howard the 2001 election. Indeed, Howard stopped the boats coming. But at what human cost?

This week, some of the key witnesses (and persons who should have been witnesses, but were ordered or allowed not to be) in the blocked Senate investigation of the sinking of SIEV X continue to prosper in their public service, police or military careers. Others have already retired or moved into other kinds of careers. I wonder what they might be thinking today? I wonder how many of them are even aware of this third SIEV X anniversary?

The only official spokesman who was recently prepared to say anything of substance about SIEV X is Senator George Brandis, the Government's chief defender and inquisitor in the 2002 Senate Select Committee into a certain Maritime Incident. A few weeks ago, he boldly assured the BBC World Service's huge global audience that, in that Senate Committee:

"Both the Government and the Opposition were of the view that there was no involvement by, either direct involvement by or negligence on the part of, any Australian authority in the sinking of SIEV X".


The lie is given to this misleading statement by the very first recommendation of the CMI Committee, which called for a full independent enquiry into the disruption program. That recommendation is still being ignored by the Government, despite three Senate motions reaffirming it on 10 December 2002, 16 October 2003, and 22 June 2004.

The cock has crowed three times in three years, but in Senate Estimates committees, Government ministers, senior civil servants, police and defence officials are still lying, obfuscating or remaining scandalously silent about the deaths of 353 human beings on Australia's watch.

Though the boat sank in international waters nominally part of Indonesia's "search and rescue zone" (an area of high seas which actually extends to south of Christmas Island, and includes all of Operation Relex's declared operational area), the fact of the Australian disruption program, and the scale of Operation Relex military resources and operations in the area, gave the Australian Government the prime duty of care - a duty they manifestly did not carry out.

Heroic, mostly unreported by media, personal efforts by Opposition Senators Faulkner, Cook, Collins, Bartlett, Brown and others to draw out the truth in 2002-2004, using all of their Senate watchdog powers to the limit, have so far not succeeded - though useful new layers of evidence have been laid down (eg that Senator Ellison was forced to admit to the availability to AFP of a SIEV X passenger list, but that he refused to make it public).

In the now less favourable Senate climate after the 2004 election outcome, it is hard to see - barring dramatic insider whistleblower disclosures, which are always possible - how the Senate opposition parties can do much more about SIEV X. Opposition Senators can go on asking committee questions but will lack the numbers - unless Family First joins the SIEV X cause - to follow through in the full Senate.

We can be pretty sure that John Howard won't set up an independent full-powers judicial inquiry into the disruption program and the sinking of SIEV X. If he does do anything at all under pressure, it will be one of those whitewashing pseudo-investigations such as he has already honed to a fine art in office.

So has the government cover-up finally prevailed? Have they worn us all down and seen us all off? The answer is No.

But where are the many Australians of conscience, who care about accountability for the unexplained deaths on our national watch of so many fellow human beings, now to go?

I believe we will finally go - all Australian avenues for judicial accountability having apparently been blocked so far - to one place where the writ of John Howard does not run: namely, the International Criminal Court, whose Statute Australia signed on 9 December 1998 - the 50th Anniversary of the Universal Declaration of Human Rights. On that day, Mr Downer told a Human Rights and Equal Opportunity Commission Conference in Sydney:

"Australia can be proud of the role it played throughout the difficult negotiating process which led to acceptance of the Statute. The establishment of the Court will be a great achievement for Australia and like-minded countries that have fought to ensure that the perpetrators of crimes against humanity are brought to justice. It was on International Human Rights Day on 10 December 1996 that I announced that the Court's establishment was one of the Government's prime multilateral and human rights objectives. It is, therefore, fitting that we have chosen celebrations surrounding the same anniversary date to make our announcement on signature."

(Joint media release by Minister for Foreign Affairs Alexander Downer and Attorney-General Daryl Williams FA149, 9 December 1998)

However, Australia did not formally ratify its membership of the ICC Statute until June 20 2002 - eight months after SIEV X sank. On that day, John Howard said:

"The decision has been reached after a very lengthy but beneficial and widespread consultation within the government party room.... The declaration will reaffirm the primacy of Australian law and the Australian legal system in relation to prosecution of offences under the legislation giving effect to the Statute.... It will declare that no person can be arrested on a warrant issued by the court or surrendered to the court without the prior consent of the Attorney-General of the Commonwealth.... It will also declare Australia's understanding that the offences of genocide, crimes against humanity and war crimes under the International Criminal Court statute will be interpreted in accordance with Australian law"

("Australia will join ICC, with conditions", The Age, 20 June 2002).

I don't think that it would ever have occurred to our Prime Minister, Attorney-General or Foreign Minister in June 2002 - or to most newspaper editors, then or since - that John Howard's command responsibility over Australia's border protection system, in both its people smuggling disruption program aspect and its border protection maritime surveillance and military interception aspect, might one day raise questions as to whether he might be implicated in an alleged crime against humanity as defined by the ICC Statute. Yet I believe that, when SIEV X whistle-blowers from within the national security system come forward as they eventually will, this chicken may unexpectedly come home to roost in Kirribilli House.

Meanwhile, the evidence set out in readable summary form in my recent book A Certain Maritime Incident: the sinking of SIEV X (Scribe Books, August 2004), and the far more comprehensive compilation of all relevant Senate-based and media-based public documentary evidence that Marg Hutton has assembled on her indispensable website, may already provide a basis for an investigative file to be opened at the ICC, under the ICC Prosecutor's independent powers to initiate an investigation proprio motu (i.e., of his own initiative) of any suspected crime against humanity.

I recommend a careful reading of the second edition of Geoffrey Robertson QC's excellent book, "Crimes Against Humanity" (Penguin Books, 2002).

ICC Definitions

Article 7 of the ICC Statute (annexed in Robertson's book) defines crimes against humanity (which can happen in peacetime as well as in war) as including:

"...any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder; ...etc...

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."

An "attack directed against any civilian population" is under the same Article 7 defined as:

"a course of conduct involving the multiple commission of acts ...against any civilian population pursuant to or in furtherance of a State or organisational policy to commit such attack:

(a) ...etc...

(g) "persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity " ... (my underlinings)

The challenge here would be to establish to the ICC Prosecutor's satisfaction that the people whose lives and human rights were, in my view, recklessly and cruelly put at risk under the Australian Government's people smuggling disruption program, had had an "identity" as a "civilian population", "group" or "collectivity".

I think the public history of the Australian Government's disruption program and of the ADF's Operation Relex - and the present state of public knowledge of the group of persons against whom these activities were primarily being directed in practice - can establish the applicability of this ICC definition. The disruption program may have been aimed to "attack and dismantle the networks of the people smugglers" (Brandis), but the people who were being robbed blind, terrified by real or simulated threats to their lives, enduring the fear and shock of having boats "lost" or sunk under them, and in some cases killed by drowning, were - the passengers.

I think the 353 asylum-seekers who perished on SIEV X and the 45 survivors, and other asylum-seekers whose lives were manifestly put at risk in other earlier voyages that I believe were subject to disruption and/or negligence of rescue at sea obligations, eg Palapa, SIEV 4, and other sunken boats whose history is not as yet fully known to us, form a civilian population within the meaning of the ICC Statute definitions cited above. That is, these were a group of people of mostly Iraqi and Afghani nationality and mostly Muslim religion, who were trying to reach Australia from Indonesia as asylum-seekers, in order to reunite their families separated under Australia's draconian TPV legislation, and to make new lives as legally accepted refugees in Australia.

And I believe that the Australian Government's people smuggling disruption program in Indonesia in 2000-2001 was a multiple commissioning of acts against this civilian population, pursuant to or in furtherance of a State or organisational policy to commit such attacks.

If these two crucial definitional elements of ICC jurisdiction can be established to the point where the ICC Prosecutor would be prepared to open a file proprio motu, there is then no doubt in my mind that, if even half of the questions asked in my book prove to be based in fact as judged by the rules and standards of courtroom evidence, Mr Howard could one day find his conduct as head of government in question under Article 7 of the ICC Statute.

Technically, Howard supporters could argue that because SIEV X happened eight months before Australia ratified the ICC Statute, there is no ICC jurisdiction. But if that were all they could come up with as a defence, what a pathetic and unconvincing defence it would be!

Australia signed the Statute - which it played a leading role in helping to draft and negotiate - nearly three years before the tragedy of SIEV X, in 1998. This was part of Gareth Evans' legacy of work in progress in DFAT and Attorney-General's Department, which Alexander Downer inherited in 1996 and to his credit directed be pursued. The present Australian Ambassador to Sweden, Richard Rowe, an expert international lawyer, has played a major role.

There is also some circumstantial evidence that Australian Government systematic disruption activities may have continued in the years since SIEV X, i.e., within the period since Australia ratified the ICC Statute in 2002. Three boats reached Australian territory, fortunately without loss of life, after voyages whose suspicious history suggest possible Australian official manipulation, deliberate failure to intercept in a timely and humane way, and even entrapment - in July 2003, November 2003 and March 2004.

I believe that asylum-seekers' lives, sand the lives of their families and friends in Australia, are still being cruelly and cynically played with by the Howard Government. The disruption program apparatus is all still in place, and future crimes against humanity on the precedent of SIEV X are entirely feasible in the future, if the tragic SIEV X history is not properly judicially addressed by Australia.

Until and unless he sets up a genuine full-powers independent judicial enquiry into these matters, John Howard can have no credible defence against an appeal by Australians of conscience to the ICC Prosecutor to open a proprio motu file on the SIEV X case and the people smuggling disruption program: since the Australian police and judicial authorities have failed in their clear duty to investigate properly this serious potential crime against humanity, of the deaths of 353 persons who came under the Australian Government's duty of care. Senator George Brandis, for all his advocacy skills, cannot rescue John Howard from this potential sword of Damocles hanging over his celebration of a fourth term.

SIEV X - more than any other issue of misgovernance, whether it be bungled Bali travel advices, or acts of pre-emptive illegal invasive warfare against Iraq, or cover-up of US atrocities at Abu Ghraib, or violation of the human rights of Hicks and Habib - creates this possibility. Because there is no getting around the fact of 353 unexplained deaths on Australia's watch.

Proposed strategy

This is the course of action I intend to pursue in the months ahead.

First, I hope to have the ideas set out in this commentary critically "work-shopped", by a voluntary group or groups of Australian legal experts, people of high established public reputations and professional standing. I hope also that some of our best graduate law students might research this further and discuss their findings with their peers. I hope that Australian lawyers with first-hand experience of war crimes investigations and proceedings of international criminal courts (e.g., on crimes in former Yugoslavia, Rwanda, or Cambodia) might consider these questions.

If enough people in such expert groups come to the view that there is credible scope for moving forward, we would then seek over time - there is no great hurry, and it is more important to get this all right the first time - a basis of public support from people of high standing in Australia, who will be prepared (as I have been for the past two years) to put their public credibility on the line in signing off on a suitably well-composed appeal to the ICC Prosecutor, Luis Moreno Ocampo, asking him to exercise his personal powers under Article 15 of the ICC Statute to initiate his own investigation into the sinking of SIEV X as a suspected crime against humanity.

It would be premature and unhelpful for anyone to do this now.

That is my plan for the future. I urge anyone potentially interested, who has the necessary professional skills and public standing to contribute in this new phase, to first critically read my book on SIEV X, and Geoffrey Robertson's book Crimes Against Humanity.

In conclusion, the issues here are crucially important to Australia's future as a decent country. If we now shrug off the 353 deaths on SIEV X as past history, if we complacently or fearfully say "what's done is done", and turn our backs on the need to establish proper accountability, worse will follow.

At least for the time being, the political door has probably closed. But the international judicial door may only now be opening.

Tony Kevin
17 October 2004



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