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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 09, 2004

Tony Kevin: No need for a dirt unit on John Howard

No need for a dirt unit on John Howard, because the charge sheet is on public record now

website commentary
by Tony Kevin
7 July 2004

Watching Mark Latham confronting allegations from his first wife, disgruntled local councillors, and the alleged Howard government 'Dirt Unit' in recent days, left me wondering - why are Howard's alleged serious crimes of state still not being properly discussed or investigated?

If we value the protection of human life - and at least at the level of assertion, most Australians do support this core value - then why aren't we more interested in pursuing the charge sheet against Howard as Prime Minister since 1996?

With no difficulty, I can produce a check list of disturbing questions about improper and possibly criminal actions on Howard's watch as Prime Minister, many going to issues of the loss of human lives, that have never been properly investigated or accounted for.

We won't read stories of Howard getting into fights in pubs or clubs or council chambers because he has never been that sort of a bloke. But I think we can see a steely determination to exercise Australian state power in ruthless ways that have left many innocent people traumatised or dead. I have been thinking and writing about such things over the past few years. Below is my checklist of "the charge sheet against John Howard". Putting it all onto one list like this is pretty frightening.

But first, a brief contextual discussion: in recent weeks, arising out of reporting on Abu Ghraib and the Saddam Hussein trial, we have learned useful things about the command responsibilities of Presidents or Prime Ministers for acts of criminal misconduct committed on their watch.

Anthony Lewis, in Making Torture Legal, 15 July 2004, New York Review of Books, writes about the US government-sanctioned tortures of Iraqi detainees at Abu Ghraib:

"A committed prosecutor would do what investigators of official crimes have done since Nuremberg: apply the principle of command responsibility and work his way up the chain to the source of the misconduct. That principle is why Slobodan Milosevic is in the dock in The Hague."

No one could argue with that principle. And on ABC Radio The World Today, Friday 2 July 2004, Eleanor Hall spoke with lawyer Grant Niemann, a former prosecutor at the International Criminal Tribunal in the Hague, now at Flinders University Law School, about the Saddam trial in Iraq:

Hall: Do you think it will be hard to prove these charges against him [Saddam], given that he was apparently quite a clever politician, and may not have his fingerprints on the crimes?

Niemann: This is always difficult, because, yes, for precisely that reason. If you're going to establish superior responsibility, or command responsibility, which I imagine would be the way they will go, you've got to show that he had some knowledge, either that the crimes were about to be committed, but one way they can approach it is that there's a double element to crimes in command responsibility, and that is that if you can show that he knew the crimes had been committed and did nothing about it, then that also is a basis upon which command responsibility can be visited upon you. And certainly I would imagine it wouldn't be that difficult to show that he saw these incidents occur where these crimes against humanity had occurred, and he didn't do anything about it. And so he can be responsible on that basis.

Now let us apply these same two principles of command responsibility to the conduct in office since 1996 of the present Prime Minister of Australia, John Howard. Here are some of the things for which I believe John Howard could be found to be criminally indictable, if they were ever to be properly investigated by independent judicial enquiry.

These are not, be it noted, matters of state policy or community values on which there could be legitimate policy disagreements. They are matters of a prime minister's command responsibility for alleged criminal actions of state - potentially indictable alleged offences under Australian criminal law and under Australia's international legal obligations.


Did the Howard government deliberately ignore repeated Australian official intelligence reports, and public reports, of serious Indonesian Army-sponsored killings and other human rights abuses in East Timor throughout 1999 that culminated in the massacres of up to 2000 East Timorese, forced expulsions of 100,000 East Timorese, and the scorched-earth destruction of scores of towns and villages in East Timor, in the three weeks after the UN-supervised referendum in September 1999? Was it Australian policy to maintain Indonesian acquiescence and international diplomatic momentum towards the UN referendum and subsequent UN authorisation of the international peacekeeping force INTERFET, regardless of the human rights abuses suffered by the East Timorese on the way? Was this policy of turning a blind eye to these human rights violations in East Timor contrary to Australia's international legal obligations under the UN Human Rights convention?

The decisions were Downer's, but the command responsibility was John Howard's. (Sources: the public record, and writings by John Birmingham, James Cotton, Tony Kevin, William Maley, Jon Martinkus).

Was there criminality in Australia's setting-up and operating at arms-length a mostly covert people smuggling disruption program in Indonesia 2000-2001, involving the use of Australian-recruited Indonesian police disruption teams (i.e., our mercenaries) and undercover civilian agents (eg Kevin Enniss), and which allegedly contributed to the deaths by drowning of unknown numbers of asylum-seekers in unsafe boats that were deliberately sunk off the coasts of Indonesia?

Responsibility for this potentially criminal program lay within the portfolio responsibilities of Ruddock and Ellison (in respect of DIMIA and AFP), and possibly Downer (in respect of ASIS) but the command responsibility was John Howard's. (Sources - public record, "Dark Victory", Marr and Wilkinson, and "A Certain Maritime Incident", Tony Kevin, Scribe Books 2004)

Did Australian border protection and maritime rescue authorities criminally put over 400 people's lives at risk on the asylum-seeker vessel Palapa, which in August 2001 very nearly sank in an overnight storm 60 miles from Christmas Island, after Australian authorities had twice overflown and inspected it on the previous day, but had chosen to ignore the passengers' obvious hand-signals appealing for rescue from their damaged and immobilised boat? Did this negligence, which very nearly caused over 400 deaths, violate Australia's safety of life at sea international and domestic law obligations?

The decisions were made by Coastwatch and the Australian Maritime Safety Authority under the ministerial portfolio responsibility of Ellison. The command responsibility was John Howard's. (Sources: the public record, "Dark Victory", Marr and Wilkinson, and "A Certain Maritime Incident", Tony Kevin, Scribe Books 2004).

Did Australian authorities criminally put at risk the lives of over 200 asylum-seekers, who could well have drowned during an illegal 22 hours circular tow by HMAS Adelaide on 7-8 October 2001, during which time they were ordered to remain on board their unseaworthy and sinking vessel Olong (SIEV 4), within 24 miles of Christmas Island? Did Canberra's orders to Commander Banks of Adelaide to keep the people on board their boat under post-rescue tow violate Australia's safety of life at sea international and domestic legal obligations?

The decisions were allegedly made by the Prime Minister's Department-chaired People Smuggling Taskforce and by the ADF (under Defence Minister Reith), but the command responsibility was John Howard's. (Sources: the public record, CMI Senate Committee evidence, "Dark Victory" by Marr and Wilkinson, and "A Certain Maritime Incident", Tony Kevin, Scribe Books 2004).

Did Australian border protection authorities fail in their duty to conduct a legally required safety of life at sea search for the 353 people who drowned when their asylum-seeker boat SIEV X sank in the Australian border protection surveillance and interception zone on 19 October 2001? Have these authorities made deliberate efforts from then until today to cover up the facts of this alleged serious evasion of Australia's safety of life at sea legal responsibilities?

The decisions were made mainly by the ADF under Defence Ministers Reith and Hill, but the command responsibility was John Howard's. (Source: the public record, CMI Committee evidence, and "A Certain Maritime Incident", Tony Kevin, Scribe Books 2004).

Did Downer, aided by his department DFAT, choose to take no action over a period of 13 months prior to the Bali bombings in October 2002, pursuant to at least three ONA and ASIO generic intelligence warnings of possible terrorist attacks on Western bars in holiday resorts in Indonesia? Was the failure to amend DFAT travel advices in respect of Bali on the basis of these clear warnings, a manifest breakdown in the Foreign Minister's duty of consular care to Australian citizens travelling abroad? Is there a legal case of contributory Australian government negligence in respect of the deaths of over 200 people including 88 Australians in the Bali bombings?

The decisions were made by Downer, but the command responsibility was John Howard's. (Source: the public record, including and testimony in the Senate committee currently investigating this matter)

The attempt to destroy Justice Michael Kirby's public reputation and tenure as a High Court of Australia judge, based on a libellous forged paper trail and associated unfounded accusations, is on public record. The circumstances of Senator Heffernan's public claims were defamatory and potentially litigable had Justice Kirby chose to go that route.

The actions were apparently initiated by Parliamentary Secretary Senator Bill Heffernan, but the command responsibility was John Howard's. Howard to some extent accepted this, in demoting Heffernan: but he never made a proper apology to Justice Kirby. (Source: the public record)

The successful destruction of Pauline Hanson's One Nation Party by highly dubious legal manoeuvres, culminating in her unjustified (and three months' later judicially overruled) jailing. Pauline Hanson would have a strong legal criminal case against those who allegedly set out clandestinely to destroy her party and violate her rights as a citizen, should she ever choose to mount such action.

The legal actions were allegedly set in train by a group set up by Tony Abbott, but the command responsibility was John Howard's. (Source: the public record, and Margo Kingston, Not Happy John!, Penguin Books, 2004)

The misrepresentation and misuse of coalition intelligence re alleged WMD in Iraq, prior to the coalition invasion. It appears that Howard took our nation to war on false pretences.

The action and command responsibility were John Howard's. (Source: the public record, and Andrew Wilkie's new book)

The government decision to involve Australia's ADF in the invasion of a sovereign nation Iraq, an invasion that did not have UN Security Council authorisation and was therefore illegal according to the general consensus of international government and expert opinion.

The action and command responsibility were John Howard's. (Source: the public record, and Howard's War, Alison Broinowski, Scribe Books 2004)

The launch of secret pre-emptive ADF armed combat inside Iraq 30 hours before the expiry of a declared 48-hour coalition pre-war ultimatum to Saddam, and the misleading by Howard of the Australian Parliament and people at the time as to when Australian combat would start, and the subsequent attempts (after the timing of the covert pre-emptive attack had been exposed) to pretend that the pre-emptive attack was properly authorised and in accordance with the laws of war. How many Iraqi soldiers died during these 30 hours of illegal undeclared warfare?

The action was under Defence Minister Hill but the command responsibility was John Howard's. (Source: the public record, and analytical articles by Tony Kevin)

The now admitted denial and cover-up of what Australian ADF officers serving with American forces in Iraq may have known and reported back to Canberra since September 2003 about ongoing tortures (including deaths under torture) of Iraqi prisoners in American-run military prisons in Iraq. Why was nothing was done by Australian authorities to protest against this obvious misconduct by their coalition partner in the military occupation of Iraq? Were Australian human rights obligations and obligations as a signatory to the international Convention against Torture thereby breached?

The action was under Defence Minister Hill's portfolio but the command responsibility was John Howard's. (Source: the public record, and recent hearings of the Senate Defence Estimates committee).

The neglect over nearly three years of the Australian government's legal duty of care to its citizens Hicks and Habib who have been imprisoned without charge or prospect of fair trial at the US military prison of Guantanamo Bay, Cuba. Were Australian consular protection and international human rights obligations, and possibly Australia's obligations as a signatory to the international Convention against Torture, breached by this neglected duty of care?

The actions were under Attorneys-General Williams and Ruddock, but the command responsibility was John Howard's. (Source: the public record)

Continuing well-documented cruelties from 1999 to the present day towards asylum-seeker men, women and children, in detention or under house arrest in Australia or Nauru, or living under the cruel uncertainty of never-ending (at the immigration minister's pleasure) Temporary Protection Visas. It seems clear that Australia's human rights obligations, and possibly Australia's obligations as a signatory to the international Convention against Torture, were thereby breached.

The actions were under immigration ministers Ruddock and Vanstone and Attorney-General Ruddock, but the command responsibility was John Howard's. (Sources: the public record, the report of the parliamentary committee examining detention centres, the HREOC Report, and books and articles by writers such as Peter Mares, Julian Burnside, Robert Manne, Frank Brennan, Louise Newman, Mary Crock, Hilary Charlesworth)

Against this lengthy charge sheet of apparent or alleged misconduct by the Prime Minister in office - on fourteen rather serious questions - the material recently circulated against Mark Latham is obviously trivial.

If the principle of command responsibility is as applicable to Australia as to Iraq - as it surely ought to be - then it is hard to avoid the conclusion that Prime Minister John Howard might at some future time come under investigation in terms of his command responsibility for serious acts of criminality, both against Australian citizens and against non-Australian citizens to whom the Australian government had a duty of care - or at least a duty to observe international law obligations that Australia had entered into.

That is, if Australia had a political culture of accountability. We probably do not have this. We are happy to prosecute the alleged criminal misdeeds in office of people like Saddam or Milosevic, but we don't care to apply the same standards to testing allegations about our own leaders.

Maybe one day this will change. Meanwhile, we can at least vote.

Next time you see a story about an alleged Latham peccadillo, remember this charge sheet against John Howard. Show it to your friends. It's a pretty long and frightening list.

Of all these charges, the one with the most political resonance for the upcoming election is the allegation of alleged neglect of Australian agency terrorism intelligence warnings in 2001-2002 - warnings that had obvious relevance to Bali where 88 Australians subsequently died in an attack that happened much on the lines that had been predicted in these ignored intelligence warnings. Watch how the current Senate Committee reports on this issue.

Tony Kevin, Canberra 7 July 2004



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