Saturday, December 17, 2005

Nauru or Nuremberg? Australia - asylum seekers and war criminals

Dr Jane McAdam, a lecturer in the Faculty of Law at the University of Sydney and an Associate of the Sydney Centre for International and Global Law, argues on On Line Opinion:

"The recent exposé in the Sydney Morning Herald of suspected war criminals living in the Australian community sheds much light on Australia’s schizophrenic implementation of international law. Whereas Australia refuses to extradite convicted or suspected criminals to countries where they may be tortured, asylum seekers are not afforded the same protection. The risk of torture is an automatic consideration in any extradition request, but Australian law contains no mechanism that guarantees the examination of torture fears in asylum claims.

Australia’s refugee protection regime has already been much criticised for its failure to implement Australia’s international obligations in good faith, in accordance with the spirit and purpose of the 1951 Refugee Convention. But since the conclusion of that treaty, there has been an explosion of additional human rights treaties that extend the obligations of member nations to protect vulnerable individuals. For example, the Convention against Torture mandates that no individual will be returned to a country if there are substantial grounds for believing that they will be tortured.

Whereas certain persons, such as war criminals, may be excluded from protection under article 1F of the Refugee Convention, the prohibition on return to torture is absolute. It applies to all persons, regardless of their conduct, nationality or citizenship. Accordingly, it may protect those who are excluded from the Refugee Convention; those unable to demonstrate a link between torture as persecution and one of the five Refugee Convention grounds; and those overlooked as refugees due to narrow domestic interpretations of the refugee definition.

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