Case Watch: Australia's Complicity in Torture—No More Excuses

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide quick-hit analysis of  notable court decisions and cases that relate to their work to advance human rights law around the world.

Mahmoud Habib, an Australian citizen, was detained in Pakistan in October 2001, and then transferred by U.S. authorities first to Egypt, then to U.S. military bases in Afghanistan, and finally to Guantanamo Bay, where he was held from May 2002 until he was released without charge in January 2005. During this period he claims that he was repeatedly tortured, and that Australian officials provided information which was used during his interrogations and were present during some of them.

Earlier this month, the Australian government announced that it had settled a case brought by Habib for its complicity in his detention, rendition, and torture. The closure of this case followed a similar recent settlement by the British government with 16 of its citizens and residents who had been held in Guantanamo Bay. In that case, it was suggested that the settlement was linked with the need to protect sensitive intelligence information shared by the U.S.—much as the Australian government had resisted disclosure on national security grounds. In both cases, the settlements involved neither an admission of liability nor a response to the factual allegations, and a secrecy clause prevented the victims from speaking publicly.

But now new circumstances have forced the government’s hand. Before the settlement in Habib’s case, the Australian government had consistently denied any complicity by its officials in his alleged torture. In particular, it claimed that it did not even know that he had been transferred to Egypt (where the most serious abuses are alleged to have been inflicted), let alone what was done to him there. Then just days after the settlement was announced, new evidence came to light—in the form of witness statements obtained by Habib—and blew a hole in the Australian government’s denials. The government promptly announced an inquiry by the Inspector-General of Security and Intelligence into the role of Australian agencies in Habib's arrest and detention.

In an age where any inquiry by a government into its complicity in rendition and torture is rare, even this small step is welcome. But we should not confuse a reactive inquiry with proper accountability. But for the perseverance of Habib’s team gathering evidence in the face of continued official obstruction, the present inquiry would not have come about. And the government would have maintained its denials without any critical examination.

Indeed, this episode and the belated launching of an inquiry only emphasize the dangers of accepting claims of “national security” as a bar to accountability for rendition and torture. As journalist Sally Neighbour, who covered the cases for The Australian, wrote recently:

The commonwealth has used every legal device at its disposal to keep the sordid details under wraps, routinely frustrating media and legal efforts to get to the truth, in the name of national security.

In 2007 a judge in the Administrative Appeals Tribunal lashed out at ASIO’s [the Australian Security and Intelligence Organisation’s] repeated refusal to release information on Habib, asking: "Why should we take your word for it when again and again we find things that are said to be the subject of national security concerns turn out not to be? I mean it looks like an easy way out for ASIO: when in doubt, just say 'national security.'"

It should not be forgotten that last year the government pressed to have the case thrown out because it would require Australian courts to examine whether the acts of foreign officials (in particular from the U.S. and Egypt) amounted to torture, in order to judge whether Australian officials had acted illegally by assisting them. Fortunately the Australian Federal Court rejected this argument and stood up for the principle that a nation’s courts must be able to examine whether its officials have acted lawfully or unlawfully.

We can hope the Inspector-General will be empowered to conduct a thorough inquiry into all relevant aspects of this affair, and will show the same integrity and resolve as the Federal Court.