Accountability & transparency - the key to upholding international humanitarian laws?

By Jemma Rowe

"We need a full inquiry, with Royal Commission powers, to get to the truth. " Edward Santow, Public Interest Advocacy Centre CEO

Accountability and transparency are key principles which the public rely upon to entrust their government and government agencies. Yet, the necessary disclosures to ensure that accountability and transparency is maintained can often be hard to come by. Obtaining such disclosure can be further complicated by freedom of information (FOI) laws, designed to provide access to data held by the state but with sufficient provisions to protect confidential information. But, when government bodies are involved in a foreign state conflict, do FOI laws in fact provide a façade behind which to hide to avoid obligations to uphold and maintain international humanitarian laws such as the Geneva Convention?

The Department of Defence in Australia has been asked to consider this question by the Public Interest Advocacy Centre (PIAC) who over six years has sought documents under FOI laws in Australia relating to Australia's involvement in the conflicts in Afghanistan and Iraq. The result: PIAC has obtained a number of previously classified documents which suggest that the Australian Government deliberately avoided its international legal obligations in respect of detainees caught by the Australian Defence Force in Afghanistan and Iraq.

PIAC is an independent, non-profit law and policy organisation in Australia that first made an application under Australian FOI laws in June 2005. This project is led by PIAC Chief Executive Officer, Edward Santow and PIAC solictor Gemma Namey (pictured). In 2009 and 2010 PIAC gained access to over 180 documents which revealed:
  • the Australian Defence Force’s knowledge of, and role in, alleged abuse at Abu Ghraib prison in Iraq;
  • the Australian Government policy of handing over detainees who had been captured by Australian forces to the US, without any conditions on their treatment; 
  • the fact that the Australian Government knew that the US had a number of secret detainees who were hidden from the International Committee of the Red Cross; and 
  • the fact that Australia contravened its international legal obligations in these matters. 
PIAC is demanding a full and independent inquiry into Australia's role in the conflict in Afghanistan and Iraq. "The US and UK have been more open to scrutiny about their involvement in this conflict. Australia needs this inquiry to ensure that the ADF has proper procedures in place that ensure our troops abide by international law" Mr Santow said. For more information about this investigation see here.

What is equally concerning is the long road that PIAC has taken to obtain this information. After six years, requests for a review of the decision not to release all of the relevant documents to the Department of Defence and to the Administrative Appeals Tribunal, and PIAC has been given access to over 180 documents from 3000 documents reviewed. For more detail about the FOI process on this topic see this article.

Similarly in the UK, it took three years for the All Party Parliamentary Group on Extraordinary Rendition to obtain information under FOI laws including the release of the previously secret 2008 Memorandum of Understanding between the UK and the US, further extracts of a 2008 Detention Practices Review and statistical information on detainees captured in Afghanistan. This information revealed a weakening of protections of detainees handed over by the UK military to the US evidencing a potential breach of international humanitarian laws.

In contrast, the American Civil Liberties Union (ACLU) has been more successful obtaining documents under American FOI laws, where over 100,000 pages of government documents concerning the treatment of prisoners in U.S. custody overseas has been made publicly available. See the ACLU website for details about information obtained under American FOI laws.

So, how will the public's trust in the government's accountability and transparency be redeemed?

In Australia, the first comprehensive review to examine personal and institutional accountability in the Australian Defence Force was released in January 2011 (the Black Review).

The Black Review states "...Defence has reached a point in its history where there is a strong case to redesign its accountability system ... the current arrangements are under stress and their failure damages Defence." Consequently, in August 2011 the Minister for Defence announced Accountability Reforms for Defence.

Will these reforms provide more transparency, accountability and ultimately lead to a greater observation of Australia's obligations to abide by international humanitarian laws? Only time will tell.

About the Author :

Jemma Rowe is a solicitor in Sydney, Australia and Co-Vice Chair of the New South Wales Young Lawyers Human Rights Committee. She has been actively involved in lobbying for a full and independent inquiry into the details surrounding Australia's involvement in the conflicts in Afghanistan and Iraq.

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