Detainee policy – Afghanistan and Iraq
- Government sources
- Parliamentary sources
- See also
Ministerial Statement on Afghanistan, Senator the Hon John Faulkner, MIN100318/10, Department of Defence, 18 March 2010
The ADF is currently upgrading its detainee screening facility in Tarin Kowt. As the Chief of the Defence Force has previously outlined during Senate Estimates hearings, third parties, including the International Committee of the Red Cross, conduct regular inspections of the ADF screening facility to verify it is of the highest standard. I have asked to meet with representatives of the International Committee of the Red Cross when I am next in Afghanistan. With this level of assurance and oversight, the ADF can be confident its practices will accord with our legal obligations and best practice.
The expected Dutch withdrawal from the leadership role in Oruzgan province also poses some challenges for detainee management. Currently, under an arrangement with the Netherlands, Australian forces transfer detainees to the Dutch. I have asked for a review of this policy, noting the Dutch will be withdrawing their forces, and I expect that I will be able to come back with an update on this issue in a subsequent report to Parliament.
“For ADF personnel on a third country deployment, Defence legal staff continue to examine relevant host nation laws and policies to determine whether they accord with Australia’s intemational and domestic legal obligations. ADF members proceeding on a third country deployment are given a legal brief on Australia’s legal and policy requirements as well as a personalised directive at the commencement of that deployment. This brief and directive includes advice on Australia’s obligations under international and domestic law and a direction for any ADF member who becomes aware of an incident that might breach Australia’s intemational obligations to immediately notify that concern or involvement through their chain of command.”
Australia has a duty to take Gitmo inmates, Ben Saul, SMH, 26 March 2010
Australian officials are grappling with yet another request from the United States to resettle some of the remaining 183 detainees at Guantanamo Bay, as part of President Barack Obama’s efforts to shut it down. Switzerland and Georgia agreed this week to accept some detainees, and Spain has taken others.
Last year, Australia rejected a US request to accept 17 Uighur detainees, citing security and immigration concerns. Lurking in the background was an anxiety about offending China by accepting people China calls Muslim terrorists. The tiny Pacific nation of Palau valiantly took them instead, albeit with a monetary sweetener.
Of course, the detainees Australia is again being asked to accept are not terrorists. Of almost 1000 people detained at Guantanamo since the war in Afghanistan began in 2001, many hundreds were found not to be terrorists, and most have been released. Some of those remaining at Guantanamo are also regarded as innocent by the US, but cannot be returned to their home countries because they might be persecuted, tortured or killed. It is these detainees Australia is being asked to resettle. Politically, it is not an option for them to live in America, even if the primary responsibility should lie with America.
Concern rises over drift in White House detainee policies, Tribune Interactive, Los Angeles Times, 24 March 2010
The newest option for detaining terrorism suspects, an Afghan prison that serves the same purpose as the lockup in Guantanamo Bay, Cuba, suggests that President Obama’s policies are becoming more like those of his predecessor, George W. Bush, said human rights groups and legal experts.
Obama began his presidency vowing to close Guantanamo, end CIA detention practices and transform the post-Sept. 11 system created by Bush. But as the administration encountered obstacles, it has been forced to backtrack and revisit some of the same practices in use under Bush: military tribunals, detention without trials and overseas prisons.
Inquiry Officer’s Report into the Detention of Local Nationals on 29-30 April 2008 in Uruzgan Province, Afghanistan, Department of Defence, released August 2008
Inquiry findings into 2007 incidents in Afghanistan, News Blog, Department of Defence, 2008-05-12
“Today Defence released the findings of inquiries into civilian casualties and an allegation of detainee mistreatment by Australian troops during the 23 November incident in which Private Worsley was killed. The investigating officer found that two non-combatants were killed as a result of Taliban extremists engaging an Australian Special Operations force from within a compound the extremists knew to be occupied by civilians. The investigating officer also found that at least two other non-combatants were wounded in the engagement. All three men were killed conducting authorized combat operations and there is no evidence that the Australian troops breached their rules of engagement on 23 November, 2007. The Chief of the Defence Force and the Minister for Defence agreed that Commissions of Inquiry into the combat deaths are not required.”
IO Report into Collateral Damage and Allegations of Mistreatment of a Local National in Afghanistan on 23 Nov 07, Department of Defence, 12 May 2008 [2.40MB, PDF]
ADF Investigates Mistreatment Claim, Media Relase, Department of Defence, 9 May 2008
“The Chief of Defence Force, Air Chief Marshal Angus Houston, has ordered the investigation of claims of detainee mistreatment by Australian soldiers. Allegations were raised by a senior Afghan National Army (ANA) Commander and presented to a joint International Security Assistance Force, ANA and Afghan National Police (ANP) working group over the weekend of 3-4 May, 2008. The allegations relate to the treatment of four suspected insurgents.”
The Great Enablers – ensuring operational success with outstanding support, Angus Houston, Chief of Defence Force, Defence Magazine, March 2007.
“When the Government announced in July 2005 that Defence would send Special Forces and set up a Reconstruction Task Force in Afghanistan, a team in International Policy (IP) Division was working behind the scenes to support the mission. IP Division provides a link between Government, other departments and groups within Defence. For Afghanistan, IP officers sought detailed information on security and political conditions in Afghanistan, especially Oruzgan Province. Among other tasks, IP developed from scratch a detailed detainee policy, balancing the practical demands of a military operation with the need to conform to domestic and international law.”
Responses to media enquiries, Department of Defence, (no date).
“Under the ROE, in terms of dealing with any combatant in a regular army or not, is Common Article 3 of the Geneva convention the minimum your troops would be applying?
“Defence’s detainee management policy for operations in Afghanistan requires ADF personnel to treat all detainees humanely, with dignity and respect, and in accordance with Australia’s obligations under domestic and international law. Applicable parts of the Geneva Conventions apply as a matter of law. The more detailed parts that do not apply as a matter of law due to the nature of this engagement are, however, applied as a matter of Australian policy.”
Media Briefing Australia’s contribution to Operation Falconer, Department of Defence, 9 April 2003.
“QUESTION: Have our SAS detained any POWs?
“BRIGADIER MIKE HANNAN: No.
“QUESTION: And to your knowledge, is there – has there been a tribunal set up in the theatre of war to assess whether they’re combatants of war or POWs? And are we a part of that tribunal? And also, sorry, I mean what is our position about prisoners of war over there at the moment?
“BRIGADIER MIKE HANNAN: Okay. Well let’s deal with the most generic part of the question first. Our position is that prisoners of war are treated absolutely in accordance with the Geneva protocols at all times, and that includes the handing on of prisoners. That is ensuring that they’re going to be treated in accordance with the rules by whoever we hand them on to.
“QUESTION: Do you know where the prisoners of war are being kept?
“BRIGADIER MIKE HANNAN: Well, as I’ve said we have not taken any prisoners of war, so we’re not keeping any of them.
“QUESTION: No, no, but generally. Just generally?
“BRIGADIER MIKE HANNAN: No, I’m not sure in those terms.
“Now, in terms of the tribunals, under the terms of the Geneva Conventions there is a provision for the establishment of tribunals to determine the status of an individual under the conventions. That is whether a person is a bona fide prisoner of war or another type of person.
“Now, I’m not aware that the other Coalition partners have or haven’t established tribunals. That’d be a matter you’d have to address to them. But I think, considering the numbers of prisoners that have been taken and the numbers of people that have come into their orbit who are indeterminate, that is in civilian clothing and not clearly identified as military, then there would be a need to have some filtering process to sort through them. And probably that would be done in accordance with the provisions.”
Duties of Australian personnel in Iraq, Report of Foreign Affairs, Defence and Trade References Committee, Senate, 18 August 2005.
This Senate inquiry was precipitated by a series of events concerning knowldge of Australian officials concerning the interrogation and abuse of Iraqi detainees. In May 2004 it was reported that as early as October 2003 an Australian officer serving in Baghdad, Major George O’Kane, had notified the Department of Defence about his knowledge of reports of prisoner abuse in Iraq. The Committee then examined these issues during budget estimates hearings in May 2004. In February 2005 the Australian senior specialist advisor to the head of the Iraqi Survey Group, Mr Rod Barton, stated that he had been involved in interrogation of Iraqi detainees, in apparent contradiction of a claim to the contrary by the Minister for Defence, Senator Robert Hill. The Committee was established in March 2005, and reported on 18 August 2005.
The bulk of the committee’s concern was with the specific issues raised by Mr Barton, and the responses by the Department of Defence and Department of Foreign Affairs and Trade.
Part of Chapter Three of the Committee’s report dealt with Knowledge of the treatment of Iraqi detainees (pp. 25-27.):
“3.1 The committee in this chapter seeks to ascertain whether any knowledge of, or concerns regarding, the treatment of Iraqi detainees was provided to Australian Government departments, agencies and ministers and, if so, the actions that followed from the provision of this information. The committee looks at:
- the policy that is intended to inform Australian personnel in Iraq about their conduct toward Iraqi detainees;
- the key documents which enunciate the fundamental principles governing the handling of prisoners—the Geneva Convention and the CDF’s directive;
- the evidence presented to the committee about the provision of information on the treatment of Iraqi detainees to Australian government departments, agencies and ministers; and
- the actions taken following such reporting.
Australian policy toward the treatment of detainees in relation to the war in Iraq
From the very beginning of Australia’s engagement in Iraq in March 2003, many people and organisations sought clarification on Australia’s duties and obligations toward Iraqi prisoners. On 21 March 2003, Brigadier Mike Hannan told a media gathering that Australia had:
…a very robust system which ensures that…our Australian rules of engagement and orders to our troops required the compliance with all of our international conventions, with all of our international agreements with Australian law and with international law and the law of armed conflict. 
3.3 This was one of the first of numerous assurances given by senior ADF officers that prisoners of war would be treated in accordance with international protocols. 
3.4 The following section discusses two documents that set down the principles under which Australian personnel are to treat prisoners of war.
The Geneva Convention
3.5 The Geneva Convention is a collection of laws of war that have been assembled piecemeal over many years and which continues to be developed. Convention III and IV apply directly to the treatment of prisoners of war and the protection of civilian prisoners in time of war. The overriding principle for both conventions is that such persons ‘shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion, or faith, birth or wealth, or any other similar criteria’. The conventions also prohibit certain acts including:
- violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; and
- outrages upon personal dignity, in particular, humiliating and degrading treatment.
3.6 Australia is a signatory to both conventions. Any policy statement, code of conduct or rules of engagement must be consistent with the overarching principles contained in this document.
CDF’s directive regarding the policy governing the handling of captives
3.7 Australia also has a memorandum of understanding with the US on the treatment of detainees that was initiated in 2002 at the time of the war in Afghanistan. General Peter Cosgrove explained that it was necessary to have this arrangement to cater for the possibility that Australian special forces operating in Afghanistan might need ‘to detain people in a formal sense: that is to detain them for a period of time’. According to General Cosgrove: The arrangement was reached through an exchange of letters between Admiral Barrie and General Franks of the Central Command. They stated the position that if the United States personnel were present with Australian personnel, the United States military person could effect the capture, assisted by the Australians, and that would mean that the person thus captured was in the custody of the United States. 
3.8 In June 2002, following consideration of advice from the Attorney-General’s Department, the then CDF, with a view to ensuring that the ADF’s conduct was consistent with Australia’s legal obligations, issued an ADF policy regarding the handling of captives taken in Afghanistan. The policy was that the United States was to assume responsibility for captives taken during combined Australia–United States operations. The ADF would retain custody of those captives taken during separate ADF operations, thereby allowing the government to make decisions as to the future handling of those captives. 
3.9 The committee understands that there was no separate or new directive issued with regard to the engagement of Australian personnel in Iraq. Senator Hill explained:
Operation Slipper continued and many of the forces were dually assigned, if that is the right term, and that covers the ships. In relation to the special forces, under the next operation they continued to operate on the same basis. As far as I have been able to ascertain there was no new directive given. There was a continuation of the implementation of the arrangement that had been reached the previous year with the United States. 
3.10 There can be no doubt that Australians serving in Iraq are bound in their treatment towards captives by the Geneva Convention and by the CDF’s directive. Both documents make clear that captives must be treated humanely and secondly that the US was to assume responsibility for captives taken during combined Australia–US operations.”
, Charlie Savage, NYT, 2009-02-21
The Obama administration has told a federal judge that military detainees in Afghanistan have no legal right to challenge their imprisonment there, embracing a key argument of former President Bush’s legal team.
- , Al Jazeera, 2009-02-20
Cultural misunderstandings in a war zone, Editorial, Age, 3 September 2008
“The West is fighting a tough — and, many argue, losing — battle against their onslaught on the Government and society of Afghanistan.
“However, there is another form of reconstruction of equal importance. It is rebuilding trust in people and winning over their hearts and minds. The actions of the Australian soldiers in April did the opposite. Notwithstanding that the soldiers reportedly believed that the most expedient and secure holding place for the prisoners was the dog pens, once the cultural and religious ramifications were known, as the Afghan soldier tried to point out, other alternatives should have been explored. It is an abject episode and an object lesson for defence forces. Although this is not an issue of torture or degradation, there are lessons that must be learnt.”
In War, We Must Do More Than Go Through the Motions, Editorial, Age, 11 May 2008
“News from Afghanistan last week highlights other perils facing our soldiers. Allegations of mistreatment of prisoners captured by Australians reveal they operate in a legal and moral minefield — complexities typical of any war, but which have a unique character in Afghanistan.”
Inquiries into Abuse Claims by Taliban, Brendan Nicholson and Jonathan Pearlman, SMH, 10 May 2008
“Three separate investigations are under way into allegations that Australian troops maltreated Afghan civilians who were captured during a raid on a bomb-making operation on April 30. The Chief of Defence Force, Air Chief Marshal, Angus Houston, said an initial inquiry carried out in the country by the ADF indicated there was no truth in the allegations. However, he had immediately sent two teams to Afghanistan to investigate further.
Prisoners ‘Handed to Torturers’, Tom Hyland, Age, 4 May 2008
“While the Australian Defence Force says there is no evidence prisoners taken by Australian troops have been mistreated, official documents show three have complained they were beaten around the head by secret police after being captured by the Dutch-Australian taskforce. The Dutch documents show prisoners are routinely handed over to Afghanistan’s National Directorate of Security (NDS), which human rights groups accuse of torturing and abusing prisoners.”
Torture Fear for Pows Captured by Australians, Sunday Age, Tom Hyland, 2 December 2007
“Australian troops could be complicit in the torture of prisoners captured in Afghanistan when they hand detainees over to Afghan Government agencies. Taliban prisoners delivered to Afghanistan’s notorious secret police “are at grave risk of torture and ill-treatment”. Taliban fighters captured by Australian troops are likely to end up in the hands of the secret police.”
Afghanistan: Detainees Transferred to Torture: ISAF Complicity? Amnesty International [PDF], 13 November 2007
Afghanistan Detainees transferred to torture: ISAF complicity? Amnesty International, 13 November, 2007
“Detainees held in Afghanistan continue to face torture and other ill-treatment in the context of ongoing conflict involving the Afghan government, international military forces and armed groups such as the Taleban. AI is particularly concerned about the policy of ISAF states to hand over people to the National Directorate of Security (NDS), Afghanistan’s intelligence service. Scores of NDS detainees, some arrested arbitrarily and detained incommunicado, that is without access to defence lawyers, families, courts or other outside bodies, have been subjected to torture and other ill-treatment, including being whipped, exposed to extreme cold and deprived of food.
This report outlines the complexity of detainee transfers in Afghanistan and demonstrates areas of significant concern where AI believes that the international community has failed to meet its international obligations, particularly the principle of non-refoulement which is absolute and allows.”
Dutch accused of complicity in torture in Afghanistan, Vanessa Mock, Radio Netherlands, 13 November, 2007
NATO Aware of Prisoner Abuse in Afghanistan, General Says, DW-World.DE, Deutsche Welle, 14 November, 2007.
Transfering detainee operations to Afghanistan, Wikileaks, Release date 8 February 2008.
Classified SECRET 2005 assessment for the transfer of US detainee operations to the government of Afghanistan, by MAJ Maurice B. Cox, CJ5 Detainee Operations (draft).
The Government of Afghanistan will not be capable of managing a Detainee program before FY06 – early FY07. This assessment is based upon an analysis of five areas: The GOA Prison System and Reconciliation Initiative; US Department of State Mission Performance Plan FY2006, Current Detainee Operations with CFC-A CJOA, ISAF Expansion Stage III, Afghan Detainees at GITMO…
Current Afghan law does not allow the GOA to retain enemy combatants indefinitely. Accordingly, the U.S. could not transfer ECs to the Afghan Government to have the Afghans continue to hold them as ECs. The U.S. could, however, release/transfer ECs (who were detained because they shot at American soldier or did something else that, in addition to being a threat to US interests, violates Afghan criminal laws) to the Afghan Government. The Afghan Government, in an exercise of its sovereignty, could still prosecute detainees as common criminals…
The document includes notable statistics and quotes from other official confidential US defence documents.
Afghan POWs Denied Rights Because ‘It’s Not A War’, Cynthia Banham, SMH, 16 July 2006.
“Detainees captured by Australian soldiers in Afghanistan are not being given prisoner of war status under the Geneva Conventions, because the Federal Government says there has been no declaration of war and it is not an armed conflict between nation states. This means that prisoners have no right to a fair trial and no right to be released at the end of the hostilities.
“In a statement to the Herald, Defence confirmed that the Geneva Conventions relating to the treatment of POWs do not apply ‘as a matter of law to the current circumstances in Afghanistan because there is no case of declared war or of any other armed conflict arising between two or more’ parties to the conventions. But Defence said any prisoners would still be given the rights under Article 3, which prohibits certain conduct against detainees including ‘violence to life and person and outrages upon personal dignity’.
“Its statement went on: ‘When detainees are taken, Defence wil also as a matter of policy apply the relevant fundamental humanitarian principles relating to the treatment of detained persons outlined in the Geneva Convention Relative to the Protection of Civilian Persons in Time of War.’”
Coalition forces: Canada, Australia in Afghanistan.
Additional research: Ronald Li
Updated: 30 March 2010