: FOI documents shed light 
on the ADF detention practices

FOI documents shed light 
on the ADF detention practices

Gemma Namey
Federal

The Public Interest Advocacy Centre (‘PIAC’) has obtained a number of previously classified and confidential documents about Australia’s detention practices in the conflicts in Afghanistan and Iraq.

The documents reveal that the Australian government sought to deliberately avoid its international legal obligations in relation to detainees caught by the ADF in Afghanistan and Iraq. The official Australian Government position was that such captives were entitled to the full protection of international law and prisoner of war status under the Geneva Conventions. This position was at odds with that of the US Government, which believed that the Geneva Conventions did not apply to all captives. This differing position meant that if the ADF transferred captives to US custody, Australia would be breaching the Geneva Conventions.

As Australia did not have its own detention facilities in Iraq and Afghanistan, and to avoid formally transferring captives to the US, the Australian government developed a detainee policy that was based on a legal fiction. It involved the practice of always ensuring the presence of a single US soldier with ADF troops when captives were taken. On this basis, the ADF assert that it was the US, and not Australia, that was legally responsible for the captives.

The policy clearly appeared to be designed to avoid Australia’s obligations as a Detaining Power under the Geneva Conventions, most evident when a large number of detainees were captured by a similarly large number of ADF troops, accompanied by a single US soldier.

Australia, the US and UK signed an agreement, the Trilateral Arrangement, for the handling and transfer of detainees in Iraq, which sought to abide by the Geneva Conventions. However, the ADF never used the Trilateral Arrangement instead adopting a practice of handing detainees over to US and UK troops, without regard for how they would be treated.

The documents reveal that one Iranian man, Tanik Mahmud, died in custody. He, along with 65 other men, was captured by 20 Australian SAS troops, and one US soldier, in Western Iraq on 11 April 2003. The Australian SAS held the 66 men for a number of hours before transferring them to UK troops for transport to a US-run detention facility in Iraq. There is strong evidence suggesting that Mr Mahmud was fatally assaulted by UK RAF troops while onboard a UK helicopter.

Another significant revelation from the documents is that the Australian government had prior knowledge of illegal detention practices in Iraq, including at Abu Ghraib. An Australian military lawyer, Major George O’Kane, advised on US interrogation techniques and concluded they were open to abuse and only ‘substantially complied’ with the Geneva Conventions.

Major O’Kane was also instructed by a senior US military officer to deny the International Committee of the Red Cross (‘ICRC’) access to nine people being held in cell block 1A at Abu Ghraib. The US refused the ICRC access on the basis that the nine detainees were undergoing active interrogation at the time of the visit.

The Australian government failed to raise concerns about these US breaches of international law at Abu Ghraib with its ally. This suggests some level of complicity on behalf of the Australian government.

To read the documents, visit PIAC’s website at 
http://military.piac.asn.au/

GEMMA NAMEY is a Solicitor at the Public Interest 
Advocacy Centre.

(2011) 36(3) AltLJ 204
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on the ADF detention practices

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