April 17, 2012
Senator Bob Carr
Minister for Foreign Affairs
PO Box 6100
Canberra ACT 2600
Re: Australia: Lead the Human Rights Movement in Asia
Dear Senator Bob Carr,
Congratulations on your recent appointment as Foreign Minister of Australia.
I am William Nicholas Gomes, Salem-News Human Rights Ambassador. I look forward to working with you and the Gillard government to help Australia realize its commitments to protecting and promoting human rights.
Since 2007 the Australian government has expanded its human rights advocacy at the international level, including through its bid for a seat on the United Nations Security Council. We welcome Australia’s commitment to engaging constructively in human rights dialogues and exchanges with individual countries, in particular within Australia’s region.
Australia is now well integrated as part of the Asia-Pacific region and, as you have mentioned, the Association of Southeast Asian Nations (ASEAN) member countries are important friends and trading partners for Australia. On your recent trip to Cambodia, Singapore, and Vietnam you highlighted the importance of Southeast Asia to Australia’s foreign policy and identified the ASEAN bloc, taken as a whole, as Australia’s second largest trading partner.
I write to you to outline human rights concerns in several countries where we work and where I believe the right mix of pressure and engagement from Australia may make all the difference to protecting human rights. These countries include Burma, Cambodia, China, Indonesia, Malaysia, and Vietnam.
Trade, as you acknowledged, is an important means by which to improve the living standards of people in the Asia-Pacific region. However, trade alone will not bring the necessary improvements to people in the region who are denied their basic freedoms.
Australia is uniquely a long-standing successful democracy in the Asian region, as well as the 13th largest economy in the world. Australia’s close ties to countries in Southeast Asia create an opportunity for constructive dialogue on improving not just living standards of people in the region, but also their human rights. Australia should leverage this position in the region and use every opportunity to raise human rights concerns, sensitively and constructively, as part of its bilateral and multilateral relations, as well as showing by example that it fully respects the human rights of all, including migrants and indigenous people in Australia.
Treaty Ratification and the Bali Process
I understand that through the Bali Process, Australia has tried to lift regional standards and cooperation to counter people-smuggling. However, we are concerned that punitive crackdowns on people-smuggling, without a corresponding regional framework in place to protect refugees and asylum seekers, could exacerbate the harm to people who are fleeing persecution. Currently, only two ASEAN member states, Cambodia and the Philippines, have ratified the 1951 Convention relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol. The absence of ratifications has serious consequences in terms of the protection of asylum seekers through regional cooperation frameworks, such as the Bali Process.
I recommend that Australia:
- Use its position in the region to encourage ASEAN member countries to ratify the Refugee Convention and its 1967 Protocol.
- Exercise Australia’s leadership as co-chair of the Bali Process to ensure that the humane treatment of migrants, the ability of asylum seekers to access asylum processing systems and the principle of non-refoulement (non-return) are core objectives of the Bali Process, including any discussions or agreements on a regional offshore processing center for migrants.
- Make the Bali Process more transparent and accountable by ensuring that civil society groups are provided an opportunity to meaningfully participate in the process.
- Ensure that financial or technical assistance to other states for the purpose of strengthening border control and combating people-smuggling includes assistance and training in refugee law and refugee protection. Urge other states to ensure that any proposed people-smuggling legislation does not criminalize those acting with humanitarian, rather than financial, intentions, in accordance with international standards.
The Australian government has long taken a calibrated approach of targeted sanctions, principled engagement, and humanitarian aid to press for human rights and genuine democratic reform in Burma.
There have been encouraging signs of change in Burma in the past year, including easing of official censorship, a new law on the right to strike, and amendments to electoral laws that permitted the opposition National League for Democracy to register and contest April by-elections in which it won almost all the seats it contested.
However, the overall human rights situation remains poor. Despite the release of many political prisoners, several hundred political prisoners remain. Laws promulgated in recent months, including on the right to peaceful assembly, fall short of international standards. The newly created National Human Rights Commission also does not fulfill the Paris Principles on national human rights bodies, and the commission has not seriously investigated complaints of human rights abuses.
Now more than ever, countries like Australia should support democratic forces inside the country to push for real reform and the release of all political prisoners. I support your view that the peeling back of sanctions should only be done once further progress is made and recognized as authentic by the opposition. Blindly pursuing engagement for humanitarian assistance and foreign investment in the absence of a functioning legal framework could derail the fragile gains of the past year. Given the small number of seats involved, these by-elections were not a serious test of Burma’s commitment to democratic reform. The real test will be when people exert their basic rights, whether by acting under new laws or expressing views contrary to those of the military, which continues to be the controlling force in the country.
Burma has the world’s longest running civil war, with the Burmese army engaged in armed conflicts with armed groups of various ethnic minorities around the country. The government has embarked on ceasefire negotiations with a number of armed ethnic rebel groups. However, serious abuses by the army against ethnic minority populations continue.
For instance, fighting has been ongoing since June 2011 in Kachin State, with 75,000 people displaced as a result. The Burmese military continues to violate international humanitarian law through the use of extrajudicial killings, torture, sexual violence, abusive forced labor, antipersonnel landmines, and pillaging of property. The Kachin Independence Army has unlawfully used child soldiers and landmines.
I support Australia’s decision in January to remove some names from the list of individuals subject to targeted travel and financial sanctions. On April 6 you said, “We will continue to ease our sanctions in ways that acknowledge the progress made to date, while also encouraging further steps toward reform.” I fully share the view that it is important to ease sanctions, in a way that favors the forces of progress towards human rights and rule of law in the country, while continuing to disadvantage those holding progress back—which include military leaders implicated in human rights abuses in conflict areas and those with ties to with abusive military-owned companies. In light of this, Australia should now consider additional positive steps— for example, further easing of visa bans and asset freezes for select individuals, and the establishment of parliamentary exchanges.
I also support Australia’s significant increase in humanitarian aid to assist the Burmese people, up to Au$47.6 million in 2011-2012. As discussions begin on the return of an approximately 140,000 refugees from camps along the Thailand-Burma border, Australia should maintain support for those in refugee camps, ensure there is no premature push to refugees and that any repatriation will be voluntary, safe and dignified. To date, Australia has not supported efforts at cross-border assistance from Thailand to Burma to aid displaced communities in eastern Burma, but should reconsider that stance in light of Burmese government ceasefire talks with ethnic armed groups, and discussions on repatriating refugees and IDPs over the coming years.
I also appreciate Australia’s commitment to advocating greater assistance to Burma through international financial institutions and others but urge that such engagement take Burma’s challenging context into consideration.
I recommend that Australia:
- Support an independent international mechanism to investigate alleged violations of international human rights and humanitarian law committed by all parties to the conflicts in Burma, as well as to investigate and publicly report on the whereabouts and conditions of remaining political prisoners.
- Support the establishment of a United Nations Office of the High Commissioner for Human Rights office in Burma with a standard protection, promotion, and technical assistance mandate.
- Continue to publicly press for the release of all remaining political prisoners in Burma.
- Potentially lift visa bans and asset freezes against named individuals in Burma that are not high-ranking military officials or their close associates, subject to a careful review to determine that they do not bear responsibility for abuses, while sanctions against key uniformed leaders of the armed forces should be maintained.
- Coordinate with other governments—particularly those that have sanctions in place on Burma—to develop new rules setting out core requirements for responsible, rights-respecting trade and investment in the country that will take effect as sanctions are selectively removed. In preparation, begin now to consult with civil society to develop strong accountability and transparency measures for businesses active in Burma.
- Maintain Australia’s arms embargo on Burma, as the government has pledged to do.
- Work with the government of Burma to institute sufficient legal, human rights, anti-corruption, and environmental safeguards to ensure that Burma’s governance reforms are sustainable in the long term.
- Similarly, design and pursue development efforts with due regard for the challenges of engagement in country that has been misruled for decades. Donor governments and institutions should consult with civil society and press Burma’s government to increase transparency and accountability, make urgent social needs a priority, and carry out systemic reforms necessary for meaningful development. Meaningful anti-corruption measures are needed so that Burma’s own considerable resources and outside assistance benefit the people of Burma and are not squandered or stolen.
- Increase assistance to IDPs and refugees and play a role in crucial human rights monitoring to ensure any eventual returns are voluntary, safe and dignified.
- Ensure that post-conflict development initiatives include a strong human rights protection component.
Australia has long been committed to Cambodia’s development. In 2011-2012 Cambodia will receive AU$77.4 million in Australian aid.
While we support Australia’s provision of aid to Cambodia, the donor relationship provides an important opportunity for Australia to assist Cambodia to overcome some of its serious human rights problems. In making your first state visit to Cambodia, you said, “It’s been a great honor for me to make my first visit as Australia’s Foreign Minister to Cambodia… Australia is a close and outstanding friend of Cambodia.” While Australia clearly values its relationship with Cambodia, as a “friend” it should be prepared to speak more frankly about the serious human rights violations being committed against the Cambodian people in an environment of total impunity.
Freedom of expression, assembly and association remain under threat in Cambodia. The government is using criminal defamation and incitement laws to intimidate and imprison critics. Nongovernmental organizations have identified at least 12 persons imprisoned under these laws for peaceful expression of views since December 2010. The government also continues to systematically use a 2009 law to deny permission for public assemblies in Phnom Penh outside isolated “freedom parks.”
Arbitrary detention and torture are routinely used by the police and the military police to extract confessions, which are then used to obtain convictions. Cambodia’s prisons continue to be overcrowded and lack sufficient food, water, sanitation, and health care. Other facilities, such as the Prey Speu Social Affairs Center, are also used to arbitrarily detain people against their will, including homeless people, drug users, and sex workers rounded up from the streets. International Human Rights organization Human Rights Watch has found detainees there have been subjected to abuses including suspicious deaths, rape, torture, and beatings.
During your recent Phnom Penh visit, you recently announced an additional contribution of Au$1.61 million to fund the work of the Khmer Rouge trials, taking the total to more than Au$18 million donated by Australia since 2006. Australia is the second largest donor to the trials. After five years and more than AU$144 million, the court has prosecuted just one defendant, Kaing Guek Eav (alias Duch), while only three others are currently on trial.
In Phnom Penh, you stated that “the independence of the judiciary is paramount and the ECCC [Khmer Rouge tribunal] must be allowed to operate free from any external interference.” However, given recent events in Cambodia, a stronger statement supporting the importance of additional cases to proceed is warranted. Cases 003 and 004 are two cases comprising five suspects that were submitted by the international co-prosecutor to the Office of the Co-Investigating Judges in 2009. Two international co-investigating judges recently resigned, citing political interference from the Cambodian government. Prime Minister Hun Sen and the ruling Cambodian Peoples’ Party (CPP) have used their power over Cambodian appointed judges to systematically undermine the independence of the tribunal in pursuit of their demand that the tribunal only consider cases they would like to see prosecuted, flaunting the law and breaching the government agreement with the UN establishing the court.
Now more than ever, principled UN participation, asserting fair procedures and thorough investigations of all cases, is essential to ensuring that the Khmer Rouge tribunal is able to complete its mission to hold those “most responsible” for Khmer Rouge atrocities to account, as provided by law.
I recommend that Australia:
- Play a leadership role in pressing the United Nations to protect the integrity of the Khmer Rouge tribunal by nominating qualified international co-investigating and reserve co-investigating judges, and defending the legal authority and independence of the international co-investigating judge to investigate any cases of persons suspected of being most responsible for serious international crimes in Cambodia coming to their attention.
- Publicly call for the need for genuine, impartial, independent, and effective investigations into Khmer Rouge tribunal cases 003 and 004.
- Condemn the ongoing political interference by the Cambodian government, which undermines the judicial independence of the Khmer Rouge tribunal.
- Support the rights to freedom of expression and peaceful assembly by publicly calling for the release of all persons who are in prison for peacefully expressing their views and conducting peaceful protests.
- Demand the closure of the Prey Speu Social Affairs Center and other centers used to arbitrarily detain persons against their will.
- Urge improvements in conditions of detention in Cambodian prisons, in line with international standards.
Australia has significantly deepened its bilateral relationship with Indonesia in the past two years, elevating it to the status of a “comprehensive strategic partnership” in March 2010. Indonesia is now also the largest recipient of Australian aid funding, totaling A$558 million in 2011-2012. These factors create a unique opportunity for Australia to use its clout to seek better human rights outcomes in Indonesia.
Australia provides extensive support and training to Indonesian security forces. Impunity for members of Indonesia’s security forces remains a serious concern, with no civilian jurisdiction over soldiers who commit serious human rights abuses. Military tribunals are rarely held, lack transparency, and the charges frequently fail to reflect the seriousness of the abuses committed. Many of these abuses take place in Papua—however, access to Papua remains tightly controlled by the Indonesian government, and few foreign journalists or human rights researchers are able to visit without close monitoring of their activity.
For instance, in October 2012 Indonesian security forces used excessive force to break up a pro-independence demonstration in Jayapura, Papua. The security forces then used batons and in some instances firearms against the demonstrators, and as a result at least three people were killed and more than 90 others injured. As best I can determine, police and military officials involved have only received disciplinary infractions—no one has been charged with criminal offenses. To the contrary, the Jayapura police chief, Imam Setiawan, has subsequently been promoted.
Meanwhile, five of the activists who testified how security forces beat them during the crackdown have been tried and sentenced to three years in prison for makar (treason) because of pro-independence statements they made at the Congress. I believe that a clear and firm public statement on Australia’s position on respecting free expression and condemning impunity by security forces is critical, especially since there is a real risk that Australian Ambassador Greg Moriarty’s reference to the actions of Papuan People’s Congress leaders as “illegal, provocative, and counterproductive” may otherwise be interpreted as supporting further government crackdowns on the Congress.
The Lombok Treaty between Indonesia and Australia affirms the “sovereignty, unity, independence, and territorial integrity of both Parties” but it also requires respect for obligations under international law, including international human rights law.
Despite Indonesia’s progress as an emerging democracy, the country now has scores of political prisoners from Papua and the Moluccas, primarily individuals put behind bars for making statements or raising flags or displaying symbols that the Indonesian authorities interpreted as local calls for independence. Indonesian officials continue to enforce a number of laws that criminalize the peaceful expression of political, religious, and other views. These include offenses in Indonesia’s criminal code such as treason or rebellion (makar), “inciting hatred” (haatzai artikelen), and blasphemy.
Violence against religious minorities in Indonesia is on the rise. Islamist militants have mobilized mobs to attack religious minorities with impunity; short prison terms for a handful of offenders have done little to dissuade mob violence. The government has failed to revoke several decrees that discriminate against minority religions, fostering public intolerance.
I recommend that Australia:
- Urge Indonesia to lift all restrictions on access of foreign media and human rights organizations to Papua.
- Unequivocally condemn excessive use of force and the suppression of peaceful protests, and call on the Indonesian government to ensure that Indonesian security forces are properly held accountable for any alleged abuses. In particular, call for an investigation into alleged excessive use of force by the authorities at the Papuan Peace Congress last October.
- Call for Indonesia to amend or repeal laws that criminalize peaceful political expression and to free all prisoners held for peacefully expressing their political views.
- Condemn incidents of violence against religions in Indonesia, and call on the Indonesian government to repeal its decrees that discriminate against minority religions and ensure accountability for harm that is caused.
Malaysia is Australia’s third-largest trading partner in ASEAN. Despite Malaysian government promises of reform and relaxation of controls, the country in 2011 fell far short in meeting Prime Minister Najib Razak’s pledges to “uphold civil liberties” and build a “functional and inclusive democracy.” Last year, the government arbitrarily detained outspoken critics, used tear gas and water cannon against thousands who peacefully marched in support of clean and fair elections, and replaced long-existing restrictions on free assembly with even more draconian controls.
A particular concern regarding the Australia-Malaysia relationship is the treatment of asylum seekers in Malaysia. Despite the High Court’s ruling that Malaysia does not have appropriate legal frameworks for protection of asylum seekers, there are currently two bills before the Australian Parliament seeking to revive the asylum swap deal. Despite a reduction of forced repatriation at the Malaysia-Thai border, the Malaysian government still fails to protect asylum seekers and refugees. Malaysia has not ratified the Refugee Convention and its 1967 Protocol and has no refugee law or procedure. Malaysian authorities still commit refoulement. In February 2012 they deported blogger Hamza Kashgari back to Saudi Arabia where he faces a possible death penalty for expression of his religious views. At no time were his lawyers or United Nations High Commissioner for Refugees representatives permitted access to him. Neither the Australian government’s bill (the Migration Legislation Amendment (Offshore Processing and other Measures) Bill 2011) nor the Hon. Rob Oakeshott MP’s bill (Migration Legislation Amendment (The Bali Process) Bill 2012) provide any legally binding Refugee Convention-related protection for persons removed from Australia under the proposed amendments. Each bill would send Australia’s asylum seekers to a precarious and uncertain future in Malaysia, and each raises serious concerns about Australia’s discharge of its obligations under the Refugee Convention.
I recommend that Australia:
- Stop pursuing any asylum swap arrangement with Malaysia given the absence in Malaysia of legal and practical protections required under the Refugee Convention.
- Raise concerns with Malaysia about its unwillingness to provide protection to asylum seekers and its attacks on free expression and assembly.
Australia’s bilateral relationship with Vietnam reached a significant milestone when the two countries signed the “Australia-Vietnam Comprehensive Partnership” in September 2009. The provisions of the agreement were supplemented by a bilateral Plan of Action signed in October 2010. Australia’s development assistance for Vietnam in 2011-12 is budgeted at AU$137.9 million, which makes Vietnam the sixth largest recipient of Australian funding. Australia is also Vietnam’s fifth largest export market and among the top 10 trade partners. In addition, Vietnam and Australia are negotiating the Trans-Pacific Strategic Economic Partnership Agreement. Next year, 2013, will mark the 40th year since the establishment of diplomatic ties between the two countries. Australia should use its access and influence to urge Vietnam to improve its abysmal human rights record.
In Vietnam, many political detainees and prisoners have been charged under vaguely worded articles in Vietnam’s penal code that criminalize peaceful dissent. These crimes include “subversion of the people’s administration,” “undermining the unity policy,” “conducting propaganda against the state,” and “abusing democratic freedoms” to “infringe upon the interests of the State.”
Throughout 2011 and the first three months of 2012, there has been a steady stream of political trials and arrests in Vietnam. Bloggers, writers, human rights defenders, land rights activists, anti-corruption campaigners, and religious and democracy advocates faced harassment, intimidation, arbitrary arrest, torture, and imprisonment.
Police have prevented public celebration of religious events, intimidated and detained participants, and placed prominent leaders of these groups under house arrest. Even registered religious organizations such as the Redemptorist churches in Hanoi and Ho Chi Minh City were harassed repeatedly, including a mob attack against the Thai Ha Catholic church in Hanoi.
Vietnamese law authorizes arbitrary detention without trial. Peaceful dissidents and others deemed to threaten national security or public order may be involuntarily committed to mental institutions, placed under house arrest, or detained in state-run “rehabilitation” or “education” centers. Drug users can be held up to four years in government-run rehabilitation centers where they receive very little treatment but are subjected abuse including beatings, torture, forced labor (in the guise of so-called “labor therapy”), and solitary confinement. An assessment in early 2011 found that 123 drug detention centers across the country held 40,000 people, including children as young as 12.
Those held in drug detention centers reported being forced to work in cashew processing and other forms of agricultural production, and garment manufacturing and other forms of manufacturing, such as making bamboo and rattan products. Under Vietnamese law, companies that handle products from these centers are eligible for tax exemptions. Some products produced as a result of this forced labor made their way into the supply chain of companies that sell goods abroad, including to Australia.
During your March 27-29 visit to Vietnam, you stated that Australia considers Vietnam as one of its key partners in the Asia-Pacific and that the Australian government will continue to give “priority to Vietnam in official development assistance. I urge that Vietnam’s concrete human rights improvement be an integral part of Australia’s official engagement in Vietnam.
I recommend that Australia:
- Call on Vietnam to immediately release all political and religious prisoners and urge Vietnam to amend or repeal provisions that criminalize peaceful dissent and certain religious activities on the basis of imprecisely defined “national security” crimes to bring Vietnam’s laws and regulations into full compliance with the International Covenant on Civil and Political Rights, which Vietnam has ratified.
- Urge Vietnam to repeal Ordinance 44, which authorizes administrative detention, house arrest, and detention in Social Protection Centers and psychiatric facilities for two-year renewable periods, without trial, for individuals deemed to have violated national security laws.
- Urge Vietnam to recognize independent labor unions and to ratify and implement International Labor Organization Conventions No. 87 (Freedom of Association and Protection of the Right to Organize), No. 98 (Right to Organize and Collective Bargaining) and No. 105 (Abolition of Forced Labor).
- Ensure that no funding, programming, and activities directed to assisting Vietnam’s drug detention centers are supporting policies or programs that violate international human rights law, including prohibitions on arbitrary detention, forced labor, torture and cruel, inhuman or degrading treatment or punishment.
Vetting procedure for security force cooperation
A common issue in many countries where Human Rights Watch works is a lack of accountability for crimes committed by security forces, including extrajudicial killings, enforced disappearances, and torture. I believe impunity will be addressed only by raising the stakes for committing such crimes, which requires concerted international pressure for abusive personnel to be brought to justice. Knowing that Australia plays a vital role in training security forces and helping to promote human rights in many of these countries, we also call on your administration to establish and make publicly available a procedure by which appropriate Australian officials will systematically vet the human rights records of security forces that Australia seeks to train.
This procedure should:
- Conduct vetting at the individual, unit, and force levels.
- Require that countries provide complete deployment histories of the individuals and units that Australia seeks to train.
- Consult with civil society groups about the human rights performance of individuals, units, and forces that Australia seeks to train before agreeing to provide such training.
- Require that countries provide information about police investigations and military tribunal proceedings involving members of the security forces affiliated with the units that Australia seeks to train.
- State the consequences that will result if the vetting procedure outlined above reveals that members or units of the security forces that Australia seeks to train have been credibly accused of past human rights violations and have not been effectively investigated and prosecuted by local authorities.
- Make this protocol publicly available, and it in turn should provide that until credible investigations and appropriate prosecutions are conducted and the results made public, the individual or unit implicated will be ineligible for Australian support.
I urge you, as Foreign Minister, to sponsor an initiative to develop such a protocol. Thiscould be developed by the Department of Foreign Affairs and Trade, or as a joint initiative with the Ministry of Defense.
I look forward to discussing these matters with you further.
William Nicholas Gomes
Salem News, Human Rights Ambassador
- The Hon Julia Gillard MP, Prime Minister
- Nicola Roxon MP, Attorney-General
- Chris Bowen MP,Minister for Immigration and Citizenship
- Richard Marles MP, Parliamentary Secretary for Foreign Affairs
- Stephen Smith MP, Defence Minister