Practice Relating to Rule 87
Section D. Persons deprived of their liberty
Australia’s Commanders’ Guide (1994) states that prisoners of war “must be treated humanely”.
Australia’s Defence Force Manual (1994) provides with respect to prisoners of war (PW): “The fundamental principle underlying the treatment of PW is that they are … entitled to humane and decent treatment throughout their captivity … The fundamental rules for the treatment of PW are … they must be treated humanely and honourably.”
Australia’s LOAC Manual (2006) provides with respect to terrorists:
Terrorists do not comply with the LOAC and are not accorded combatant status. They are not entitled to PW [prisoner-of-war] status. While they are entitled to minimum standards of humane treatment, they are fully accountable for actions and will face punishment for violations of international and domestic laws.
The manual also provides with respect to prisoners of war (PW):
10.1 The fundamental principle underlying the treatment of PW is that … are entitled to humane treatment throughout their captivity.
10.2 The fundamental rules for the treatment of PW are:
• they must be treated humanely and honourably;
10.20 … [PW] must be protected at all times, particularly against acts of violence or intimidation and against insults and public curiosity.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Crimes Act (1914), as amended to 2007, states:
23Q Treatment of persons under arrest
A person who is under arrest or a protected suspect must be treated with humanity and with respect for human dignity.
Australia’s International Transfer of Prisoners (Military Commission of the United States of America) Regulations (2007), states in its Schedule 1 (Arrangement) that any transfer under this Arrangement is to be on the following conditions:
a. the prisoner is a national of Australia;
b. the sentence imposed on the prisoner by a United States military commission is one of imprisonment;
c. the judgement is final;
d. the Government of the United States of America and the Government of Australia and the prisoner all consent to the transfer provided that where in view of his age or physical or mental condition either Party considers it necessary, the prisoner’s consent may be given by a person entitled to act on his behalf; and
At the outset of the Iraq War in March 2003, Australia’s Department of Defence issued guidance to news organizations regarding the restrictions under IHL placed on the identification of prisoners of war. This stated in part that “[t]he Australian Defence Force will treat all captives humanely and will comply with the laws of armed conflict to which Australia is bound”.
e. the prisoner will be treated humanely and in accordance with the laws and international obligations of Australia.
At an Australian Army media briefing on 16 April 2003, called to promulgate the results of an investigation into allegations made against certain Australian soldiers who were part of the UN-mandated INTERFET (International Force for East Timor) operations in East Timor, 1999–2000, the Chief of Army, Lieutenant General Peter Leahy, stated the following in response to a question on the treatment of detainees, particularly in relation to allegations concerning the deprivation of food, water and sleep:
We apprehended some militia, we apprehended some people who turned out to be civilians. We needed information from them.
At all times that information was acquired using the Geneva Convention. At all times that information was acquired by people who were thoroughly well-trained, who were well-supervised and used very high professional standards.
But this was not meant to be a four star resort. They had information that could go to the safety and the protection of the civilian population, the safety and protection of our own people. And we have rights and obligations, but also the authority under the Geneva Convention, to interrogate people. And that’s what happened.
Some of that meant that they probably didn’t get the sort of food that they might have liked. Our soldiers were on ration packs. Some have meant that they were treated in a robust manner, but all of the time they were treated properly and correctly under the Geneva Convention.
At a later point during the briefing, the Director of Personnel Operations, Army, Colonel Gerard Fogerty, added to the Chief of Army’s response:
Now, some of the allegations that we’re talking about here relate to activity in an interrogation centre. And further information in relation to your previous question, there were allegations that the detainees were deprived of hygiene and sleep and food. There was no evidence at all that any of the detainees were deprived of any hygiene facilities or food. But certainly we found that they were deprived of some sleep.
And, as you’ve heard from the Chief of the Army, that this in itself in no way contradicted any of our international obligations, particularly in relation to the law of armed conflict or in relation to the Geneva Convention.
But what we did find, and a lesson that we’ve learnt from this, is some of our guidance that we provide to our practitioners is very general. And what we have found that we need to do is make that more definitive. Make it more black and white. This is what we can do under our international obligations and this is what we cannot do.
So in the general comments you heard about some of our procedural amendments that we intend to make. These are policy changes that we intend to make to make it far more definitive for our practitioners.
On 13 May 2004, during a debate in Australia’s House of Representatives on a Matter of Public Importance, moved by the Opposition: “The failure of the Howard Government as an Occupying Power in Iraq to honour its obligation under the Geneva Conventions for the humane treatment of Iraqi prisoners”, the Minister for Foreign Affairs, Mr Alexander Downer, responded that the claim that Australia was an Occupying Power in Iraq was “debatable”. Nonetheless, he said that the government condemned the abuses that had taken place at Abu Ghraib prison:
[W]e of course condemn the abuses that have taken place in the Abu Ghraib prison. As … I have said to the Americans and to the British government as well, we obviously want this matter dealt with as quickly, as thoroughly and as effectively as possible. All known incidents of abuse need to be dealt with the full force of the law.
In 2009, in a ministerial statement on Afghanistan before the Senate, Australia’s Minister for Defence stated:
[Australia’s] forces are required to apprehend detainees during operations in Afghanistan. Let me be clear: Australian forces treat these detainees humanely, with dignity and respect, and in accordance with all of Australia’s obligations under domestic and international law. The government, and our Defence Forces, take any allegation of detainee mistreatment very seriously. The Australian Defence Force has undertaken appropriate investigations into any allegations received. Our commitment to an open and transparent approach on these issues is clear.