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Nauru or Nuremberg? Australia - asylum seekers and war criminals

By Jane McAdam - posted Friday, 16 December 2005

The recent exposé in the Sydney Morning Herald  of suspected war criminals living in the Australian community sheds much light on Australia’s schizophrenic implementation of international law. Whereas Australia refuses to extradite convicted or suspected criminals to countries where they may be tortured, asylum seekers are not afforded the same protection. The risk of torture is an automatic consideration in any extradition request, but Australian law contains no mechanism that guarantees the examination of torture fears in asylum claims.

Australia’s refugee protection regime has already been much criticised for its failure to implement Australia’s international obligations in good faith, in accordance with the spirit and purpose of the 1951 Refugee Convention. But since the conclusion of that treaty, there has been an explosion of additional human rights treaties that extend the obligations of member nations to protect vulnerable individuals. For example, the Convention against Torture mandates that no individual will be returned to a country if there are substantial grounds for believing that they will be tortured.

Whereas certain persons, such as war criminals, may be excluded from protection under article 1F of the Refugee Convention, the prohibition on return to torture is absolute. It applies to all persons, regardless of their conduct, nationality or citizenship. Accordingly, it may protect those who are excluded from the Refugee Convention; those unable to demonstrate a link between torture as persecution and one of the five Refugee Convention grounds; and those overlooked as refugees due to narrow domestic interpretations of the refugee definition.


Yet, whereas this international obligation is a feature of Australian extradition law, it is notably absent from Australia’s refugee protection regime.

Under Australian law, an individual cannot claim refugee status solely on the basis of fearing torture, even though Australia is bound under international law not to remove anyone to a country where torture may ensue. The only hope for such a person is to seek asylum under the Refugee Convention, fail in that claim, appeal unsuccessfully to the Refugee Review Tribunal, and then attempt to invoke the Minister’s non-compellable and non-reviewable discretion under section 417 of the Migration Act 1958.

This haphazard and circuitous procedure does not guarantee the torture claim will ever be considered, and accordingly, if Australia removes an individual in those circumstances, it will be in clear breach of its international duties. Canada, the United States and all countries of the European Union recognise this and accordingly enable protection claims to be brought on the basis of fear of torture, as well as fear of inhuman or degrading treatment or punishment and various other grounds. This is known as “complementary protection”. The absence of any system of complementary protection in Australia reflects Australia’s failure to adequately implement the obligations which it has voluntarily accepted under international law.

However, in the extradition context, Australia has legislated against removal to torture. If Australia is asked to extradite an individual who has been convicted or charged with a criminal offence for which the punishment is at least 12 months, extradition cannot proceed unless the Attorney General is satisfied that the person will not be subjected to torture on surrender to the extradition country. Thus, suspected or convicted criminals have the protection of domestic legal and procedural safeguards, in accordance with international law, while asylum seekers do not.

There is a clear disconnect between Australia’s domestic protection and extradition requirements. Under international law, Australia owes the same obligations to all individuals, whether they are victims of persecutory regimes or perpetrators of them. If Australia refuses to remove suspected or convicted criminals to countries in which they may be tortured, there is no legal, political or moral justification for refusing to extend the same safeguards to asylum seekers in need of protection - who are, after all, asserting a basis for protection which Australia’s international law commitments require it to respect.

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About the Author

Dr Jane McAdam is an Associate Professor in the Faculty of Law at the University of NSW. She is also the Director of International Law Programs, the Director of International Moots, and the Director of the International Refugee and Migration Law project at the Gilbert + Tobin Centre of Public Law. She is a Research Associate at the University of Oxford’s Refugee Studies Centre, and has also been the Director of Oxford’s International Summer School in Forced Migration. She previously taught in the Faculty of Law at the University of Sydney, and at Lincoln College at the University of Oxford, where she obtained her doctorate.

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Related Links
Convention against Torture
Migration Act
Sydney Morning Herald

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