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Operation Relex: Abuse Human Dignity

Offending human dignity -
the ''Pacific Solution''


A year ago on 26 August 2001, the Norwegian freighter MV Tampa rescued 438 people from a dilapidated Indonesian fishing boat in distress off Australia´s Christmas Island in the Indian Ocean. Most of them were Afghan and Iraqi asylum seekers. When some of them insisted upon being taken to Australia, first the Australian and then the Indonesian governments denied them permission to land, although the Tampa´s crew sent medical distress messages. As the two governments and Norway argued about their fate, they spent eight days in hot, crowded conditions on the Tampa´s deck. Their widely-reported ordeal and subsequent changes in Australian refugee policy illustrated a serious disregard for human dignity by governments. At the same time, the Tampa incident highlighted the ruthlessness of people smugglers who exploit the desperation of asylum seekers and economic migrants alike by sending them on unsafe boats with false promises of acceptance by wealthy countries like Australia.

The Australian authorities sent the Tampa asylum seekers on an odyssey of fear and uncertainty which for many continues to this day. In addition to the diplomatic standoff about which government was responsible for their situation, their treatment became a topic of political debate during the lead-up to Australian national elections.

In response to the Tampa incident, the government in Canberra resolved to no longer permit anyone to reach the Australian continent to exercise their right to seek and enjoy asylum in Australia unless they were carrying valid travel documents. Two Pacific countries, the Republic of Nauru and Papua New Guinea (PNG), as well as the International Organisation for Migration (IOM) quickly accepted Australia's financial and aid incentives to detain asylum seekers in improvised, isolated camps run by the IOM. Australia has been meeting virtually all costs of establishing and maintaining detention camps in these countries, and of processing applications for refugee status. This new approach has become known in Australia as ''the Pacific Solution''.

Today, at least 1,834 asylum seekers(1) from the Tampa and other boats subsequently intercepted by Australia are dispersed across the Asia-Pacific region. Of the 2,436 potential asylum seekers who reached Australian offshore islands by boat from Indonesia since the Tampa rescue, Australia has sent back about 600 on the boats they arrived on. Another 1,834 were taken to remote locations in Nauru, PNG and to Australia's Christmas Island.(2) While procedures to determine refugee claims are still continuing, at least 580 have already been found to be refugees(3). Of those rescued by the Tampa, only 130 have found permanent protection in New Zealand, seven Afghans recently returned to Afghanistan from detention camps in Nauru(4), and almost all others are detained and awaiting final decisions on their future in Australia, Nauru and Papua New Guinea or on temporary visa in Australia(5). All of them, including scores of children, have already spent between three and 12 months in detention which was arbitrary, a form of state-controlled custody without charge, trial or independent review of whether detention is necessary in the individual case, appropriate and otherwise meets international human rights standards.

Amnesty International opposes Australia's punitive measures to deter unwanted asylum seekers by treating others harshly even though they committed no crime. Specifically, the organization objects to the use of detention of unspecified and potentially unlimited duration without judicial review, to the automatic detention of children, and to detention in conditions which may be considered degrading or inhuman. Such violations of human rights cannot be justified as a method of deterring potential asylum seekers. Addressing the problem of international people smuggling requires an increase in international cooperation targeting the root causes of both refugee movements (6) and of the people smuggling market, rather than in punitive measures against those they exploit.

The organization is further concerned that the Tampa precedent may lead other governments to evade their shared responsibilities to find effective protection and durable solutions for people fleeing countries where they are at risk of serious human rights violations. Australia´s unilateral action undermines international efforts aimed at persuading other countries to respect the needs and rights of refugees and asylum seekers.

This document examines some of the developments since the Tampa incident, which coincided with a global backlash against asylum seekers following the 11 September 2001 attacks in the USA. It calls for government resources in refugee host countries to be concentrated on sharing - not shifting - responsibilities for refugee movements, on addressing their root causes and not just the symptoms, and for an end to the arbitrary detention of asylum seekers and refugees as practised or funded by Australia. Amnesty International is concerned about a detention regime which takes no account of the effect of prolonged detention on the mental health and well-being of detainees, particularly vulnerable groups such as children. The ''Pacific Solution'' approach itself raises a number of issues under international law, such as the links between human rights, refugee and maritime law, which cannot be addressed in this document.


The ''Pacific Solution''

Australia's response to the Tampa incident illustrates what the government subsequently described as a ''deliberately tough'' approach to asylum seekers and refugees, aimed at ''attacking smuggling practices and sending the strongest possible message to smugglers and their clients [mostly asylum seekers]''.(7) The government thus intentionally treats harshly any unwelcome asylum seekers in order to deter others from trying to reach Australia with the assistance of smugglers.(8) It claims this helps maintain Australia's capacity to select recognized refugees from among those ''most in need'' overseas. However, critics argue that ''[i]t is misleading to claim [such refugees] are the ones who happen to be at the head of a queue of persons ranked according to greatest need. They are the lucky ones in a lottery where some connection with Australia or greater compatibility with Australia usually counts for something.''(9) The Australian response to the Tampa has reinforced existing trends in government policy and added new, more extreme measures.

The Tampa incident occurred at a time when international people smuggling syndicates were sending increasing numbers of asylum seekers and migrants to Australia by boat with false promises of eventual permanent residence. The smugglers exploited the fears and desperation of asylum seekers and migrants mainly from Iraq and Afghanistan, who no longer felt safe in host countries increasingly unwilling to provide care and protection. While overall arrival figures in Australia were small in comparison with other countries (4,137 people arriving in the 12 months to 30 June 2001), the Australian government was concerned about the failure of previous policies aimed at stopping their arrival.(10)

For example, the government has claimed that restricting refugee benefits in Australia and its 10-year-old practice of automatic detention of asylum seekers(11) were essential elements in an approach aimed at ''doing everything possible to fight people smuggling''(12); however, this did not discourage asylum seekers from trying to reach the country on dangerous boat trips arranged by smugglers.(13) Unlike most European countries receiving tens of thousands of asylum seekers each year, Australia's geographical situation meant that authorities were used to an average of no more than 1,000 asylum seekers arriving without visa by boat each year over the past 13 years.(14) Prime Minister Howard also suggested that detention facilities had reached capacity under Australia's mandatory detention system: ''I have to say that we are reaching a situation where our capacity physically, through detention facilities and otherwise, without massive additional expenditure to erect new facilities, that capacity is reaching the ceiling, it is reaching breaking point.''(15) This comment fails to consider whether it is necessary and appropriate to detain all asylum seekers, including for example, families with babies, who arrive without visas.

The Tampa incident also gave further momentum to steps by Australian Prime Minister John Howard to develop a ''whole-of-government approach'' to deter asylum seekers arriving without travel documents. Led by the Office of the Prime Minister and Cabinet, a people smuggling task force was established in August 2001 which soon controlled a major operation with the mission ''to deter (arrival) and deny (access into Australia's migration zone where asylum rights apply)''.(16) By September, it involved federal (national) government ministries and agencies responsible for immigration, defence, intelligence, police, justice, customs, overseas aid and foreign affairs. Several hundred million US dollars worth of funds were made available to close Australia's borders against unwelcome asylum seekers, and the May 2002 government budget sets aside a total of 1.5 billion US dollars for ''border protection'' and related measures. During the coming four years, nearly 300 million US dollars are budgeted just for activities in other countries to prevent asylum seekers from reaching mainland Australia, which includes funding to the IOM for assistance with their detention, processing and return. This raises questions about Australian government claims that detention and processing facilities in the Pacific are merely ''temporary'' arrangements.

Under the so-called ''Pacific Solution'' approach, more than 1,800 asylum seekers have been transferred to Nauru, Manus Island (Papua New Guinea) and Australia's Christmas Island but denied permission to lodge refugee claims in Australia. In Nauru, the United Nations High Commissioner for Refugees (UNHCR) assisted with the processing of more than 560 refugee claims, while Australian officials have so far handled at least a similar number under procedures developed by the Australian government.(17) As of mid-August 2002, refugee determination for many applicants in Nauru and Manus Island was continuing.

''Operation Relex''

The Australian military's "Operation Relex" was supported by civilian efforts to detect, turn back or intercept any vessel suspected of carrying asylum seekers in the seas north of Australia. Between 3 September and December 2001, at least three frigates, a troop carrier, supply vessels and armed patrol boats assisted air force surveillance aircraft and customs boats to create a ''thick grey line''(18) around Australia's north coast. Prime Minister Howard introduced draconian new laws which allow Australian warships to shoot at boats refusing to cooperate,(19) and which prevent Australian courts from hearing legal challenges against government actions on intercepted boats.

During ''Operation Relex'', boats carrying several thousand potential asylum seekers were confronted by patrolling Navy and Customs vessels and prevented from approaching Australia. Even when the asylum seekers' boats were only marginally seaworthy,(20) they were usually directed back to Indonesia. Some incidents involved the use of Navy cannon and machine gun warning shots(21), the burning and sinking of smuggling boats, attributed to sabotage by their crew or passengers, and the use and threat of force by Australian military against individuals resisting their orders.

Two women(22) drowned during one incident near Christmas Island on or about 8 November 2001, but the civilian authorities have not yet decided whether to hold a coroner´s inquest - a form of judicial investigation required in Australia to determine the cause and circumstances of any deaths during operations involving police or other officials.(23) Apparent delays in procedures leading to this decision give rise to concern that national authorities may be reluctant to have the circumstances of the deaths investigated in court. The families of the two women were informed about their rights regarding the bodies under the Western Australia Coroner's Act; the bodies are buried on Christmas Island.

Statements to Amnesty International by asylum seekers about their treatment by Navy personnel speak of dismay at the orders the armed forces were expected to carry out (to force boats to return to Indonesia). With few exceptions, however, they also expressed gratitude for Navy officers' courage during rescue at sea, and for their compassion in the care of those asylum seekers taken on board Navy ships. Disappointment was expressed about Navy personnel or other officials raising hopes that people would be taken to Australia, when in fact they were taken to Nauru or back towards Indonesia.

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