Hard line on refugees undermines principled opposition to execution

Yesterday morning, Prime Minister Tony Abbott announced the “unprecedented step” of recalling Australia’s ambassador to Indonesia. He also suspended all ministerial contact in response to the executions of Australian citizens Andrew Chan and Myuran Sukumaran. Australia has undertaken “an international commitment to abolish the death penalty” as a signatory to the Second Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR).

By Amy Maguire

Lecturer in International Law at University of Newcastle
Julie Bishop and Tony Abbott are firm advocates of human rights when Australians are executed but not when asylum seekers are involved. AAP/Lukas Coch

Yet the same legal instrument that enshrines the right to life, the ICCPR, is also the basis on which Australia has been condemned internationally for its treatment of asylum seekers. The Abbott government has bluntly rejected these criticisms by the United Nations and human rights bodies, including Australia’s own Human Rights Commission.

Australia has incorporated its commitment to the ICCPR into domestic law. Capital punishment is outlawed in all Australian jurisdictions. Australia will not extradite persons to countries where they may face capital punishment.

Australia lobbied Indonesia for presidential clemency partly on the basis that Chan and Sukumaran had been rehabilitated. Their reform has been credited as a success story of the Indonesian prison system.

Australia also relied on other legal and humanitarian principles in advancing human rights arguments against the executions. Foreign Minister Julie Bishop described the sentence as a “grave injustice”. She noted Australia’s “strong opposition to the death penalty at home and abroad”.

Opposition Leader Bill Shorten and his deputy, shadow foreign affairs minister Tanya Plibersek, condemned the death penalty as barbaric and argued that its practice “diminishes us all”. They said the executions undermined the rule of law because the Indonesian courts were yet to hear new appeals from the Australian pair.

Australian appeals hampered by hypocrisy

While Australia condemns capital punishment as a grave violation of human rights, it blatantly violates the rights of asylum seekers and refugees.

The government was dismissive of human rights breaches identified by Human Rights Commission president Gillian Triggs. AAP/Lukas Coch

The ICCPR prohibits arbitrary detention, torture, cruel, inhuman or degrading treatment. It protects the right to recognition of personhood under law. As the UN Human Rights Commissioner has specifically noted, these provisions are violated by Australia’s boats “turn back” policy and the mandatory detention of asylum seekers in Australia and offshore.

The flouting of human rights standards in relation to child asylum seekers is particularly reprehensible. Australia violates its particular obligations to children under the Convention on the Rights of the Child. The government was particularly aggressive in rejecting recent findings on these matters.

The government has also dismissed international condemnation. In response to the March 2015 UN finding that Australia’s treatment of asylum seekers amounted to torture, Abbott said:

I really think Australians are sick of being lectured to by the United Nations.

The politics of managing opinion and principle

Australia’s contrasting approaches to capital punishment and the treatment of asylum seekers raise questions about our commitment to human rights and the international body of law that exists to protect these. Does the Australian voting public demand the strongest advocacy to pardon our citizens facing capital punishment abroad? Do these voters simultaneously support the denial of human rights to asylum seekers?

Some polling suggests many Australians are unsympathetic to the plight of Chan, Sukumaran and others who might face a similar fate. A 2009 poll found a clear majority preferred imprisonment to capital punishment as a penalty in Australian murder trials. However, 53% of those polled said death sentences against drug offenders in Southeast Asia should be carried out. A 2015 poll showed 52% supported the death penalty in those circumstances.

A contrasting poll found that 62% of Australian adults opposed the executions of Chan and Sukumaran. So it is clear that gauging public opinion on capital punishment is complex.

It is also clear that the government’s advocacy for Chan and Sukumaran rejected the strain of public opinion that would leave the men to their “just deserts”. Indeed, Bishop questioned the accuracy of the poll finding that a majority thought the executions should proceed.

In taking a principled stand in this case, Australia has sought to care for its own citizens. This is starkly at odds with the weight of political activity and public opinion on asylum seekers who attempt to reach Australia by boat. These people are decried as “queue jumpers” and “illegal maritime arrivals” despite the right to seek asylum being enshrined in international law.

How do we gain legitimacy for human rights advocacy?

The international human rights framework rests on principles of the universality and indivisibility of these rights. If we deny the rights of some human beings, we lose authority when arguing for the rights of others.

Australia has campaigned for the rights of convicted offenders (rehabilitated though they were), while denying the rights of asylum seekers. Under international law, it is a right and not a crime to flee from persecution and seek asylum elsewhere. Both Indonesia and Australia have ignored pleas for compassion.

Australia should seek a position of utmost legitimacy, to make it impossible for other states to accuse us of hypocrisy and ignore our appeals. Australia must aim to be a consistent global leader in human rights. To achieve this, we must address the violations of human rights committed in our own name.

With the executions of its citizens, Australia has been wronged. We can respond with diplomatic complaints or calls for the withdrawal of aid to Indonesia. Or we can seize this tragic moment as an opportunity to demand the end of capital punishment worldwide.

To do so effectively, we must assert the primacy of human life by valuing all lives and upholding the rights accorded equally to all people.


Amy will be on hand for an author Q&A between 2 and 3pm AEST on Thursday April 30. Post your questions in the comments section below.

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