Australians Torturing Australians Overseas: The Risk of Complicity

Tully, Stephen R.
March 2010
Global Jurist;Mar2010, Vol. 10 Issue 2, p9
Academic Journal
Hicks, Thomas and Habib have alleged that Australian intelligence and law enforcement personnel were complicit in their torture while detained in the custody of Egypt, Pakistan and the United States. Following a review of Articles 4, 5 and 6 of the Convention against Torture and Australian law concerning complicity in torture, this article argues that there are several significant substantive and procedural obstacles which collectively make it unlikely that the officers concerned will be prosecuted in Australia. Contemporary legislative amendments suggest that Australia did not consider the prohibition against torture as then implemented under Australian law to apply extraterritorially to cover the conduct of Australian officials abroad. The circumstances moreover suggest that exercising jurisdiction over Australians claiming to be victims of torture was not considered appropriate. Recent Australian jurisprudence indicates that, notwithstanding Article 15 of the Convention, admissions derived from torture may have been used against claimed torture victims during proceedings and for the purposes of gathering intelligence. The article proposes that, consistent with international trends, an investigation conducted by the Inspector-General of Intelligence and Security could exonerate the intelligence services, provide useful guidance for officers dealing with Australians detained overseas, improve inter-State intelligence-sharing arrangements and alleviate the risk of being found complicit in torture.


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