William Gomes Salem-News.com
Open letter from Salem-News.com Human Rights Ambassador William Gomes.
Apr-17-2012
(HONG KONG) - Australia has expanded its human rights advocacy at the
international level for the last five years, this includes its bid for a
seat on the United Nations Security Council.
This commitment of Australia to engage constructively in human rights
dialog with individual countries, in particular within Australia’s
region, leaves the country in an ideal position to lead other nations in
the protection and promotion of human rights.
In his letter to Senator Bob Carr, Minister for Foreign Affairs in Canberra, Salem-News
Human Rights Ambassador William Nicholas Gomes, offers a number of
recommendations that can help Australia continue to successfully
integrate as part of the Asia-Pacific region, and the Association of
Southeast Asian Nations (ASEAN) member countries, which are important
friends and trading partners for Australia.
April 17, 2012
Senator Bob CarrMinister for Foreign Affairs
PO Box 6100
Senate
Parliament House
Canberra ACT 2600
Australia
Re: Australia: Lead the Human Rights Movement in Asia Dear Senator Bob Carr,
Congratulations on your recent appointment as Foreign Minister of Australia.
I am William Nicholas Gomes, Salem-News Human
Rights Ambassador. I look forward to working with you and the Gillard
government to help Australia realize its commitments to protecting and
promoting human rights.
Since 2007 the Australian government has expanded its human rights
advocacy at the international level, including through its bid for a
seat on the United Nations Security Council. We welcome Australia’s
commitment to engaging constructively in human rights dialogues and
exchanges with individual countries, in particular within Australia’s
region.
Australia is now well integrated as part of the
Asia-Pacific region and, as you have mentioned, the Association of
Southeast Asian Nations (ASEAN) member countries are important friends
and trading partners for Australia. On your recent trip to Cambodia,
Singapore, and Vietnam you highlighted the importance of Southeast Asia
to Australia’s foreign policy and identified the ASEAN bloc, taken as a
whole, as Australia’s second largest trading partner.
I write to you to outline human rights concerns in
several countries where we work and where I believe the right mix of
pressure and engagement from Australia may make all the difference to
protecting human rights. These countries include Burma, Cambodia, China,
Indonesia, Malaysia, and Vietnam.
Trade, as you acknowledged, is an important means by
which to improve the living standards of people in the Asia-Pacific
region. However, trade alone will not bring the necessary improvements
to people in the region who are denied their basic freedoms.
Australia is uniquely a long-standing successful democracy in the Asian region, as well as the 13th
largest economy in the world. Australia’s close ties to countries in
Southeast Asia create an opportunity for constructive dialogue on
improving not just living standards of people in the region, but also
their human rights. Australia should leverage this position in the
region and use every opportunity to raise human rights concerns,
sensitively and constructively, as part of its bilateral and
multilateral relations, as well as showing by example that it fully
respects the human rights of all, including migrants and indigenous
people in Australia.
Treaty Ratification and the Bali Process
I understand that through the Bali Process, Australia
has tried to lift regional standards and cooperation to counter
people-smuggling. However, we are concerned that punitive crackdowns on
people-smuggling, without a corresponding regional framework in place to
protect refugees and asylum seekers, could exacerbate the harm to
people who are fleeing persecution. Currently, only two ASEAN member
states, Cambodia and the Philippines, have ratified the 1951 Convention
relating to the Status of Refugees (Refugee Convention) and its 1967
Protocol. The absence of ratifications has serious consequences in terms
of the protection of asylum seekers through regional cooperation
frameworks, such as the Bali Process.
I recommend that Australia:
- Use its position in the region to encourage ASEAN member countries to ratify the Refugee Convention and its 1967 Protocol.
- Exercise Australia’s leadership as co-chair of the Bali Process to
ensure that the humane treatment of migrants, the ability of asylum
seekers to access asylum processing systems and the principle of non-refoulement
(non-return) are core objectives of the Bali Process, including any
discussions or agreements on a regional offshore processing center for
migrants.
- Make the Bali Process more transparent and accountable by ensuring
that civil society groups are provided an opportunity to meaningfully
participate in the process.
- Ensure that financial or technical assistance to other states for
the purpose of strengthening border control and combating
people-smuggling includes assistance and training in refugee law and
refugee protection. Urge other states to ensure that any proposed
people-smuggling legislation does not criminalize those acting with
humanitarian, rather than financial, intentions, in accordance with
international standards.
Burma
The Australian government has long taken a calibrated
approach of targeted sanctions, principled engagement, and humanitarian
aid to press for human rights and genuine democratic reform in Burma.
There have been encouraging signs of change in Burma in
the past year, including easing of official censorship, a new law on
the right to strike, and amendments to electoral laws that permitted the
opposition National League for Democracy to register and contest April
by-elections in which it won almost all the seats it contested.
However, the overall human rights situation remains
poor. Despite the release of many political prisoners, several hundred
political prisoners remain. Laws promulgated in recent months, including
on the right to peaceful assembly, fall short of international
standards. The newly created National Human Rights Commission also does
not fulfill the Paris Principles on national human rights bodies, and
the commission has not seriously investigated complaints of human rights
abuses.
Now more than ever, countries like Australia should
support democratic forces inside the country to push for real reform and
the release of all political prisoners. I support your view that the
peeling back of sanctions should only be done once further progress is
made and recognized as authentic by the opposition. Blindly pursuing
engagement for humanitarian assistance and foreign investment in the
absence of a functioning legal framework could derail the fragile gains
of the past year. Given the small number of seats involved, these
by-elections were not a serious test of Burma’s commitment to democratic
reform. The real test will be when people exert their basic rights,
whether by acting under new laws or expressing views contrary to those
of the military, which continues to be the controlling force in the
country.
Burma has the world’s longest running civil war, with
the Burmese army engaged in armed conflicts with armed groups of various
ethnic minorities around the country. The government has embarked on
ceasefire negotiations with a number of armed ethnic rebel groups.
However, serious abuses by the army against ethnic minority populations
continue.
For instance, fighting has been ongoing since June 2011
in Kachin State, with 75,000 people displaced as a result. The Burmese
military continues to violate international humanitarian law through the
use of extrajudicial killings, torture, sexual violence, abusive forced
labor, antipersonnel landmines, and pillaging of property. The Kachin
Independence Army has unlawfully used child soldiers and landmines.
I support Australia’s decision in January to remove
some names from the list of individuals subject to targeted travel and
financial sanctions. On April 6 you said, “We will continue to ease our
sanctions in ways that acknowledge the progress made to date, while also
encouraging further steps toward reform.” I fully share the view that
it is important to ease sanctions, in a way that favors the forces of
progress towards human rights and rule of law in the country, while
continuing to disadvantage those holding progress back—which include
military leaders implicated in human rights abuses in conflict areas and
those with ties to with abusive military-owned companies. In light of
this, Australia should now consider additional positive steps— for
example, further easing of visa bans and asset freezes for select
individuals, and the establishment of parliamentary exchanges.
I also support Australia’s significant increase in
humanitarian aid to assist the Burmese people, up to Au$47.6 million in
2011-2012. As discussions begin on the return of an approximately
140,000 refugees from camps along the Thailand-Burma border, Australia
should maintain support for those in refugee camps, ensure there is no
premature push to refugees and that any repatriation will be voluntary,
safe and dignified. To date, Australia has not supported efforts at
cross-border assistance from Thailand to Burma to aid displaced
communities in eastern Burma, but should reconsider that stance in light
of Burmese government ceasefire talks with ethnic armed groups, and
discussions on repatriating refugees and IDPs over the coming years.
I also appreciate Australia’s commitment to advocating
greater assistance to Burma through international financial institutions
and others but urge that such engagement take Burma’s challenging
context into consideration.
I recommend that Australia:
- Support an independent international mechanism to investigate
alleged violations of international human rights and humanitarian law
committed by all parties to the conflicts in Burma, as well as to
investigate and publicly report on the whereabouts and conditions of
remaining political prisoners.
- Support the establishment of a United Nations Office of the High
Commissioner for Human Rights office in Burma with a standard
protection, promotion, and technical assistance mandate.
- Continue to publicly press for the release of all remaining political prisoners in Burma.
- Potentially lift visa bans and asset freezes against named
individuals in Burma that are not high-ranking military officials or
their close associates, subject to a careful review to determine that
they do not bear responsibility for abuses, while sanctions against key
uniformed leaders of the armed forces should be maintained.
- Coordinate with other governments—particularly those that have
sanctions in place on Burma—to develop new rules setting out core
requirements for responsible, rights-respecting trade and investment in
the country that will take effect as sanctions are selectively removed.
In preparation, begin now to consult with civil society to develop
strong accountability and transparency measures for businesses active in
Burma.
- Maintain Australia’s arms embargo on Burma, as the government has pledged to do.
- Work with the government of Burma to institute sufficient legal,
human rights, anti-corruption, and environmental safeguards to ensure
that Burma’s governance reforms are sustainable in the long term.
- Similarly, design and pursue development
efforts with due regard for the challenges of engagement in country that
has been misruled for decades. Donor governments and institutions
should consult with civil society and press Burma’s government to
increase transparency and accountability, make urgent social needs a
priority, and carry out systemic reforms necessary for meaningful
development. Meaningful anti-corruption measures are needed so that
Burma’s own considerable resources and outside assistance benefit the
people of Burma and are not squandered or stolen.
- Increase assistance to IDPs and refugees and play a role in crucial
human rights monitoring to ensure any eventual returns are voluntary,
safe and dignified.
- Ensure that post-conflict development initiatives include a strong human rights protection component.
Cambodia
Australia has long been committed to Cambodia’s
development. In 2011-2012 Cambodia will receive AU$77.4 million in
Australian aid.
While we support Australia’s provision of aid to
Cambodia, the donor relationship provides an important opportunity for
Australia to assist Cambodia to overcome some of its serious human
rights problems. In making your first state visit to Cambodia, you said,
“It’s been a great honor for me to make my first visit as Australia’s
Foreign Minister to Cambodia… Australia is a close and outstanding
friend of Cambodia.” While Australia clearly values its relationship
with Cambodia, as a “friend” it should be prepared to speak more frankly
about the serious human rights violations being committed against the
Cambodian people in an environment of total impunity.
Freedom of expression, assembly and association remain
under threat in Cambodia. The government is using criminal defamation
and incitement laws to intimidate and imprison critics. Nongovernmental
organizations have identified at least 12 persons imprisoned under these
laws for peaceful expression of views since December 2010. The
government also continues to systematically use a 2009 law to deny
permission for public assemblies in Phnom Penh outside isolated “freedom
parks.”
Arbitrary detention and torture are routinely used by
the police and the military police to extract confessions, which are
then used to obtain convictions. Cambodia’s prisons continue to be
overcrowded and lack sufficient food, water, sanitation, and health
care. Other facilities, such as the Prey Speu Social Affairs Center, are
also used to arbitrarily detain people against their will, including
homeless people, drug users, and sex workers rounded up from the
streets. International Human Rights organization Human Rights Watch has
found detainees there have been subjected to abuses including suspicious
deaths, rape, torture, and beatings.
During your recent Phnom Penh visit, you recently
announced an additional contribution of Au$1.61 million to fund the work
of the Khmer Rouge trials, taking the total to more than Au$18 million
donated by Australia since 2006. Australia is the second largest donor
to the trials. After five years and more than AU$144 million, the court
has prosecuted just one defendant, Kaing Guek Eav (alias Duch), while
only three others are currently on trial.
In Phnom Penh, you stated that “the independence of the
judiciary is paramount and the ECCC [Khmer Rouge tribunal] must be
allowed to operate free from any external interference.” However, given
recent events in Cambodia, a stronger statement supporting the
importance of additional cases to proceed is warranted. Cases 003 and
004 are two cases comprising five suspects that were submitted by the
international co-prosecutor to the Office of the Co-Investigating Judges
in 2009. Two international co-investigating judges recently resigned,
citing political interference from the Cambodian government. Prime
Minister Hun Sen and the ruling Cambodian Peoples’ Party (CPP) have used
their power over Cambodian appointed judges to systematically undermine
the independence of the tribunal in pursuit of their demand that the
tribunal only consider cases they would like to see prosecuted,
flaunting the law and breaching the government agreement with the UN
establishing the court.
Now more than ever, principled UN participation,
asserting fair procedures and thorough investigations of all cases, is
essential to ensuring that the Khmer Rouge tribunal is able to complete
its mission to hold those “most responsible” for Khmer Rouge atrocities
to account, as provided by law.
I recommend that Australia:
- Play a leadership role in pressing the United Nations to protect the
integrity of the Khmer Rouge tribunal by nominating qualified
international co-investigating and reserve co-investigating judges, and
defending the legal authority and independence of the international
co-investigating judge to investigate any cases of persons suspected of
being most responsible for serious international crimes in Cambodia
coming to their attention.
- Publicly call for the need for genuine, impartial, independent, and
effective investigations into Khmer Rouge tribunal cases 003 and 004.
- Condemn the ongoing political interference by the Cambodian
government, which undermines the judicial independence of the Khmer
Rouge tribunal.
- Support the rights to freedom of expression and
peaceful assembly by publicly calling for the release of all persons
who are in prison for peacefully expressing their views and conducting
peaceful protests.
- Demand the closure of the Prey Speu Social Affairs Center and other
centers used to arbitrarily detain persons against their will.
- Urge improvements in conditions of detention in Cambodian prisons, in line with international standards.
Indonesia
Australia has significantly deepened its bilateral
relationship with Indonesia in the past two years, elevating it to the
status of a “comprehensive strategic partnership” in March 2010.
Indonesia is now also the largest recipient of Australian aid funding,
totaling A$558 million in 2011-2012. These factors create a unique
opportunity for Australia to use its clout to seek better human rights
outcomes in Indonesia.
Australia provides extensive support and training to
Indonesian security forces. Impunity for members of Indonesia’s security
forces remains a serious concern, with no civilian jurisdiction over
soldiers who commit serious human rights abuses. Military tribunals are
rarely held, lack transparency, and the charges frequently fail to
reflect the seriousness of the abuses committed. Many of these abuses
take place in Papua—however, access to Papua remains tightly controlled
by the Indonesian government, and few foreign journalists or human
rights researchers are able to visit without close monitoring of their
activity.
For instance, in October 2012 Indonesian security
forces used excessive force to break up a pro-independence demonstration
in Jayapura, Papua. The security forces then used batons and in some
instances firearms against the demonstrators, and as a result at least
three people were killed and more than 90 others injured. As best I can
determine, police and military officials involved have only received
disciplinary infractions—no one has been charged with criminal offenses.
To the contrary, the Jayapura police chief, Imam Setiawan, has
subsequently been promoted.
Meanwhile, five of the activists who testified how
security forces beat them during the crackdown have been tried and
sentenced to three years in prison for makar (treason) because
of pro-independence statements they made at the Congress. I believe that
a clear and firm public statement on Australia’s position on respecting
free expression and condemning impunity by security forces is critical,
especially since there is a real risk that Australian Ambassador Greg
Moriarty’s reference to the actions of Papuan People’s Congress leaders
as “illegal, provocative, and counterproductive” may otherwise be
interpreted as supporting further government crackdowns on the Congress.
The Lombok Treaty between Indonesia and Australia
affirms the “sovereignty, unity, independence, and territorial integrity
of both Parties” but it also requires respect for obligations under
international law, including international human rights law.
Despite Indonesia’s progress as an emerging democracy,
the country now has scores of political prisoners from Papua and the
Moluccas, primarily individuals put behind bars for making statements or
raising flags or displaying symbols that the Indonesian authorities
interpreted as local calls for independence. Indonesian officials
continue to enforce a number of laws that criminalize the peaceful
expression of political, religious, and other views. These include
offenses in Indonesia’s criminal code such as treason or rebellion (makar), “inciting hatred” (haatzai artikelen), and blasphemy.
Violence against religious minorities in Indonesia is
on the rise. Islamist militants have mobilized mobs to attack religious
minorities with impunity; short prison terms for a handful of offenders
have done little to dissuade mob violence. The government has failed to
revoke several decrees that discriminate against minority religions,
fostering public intolerance.
I recommend that Australia:
- Urge Indonesia to lift all restrictions on access of foreign media and human rights organizations to Papua.
- Unequivocally condemn excessive use of force and the suppression of
peaceful protests, and call on the Indonesian government to ensure that
Indonesian security forces are properly held accountable for any alleged
abuses. In particular, call for an investigation into alleged excessive
use of force by the authorities at the Papuan Peace Congress last
October.
- Call for Indonesia to amend or repeal laws that criminalize peaceful
political expression and to free all prisoners held for peacefully
expressing their political views.
- Condemn incidents of violence against religions in Indonesia, and
call on the Indonesian government to repeal its decrees that
discriminate against minority religions and ensure accountability for
harm that is caused.
Malaysia
Malaysia is Australia’s third-largest trading partner
in ASEAN. Despite Malaysian government promises of reform and relaxation
of controls, the country in 2011 fell far short in meeting Prime
Minister Najib Razak’s pledges to “uphold civil liberties” and build a
“functional and inclusive democracy.” Last year, the government
arbitrarily detained outspoken critics, used tear gas and water cannon
against thousands who peacefully marched in support of clean and fair
elections, and replaced long-existing restrictions on free assembly with
even more draconian controls.
A particular concern regarding the Australia-Malaysia
relationship is the treatment of asylum seekers in Malaysia. Despite the
High Court’s ruling that Malaysia does not have appropriate legal
frameworks for protection of asylum seekers, there are currently two
bills before the Australian Parliament seeking to revive the asylum swap
deal. Despite a reduction of forced repatriation at the Malaysia-Thai
border, the Malaysian government still fails to protect asylum seekers
and refugees. Malaysia has not ratified the Refugee Convention and its
1967 Protocol and has no refugee law or procedure. Malaysian authorities
still commit refoulement. In February 2012 they deported blogger Hamza
Kashgari back to Saudi Arabia where he faces a possible death penalty
for expression of his religious views. At no time were his lawyers or
United Nations High Commissioner for Refugees representatives permitted
access to him. Neither the Australian government’s bill (the Migration
Legislation Amendment (Offshore Processing and other Measures) Bill
2011) nor the Hon. Rob Oakeshott MP’s bill (Migration Legislation
Amendment (The Bali Process) Bill 2012) provide any legally binding
Refugee Convention-related protection for persons removed from Australia
under the proposed amendments. Each bill would send Australia’s asylum
seekers to a precarious and uncertain future in Malaysia, and each
raises serious concerns about Australia’s discharge of its obligations
under the Refugee Convention.
I recommend that Australia:
- Stop pursuing any asylum swap arrangement with Malaysia given the
absence in Malaysia of legal and practical protections required under
the Refugee Convention.
- Raise concerns with Malaysia about its unwillingness to provide
protection to asylum seekers and its attacks on free expression and
assembly.
Vietnam
Australia’s bilateral relationship with Vietnam reached
a significant milestone when the two countries signed the
“Australia-Vietnam Comprehensive Partnership” in September 2009. The
provisions of the agreement were supplemented by a bilateral Plan of
Action signed in October 2010. Australia’s development assistance for
Vietnam in 2011-12 is budgeted at AU$137.9 million, which makes Vietnam
the sixth largest recipient of Australian funding. Australia is also
Vietnam’s fifth largest export market and among the top 10 trade
partners. In addition, Vietnam and Australia are negotiating the
Trans-Pacific Strategic Economic Partnership Agreement. Next year, 2013,
will mark the 40th year since the establishment of
diplomatic ties between the two countries. Australia should use its
access and influence to urge Vietnam to improve its abysmal human rights
record.
In Vietnam, many political detainees and prisoners have
been charged under vaguely worded articles in Vietnam’s penal code that
criminalize peaceful dissent. These crimes include “subversion of the
people’s administration,” “undermining the unity policy,” “conducting
propaganda against the state,” and “abusing democratic freedoms” to
“infringe upon the interests of the State.”
Throughout 2011 and the first three months of 2012,
there has been a steady stream of political trials and arrests in
Vietnam. Bloggers, writers, human rights defenders, land rights
activists, anti-corruption campaigners, and religious and democracy
advocates faced harassment, intimidation, arbitrary arrest, torture, and
imprisonment.
Police have prevented public celebration of religious
events, intimidated and detained participants, and placed prominent
leaders of these groups under house arrest. Even registered religious
organizations such as the Redemptorist churches in Hanoi and Ho Chi Minh
City were harassed repeatedly, including a mob attack against the Thai
Ha Catholic church in Hanoi.
Vietnamese law authorizes arbitrary detention without
trial. Peaceful dissidents and others deemed to threaten national
security or public order may be involuntarily committed to mental
institutions, placed under house arrest, or detained in state-run
“rehabilitation” or “education” centers. Drug users can be held up to
four years in government-run rehabilitation centers where they receive
very little treatment but are subjected abuse including beatings,
torture, forced labor (in the guise of so-called “labor therapy”), and
solitary confinement. An assessment in early 2011 found that 123 drug
detention centers across the country held 40,000 people, including
children as young as 12.
Those held in drug detention centers reported being
forced to work in cashew processing and other forms of agricultural
production, and garment manufacturing and other forms of manufacturing,
such as making bamboo and rattan products. Under Vietnamese law,
companies that handle products from these centers are eligible for tax
exemptions. Some products produced as a result of this forced labor made
their way into the supply chain of companies that sell goods abroad,
including to Australia.
During your March 27-29 visit to Vietnam, you stated
that Australia considers Vietnam as one of its key partners in the
Asia-Pacific and that the Australian government will continue to give
“priority to Vietnam in official development assistance. I urge that
Vietnam’s concrete human rights improvement be an integral part of
Australia’s official engagement in Vietnam.
I recommend that Australia:
- Call on Vietnam to immediately release all political and religious
prisoners and urge Vietnam to amend or repeal provisions that
criminalize peaceful dissent and certain religious activities on the
basis of imprecisely defined “national security” crimes to bring
Vietnam’s laws and regulations into full compliance with the
International Covenant on Civil and Political Rights, which Vietnam has
ratified.
- Urge Vietnam to repeal Ordinance 44, which
authorizes administrative detention, house arrest, and detention in
Social Protection Centers and psychiatric facilities for two-year
renewable periods, without trial, for individuals deemed to have
violated national security laws.
- Urge Vietnam to recognize independent labor unions and to ratify and
implement International Labor Organization Conventions No. 87 (Freedom
of Association and Protection of the Right to Organize), No. 98 (Right
to Organize and Collective Bargaining) and No. 105 (Abolition of Forced
Labor).
- Ensure that no funding, programming, and activities directed to
assisting Vietnam’s drug detention centers are supporting policies or
programs that violate international human rights law, including
prohibitions on arbitrary detention, forced labor, torture and cruel,
inhuman or degrading treatment or punishment.
Vetting procedure for security force cooperation
A common issue in many countries where Human Rights
Watch works is a lack of accountability for crimes committed by security
forces, including extrajudicial killings, enforced disappearances, and
torture. I believe impunity will be addressed only by raising the stakes
for committing such crimes, which requires concerted international
pressure for abusive personnel to be brought to justice. Knowing that
Australia plays a vital role in training security forces and helping to
promote human rights in many of these countries, we also call on your
administration to establish and make publicly available a procedure by
which appropriate Australian officials will systematically vet the human
rights records of security forces that Australia seeks to train.
This procedure should:
- Conduct vetting at the individual, unit, and force levels.
- Require that countries provide complete deployment histories of the individuals and units that Australia seeks to train.
- Consult with civil society groups about the human rights performance
of individuals, units, and forces that Australia seeks to train before
agreeing to provide such training.
- Require that countries provide information about police
investigations and military tribunal proceedings involving members of
the security forces affiliated with the units that Australia seeks to
train.
- State the consequences that will result if the vetting procedure
outlined above reveals that members or units of the security forces that
Australia seeks to train have been credibly accused of past human
rights violations and have not been effectively investigated and
prosecuted by local authorities.
- Make this protocol publicly available, and it in turn should provide
that until credible investigations and appropriate prosecutions are
conducted and the results made public, the individual or unit implicated
will be ineligible for Australian support.
I urge you, as Foreign Minister, to sponsor an
initiative to develop such a protocol. Thiscould be developed by the
Department of Foreign Affairs and Trade, or as a joint initiative with
the Ministry of Defense.
I look forward to discussing these matters with you further.
Sincerely,
William Nicholas Gomes
Salem News, Human Rights Ambassador
William’s Desk
www.williamgomes.org
CC:
- The Hon Julia Gillard MP, Prime Minister
- Nicola Roxon MP, Attorney-General
- Chris Bowen MP, Minister for Immigration and Citizenship
- Richard Marles MP, Parliamentary Secretary for Foreign Affairs
- Stephen Smith MP, Defence Minister
Source:Human Rights Education Associates (HREA)