4 June 2004

ADF contribution to the Iraqi occupation

There are currently about 860 ADF members deployed for Operation Catalyst: Australian national headquarters of approximately 60 people, headed by the Australian National Commander Brigadier Hutchinson; a naval component with about 180 personnel embarked on the frigate HMAS Stuart, and command and logistic support elements; an Air Force component with about 150 personnel deployed with two RAAF C130 Hercules transport aircraft and about 160 personnel deployed with two RAAF P3C Orion maritime patrol aircraft; and an air traffic control detachment and support personnel at Baghdad international airport. That latter group totals about 65 personnel.

In addition, there is a security detachment of approximately 90 Army personnel protecting the Australian representative office in Baghdad and providing force protection for the Iraqi army training team. There are approximately 65 personnel to the coalition military assistance training team to help train and develop the Iraqi coastal defence force and Iraqi army. Approximately 25 personnel are working in the coalition joint task force headquarters. There is a logistics element located in Baghdad and Kuwait, providing support to ADF units and Australian government agencies. A 12-person team is supporting the work of the Iraq survey group. A small number of ADF personnel are working in specialist roles with the coalition provisional authority. A small number of ADF personnel are working in liaison roles with coalition forces.

From the Chief of Defence Force's opening statement to Day 1 of the Senate estimates hearing. Just remember (all together now) that Australia is not an occupying power. We excised ourselves.

As far as our responsibility for prisoners goes, on Day 1 Sen Hill told the committee we have an Arrangement for the Transfer of Prisoners of War, Civilian Internees, and Civilian Detainees between the Forces of the United States of America, the United Kingdom of Great Britain and Northern Ireland, and Australia?. The effect of this is that all prisoners captured by the ADF in Iraq are actually captured by someone else, even, as Sen Evans acerbically suggested, by 'a passing American midshipman' when HMAS Stuart captured some prisoners at sea. Then on Day 3 we hear:

Senator Hill -- The convention and the obligations under the convention are as applied to the facts, not to any pre-existing agreement. As I understand it -- and the specialist lawyer will correct me -- you cannot agree away your responsibilities under the convention.

But there is better to come. On Day 4 we learn that there is no agreement, there was an exchange of letters between Australia's CDF and the US armed forces with respect to Afghanistan and that the Defence Department's own legal adviser says:

Dr French -- Indeed, as I mentioned yesterday, the overarching legal norm that is relevant with respect to the taking of prisoners of war in a period of hostilities is the third Geneva convention of 1949. In addition to that, with regard to Australia and the UK, the first additional protocol to the Geneva conventions, the additional protocol of 1977, is applicable and those are clearly the norms that do apply. In order to make quite clear the practical application of those norms where two of the parties -- that is, Australia and the UK -- had a slightly broader set of obligations than the third party -- that is, the US?in relation to the definition and categorisation of prisoners of war, it was appropriate to enter into a memorandum of understanding of less than treaty status to simply clarify the processes. But I must make it clear from the outset that the underpinning legal norms that define the obligations of the relevant countries are indeed the third Geneva convention of 1949 and the first additional protocol. The memorandum of understanding of 23 March 2003 per se did not create any new international legal obligations. It merely created a mechanism whereby those obligations could be implemented in a smooth manner.

Senator FAULKNER -- And it cannot override those obligations, can it?

Dr French -- Certainly not.

Senator FAULKNER -- And they cannot modify those obligations?

Dr French -- No, and the express wording of it does not intend that.

Senator BROWN -- You said yesterday, Dr French, that the custodial power is the power that actually takes the details of the prisoners who have been taken, whereas I was maintaining that it is actually the power that takes the prisoners. I have had the opportunity of looking at the Geneva conventions overnight, and I cannot find reference to the opinion that it is the documenting power. Can you point to that provision under the Geneva convention?

Let us summarise (before applying the Four Steps):

1. There is no agreement making the US the detaining power for Australian prisoners; 2. the agreement claimed by the government applied to Afghanistan, not Iraq; 3. the government's own legal advice is that the agreement (if it existed) could not excise Australia's obligations under the Third Geneva Convention.

Is there anything this government will not say to try and justify US conduct?

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