Tony Abbott's open contempt for international human rights law

Former prime minister Tony Abbott has penned an essay in Quadrant defending his government’s stance on national security. It betrays an extraordinarily open contempt for international human rights law.

Abbott starts by saying that he is proud that his government was committed to “uphold[ing] our values around the world”, then immediately repudiates “the moral posturing of the Rudd years”. Hence, he seems to quickly divorce Australian values from notions of morality. He then goes on to confirm that, as explained below.

Abbott and gross human rights abuses by Sri Lanka

Notoriously, Abbott was very forgiving of Sri Lanka’s human rights record when he attended the Commonwealth Heads of Government Meeting (CHOGM) in that country in 2013.

His stance contrasted sharply with those of the leaders of Canada, India and Mauritius (who all boycotted CHOGM that year due to Sri Lanka’s human rights record), and that of UK Prime Minister David Cameron, who raised the issue of war crimes while attending the meeting.

Sri Lanka finished a decades-long civil war with the Liberation Tigers of Tamil Eelam (the Tamil Tigers) in 2009, with tens of thousands of civilians killed in the final weeks of the conflict. Since then, Sri Lanka has faced credible allegations of gross war crimes at the end of that war, and the UN continues to call for an independent investigation. While Sri Lanka’s new government has promised to comply, it currently seems a faint prospect.

In his Quadrant essay, Abbott defends his Sri Lanka stance. He is proud that Sri Lanka’s president at the time, Mahinda Rajapaksa:

… was pleased that Australia didn’t join the human rights lobby against the tough but probably unavoidable actions taken to end one of the world’s most vicious civil wars.

Rajapaksa has since lost power. It is not clear whether Sri Lanka’s current government is happy with Abbott’s craven stance at CHOGM towards its political opponent. It is clear that victims were appalled by it.

Abbott excused war crimes, and continues to do so, trivialising the killings of thousands of civilians as “tough actions” which were “probably unavoidable”. Presumably, Australia’s “values” for Abbott exclude support for the international law of armed conflict.

Abbott has topical company here, if one compares the statements of US presidential candidate Donald Trump, who recently describe the core war law treaties, the Geneva Conventions, as a “problem” given their prohibition on torture.

Stopping the boats

Abbott’s Sri Lanka position was a means to an end, as he freely admits in his Quadrant essay. Australia needed Sri Lanka’s help in “stopping the boats”.

That may be so, but it is likely that many of those that were stopped with Australian help from fleeing Sri Lanka were genuine refugees fleeing persecution. After all, Sri Lanka remains accused of ongoing human rights violations, both under Rajapaksa after the civil war and under its new government, including torture. Hence, Australian values according to Abbott include a repudiation of the right to seek asylum from persecution.

Furthermore, Abbott is incautious with the truth here, in referring to the arrival of 50,000 people and 1200 drownings under the Rudd-Gillard governments as justification for Australia’s close co-operation with Sri Lanka. The vast majority of boats came from Indonesia, and the vast majority of drownings occurred on that route.

Abbott goes on to assert that the boat arrivals were a “national security” issue, as:

… a country that can’t control its borders sooner or later loses control of its future.

This is a bold assertion with no evidence. All boats that arrived in Australia were apprehended, and there is no evidence that those who have arrived by boat have threatened Australia’s national security.

Abbott later acknowledges the importance of Indonesia’s role in “stopping the boats”, so he admits to “a very early sign of good faith” towards its government. West Papuan asylum seekers were “quietly returned to Papua New Guinea”, which may constitute refoulement depending on the circumstances.

The right of non-refoulement, that is the return of a person to a place where they legitimately fear persecution, or to a country which will send them on to such a place, is the major plank of international refugee law. International refugee law is however clearly not a plank of Australia’s values, according to our former prime minister.

While Abbott was happy to show good faith to Indonesia in possibly refouling West Papuan activists, he makes no explicit mention of Indonesia’s continued protests at Australia’s insistence on returning asylum boats to its shores.

Abbott’s concerns over Indonesia’s sovereignty, so apparent in preventing a protest by (some other) West Papuan activists sailing from Australia to Indonesia, seem selective. So too do his concerns over sovereignty generally, given his eagerness, confirmed later in the essay, to send Australian troops to Ukraine to secure the site of the downed MH17.

Abbott’s open contempt for the international rule of law is perhaps matched by a cavalier attitude to Australian law. He admits that Operation Sovereign Borders was felt by “some government lawyers” to be “beyond power”. Such concerns are brushed off by the assertion that “the government simply had to stop the boats”, rather than with any assurance that the policy in fact complied with the rule of law.

A refreshing candour?

Perhaps Abbott should be applauded for displaying a refreshing candour regarding the true motivations of government, with his realpolitik rejection of international law.

Other Western governments, including Australian ones, have hypocritically proclaimed a commitment to international human rights law while effectively turning blind eyes to major human rights abuses by allies such as Israel, Egypt and Saudi Arabia. US President Barack Obama can condemn torture but still authorise unprecedented numbers of drone strikes with little transparency and little likelihood of compliance with international law.

And successive Australian governments tolerated crimes against humanity by Indonesia in Timor Leste. Do words matter if betrayed by deeds? At least Abbott can perhaps be said to be doing what he said and what he meant (to paraphrase his Quadrant essay).

Except he isn’t. Confusingly, in relation to Russia’s role on MH17, Abbott says that:

… the trampling of justice and decency in the pursuit of national aggrandisement, and reckless indifference to human life should have no place in our world.

In relation to Australia’s role combating Islamic State, he says that:

We can never abandon civilised values.

In relation to the rise of China, he says that all countries in our region have a “stake in rules-based global order”. Yet, in relation to Sri Lanka and possible refoulement of West Papuan activists, Abbott brazenly abandoned “civilised values”, endorsed the “trampling of justice and decency”, and jettisoned some of the most fundamental rules of the current global order.

Furthermore, words do matter. Certainly, the international rule of law, including international human rights law, is under constant strain from the self-interested realpolitik of probably all countries (to different extents). And yet it survives as some sort of constraint on state behaviour.

Seven years after the end of its civil war, Sri Lanka remains under significant pressure to provide redress, and a judicial net within Sri Lanka may now be closing in on the previously “untouchable” Rajapaksa.

Abbott’s open and proud rejection of international human rights law is a manifestation of a dangerous phenomenon, apparently shared by Trump. While governments may often fail to stick to the values that they say they uphold, the international rule of law has little hope at all if those values are simply discarded altogether.