Rendition of Responsibility - Avoiding human rights obligations in 21st century

The current parliamentary debate over asylum seekers reflects a horrendous trend that has unfurled in many Western nations, especially since the events of September 11 - a trend towards creating legislative mechanisms and loopholes for subverting human rights, while simultaneously professing to uphold them. The new ethical maxim entails a shell game in which nation states actively seek out ways for avoiding human rights obligations by redefining those who should qualify for those rights (refugees become 'queue jumpers', 'enemy non combatants' attract less rights that prisoners of war, etc), by redefining where human rights entitlements should reside (Australia has excised chunks of its migration zone so that refugees landing here don't 'technically' land here), and by exporting techniques of human rights abuses offshore (the practice of 'rendition' in order to undertake torture offshore, sending refugees to non UN Convention signatory states). The truly bizarre aspect of these developments is the extraordinary lengths governments are prepared to go to in renaming, rebranding, and repositioning practices and activities that abandon human rights, precisely because of the value voting populations are perceived to place on maintaining human rights.

There is plenty of evidence to illustrate that many Western governments are loathe to overtly abandon the public defense of human rights. Only yesterday both Gillard and Abbott cited the Refugee Convention as central to their views about what should be changed in the Migration Act.  David Cameron too, has recently announced an inquiry into Britain's alleged involvement in the 'rendition' of terror suspects to Libya. Britain has been staunch in its disavowment of torture. The implications of such public statements are clear. Abandoning human rights policy is unacceptable. Indeed, the discourse of 'human rights' is central to the way in which Western democracies like to distinguish themselves as 'civilised' in the modern world. However one must ask what kind of nation professes to defend human rights while concomitantly expending extraordinary efforts and vast resources on devising ways to avoid them? The current parliamentary debate on asylum seekers has become like a bad rerun of the classic comedy sketch 'Who's on first?' Our leaders cannot dodge 'the game' of protecting human rights (for example, by rejecting the Convention) so instead they make do with re-casting its rules.

It is important to note that the erosion of refugee rights in Australia has been effected through the actions of consecutive governments from BOTH sides of politics. However modern participation in this ethical backslide is perhaps most notoriously crystallised in the the events of the Tampa during John Howard's Prime Ministership. John Howard and his supporters understood that if asylum seekers didn't arrive on Australian soil, then they in fact would not be entitled to the rights and protections that should be extended by Australia under its treaty obligations. From an ethical perspective there ought be an ocean of difference between knowing this to be the fact and engineering this to be the fact. The Howard government, however, set about redefining the rules of play so that asylum seekers simply would not qualify for our help.

If boats do not land, the government reasoned, then asylum seekers won't qualify for Australia's protection - and this is precisely what occurred. Howard refused entry to boats and made extraordinary efforts to turn them around. Political antipathy to boat arrivals has a long history in Australia - it can be traced back to fears of Asian invasion, and a range of other historical and cultural themes. The late Michael Clyne passionately argued that these entrenched historical themes informed a type of dog whistling politics which secured electoral victory for Howard on a number of occasions. The asylum seeker issue has become to Australian political discourse what the question of religion is in American politics. No leadership aspirant in the US, as Bill Clinton reflected, can sidestep the necessity to profess an absolute Christian faith. In Australia, it would seem that decrying the evil of the boat problem or people smuggling has become the qualifying variable for election.  

As ministers in Howard's government explained it, asylum seekers were unwelcome as arrivals because  of their opportunistic nature (queue jumpers) and, in a more nasty and insidious form of political rhetoric, because they were 'uncivilised' (see Downer's comments after the Children Overboard affair). Howard made little secret of his view that asylum seekers could be terrorists.  In the past few weeks a more cynical discourse has pervaded political commentary. Gillard and Abbott profess to be motivated to effect legislative change because of their concern over asylum seekers drowning. We are now to believe that new policy directions are no longer driven by the old rhetoric of evil queue jumping, but by a charitable concern for asylum seekers who might drown. The political opportunism extant in this new 'motivation' is breathtaking - clearly, nobody has stopped to consider that the very reason asylum seekers board boats is because they consider their lives are at risk.  Indeed, there is research to illustrate that boat arrivals are the most desperate of refugees, and that their claims are more likely to be upheld than other groups of asylum seekers. In short, if any group of people are worthy of the label 'refugees', asylum seekers arriving by boat are it. We might well ask why we are concerned to save such people from 'drowning' rather than simply just 'saving' such people as is our obligation under the Refugee Convention.

The Howard Government's activities did not stop at turning boats around. Through vitriolic rhetoric, the very definition of a refugee was re-defined in the public imagination. Australians were encouraged to encompass terminology such as 'illegal asylum seekers' and 'queue jumpers' as a means for de-legitimising the genuine needs and claims of refugee arrivals. Under the Refugee Convention it is never 'illegal' to seek asylum when one has a genuine fear or experience of persecution - indeed one might argue that the very purpose of the Refugee Convention was to bring institutional legitimacy to those needing to claim asylum, precisely so that they could not be ignored or refouled.

Turning boats away and re-imagining the definition of a refugee was not enough for the Howard government. It also set about playing hide and seek with Australia's borders. It excised chunks of land from Australia's migration zone so that it might legitimately claim that those who landed here, actually did not 'land' here. It is gobsmacking that Abbott is currently criticising Gillard's idea of sending asylum seekers offshore to a 'non Convention' country, when chunks of Australia's own lands are akin to a 'non Convention' country.

Last week, Tony Wright penned a timely article about the departure of the St Louis from Nazi Germany. The St Louis, carrying the last of Germany's Jewish escapees, could find nowhere to dock - so it returned to Europe - sealing a gruesome fate for many of its occupants. Mandatory refoulement - the return of refugees to circumstances in which they fear torture or death - is disallowed under the Refugee Convention. There is little doubt that events such as the St Louis informed the development of such principles as non-refoulement in the Convention. And yet here we are, tap dancing around the Pacific to avoid at all costs the arrival of asylum seekers to Australia.

The Conventions on Human Rights and Refugees were forged after the Second World War in the wake of atrocities that were as heinous for their calculated nature as they were for their scale. The Conventions represent a view that, with aforethought and unitary will, such atrocities could and should be avoided. Australia was an early signatory to these Conventions. Gillard is currently proposing that we send asylum seekers to Malaysia - and yet Malaysia is not a signatory to the Refugee Convention. Abbott argues that asylum seekers should be sent to Nauru, presumably on the basis that few will arrive here if their boats are turned around. What both these views reflect is a willingness to abandon the fundamental principles upon which the Conventions are premised through a tap dance of terminology. Surely it is a basic ethical principle that if one signs up for the Conventions, then one ought not and should not spend vast amounts of time devising schemes to avoid meeting the obligations by which they are centrally defined - schemes such as devising new labels for refugees so as to exclude their just treatment, or playing hide and seek with one's country in the middle of the Pacific ocean or shipping asylum seekers to countries that do not adhere to the human rights principles by which we are legally bound.

We should not be without hope. Some nation states have demonstrated a recognition that the principles underpinning their human rights obligations cannot simply be taken off like slippers when leaving the house. Canada, for example, places a ban on the extradition of prisoners to countries in which those prisoners might face the death penalty.  In the context of such efforts, it is simply ridiculous to suggest, for example, that one is not breaching international human rights obligations by labelling torture victims 'enemy non combatants'. Or that one's hands are 'clean' if an allied nation takes responsibility for the water boarding. It is way past time that Australia recognised it is not absolved of obligations under the Refugee Convention simply by farming asylum seekers out of sight, and therefore out of mind.