While in the early years o f the war on terror Australia's political system was relatively closed, political opportunity structures began to shift in 2006, and opportunities for
activism revealed themselves. A few civil society groups were able to exploit these openings effectively on issues connected to the treatment of Hicks and Habib, though not directly on torture accountability. The actions of these groups exemplify the idea, theorised in the social movement literature, that motivated individuals and groups will respond to the openings and closings offered by the larger political environment (Gamson and Meyer 1996: 277). Two organisations were particularly successful in achieving their political aims in this way: GetUp! and the NSWCCL.
GetUp!’s specific campaign goal was to bring Hicks home from Guantanamo Bay (GetUp! 2006: 5). Two political opportunities emerged in 2006 that GetUp! identified and acted upon to successfully achieve this aim: the shift in 2006 of public opinion on Hicks’s detention and the impending 2007 federal election. These apertures in the Australian political system were closely linked in GetUpl’s activism. The more the group was able to demonstrate the growing public disquiet over Hicks’s treatment through its various grassroots activities, the more concerned the government became about the repercussions for its re-election prospects. Examples of GetUp!’s tactics included positioning billboards at the entrance of the Sydney Harbour Bridge that commuters and politicians would see on their drive into work (including the Prime Minister and Attorney-General who both resided in Sydney); placing full-page advertisements in national newspapers; holding public rallies in Sydney and Adelaide (the home of Hicks’s family and the Foreign Affairs Minister); and conducting public opinion polling. The polling, explains Solomon, was designed “to take the temperature of what the Australian people wanted, and to demonstrate that the position was actually inconsistent with the government’s position and also was a risk to them” (Solomon, tel. interview 21 Feb. 2013). Other tactics included campaigning in Prime Minister Howard’s seat in the NSW state election (held in March 2007). GetUp! handed out postcards demanding Hicks’s release to all voters in Howard's Bennelong electorate. More than 11,000 postcards - representing 12 per cent of all voters - were endorsed, returned and forwarded to the Prime Minister.70 Hicks was repatriated six months before the federal election, in November 2007.
A second civil society organisation had a broader and longer-term political goal than GetUp!’s. The NSWCCL aspired to legislative reform with respect to the prohibition of
70 According to the Australian Electoral Commission, 92,700 votes were cast in Bennelong in 2007 (Australian Electoral Commission 11 Dec. 2007).
torture; its ambitions took nearly a decade to achieve. In this case, the political opportunity that presented was a change of federal government in late 2007. Murphy, the NSWCCL president, recalls that immediately after the 11 September attacks, his organisation feared human rights would be wound back in Australia (Murphy, tel. interview 31 Jan. 2013). In particular, the NSWCCL was worried about the re- emergence of the death penalty, banned only at the Commonwealth level, where some public figures were calling for its reintroduction against terrorists. Murphy wrote to federal MPs to gauge their interest in working on the issue. This resulted in the establishment of an all-party parliamentary working group that included future Labor Attorney-General Robert McClelland.71 The group had its first meeting in March 2005 (Walton, email 22 Jun. 2013). Over time, according to some accounts, the group also worked on the torture issue, specifically the need for legislation implementing a Commonwealth offence of torture and the ratification by Australia of OPCAT (Murphy, tel. interview 31 Jan. 2013). As a member of the working group, McClelland was well- versed on the torture issue when the Rudd government was elected in 2007, by which time public opinion on the war on terror had shifted in favour of protecting human rights. For example, at a pre-election debate with Foreign Affairs Minister Downer, McClelland signalled his concern over the re-emergence of torture in the war on terror (Barker 16 Nov. 2007). When McClelland became Attorney-General, his Department, alert to his interest in strengthening institutional protections against torture, presented him with a number of recommendations. The Rudd government went on to legislate
72
against torture (and the death penalty) and signed OPCAT, without controversy.
The NSWCCL example highlights the role of another kind of domestic actor, apart from human rights NGOs, in the exploitation of favourable political opportunity structures to achieve long-term ambitions. Public servants in this case were prepared to pursue a human rights policy objective on the first signals of enthusiasm from elected officials. This episode suggests that human rights transformation can be the result of a collective effort - a coincidence of factors based on timing, persistence and opportunity emanating from different directions that ultimately coalesce to effect change. The actions of the NSWCCL and departmental officials also call to mind the briefcase image mentioned in
71 The group’s initial focus was the adoption of the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition o f the Death Penalty, and the “AFP operational guidelines in death penalty cases” (Michael Walton, email 22 Jun. 2013).
Chapter Two, where ideas for social change initiatives are sometimes carried around for years until the right opportunity presents (Mertus 2008: 182). Murphy evokes this idea:
We just find often [with] these things that it’s a matter of opportunity, where suddenly something will happen where you might get a change of government, or you might get dramatic overreach, and then you’ve got to take that opportunity, and you’ve got to have done the ground work to be in a position to change that, because you get very few opportunities. You know it might come along once in a generation, so if you’re not ready, you miss it (Murphy, tel. interview 31 Jan. 2013).
The successes of GetUp! and the NSWCCL in using the 2007 federal election and the arrival of a new government to achieve their particular objectives demonstrates that, given the right domestic conditions, Australian civil society can effectively exploit political opportunities on human rights.
VIII CONCLUSION
For almost a decade, Australian governments appeared indifferent to the torture allegations of Australian citizens detained at Guantanamo Bay. While initially the US alliance might explain Australia's apparent disregard for these citizens’ international human rights, to understand the sustained nature of that response, domestic political factors must be examined. Australian governments faced little pressure at home over the need for accountability on torture allegedly carried out overseas. The Howard government confronted minimal pressure from the legislature, particularly the weak federal opposition, or from the judiciary, with Hicks and Habib only resorting to litigation many years after they were first detained. Civil society was slow to mobilise on the Hicks and Habib cases, escalating its efforts in 2006 and 2007. When this finally occurred, civil society groups focused on legal process issues, rather than on the need for accountability on torture. Where domestic legal organisations and human rights NGOs did reference Australia's international legal obligations with respect to torture, it was generally in shadow reports submitted to the UN Committee Against Torture, rather than in their advocacy at home.
The particular enabling and constraining features of Australia’s national political context help explain civil society’s behaviour on the issue of accountability for the alleged torture of Hicks and Habib. A domestic NGO sector, overwhelmed after 11 September 2001, was constrained by a weak human rights culture, which reflected the
country's history and its lack of experience of terrorism. Civil society was further inhibited by an inadequate national human rights framework, particularly in relation to torture. This denied Hicks and Habib and their supporters adequate legal levers to bring torture-related claims against the state and influenced how these lawyers and NGOs framed their advocacy, according to what they believed was achievable. They saw agitating about torture as futile. Civil society was also impeded by a relatively closed polity for the first five years of Hicks’s and Habib’s detention, where the highly disciplined Howard government did not attribute a legitimate role to NGOs in public debate, especially in critiquing its human rights policies. When the political system eventually presented cleavages after this time, as the popularity of the Howard government waned and public concerns about treatment of Hicks in particular increased, civil society was able to organise, agitate and inspire political change on human rights. However this did not occur on the issue of accountability for torture, where the legal hooks for framing claims were not available.
Treaties provide focal points for civil society activism where deficiencies exist in domestic human rights structures. Where such lacunae occur, as Australia's case illustrates, they can also direct the efforts of citizenries overseas, where - largely removed from the realm of domestic politics - their impact on national governments is weaker. Australia was not held to account over the torture of its citizens abroad because there existed little pressure at home on the executive from civil society for such accountability. Where domestic actors do not demonstrate that they care about international human rights transgressions in ways that affect domestic politics, the state has little impetus to act. The Australian case illustrates a range of constraints for mobilisation on international human rights issues which allowed the government to avoid responding to human rights breaches by a dominant ally.
CHAPTER FIVE - THE UNITED KINGDOM
At first glance, the United States had no closer friend in the war on terror than the United Kingdom. Tony Blair’s Labour government, at pains to influence America’s war on terror policies, provided the most substantial political and military backing of any of the US’s alliance partners (Coates and Krieger 2004; Kampfner 2004). This was demonstrated by the UK’s actions on Iraq, including its diplomatic efforts to secure international support for the US invasion (Blair 2010: 415-440). Yet on the issue of torture, and its use against Britons detained in the war on terror, the UK did not keep in step with the US. A number of UK citizens and residents were detained at Guantanamo Bay and alleged they were mistreated and tortured. The UK government refused to allow UK citizens to be tried by US military commissions and brought them all home by 2005 (Tyrie et al. 2011: 93). Its approach to UK residents was, initially, different, with the government arguing it had no legal responsibility for the men. However, beginning in 2007, residents too were repatriated. In 2010, the Conservative-Liberal Democrats coalition government led by David Cameron ordered a public inquiry into the UK’s complicity on the torture of UK nationals and residents detained at Guantanamo Bay (The Detainee Inquiry Dec. 2013: 2).
The behaviour of the UK in standing up to the US for its citizens and residents must be understood with reference to the role of domestic politics and, in particular, the actions of domestic actors who applied strong pressure on successive governments to respect the international human rights of UK detainees. The capacity of these local non-state actors to do this was influenced by the national context in which they operated. The chapter begins with a discussion of the UK’s role in the war on terror, including its relationship with the US and its prior experience of terrorism. This is followed by an overview of the UK's history and legal framework with respect to torture. Next, I describe the torture allegations of the UK citizens and residents detained at Guantanamo Bay. I outline the response of the executive government to the men’s claims, and the roles of Parliament and the judiciary in holding the executive accountable for its actions and policies. I then address the role of civil society in shaping the executive’s behaviour on the issue of the torture of UK citizens and residents.
I THE UK AND THE WAR ON TERROR
The UK's alliance with the US is often described as the “Special Relationship” (Louis and Bull 1986). The Special Relationship embodies two central ideas. One is that the countries share many values and a common identity (Dunne 2004: 898). The other is that it is in the UK’s interests, as a former imperial power, to stay as close as possible to the US in order to continue to exercise a global influence beyond its current position (Wallace and Phillips 2009: 264; Azubuike 2005: 128; Kennedy-Pipe and Vickers 2007: 209; Dunne 2004: 898). Prime Minister Blair was a strong supporter of the Special Relationship, and arrived in office resolved to rebuild it (Parmar 2005: 226). This resolve was grounded in his conviction that the UK, using the levers of its historical alliances, could once again be an international player with a moral purpose, using its influence to promote the values and aims it believed in (Parmar 2005: 226; Dunne 2004: 904). The events of 11 September 2001 provided Prime Minister Blair with an opportunity to realise this vision (Dumbrell 2006: 462; see also Stephens 2004: 272).
Prime Minister Blair's inflated rhetoric regarding the significance of the attacks closely matched the Bush Administration’s. For example, according to the Prime Minister, 11 September was “the worst terrorist attack in human history”; left unchallenged “this could threaten our way of life to its fundamentals”; it signalled the start of a war “unlike any other”; and it was an opportunity to “re-order the world around us” (Blair 2010: 345, 369; Dumbrell 2006: 456; Riddell 2003: 145; see also Hewitt 2008: 55).73 For Prime Minister Blair, it was imperative that the UK work as closely as possible with the US so that it might shape the Bush Administration’s response to 11 September (Wallace and Phillips 2009: 275; Dumbrell 2006: 463; see also Blair 2010: 352; Azubuike 2005:
128; Campbell 2005: 323).
The UK’s international response to the war on terror included, in October 2001, the deployment of significant military forces to Afghanistan (Kampfner 2004: 129). Prime Minister Blair also threw himself into the task of helping the US to build a case for war
7' Prime Minister Blair’s understanding of the significance of the attacks for the global order was, according to many observers, underpinned by his personal views about the international community’s obligations to intervene militarily in other sovereign states where compelling humanitarian reasons existed - ideas developed during the Kosovo conflict in the late 1990s (Dumbrell 2006: 456; Kennedy-
in Iraq and committed substantial UK military forces to the conflict in March 2003, at personal political cost (Dumbrell 2006: 462; Kampfner 2004: 191, 312). Blair’s unflinching support for the US war on terror, particularly the invasion of Iraq, caused considerable disquiet within his government and was deeply unpopular in the UK more widely (Kampfner 2004; 273, 277; see also Riddell 2003: 202; Cook 2003: 106; Hastings 2008: 1132). Critics, internal and external, viewed the Prime Minister’s approach as servile to Washington (Danchev 2006: 588; House of Commons Foreign Affairs Committee (HCFAC) 2010).
Domestically, the UK’s response to the war on terror included the enactment of further counter-terrorism laws in 2001, 2005, 2006 and 2008 (Shephard 2010: 110-111; Roach 2011: 263). They followed the 2000 Terrorism Act, which had, among other things, expanded the definition of terrorism (Shephard 2010: 88; Roach 2011: 241). The most contentious of the post-11 September laws was the 2001 Anti-terrorism. Crime and Security Act, which authorised the indefinite detention without trial of foreign nationals suspected of involvement in terrorist activity, who could not be deported because of a risk of torture (Kettell 201 1: 38-39; Javaid 2007: 866; see also Poynting 2006; Hewitt 2008). Deporting non-citizens to countries where they faced torture is prohibited by the
European Convention on Human Rights (ECHR) (under Article 3), to which the UK is a party. In addition, the European Court of Human Rights ruled in 1997 in Chahal v
United Kingdom that the protections of the non-derogable Article 3 were absolute, including in the case of a public emergency.74 The 2001 Act was successfully challenged in the UK courts, as I discuss below.
The UK’s post-11 September counter-terrorism laws must be viewed against two domestic terrorism experiences. One was the London bombings of July 2005, when terrorists inspired by al Qaeda ideologies staged a series of attacks on London’s transport system, killing 56 people (BBC News undated; Home Office 11 May 2006). More profoundly, the UK's domestic response to 11 September was shaped by its previous experience of Northern Ireland terrorism (Roach 2011: 241). Of particular relevance were the government’s Northern Ireland internment policies of the 1970s. The Northern Ireland conflict developed out of a civil rights movement in the 1960s led by the province’s Catholic minority, who were seeking equal rights with the Protestant
majority (White and White 1995: 334; Cohn 1979: 160-161). Communal violence erupted between the Catholic and Protestant communities and police, prompting the British government in 1969 to deploy troops to restore order (White and White 1995: 334). From these events, a violent conflict developed between Irish Republican paramilitaries seeking British withdrawal from Northern Ireland, Loyalist paramilitaries opposing this and the state’s security forces (White and White 1995: 334-335).
Security legislation applying to Northern Ireland had existed before this time, including most significantly the Civil Authorities (Special Powers) Act (Northern Ireland) 1922 (Special Powers Act), which permitted the imposition of curfews, the banning of printed materials and assemblies, and detention without charge or trial - known as internment (O’Connor and Rumann 2003: 1664-1665). In August 1971, under the Special Powers Act, the British Prime Minister, Edward Heath, authorised the use of internment which continued until 1975, during which time 1981 people were detained without charge or trial - 1874 of them Catholic Nationalists (Mumford 2012: 16; O'Connor and Rumann 2003: 1678). The oppressive and discriminatory internment policies were widely viewed in hindsight as a failure, having led to the detention and mistreatment of innocent people, as well as the alienation of the Catholic population and the escalation of violence (O’Connor and Rumann 2003: 1678-1679; Mumford 2012: 15; White and White 1995: 330). This history familiarised the UK public with terrorism as well as the potential injustices associated with draconian government responses to this threat.
After 11 September 2001, the controversial 2001 Anti-terrorism, Crime and Security Act drew many comparisons to the UK government’s internment policies of the 1970s (Hewitt 2008: 37; Peirce 2010:53; see also Kennedy-Pipe and Mumford 2007; Campbell 2005; Roach 2011). The 2001 Act was subject to legal challenge, and in 2004 the House of Lords ruled in A v Secretary o f State for the Home Department (known as the Belmarsh decision after the prison where detainees were held) that the provisions permitting the indefinite detention of non-nationals were not compatible with the
ECHR, specifically Article 5 (the right to liberty and security) and Article 14 (the right to non-discrimination).77 In striking down the laws, the House of Lords singled out the government’s differential and arbitrary treatment of citizens and non-citizens as the
principal weakness in the government’s case.76 It found that the laws were predicated on the understanding that non-citizens had lesser liberty rights than citizens, with the government failing to demonstrate why, if the detention measures were not necessary for citizens suspected of international terrorism, they were necessary for non-citizen suspects.77
The Belmarsh decision is a notable instance of the judicial protection of individual