ADF deploys legal fiction in Iraq & Afghanistan

The Australian Defence Force (ADF) systematically tried to avoid its
legal obligations regarding the detention of prisoners of war in Iraq and
Afghanistan, according to documents obtained by the Public Interest Advocacy
Centre (PIAC).

PIAC has used freedom of information laws to obtain previously
classified documents. They reveal the ADF has tried to avoid its
responsibilities under the Geneva Conventions.

‘The documents published today reveal a failure of leadership within the

‘Australia committed to abide by the Geneva Conventions and international
law, and then set about trying to avoid those commitments,’ said PIAC chief
executive officer, Edward Santow (pictured).

‘Under international law, a country that
captures prisoners of war must ensure their treatment complies with the Geneva

‘But in Afghanistan and Iraq, the ADF
leadership instructed Australian troops to have one US solider with them
whenever they captured suspected combatants.’

‘The ADF argued that just because one US
soldier was present, the US, not Australia, had made the capture. Under this
legal fiction, the ADF asserted that it had no responsibility to ensure the
humane treatment of the detainees.’

‘This argument is inconsistent with
international law and common sense,’ Santow said.

‘The death of a 43-year-old Iranian man,
Tanik Mahmud, highlights the dangers of this policy. Mr Mahmud was captured and
detained by 20 Australian soldiers, with just one US serviceman present. He was
then transferred to UK and US custody.’

‘Australia tried to wipe its hands of its
obligations to him. While initial reports advised he died of a heart attack,
credible allegations have emerged that he was in fact beaten to death in UK
custody,’ Santow said.

‘PIAC wants a full, independent inquiry
into this incident, and the ADF detention practices.’

Related coverage:

Media contactDominic O’Grady, PIAC Media and Communications Officer.

Ph: 02 8898 6532 or 0400 110 169.

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