Transferring Responsibility?: The Influence and Interpretation of International Law in Australia’s Approach to Afghan Detainees

Abstract

This article examines the influence and interpretation of international law in Australia’s policy and conduct regarding captured individuals during the recent Afghanistan Conflict. By critically analysing declassified government documents, Parliamentary statements, and original interview data with former Foreign Minister and Defence Minister Stephen Smith, I advance a two-pronged argument. First, contrary to what other sombre studies of the anti-torture norm might predict, Australia’s understanding of fundamental international legal rules pertaining to captured individuals in armed conflict – including the humane treatment principle and the prohibition on torture – helped regulate its policies and actions during the Afghan war. By regulate, the article posits that Australia’s policies and behaviour were governed or controlled in part by a felt sense of legal obligation among some key policy-makers. Second, like its allies Britain and Canada, Australia claimed it did not formally detain individuals during the initial years of the Afghanistan Conflict, even though it appears to have factually captured and transferred some people to United States (US) and Afghan authorities. As the war dragged on, and Australia’s troop contributions increased and local hostilities worsened, Australia – again like its allies – relied on detainee agreements and changed its conduct to try to protect captured individuals and transferees from abuse. Despite such agreements and changes, critics contend that transferred captives faced a significant risk of torture in Afghan jails, particularly those run by the country’s intelligence agency. This suggests that state and non-state views of what the prohibition on transferring to possible torture requires in practice are less settled than related shared understandings of other fundamental prisoner protections in international law and armed conflict.