How can Australia Balance its National Security Concerns with a Human Rights Agenda - Literature review Example

HOW CAN AUSTRALIA BALANCE ITS NATIONAL SECURITY CONCERNS WITH A HUMAN RIGHTS AGENDA? By Student’s Name Code + Name of Course Institution City/State Professor Date Introduction Issues of national security are the number one priority of any developed country. It is difficult for an individual country to enhance its national security without collaborating with other countries. According to Brown (1988), if a state has to be categorized as an international society, it must meet necessary ethical requirements, such as the moral foundation of rights. Australia’s approach to its national security concerns is anchored on consultative and cooperative relationships between the Australian government and its international partners. According to Williams (2003), co-operation among countries is key to fighting terrorism. The government of Australia is always prepared to counter any national security concern that may pose threats either to its citizens, economic assets or non-governmental institutions. Some of the many threats that Australia faces range from cyber crimes, border violations, natural disasters, organized crimes and politically instigated violence. These challenges keep one evolving since as the national government better ways of tackling the threats, terrorists on the other hand find other means of jeopardizing government’s efforts. Since 2001, Australia’s national security has transformed greatly. The government with the help from inter partners has formulated a Classified National Security Capability Plan. This plan has a main objective of providing a single outlook of Australia’s ability to achieve and maintain its national security concern. Australia is a signatory of the United Nations and therefore, it is entitled to uphold and respect human rights. The Australian human rights commission is an independent organ, which oversees that the rights of the people of Australia are respected at all times. Their agenda is based on the activities that the organ does which are based on two key priorities. According to Williams (2002) one of the priorities is the tackling of violence, harassment and bullying at home, school, workplace or in the streets. The second priority as put forward by Henkin (1990) is building an understanding for human rights This research paper shows how Australia balances its national security concerns with the human rights agenda. In order to achieve this, a case study of a situation that happened in Australia is considered in relation to the Australian security concerns. Case study: 2002 Bali Bombings According to Williams (2003), the bombings occurred in 12 October 2002 in Kuta, which is a tourist district in Indonesia. It is considered as the worst terrorist attack both in the history of Indonesia or Australia. The attack claimed the lives of 202 individuals where the majorities were Australian internationals. Before that period, Australia had never been faced with a terrorist attack of such magnitude. After this period, the Australian policy on national security began to change due to the increased threats against Australia and Australians. Discussion The case study identified above helps in showing that Australia is able to balance its national security concerns with a human rights agenda. Prior to the 2002 Bali bombings, which according to Pape (2005), the terrorists used the dying to win strategy, there had been isolated cases of terrorism like the Sydney Hilton bombing, and the Turkish Hilton Bombing. The Australian government at that time did not introduce terrorism-specific laws, which would have seen prosecution of the terrorists involved. Viewing the incident at today’s point of view, it can be seen as if the Australian government did not value the lives of those few people who died in the earlier terrorist events. That is a violation of human rights, which the government did not consider protecting. Thanks to the 2002 Bali bombings in Indonesia and the 11 September attacks in the United States of America that new policies to counter terrorist activities were introduced. Balancing between protecting human rights and the government’s efforts to uphold national security is a daunting task. The research paper looks at how the government tries strike a balance between the two by looking at counter terrorism laws and their impacts on human lives, various balancing approaches and the balancing process. Various Counter-Terrorism Laws and Their Impacts on Human Lives After the Bali bombings, which claimed the lives of many Australians, the Australian government saw the need to tighten their policies on national security. The policies included the need to impose harsh laws that masterminds of such activities would face as a means of sending a warning to the terrorists. The international community through the United Nations also urged nations to take steps in making and passing legislation that would prevent the commission of such crimes. Australia acted to the united nation’s request and came up with many measures, which were contained in several acts of parliament. The two most important facts concerning this context are the Australian Security Intelligence Organisation Legislation Amendment (Terrorism) Act 2002 and the Security Legislation Amendment (Terrorism) Act 2002. These legislatures were passed hastily without due considerations. They violated some human rights since they did not clearly state who a terrorist was and what a terrorism activity entailed. The laws violated human right in many ways. According to Golder (2004), the vague definitions of terrorists’ activities criminalized normal human behaviour. For instance, when there were violent protests by students or workers in industries. Such activities would be treated as if they were terrorist activities hence they violated the people’s freedom of expression. The other way was that the counter-terrorism laws in Australia gave the Australian Security Intelligence Organisation (ASIO) power to detain non-suspects. This was a violation of human right of fair trial. These instances showed that counter-terrorism laws had drastic impacts on the human rights. Do Human Rights Have To Win At All Times? After the Bali bombings, Australia became a signatory of the International Covenant on Civil and Political Rights (ICCPR). According to Ramraj (2005), the act provides that, “in times of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties may take measures derogating from their obligations under the present covenant to the extent strictly required by the exigencies of the situation…” Here, human rights seem to take precedence because the act states that persons should not be discriminated based on sex, language, religion or colour. However, according to Jinks (2003), the act goes on to state that in the event of the war on terrorism, laws on national security can be derogated from the article. In other terms, matters of national security have to take precedence over human rights. Before the Bali bombings, those accused of the terrorist activities were allowed to appeal on cases against them. Later, harsh penalties like death sentences were imposed which prevented them from filling for appeals. A poll showed that 55% of Australians approved the death sentences in the Bali case. The denial to appeal is a direct violation of the rights of the accused of fair trial and hearing. The Indonesian government was infuriated by the decision of the court. They passed legislation that was intended to counter the ruling, but it was deemed unconstitutional by the Indonesian constitutional court. According to Strossen (2003), the scenario shows that there exists a difference between those rights, which can be violated at some circumstances, and those that cannot. The approach of achieving a balance between National Security and Human Rights In the recent past, the Australian human rights commission has been very vocal in pushing the Australian government to strike a balance between the national security concerns and the human rights agenda. After the Bali attacks, the Australian government was deeply concerned on ways, which they were to use to help them bring the perpetrators into justice. It was clear that they had to use the crudest means possible. According to Strauss (2003-2004), “torture” was used to help them extract information from the uncooperative suspects. According to Dershowitz (2003-2004), two main rights were the government’s impediments: right to life and freedom from torture. They passed a law that introduced a torture warrant, which allowed the torturing of terrorist suspects while at the same time protecting their right to life. Humanitarian agencies and scholars who dismissed the act of achieving the balance as a “crude metaphor” heavily criticized the idea (Bronitt 2003). The human rights commission argued that the balancing of the two issues was violating other human rights in favour of others, which automatically create a conflict in society. The judicial body in Australia has been left to weigh between some rights and issues of national security. Some of the rights, which might be violated in such circumstances, include freedom of movement, right to privacy and public health (Singer, 1979). The question that arises from the situation is “What approach should be used to achieve a balance between national security concerns and humans rights?” According to Hocking (2003), one needs to have a deeper understanding of the relationship between the human right agenda in Australia and the national security concerns. Relationship between National Security and Human Rights For a long time, matters of national security have been in ‘conflict’ with human rights since most counter terrorist laws permit the violation of some rights (Robinson, 1997). The laws restrict the enjoyment of the human right for the common good of the Australian community. However, according to Ruddock (2004), the ordinary citizens never seem to understand the reasons for their violations hence in many cases the national security concerns and human rights have been on opposite ends. The question of whether a relationship exists between national security and human rights has raised much controversy. Many scholars have found that a conflict exists between the Australian counter-terrorism laws and respect for human rights, just as Cotler (2001) found. The scholar criticises the idea that the legislatures are meant to undermine human right in favour of counter terrorism laws. According to Ruddock (2004), national security and human rights cannot be considered mutually exclusive at any given situation. This means that neither one of the two is more important than the other. The scholars argue that national security ensures that the individuals’ rights to life are safeguarded. It is therefore true to say that, the two works together and complements each other. In that regard, the Australian attorney general tried to reconcile issues of national security and human rights after the Bali bombings through the overarching principle. The principle according to Murphy (1981-1982) states that protection of human rights should not affect national security and not all security measures derogates human rights. There is therefore, a need to find the best approach to be used to find a balance between national security concerns and human rights. The government is on record for trying to achieve the balance. The process of balancing between National Security and Human Rights Agenda After the Bali bombings, several jurisdictions that followed differed on the balancing process hence it made it hard for future ruling to have a precedence to follow. The reason for the failure not to make a general ruling for all cases was the differences in the security concerns from one instance to the other. However, one thing that can be noted from the rulings is that public interest was a major determinant of the proportion of rights to be infringed. The government of Australia expressly allowed the judiciary to assess the counter terrorism laws passed after the Bali bombings to ensure they complied with rules of natural justice and the constitution of Australia. This act made it easier for balancing to take place due to the non-partisan nature of the courts of law. The court of law considers the subject matter of the terrorism activity and applies the law as reasonably appropriate. Here, the proportionality test is applied. The endeavour to finding the balancing process has it fair share of challenges. One is the confidentiality of the issue of national security. According to Dershowitz (2002), home security concerns are best kept confidential to prevent causing fear and unrest to members of the public. This limits the disclosure of certain information that automatically affects the final ruling by judges. The other limitation is the rapidly changing international security environment. The rapid changes make past judgments irrelevant. It also means that the judiciary has to keep itself updated with the current development, which is a hard task. Regardless of the underlying challenges, the judges should remain non-partisan at all times when making their decisions. Factors to consider when trying achieving a balance between National Security and Human Rights The final part of the discussion focuses on factors that should be taken into consideration when balancing between national security concerns and human rights. The Australian government did the same after the Bali bombings. The factors can or cannot apply to all situations in different parts of the world since the Australian situation was different. The first factor to consider is that not all times call for the derogation of certain human rights. Some right like the right to life is absolute and should never be derogated in favour of a community interest or security. No matter the situation, national security should never take precedence over the life and freedom of a person hence never at one time will the authority’s try to attain a balance between the two. The second factor that requires consideration is balancing between national security and other non-fundamental right. If the above instance happens, the decision maker should justify the reason for derogation of the human rights beyond reasonable doubts. The action to be undertaken should take into consideration the political, social and economic effects of the security concern before deciding to derogate the human rights or not. Thirdly, it should consider whether one could opt for the national security concern without derogating other peoples’ rights. In case there is an option to do that, then the decision should be taken. This is called the concept of proportionality that requires one to evaluate the possibility of other causes of actions. Lastly, when lawyers or judges are implementing the balancing approach, they should do it as if they are weighing the goal of national security and the importance of human rights. The interest of the majority should be taken into consideration. In the case of the Bali bombings, the interests of the majority took precedence over the rights and freedoms of the suspects. Conclusion The entire discussion prioritizes the human rights over community interest. Individual rights shall be respected , upheld and protected at all times. From the Bali bombings, the government of Australia realized that the safety of its citizens was their number one priority and had to do anything within their powers to make the citizens safe. Thanks to the United Nations and their international partners, they were able to pass laws and policies that helped to counter terrorism activities. To date, striking a balance between national security concerns has been a difficult task but the government of Australia through its reformed judiciary has been able to find a way through. The Bali bombings were a wake-up call where the government learns from its previous mistakes. It is correct to conclude that Australia has managed to balance its national security concerns with its human rights agenda. The judiciary in collaboration with the government should work together to ensure that the same balance is maintained for years to come. 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