Security vs human rights – lessons from Israel

By Marika Sosnowski

By Marika Sosnowski.

This article is a part of our October-November focus on Institutions – you can access more content from this issue here.

In his first press conference as Immigration Minister, Scott Morrison stated that the government was not in the business of providing “shipping news” to people smugglers and that “tactical” issues would not be canvassed with the media. Mr Morrison has also signalled that the Coalition could pull Australia out of the Refugee Convention if it felt it was in a refugee “emergency”. A few weeks ago he announced that people arriving by boat to Australia would now be labelled “illegal”.

Terminology such as this raises serious concerns regarding the Coalition’s stance on human rights. What is also troubling is that, even though the actual word has not yet been used, the catch cry of “security” is undoubtedly the raison d’être underlying these policies.

Of course, “security” has form in the Australian political arena. It was the rationale behind counter-terrorism legislation enacted after the events of September 11, 2001. It was also used to legitimise the secrecy surrounding Tampa and SIEV X, otherwise known as “A Certain Maritime Incident”. While security is a concern for most nations, including Australia, a careful balance needs to be struck between the security of Australian citizens and interests on the one hand and adherence to human rights and freedoms on the other. Many other nations, including the United States, have used security to justify restrictions on human rights. Still, perhaps no other country has had to deal with this conundrum so repeatedly and has done so with as much innovation as Israel.

In Israel, the security argument is clearly reasonable given the current state of affairs in that part of the world. Unfortunately, the argument itself has almost lost some of its significance because it is used ad nauseam by the State as a way of sanctioning its own actions while simultaneously delegitimising those of others. There are many examples. In the 2002 case of the Public Committee Against Torture v State of Israel which focused on the use of targeted killings, the State argued that the petition was not even justiciable because it would, “lead this Court into the heart of the combat zone”, and “into a discussion of issues which are operational par excellence”.

In this case, as well as numerous others, the Israeli High Court found that proportionality must be considered. While the Court noted that:

The entire targeted killings policy operates in a secret world in which the public eye does not see the dossier of evidence on the basis of which the targets are determined… In at least one case, it is suspected that there was a mistake in identity, and a person with a name similar to the wanted terrorist, who lived in the same village, was killed;

it nonetheless found that in such cases, a balance must be struck between two conflicting concerns – humanitarian considerations versus the security of the state.

Additionally, the security argument has been used time and again to justify settlement building and occupation of areas claimed by Israel in war. One such example is the Israeli government’s suppression of a comprehensive database on the settlements. The information was painstakingly amassed in 2009 but was considered by the defence establishment, led by then Defense Minister Ehud Barak, to be too politically sensitive to publish. Barak steadfastly refused to release the figures, arguing, amongst other things, that publication could endanger state security.

Shortly before the federal election, the now Immigration Minister Scott Morrison said that any decision to release information about asylum-seeker boats bound for Australia under Operation Sovereign Borders would be in the hands of the Defence Department. According to Mr Morrison, the release of information related to the number of asylum-seeker boats bound for Australia, how many people were on board, or their interception, would need to be considered for “operational reasons”. Additionally, both the Treasury and Attorney-General’s departments have recently refused to disclose departmental briefing notes with the rationale that their release could “have a substantial adverse effect on the proper and efficient conduct” of the department.

Operation Sovereign Borders is a key plank in the Coalition government’s policy to stop boat arrivals. It is a military-led operation and there may be operational reasons for information not being made public. However, in its quest for secrecy, the government seems to be risking putting security concerns ahead of basic human rights. It is also debatable that many of its policies, particularly those related to asylum seekers, are motivated not by security but by political self-interest. The language choices of the Coalition in recent times are regrettable and are clearly designed to try to instill a sense of threat and fear into the Australian public in order to act as justification for its initiatives. It is likely that, soon enough, our own High Court will be called upon to perform a similar balancing act to that of the Israeli High Court in the face of such policy decisions that purportedly pit security against human rights.

Marika Sosnowski has taught Middle East politics at Monash, Melbourne and La Trobe Universities. She has written and spoken about the region for numerous publications and for community radio.

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