Update: Subsequent to writing this post the Solomon Start has published an article which confirms much of what Blak and Black has been arguing concerning RAMSI’s role in the Solomon Islands and the 2006 Honiara riots.
The main purpose of Blak and Black is to attempt to bring to the world’s attention the hypocrisy and racism that inform contemporary Australian society. While Australia’s treatment of its Aboriginal and Torres Strait Islander (“ATSI”) population affords ample testimony to the white supremacist attitudes of Australia’s so-called political, intellectual and cultural elites, a fact that the world community seems happy to ignore as being nothing more than an Australian ‘domestic’ issue. Australia’s neo-colonial and racist attitudes to the indigenous peoples of the Pacific cannot continue to be ignored by a world community that claims to aspire to an international society in which racism, bigotry and white supremacist attitudes have no place. It is with this in mind that I offer the following analysis of Australia’s racism and white supremacist attitudes to the indigenous people of the Solomon Islands. As stated previously, my next post will be about institutional racism and systemic bias in Australia’s criminal justice system, something the indigenous peoples of the Pacific can look forward to unless they stand up to Australia exporting its systemic racism and corruption to them under the pretext of bringing the ‘rule of law’ to the developing nations of the Pacific.
In international politics, gunboat diplomacy refers to the pursuit of foreign policy objectives with the aid of conspicuous displays of military power — implying or constituting a direct threat of warfare, should terms not be agreeable to the superior force.
The term comes from the period of colonial imperialism where the European powers would intimidate other states into granting trade or other concessions (unequal treaties) through a demonstration of their superior military power. A country negotiating with a European power would notice that a warship or fleet of ships had appeared off its coast. The mere sight of such power almost always had a considerable effect and it was rarely necessary for such boats to use other measures, such as demonstrations of cannon fire.
Gunboat diplomacy is considered a form of hegemony. As the United States became a military power in the first decade of the 20th century, the Rooseveltian version of gunboat diplomacy, ‘big stick diplomacy’, was partially superseded by ‘dollar diplomacy’, replacing the big stick with the “juicy carrot” of American private investment. It is this mixture of ‘big stick diplomacy’ combined with ‘dollar diplomacy’ that a racist and white supremacist Australia is using to cajole the increasingly nominally sovereign states of the Pacific into toeing Canberra’s line.
Australia has always maintained the argument that its role in the Solomon Islands is about peace keeping and has nothing to do with power projection or attempts to influence opinion in a foreign capital, but is purely altruistic in nature and is aimed at restoring peace, order and good government to the people of the Solomon Islands. So what is the reality?
The Facilitation Act 2003
The Facilitation Act (“FA”) is an Agreement between the Solomon Islands, Australia, New Zealand, Fiji, Papua New Guinea, Samoa and Tonga and was signed on the 24th May 2003. The purpose of the FA was to pave the way for the deployment, by the signatories to the FA, of armed forces, police and other personal to the Solomon Islands. The FA facilitated the formulation of the Regional Assistance Mission to Solomon Islands (RAMSI).
On 4th July 2003, Sir John Laply the then Governor-General of the Solomon Islands made a formal request for assistance under the provisions of the FA. This then led to the passing of the Facilitation of International Assistance Act 2003 (“FIAA”) (No.1 of 2003). The Agreement signed on the 24th May 2003 was incorporated as part of the Act.
The FIAA sets out the mechanisms under which RAMSI is to operate in the Solomon Islands. Section 6 of the FA gives RAMSI the same powers granted to the Solomon Islands Police under the Police Act. However, unlike the Solomon Islands Police, Section 17 of the FIAA grants immunity from legal proceedings for RAMSI personnel along with tax exempt status.
The issues of immunity from prosecution and tax exempt status bring into focus the concept of unequal treaties and national sovereignty. National sovereignty has at its heart accountability.
One of the first national sovereignty issues we encounter when considering the role of RAMSI in the Solomon Islands is that of national or sovereign accountability. Under the FIAA the Participating Police Force (“PPF”) is accountable to the Deputy Police Commissioner who is a senior Australian Police Officer. The FIAA is silent on whether the Deputy Police Commissioner should resign his/her Australian commission before acceding to the post of Deputy Police Commissioner of the Solomon Islands. If the Deputy Police Commissioner is allowed to accede to that post without first resigning their Australian commission, a parallel line of accountability is created within a sovereign state. Is this constitutionally sound?
This parallel line of accountability in turn gives rise to the question of immunity. Under the Solomon Islands Constitution, an aggrieved party may apply to the High Court for redress for the contravention of his/her fundamental rights. Section 18 (1) provides:
…if any person alleges that any of the [human rights provisions] of this Constitution has been, is being or is likely to be contravened in relation to him for, in the case of a person who is detained, if any other person alleges such contravention in relation to the detained then, without prejudice to any other action with respect to the same matter which is lawfully available, that person (or that other person) may apply to the High Court for redress.
If a situation arises where a member of RAMSI is alleged to have violated the fundamental rights of a citizen of the Solomon Islands, the courts would be powerless to act unless RAMSI waives its immunity, which in turn raises the question: is the immunity provision in the FIAA consistent with the Solomon Islands Constitution?
Together with the immunity and tax exempt provisions granted to RAMSI under the FIAA it is worth giving some thought to what the legal personality of RAMSI actually is. As discussed in Blak and Black’s article The wisdom of Miles Jordana: Hidden in plain sight, there has been no formal United Nations Security Council endorsement of RAMSI, beyond a media statement in 2003 from the President of the UN Security Council at the time of the initial intervention.
UN Press release SC/7853, 26 August 2003, Press Statement on Solomon Islands by Security Council President Fayssal Mekdad (Syria), reads in part:
“The members of the Security Council welcome warmly the collective action of the countries of the Pacific Islands Forum to support the people of the Solomon Islands in their quest for the restoration of law and order and stability. The members of the Security Council welcome the leadership exerted by Australia and New Zealand, in close partnership with other countries in the region in this regard. They hope that this important regional initiative will quickly lead to the restoration of normalcy and national harmony in the Solomon Islands and that it will facilitate a peace-building process and economic recovery. They encourage all parties to cooperate in promoting these objectives and to renounce the use of armed force and violence to settle their differences.”
The reality is that RAMSI has no legal personality. In the event that Australian RAMSI personnel are accused of violating the fundamental rights of a citizen of the Solomon Islands it is likely, because of RAMSI’s lack of legal personality, that Australia would plead sovereign immunity under international law. These fundamental legal issues were first raised by Mr Julian Moti QC in his capacity as Attorney-General of the Solomon Islands and eventually became a point of contention between Australia and the Sogavare Government. Ultimately Moti’s views on the constitutional irregularities of RAMSI led to the Australian orchestrated downfall of the Sogavare Government and Moti’s illegal rendition to Australia on what can only be described as trumped-up child sex tourism charges.
The reason Moti’s views have become relevant again is that following the 2006 riots in Honiara RAMSI police arrested and charged two members of the SI Parliament, Charles Dausabea and Nelson Ne’e, both of whom stood trial on charges alleging that they orchestrated the riots in April 2006. Former SI Foreign Minister Alex Bartlett (who had a large number of charges against him) also stood trial. This issues that ultimately lead to the 2006 riots have been more fully explored in my article AFP accused of fabricating evidence, yet again!
During the trial of Bartlett, Dausabea and Ne’e, the Solomon Islands High Court heard about written agreements that the then Solomon Islands Police Commissioner, Shane Castles (an Australian Federal Police officer on secondment to the Solomon Islands Police), made with two crucial prosecution witnesses. Pursuant to these agreements the witnesses received significant financial and other assistance on the condition they kept the agreements secret and gave evidence in Court only in accordance with their police statements. The agreements were in a form that violated judicial rulings on such matters and attempts to keep them secret clearly violated Solomon Islands law governing disclosure of relevant information to defence lawyers.
Following their acquittal in the criminal cases brought by RAMSI, Bartlett, Dausabea and Ne’e commenced civil actions against the Solomon Islands Government for malicious prosecution. As part of that process lawyers representing the three applicants sought to subpoena records from RAMSI and the Australian Government regarding the 2006 riots. As predicted by Moti when he was Attorney-General for the Solomon Islands, as soon as Australia and RAMSI were called to account by the Solomon Islands High Court for their actions in the Solomon Islands, the Australian Government announced that it was invoking its right to immunity from prosecution pursuant to the provisions found in section 17 of the FIAA.
The implications for the ‘rule of law’ and an individual’s right to justice in the Solomon Islands following Australian invocation of the immunity provisions of the FIAA are obvious. In response to Australia’s invocation of the immunity provisions of the FIAA, the Lawyer representing Bartlett, Dausabea and Ne’e, Mr Charles Ashley made an application in the Solomon Islands High Court on 14th October challenging the constitutional validity of the FIAA.
According to documents filed in the Solomon Islands High Court the applicants are seeking the following reliefs against the Australian government as the first defendant and the Special Coordinator of RAMSI as the second defendant:
• The then Police Commissioner Shane Castles was subjected to the direction of the Australian Government and RAMSI and not the Solomon Islands Government which was a breach of subsection (5) of 43 of the Solomon Islands Constitution.
• A declaration that in breaching subsection (5) of section 43, the Australian Government or the Special Coordinator of RAMSI are not entitled to any claim of immunity under the provisions of the Facilitation Act of 2003; and
• A finding that actions by the Australian government and Special Coordinator of RAMSI not to disclose documents to the High Court is in breach of the Claimants right to a fair hearing as provided for under subsection (8) of section 10 of the Solomon Islands Constitution; and
• An order directing the defendants to release the required documents relating to the April Riots to the incumbent Police Commissioner; and
• A declaration by the Facilitation Act does not absolve the Australian Government and RAMSI from liability to pay compensation for contravention of fundamental rights and freedoms of individuals under Chapter 2 of the Constitution;
• A finding that the arrest, detention and prosecution of the three MPs in connection with the riots has breached Claimants rights and freedoms;
• An order damages must be paid by the defendants for breaching the Claimants fundamental rights and freedoms under Chapter 2 of the Constitution; and
• Findings and recommendations of the 2006 April Riots Commission of Inquiry against the defendants must be accepted;
• An order for compensation to be assessed if not agreed
• An order for costs on an indemnity basis; and
• Any further or other orders the court deems fair and just.
As RAMSI lacks a legal personality, it is likely that Australia will plead sovereign immunity at international law. If this happens the wrong parties will be without any form of legal redress for the wrongs inflicted on them by the Australian Government, the Australian Federal Police and RAMSI. How is this consistent with Australia’s altruistic claim that its sole purpose for being in the Solomon Islands is to bring the ‘rule of law’ to one of its struggling neighbours? To my mind, the actions of Australia to date in the Solomon Islands reek of nothing more than the neo-colonial aspirations of an arrogant, white supremacist, neo-colonial, third rate power.
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