Habib case raises complex issues

as posted here

VINCENT MORELLO
September 14, 2009 - 7:19PM
Civil action brought by former Guantanamo Bay detainee Mamdouh Habib against the Australian government will require the Federal Court to pit national sovereignty against human rights to determine if his torture case should go ahead.

Mr Habib is suing the government over allegations that Australian authorities were complicit and sometimes present during torture he allegedly endured while detained in Pakistan, Afghanistan and Guantanamo Bay.

Commonwealth solicitor-general Stephen Gageler, SC, argued before a full bench of the Federal Court in Sydney on Monday that Mr Habib's claims could not be heard by an Australian court because of the "act of state" doctrine.

The principle, acknowledged in previous court cases in Australia, states that a nation is sovereign and its domestic actions may not be questioned in the courts of other nations.

The government is arguing that Mr Habib's case should be struck out on the basis of this doctrine.

In its submission to the Federal Court on Monday, the government referred to a ruling by the US Supreme Court case that "rejects the notion that the act of state doctrine is inapplicable merely because international law (such as human rights) has been violated".

The commonwealth also referred to a position of the Australian, Swiss and UK governments that "the creation of a federal cause of action against foreign lands would interfere fundamentally with other nations' sovereignty" and would "complicate international law and local efforts to halt and punish human rights violations".

Mr Habib's claims that Australian Federal Police and ASIO officers were complicit and sometimes present during his torture were not enough to usurp the act of state doctrine, the government submitted.

"The fact that the alleged conduct constitutes a serious violation of international law is not sufficient to give rise to an exception to the doctrine," its submission states.

Mr Habib's legal team also presented a submission to the Federal Court, arguing the application of the doctrine in Australia was unclear in relation to human rights violations and "may be subject to an exception in respect to international law".

"...it is sufficient to say that the doctrine does not apply in certain circumstances," their submission reads.

A "grave" breach of international human rights laws may be enough to supplant the doctrine, it says.

"However, a violation of this kind identified in these proceedings is more than sufficient," it adds.

Court documents show Mr Habib was first detained in Pakistan in October 2001, and was moved to Egypt a month later, to Afghanistan in 2002 and finally to Guantanamo Bay in May 2002 where he was held as a terror suspect until his release in January 2005.

His legal team will conclude its submission before the Federal Court on Tuesday, when it is expected the bench will reserve its judgment to a later date.

as posted here