December 3, 2018

Hon. Christopher Pyne MP
Minister for Defence
PO Box 6022
House of Representatives
Parliament House
CANBERRA ACT 2600

 

Re: Procedure for vetting Myanmar and other foreign military personnel
 

Dear Minister Pyne,

We are writing to urge you to introduce a law or regulation to require human rights vetting for all foreign military personnel who receive Australian training. We are concerned by statements during Senate Estimates hearings on October 24, 2018 that the Department of Defence does not undertake any vetting procedures in relation to Myanmar military personnel who participate in defence training provided by Australia. In response to questioning by Senator Penny Wong, Secretary of Defence Greg Moriarty said:

At the moment we do not have a vetting procedure. You would be aware, Senator, that on some occasions we engage with a number of countries where there are issues about who participates in training or who might come on an activity. That is subject to a discussion. Sometimes countries change their views about who might or might not participate in particular activities. But at the moment the Department of Defence does not have a vetting procedure in place in relation to our activities with Myanmar.

In August, a United Nations Fact Finding Mission on Myanmar delivered a scathing report detailing crimes against humanity, war crimes, and possible genocide by Myanmar’s security forces against ethnic Rohingya in Rakhine State. The report finds that the actions of the Myanmar military “have so seriously violated international law that any engagement in any form with the Tatmadaw [military], its current leadership, and its businesses, is indefensible.” We welcome the decision of the Foreign Minister Marise Payne to impose targeted financial sanctions and travel bans against five Myanmar military officers for human rights violations committed by units under their command.  But serious human rights abuses committed by the Myanmar military are clearly not limited only to these five personnel.

This issue is also not confined to Myanmar. In many countries where Human Rights Watch works there is a lack of accountability for crimes committed by security forces, including extrajudicial killings, enforced disappearances, and torture. We believe impunity will be addressed only by raising the stakes for committing such crimes, which requires concerted international pressure for abusive personnel to be brought to justice.

We understand that training for the Myanmar military is limited to cooperation in non-combat areas, providing training in relation to humanitarian assistance and disaster relief, peacekeeping and English language training, and that some Australian officials have expressed the view that those soldiers who engaged in abuses are the ones who may require training in international humanitarian law.

But in our view, soldiers and officers who commit or order rape, torture, and summary executions know that it is wrong. They carry out these offenses because they can get away with it. Human rights training can only be effective if combined with buy-in up the military chain of command, and clear measures for accountability.  Instead, we urge you to take steps towards accountability by ensuring a vetting procedure is in place. Training by Australian defence forces bestows legitimacy on those who receive it. The government should be extremely careful not to legitimize anyone who has been involved in human rights violations.

Knowing that Australia plays a vital role in training security forces and helping to promote human rights in Myanmar and many other countries, we ask you to establish and make publicly available a procedure by which appropriate Australian officials are to systematically vet the human rights records of security forces that Australia seeks to train. 

In this regard, we note two United States statutory provisions prohibiting the US government from using funds for assistance to units of foreign security forces where there is credible information implicating that unit in the commission of gross violations of human rights. One of these provisions applies to the State Department and one to the Defense Department; they were made permanent under section 620M of the Foreign Assistance Act of 1961, 22 U.S.C. 2378d and Section 362 of Title 10 of the US Code. When implementing what is commonly called the “Leahy Law” (so-named because Senator Patrick Leahy was primary author) the US government considers torture, extrajudicial killing, enforced disappearance, and rape as gross violations of human rights. We note that the “Leahy Law” bars US assistance and training to foreign military units unless the government has taken steps to remediate, address the abuses, and hold those responsible to account. Examples of remediation include impartial and thorough investigations, credible judicial or administrative adjudications; and appropriate and proportional sentencing.

 

The introduction of Leahy-style laws or vetting measures in Australia would have the following benefits. It would:

  • Act to deter foreign security forces from committing human rights abuses by imposing concrete consequences for those abuses.
  • Help reformers within overseas security forces to promote good systems of accountability in their security forces and to hold perpetrators accountable.
  • Help to get commitments from foreign governments against impunity for abuses and for better monitoring of military justice.
  • Protect and improve Australia’s legitimacy and moral standing in international affairs by ensuring that it does not provide assistance to the worst perpetrators of gross human rights violations abroad.
  • Create a space for active and effective human rights dialogue with countries whose security forces receive aid and assistance.

 

This procedure should:

  • Vet security forces, both police and military, at the individual, unit, and force levels.
  • Require that countries provide complete deployment histories of the individuals and units Australia seeks to train.
  • Consult with civil society groups about the human rights performance of individuals, units, and forces Australia seeks to train before agreeing to provide such training.
  • Require that countries provide information about military police investigations and military tribunal proceedings involving members of the security forces affiliated with the units Australia seeks to train.
  • State the consequences that will result if the vetting procedure outlined above reveals that members or units of the security forces that Australia seeks to train have been credibly accused of past human rights abuse and have not been effectively investigated or prosecuted by local authorities.
  • Make this protocol publicly available. Provide that until credible investigations and appropriate prosecutions are conducted and the results made public, the individual or unit implicated will be ineligible for Australian support.
  • Apply to the Department of Defence, Home Affairs, Foreign Affairs and Trade, the Australian Federal Police and any other departments providing assistance to foreign security forces.

Thank you for your consideration and we look forward to discussing these issues with you and your staff at your convenience. 

 

Sincerely,
 

Elaine Pearson
Australia Director
Human Rights Watch

 

CC: Mr Greg Moriarty, Secretary of the Department of Defence
CC: The Hon. Richard Marles MP, Shadow Minister for Defence