Exchanging killers for peace in Afghanistan is wrong — and could have lasting consequences

Taliban prisoners preparing to leave a government prison in Kabul last month.
AFGHANISTAN NATIONAL SECURITY COUNCIL HANDOUT/EPA

Ben Saul, University of Sydney

An Afghan soldier convicted of murdering three Australian soldiers is among six high-value prisoners who have been flown to Qatar ahead of peace talks between the Taliban and Afghan government this weekend.

Hekmatullah has spent seven years in jail after killing the three soldiers he worked with in 2012 — Lance Corporal Stjepan Milosevic, Sapper James Martin and Private Robert Poate. He is one of the last remaining Taliban prisoners.

Both the Taliban and the United States have pressured the Afghan government to release all 5,000 Taliban prisoners it holds as part of their peace deal. In return, the Taliban pledged to release 1,000 members of the Afghan security forces.

Hekmatullah has been flown to Qatar ahead of the peace talks.
Twitter/AAP

The Afghan government was excluded from the original peace deal struck between the US and Taliban in February where the prisoner release was negotiated, but has since agreed to release the prisoners.

For a long time, the Afghan government vowed not to free 600 prisoners it considered too dangerous, including murderers and foreign fighters. Afghan President Ashraf Ghani called them a “danger” to the world.

But last month, an assembly of Afghan elders, community leaders and politicians called a “loya jirga” approved the release of the last 400 Taliban captives and hundreds have been set free.

Delegates at the loya jirga in Kabul last month.
Rahmat Gul/AP

Foreign governments’ objections to prisoner release

The release of prisoners who killed Westerners has been among the most contentious parts of the deal.

The Australian government, and the families of the three murdered Australian soldiers, have strenuously objected to the release of Hekmatullah.

Prime Minister Scott Morrison has raised the issue with US President Donald Trump in recent weeks, and Foreign Minister Marise Payne and Defence Minister Linda Reynolds reiterated this position in a statement today:

The Australian government’s long-standing position is that Hekmatullah should serve a full custodial sentence for the crimes for which he was convicted by an Afghan court, and that he should not be released as part of a prisoner amnesty.

France has similarly objected to the release of those prisoners who murdered its aid workers and soldiers.

The US has not publicly objected to the release of three prisoners who murdered Americans in so-called insider attacks, although it is reportedly exploring the possibility of release under house arrest.

US envoy Zalmay Khalilzad, left, and Mullah Abdul Ghani Baradar, the Taliban’s top political leader, signing the peace deal in February.
Hussein Sayed/AP

The importance of the rules of war

So far, the issue of freeing prisoners in Afghanistan has been largely treated as a political and security issue. There has been less attention given to the equally important question of law, justice and human rights.

It follows a regrettably common view that peace is necessary at any price, even if it means letting suspected or convicted war criminals go free, denying justice to their victims and violating international law by enabling killing with impunity.

It is no surprise that such a deal has been spruiked by Trump, who has pardoned US soldiers accused or convicted of war crimes, despite protests by US military commanders. Trump also this week imposed sanctions on senior officials of the International Criminal Court for investigating alleged US war crimes in Afghanistan.

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The rules of war, or international humanitarian law (as it is otherwise known), take a much more balanced and reasonable approach. These rules are also binding on Afghanistan, the US and Taliban alike.

Hekmatullah’s killing of three Australian soldiers was not a fair fight in the heat of combat between opposing forces under the law of war. It was treacherous and illegal because Hekmatullah was wearing an Afghan army uniform when he killed the Australian soldiers while they were resting at a patrol base in August 2012.

The families of the slain Australian soldiers firmly oppose Hekmatullah’s release.
DAVE HUNT/AAP

Hekmatullah says he was inspired to kill the soldiers after watching a Taliban video purporting to show US soldiers burning a Quran. He was later aided by the Taliban in his escape.

Through these actions, Hekmatullah violated the basic rules set forth by the Statute of the International Criminal Court, specifically

making improper use … of the military insignia and uniform of the enemy … resulting in death or serious personal injury

The law of war also acknowledges the granting of amnesty to ordinary fighters is an appropriate means to promote peace and reconciliation to end a civil war. But it does not permit amnesty for those who violate its basic rules, including those suspected or convicted of war crimes.

All countries have a legal duty to “respect and ensure respect” for international humanitarian law. Releasing prisoners, thus, is not purely a political question for the Afghan government to decide. It is also bound by international law and must respect it.

Australia has a right to “ensure respect” for the law by both Afghanistan and the US. Releasing Hekmatullah would arguably be a violation of international law by Afghanistan, aided by the US.

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Peace without justice can cause long-term problems

The US, Taliban and Afghan government all know this, but are choosing to sacrifice justice for the dream of peace. All sides are exhausted by the two-decade military stalemate and are understandably desperate for a way out.

But numerous conflicts in recent decades — from Latin American to Africa to the Balkans — show that peace without justice is almost always a delusion.

Any immediate gains are usually undermined by the mid- to long-term insecurity that results from giving impunity to killers. It contaminates the integrity and stability of political systems. It undermines the legal system and subordinates the rule of law and human rights to raw politics.

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It also allows victims’ grievances to fester, which is especially dangerous in places like Afghanistan where “blood feuds” stoke the desire for vengeance.

In the case of Afghanistan, most seasoned observers also know that peace with the Taliban may well be a naïve fantasy. Violence has increased, not decreased, since the peace deal.

While it has made some tactical concessions for peace, the Taliban’s ideological commitment to extreme religious rule, and its disdain for democracy and human rights, is unswerving.

The Taliban has played the Americans brilliantly, knowing the US no longer has the appetite for war. Releasing murderers could be all for nothing.

Ben Saul, Professor of International Law, Sydney Centre for International Law, University of Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Refugees need protection from coronavirus too, and must be released

AAP/Dan Peled

Claire Loughnan, University of Melbourne; Anthea Vogl, University of Technology Sydney; Caroline Fleay, Curtin University; Philomena Murray, University of Melbourne, and Sara Dehm, University of Technology Sydney

Pressure is growing to release people from immigration detention, with lawyers from Australia’s Human Rights Law Centre mounting a court case on behalf of a refugee seeking protection from COVID-19. They argue the federal government has a duty of care to refugees, which cannot be met in immigration detention due to the crowded conditions there.

This test case illustrates the urgency of the need to release people from detention.

The forgotten people

The social distancing measures adopted across Australia appear to be halting the spread of the coronavirus in the general community. But the Australian government continues to fail to provide proper protections for many groups who are most at risk. They include Aboriginal and Torres Strait Islander people in remote communities, people in prisons and youth detention centres, and those who are forced to remain in sites of immigration detention.

This leaves them, and the rest of us, at serious risk of infection.

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The British Home Office has begun releasing people from immigration detention to stem a potential escalation of their public health crisis. Some 400 people have been released to date.

In the US, rates of infection in immigration and prison sites have dramatically increased in recent weeks. One prison in Ohio reported 73% of inmates have tested positive to coronavirus.

To stall the spread of infection, several US courts have ordered the release from immigration prisons of people who are at particular risk of COVID-19 infection. One judge found US immigration officials had:

likely exhibited callous indifference to the safety and well-being of the [detained immigrants at risk]. The evidence suggests system-wide inaction that goes beyond a mere ‘difference of medical opinion or negligence’.

The Australian government can no longer ignore calls throughout Australia to take similar action to protect people in detention and the broader community. In February this year, the Commonwealth Ombudsman’s report on monitoring places of detention had already flagged the need for stronger protections for people who have been deprived of their liberty.

The situation in Singapore shows what can happen when measures are not taken to protect everyone. The pandemic escalated there through its rapid spread in migrant worker dormitories. They had been overlooked in Singapore’s “gold standard” response to COVID-19.

Public health experts around the world, including the World Health Organisation, have established that confined sites like detention centres provide ideal conditions for infections to spread rapidly.

The impossibility of social distancing in detention

About 1,400 people are in immigration detention in Australia. This includes Alternative Places of Detention (APODs), where many refugees have been detained for prolonged periods, including in confined hotel settings.

People held in the crowded detention centres and APODs in Australia have highlighted the impossibility of social distancing. They are using daily protests and social media to call for their urgent release into safe accommodation.

There is also widespread concern in the Australian community about the lack of protection being provided to people in immigration detention. Over 1,000 academics, doctors and health professionals signed an open letter, initiated by Academics for Refugees, Doctors for Refugees and Librarians for Refugees, calling for the release of people from onshore and offshore immigration detention.

What are the risks?

Transmission of COVID-19 occurs mainly through respiratory droplets, as well as through contact with skin and other surfaces. It is highly contagious and spreads quickly in closed spaces.

Reports received from inside immigration detention sites indicate staff have adopted limited or no protective measures. Those detained have limited or no access to hand sanitiser.

There are serious risks due to overcrowding and people are often transferred from one immigration detention centre to another. These factors magnify the risks and are in conflict with government guidelines to control the virus.

These concerns also apply to APODs such as hotels. Here refugees are detained in small, confined spaces with limited or no ventilation. These conditions are even more likely to promote the spread of viruses and disease.

COVID-19 infection is a particular threat for those whose health is already compromised or who have underlying medical conditions, as they are at higher risk of developing serious complications. This includes people detained in Australia who have compromised immune systems as a result of inadequate access to medical care over a number of years.

There are also concerns for the health of those held in offshore detention. Refugees and asylum seekers currently in Nauru and Papua New Guinea are particularly vulnerable because of their living arrangements, the limits on their ability to take proactive preventive measures to protect their own health, their status as non-citizens, and their limited access to medical care.

Recent reports indicate a spike in infections in Papua New Guinea. Should an outbreak occur that is beyond the capacity of the country to respond, the impact for refugees living there would be disastrous.

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As most detainees have varying contact with people outside detention, the risk extends to the broader community. Failure to prevent and control the spread of COVID-19 among detainees will not only expose these groups to unacceptable risk, it will inevitably have a detrimental impact on the community at large.

What action is urgently required from the government?

Immediate government action is required to prevent and control the spread of COVID-19 among people forced to remain in immigration detention.

These measures must include:

• immediately using alternatives to detention to provide those who are in immigration detention with appropriate accommodation in the community

• ensuring those who remain in detention are informed in a language they understand about the risks of COVID-19, the availability of testing and measures they can take to prevent the spread of infection

• enforcing best-practice sanitation measures and social distancing in immigration detention to maintain the health and safety of detainees and staff

• applying enhanced testing procedures in places of immigration detention and ensuring all staff are appropriately screened – similar procedures should apply for Nauru and PNG

• ensuring all people on bridging visas have access to appropriate medical care that matches Australian community standards

• ensuring asylum seekers and refugees with a suspected or confirmed case of COVID-19 in Nauru and PNG are assessed and treated in accordance with Australian standards. If necessary, they should be transported to Australia for medical care.

They need the government’s protection as much as the rest of us.

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We thank Mary Anne Kenny, Madeline Gleeson and Angeline Ferdinand for their advice.

Claire Loughnan, Lecturer, School of Social and Political Sciences, University of Melbourne; Anthea Vogl, Senior lecturer, University of Technology Sydney; Caroline Fleay, Associate Professor, Curtin University; Philomena Murray, Professor, School of Social and Political Sciences, University of Melbourne, and Sara Dehm, Lecturer, University of Technology Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Explainer: how will the emergency release of NSW prisoners due to coronavirus work?

AAP/Jono Searle

Thalia Anthony, University of Technology Sydney

The New South Wales government has passed emergency legislation providing the Corrections Commissioner with powers to release some of the state’s 14,034 prisoners.

This legislation was introduced in the wake of the global release of prisoners to cope with the COVID-19 pandemic. Most recently, the United States has begun to release thousands of prisoners across four states.

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Legislation to release prisoners in NSW was drafted amid the growing number of cases of COVID-19 infections in prison populations, including staff. The overcrowding and poor sanitation and health conditions in prisons make them ripe for the rapid spread of disease.

Long Bay jail in Sydney was locked down this week when two prison staff tested positive for COVID-19 and several inmates displayed symptoms. The higher incidence of chronic health conditions among inmates predisposes them to suffer serious and critical outcomes from the virus.

Why is legislation needed?

The NSW government has introduced the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) to address the escalation of COVID-19 cases in the state.

NSW has the highest per capita rate in Australia, with more than 1,000 cases as of March 25. The emergency legislation provides for the release of prisoners. The provision will apply for a minimum of six months and may apply for up to 12 months under regulations.

This emergency provision is concerned with protecting vulnerable inmates and releasing prisoners who pose a low risk to the community. Attorney-General Mark Speakman said the legislation was designed to protect the health of inmates and frontline prison workers as well as the “good order and security” of prisons.

Freeing up prison space through the early release of prisoners will enable the remaining prisoners to be isolated, to prevent or control an outbreak. It also allows the health needs of remaining inmates to be better addressed.

We have seen what happens without this action in prisons overseas: infection spreads rapidly and foments unrest among prisoners. In Italy, prisoner fears that they faced a death sentence because of COVID-19 resulted in riots in 23 Italian prisons and the deaths of 12 prisoners.

Who can be released under the legislation?

The COVID-19 legislation allows for the release of prisoners who belong to a prescribed “class of inmates”. They may be defined according to their health, vulnerability, age, offence, period before the end of the prison term and any other matter as set down in regulations.

Serious offenders are excluded. This not only rules out those specifically mentioned, including prisoners convicted of murder, serious sex offences and terrorism, but also high-level drug and property offenders.

The Corrections Commissioner will determine an individual’s release where it is “reasonably necessary” due to “the risk to public health or to the good order and security of correctional premises”. Community safety and the prisoner’s access to suitable accommodation outside prison are necessary aspects of the decision-making. Other consideration are whether the offender has previously committed a domestic violence offence and the impact of the release on the victims.

Prisoners will be released on parole and subject to standard parole conditions. They will, for example, have to be of good behaviour and not reoffend, as well as any additional conditions determined by the commissioner, including home detention and electronic monitoring.

Does this cover all prisoners?

There are some concerning omissions from this legislation if it is to achieve its objectives of protecting inmates, prison staff and the community.

First, it is not clear whether it will apply to youth detention centres. This vulnerable group requires special protection in this period when they are denied visits from their parents, family and lawyers, have fears about COVID-19 infection and most likely are unaware of their rights to health care.

The legislation also does not refer to remand prisoners, who constitute over one-third of prisoners in NSW. The legislation explicitly refers to parole, rather than determinations on bail.

Administrators must set down regulations to include this group in the prescribed “class of inmates” for release. Otherwise, those most entitled to liberty – who have not been convicted or sentenced – will be left in prison to suffer through the pandemic. The suspension of new jury trials will mean they spend further time in prisons until well after the COVID-19 crisis.

Critically, the legislation is silent on people who are facing a prison sentence or remand order, but not yet in prisons. For those people, there is no legislation urging the courts to consider the coronavirus pandemic in promoting non-prison sentences or allowing bail applications.

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Over the past week, lawyers have rushed to collect evidence on the effect of the pandemic on prisoners to support their clients’ pleas not to be imprisoned. Supreme Courts in Victoria and the ACT have accepted the relevance of COVID-19 in bail applications. But there is a lack of guidance elsewhere on bail and sentencing, increasing the risk of more people being sent into the prison system.

Schedule 1 of the emergency legislation granted controversial powers to the attorney-general to alter the bail laws by regulation during the crisis. The NSW government has indicated it intends to use these powers to deliver changes on bail to prevent more prisoners entering jail on remand. The timing and scope of these changes have not been detailed, but are certainly critical to preventing the pandemic entering our prisons.

Not only would the entry of new inmates add to the burden on prisons, it could also create a devastating situation where unknown carriers of the coronavirus enter the system.

While there are no laws to limit courts ordering imprisonment during the pandemic, Corrections Commissioner Peter Severin could use his discretion to review the release of prisoners at the point of reception. In other words, the process between the court order and physical entry into a prison cell. Regulations should clarify the use of the commissioner’s power at this point to prevent unnecessary entry of new prisoners.

Does it strike the right balance in community protection?

The immediate release of NSW prisoners will protect prisoners from greater exposure to COVID-19, limit the outbreak of the virus in prisons and minimise the spread between prison and the community.

But there is more to be done. The release of less serious offenders should not be based on the pre-pandemic criteria of the risk of the individual. These criteria often discriminate against Indigenous people, those with mental health issues and socio-economically deprived. Rather, it should be based on the health needs of prisoners and the interests of community safety in managing the health risk.

Given that many prisoners have poor health and are serving short prison terms, the broad use of the commissioner’s discretion could result in thousands of prisoners being released from NSW prisons.

Ultimately, the legislation will only work to minimise the worst effects of COVID-19 in prisons if the commissioner exercises his discretion widely to prevent overcrowding and take the load off already scarce health services in prisons.

Thalia Anthony, Professor in Law, University of Technology Sydney

This article is republished from The Conversation under a Creative Commons license. Read the original article.

Government calls for release of costings as Labor unveils trusts crackdown

Bill Shorten says Labor’s targeting of trusts is about delivering a level playing field in tax.
AAP/Sam Mooy

Michelle Grattan, University of Canberra

Labor has taken another step to put tax and fairness at the centre of its policy agenda by proposing a crackdown on discretionary trusts, which it claims would raise A$4.1 billion over the forward estimates and $17.2 billion over a decade.

A Labor government would apply a minimum 30% rate of tax on discretionary tax distributions to beneficiaries over 18 years old. According to the Parliamentary Budget Office, the change will affect 318,000 discretionary trusts.

The policy would not apply to farm, charitable and philanthropic trusts. Also unaffected would be non-discretionary special disability trusts, deceased estates trusts, fixed trusts, cash management unit trusts, fixed unit trusts, and listed and unlisted public unit trusts.

Announcing the crackdown, Opposition Leader Bill Shorten said it was about delivering a level playing field in tax, “so high-income earners can’t opt out of paying income tax”.

“Tradies and retail workers and mechanics and cleaners don’t get to choose how much tax they pay – and neither should anyone else,” he said.

With the government claiming the change would hit small business, Labor insists “small business will continue to enjoy asset protections”.

The trusts policy comes on top of Labor’s commitment to tighten negative gearing and capital gains tax concessions and to reimpose the deficit levy on high-income earners, among other measures.

The opposition has yet to announce what it will do about the already-legislated tax relief – being phased in – for businesses with turnovers of up to $50 million. It is expected a Labor government would want to retain that only for smaller businesses.

The ALP policy document points out that wealthy people are much more likely to have a trust than those with lesser incomes. The average amount in private trusts by the wealthiest 20% of households is more than $123,000, compared with $4,000 for the next quintile.

Discretionary trusts are used by individuals and businesses to reduce their tax by shifting income to those in a lower tax bracket. “This practice of ‘income splitting’ through discretionary trusts is used frequently by wealthy Australians to minimise their tax,” the policy says.

“Income splitting allows high-income Australians to avoid paying the marginal tax rate that should apply to their income level – something ordinary PAYG taxpayers can’t do,” it says.

The policy gives the example of a surgeon, “Sam”, with a non-working wife “Melissa”, and two non-working adult children. The surgeon earns $500,000 from his work income, and pays PAYG tax at the top marginal rate.

In the example, the couple has a discretionary trust which produces $54,000 from their investments. They attribute $18,000 each to the wife and children, who all pay no tax because their incomes are under the tax-free threshold. “This represents a tax saving of $14,460 had the investment income been attributed to just Sam and Melissa in equal proportions, and a tax saving of $25,380 had the investment income instead been part of Sam’s normal PAYG salary.”

The number of discretionary trusts has nearly doubled since the late 1990s to more than 642,000. The increase in non-discretionary trusts – without the same tax minimisation opportunities – has been much lower. In 2014-15, more than $590 billion of assets were in discretionary trusts.

13% of individuals in the lowest-income tax bracket receive distribution from a discretionary trust. This is much greater than for those on higher incomes.

“This indicates that a significant amount of income is being shifted from the wealthiest individuals to those earning little or no other incomes (for example, non-working members of the family such as spouses and young adults in full-time study) to reduce the amount of tax paid,” the policy says.

Labor says the proposed 30% rate “strikes the right balance between ensuring a fair amount of tax is paid on all trust distributions, while also aligning it with the rate for passive investment companies which also face a 30% rate of tax”.

Labor stresses the reforms “will not affect 98% of all individual taxpayers in Australia, with virtually all the revenue raised from people receiving trust distributions who have little or no other work income”.

Asked why farmers were being exempted, Shadow Treasurer Chris Bowen said they had “issues when it comes to lumpy income and various issues relating to agriculture”.

Michael Sukkar, the assistant minister to the treasurer, called for Shorten to release the full Parliamentary Budget Office costing, including the assumptions Labor had used to come up with the revenue being claimed.

“Australians know that Bill Shorten cannot be trusted. This also goes for his latest $17 billion tax-grab that will once again hit small business and their families,” Sukkar said.

https://www.podbean.com/media/player/axx2w-6d8662?from=site&skin=1&share=1&fonts=Helvetica&auto=0&download=0

Michelle Grattan, Professorial Fellow, University of Canberra

This article was originally published on The Conversation. Read the original article.

Wife of jailed American pastor lobbies Iran for his release, says her family has been ‘torn apart’

Iran: Persecution News Update

The link below is to an article reporting on the release of a pastor from jail in Iran.

For more visit:
http://www.bosnewslife.com/29325-breaking-news-iran-releases-pastor-of-largest-pentecostal-church-congregation-remains-closed

Iran: Persecution News Update

The link below is to an article reporting on the release of Ebrahim Firouzi from an Iranian prison.

For more visit:
http://www.mohabatnews.com/index.php?option=com_content&view=article&id=6751:ebrahim-firouzi-temporarily-released-from-prison

Pakistan: Latest Persecution News

The link below is to an article reporting on the release of a Christian facing the death sentence in Pakistan.

For more visit:
http://www.brnow.org/News/April-2013/Pakistani-Christian-freed-after-death-sentence

Iran: Latest Persecution News

The link below is to an article reporting on the release of Christians in Iran.

For more visit:
http://www.bosnewslife.com/27250-breaking-news-iran-frees-church-of-iran-prisoners

India: Persecution News

The link below is to an article that reports on the release of an Indian pastor after 8 years of imprisonment, having been suspected of being a Communist rebel.

For more visit:
http://www.gfa.org/samuel/