Tamil asylum seekers being brought to mainland

(Transcript from SBS World News Radio)

 

The federal government is pre-empting a High Court challenge against the government’s decision to hold 157 Tamil asylum seekers at sea for almost a month.

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Immigration Minister Scott Morrison says the group is being transferred to the Australian mainland on a temporary basis until India can assess if it’s possible to take them back.

 

The 157 men, women and children are being transferred to the Cocos Islands, and from there it’s believed they will be flown to the Curtin detention centre in remote Western Australia.

 

Amanda Cavill reports.

 

(Click on the audio tab above to hear the full report)

 

The boat carrying the group left India late last month and was intercepted by an Australian vessel early this month.

 

Since then the asylum seekers have been held on board the Customs ship at an unknown location, while their legal status is determined.

 

Lawyers for the Sri Lankan asylum seekers argue the group was within Australian territorial waters when their vessel was intercepted 27 kilometres from Christmas Island.

 

They say the decision to deatain them on the high seas did not fall within the bounds of legal reasonableness.

 

Immigration Minister Scott Morrison says none of these people will be resettled in Australia.

 

“These are matters to be determined they won’t remain in Australia. They will not be resettled in Australia. That is the policy of the Australian Government and there is no change to our policy on any front and more importantly there is no change to our resolve.”

 

Mr Morrison denies the decision to bring them to the mainland was influenced by action in the High Court, which is due to hear the asylum seekers’ case next month.

 

It is uncertain just what effect the Minister’s announcement will have on the High Court challenge.

 

But the Greens’ immigration spokeswoman Sarah Hanson Young says the court case must go ahead.

 

“Yes it should because this is really important. We can’t be seen, we can’t see a situation where the Australian government acts outside our international obligations with such callous disregard for the welfare of individuals and that’s what we’ve seen for the last month.”

 

Mr Morrison has just returned from India, where he held meetings with ministers in New Delhi about the fate of the group.

 

He says the group will be held until Indian consular officials have had the opportunity to speak to them.

 

Scott Morrison says India has agreed to take back any of its citizens and will consider taking the Sri Lankan nationals who had residency in India.

 

“The Minister for Home Affairs has confirmed to the Australian Government that in addition to India’s standing policy of receiving returns of any Indian citizens, he indicated to me at our meeting that they will also consider the return of non-Indian citizen residents who may be Sri Lankan nationals. This is a significant and generous extension of Indian Government policy on these matters. And we greatly appreciate this consideration and the cooperation that has been extended to the Australian Government.”

 

Mr Morrison says the government will to continue to meet its undertakings to the High Court.

 

He says he is in regular contact with the UN refugee agency, insisting Australia is still complying with its international obligations.

 

 

 

 

Worlds fastest snail crowned at annual titles

(Transcript from SBS World News Radio)

 

The world’s fastest snail has been crowned at the 2014 World Snail Racing Championship in eastern England.

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The event attracts gastropod fanatics from across Europe, to decide the fastest of one of the globe’s slowest creatures.

 

Abby Dinham reports.

 

(Click on the audio tab above to hear the full report)

 

Never has the saying ‘slow and steady wins the race’ been more true than in this event.

 

For more than 25 years the World Snail Racing Championships have been held in the sleepy English village of Congham in Norfolk, attracting people from across Europe.

 

Competitiors – garden snails only – are placed inside a small red circle on a white cloth draped across a table.

 

On the starting mark, racers move towards an outer ring.

 

The first to reach the perimeter is crowned the winner.

 

(Cheering, then…) “That’s a hell of a good looking snail isn’t it!”

 

150 snails were entered in this year’s championships, each competing in a series of knock-out rounds, before a final selection is chosen for the penultimate race.

 

Event organiser Neil Riseborough says some previous champions had returned to try and reclaim the title.

 

“I think people love snail racing because it doesn’t cost a penny. You can race a snail and end up being a world champion at the end of the day and how exciting is that?”

 

The average garden snail lives between two to three years, allowing competitors only a short career.

 

The title event takes place on a specially embroidered table cloth, which is regularly doused with water to help facilitate the best racing conditions.

 

One racing snail owner from Germany says a meticulous pre-race diet is the key to success.

 

“Well, I think, really, diet is everything, so I raised it on lots of salad. And lots of water, of course. You have to get hydrated for the race. Also, he got a good rest after arriving in England to adjust to the time difference, so I think it’s very fit.”

 

But it was a local who took out the title.

 

The winner – called ‘Wells’ – crossed the line in three minutes and 19 seconds, a somewhat slow time for the event.

 

Judges say the racers were hampered by humid conditions.

 

The next world championships will be held on July 18, 2015.

 

It’s not yet clear if Wells will return to defend the title.

 

 

Ukraine forces take another strategic city

Ukrainian troops have retaken the strategically-important city of Lysychansk in eastern Ukraine, as they press on with their offensive to stamp out a pro-Russian rebellion.

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“Ukrainian forces have raised the flag over the town council in Lysychansk,” the presidency said in a statement late on Thursday.

Operations were continuing to drive the remaining insurgents out of the town, the statement said.

Lysychansk – a city of around 105,000 about 90 kilometres northwest of the rebel stronghold of Lugansk – was seized by separatists in early April at the start of a bloody insurgency that has now claimed the lives of 1000 people, including the nearly 300 on board downed Malaysia Airlines flight MH17.

The government offensive against the rebels has made significant progress since rebels unexpectedly fled a string of key towns earlier this month.

Government forces say they are now closing in on the major cities of Lugansk and Donetsk, where the bulk of the insurgent fighters have dug in and pledged to fight to the death.

Meanwhile President Petro Poroshenko asked parliament to pass a vote of confidence in the government on Friday after the shock resignation of premier Arseniy Yatsenyuk piled political uncertainty on to the crisis wracking the country.

“I hope that the strong emotions will calm down and be trumped by cold reason and a sense of responsibility and that the entire Ukrainian cabinet will continue its work,” Poroshenko said in a statement released late on Thursday.

Yatsenyuk quit in protest Thursday after the ruling European Choice coalition collapsed following the withdrawal of several parties, a move that paved the way for long-awaited parliamentary polls to be announced.

Ukraine’s cabinet on Friday elevated Deputy Prime Minister Volodymyr Groysman – who has been co-ordinating Kiev’s response to the downing of Malaysian flight MH17 in east Ukraine – to the post of acting premier.

Pro-Western Yatsenyuk – who helped steer the country through upheaval since the ouster of Kremlin-backed leader Viktor Yanukovych in February – lashed out at the decision to pull the plug on the coalition as Kiev is struggling to end a bloody separatist insurrection tearing apart the east.

The break up of the parliamentary majority gives Poroshenko – who was elected in May – the right over the next month to announce a fresh parliamentary election, which has been on the cards since Yanukovych’s toppling.

Achieving elusive justice for flight MH17 victims will be a challenge

By Lorraine Finlay, Murdoch University

Addressing the United Nations Security Council, Australian foreign minister Julie Bishop condemned the downing of Malaysia Airlines flight MH17 as “barbaric” and “an absolute outrage”.

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She demanded justice, saying:

We must have justice. We owe it to the victims and their families to determine what happened and who was responsible.

When 298 innocent civilians are killed in such tragic circumstances what exactly do we mean when we call for justice? What are the chances of justice being done in this case? Can international law realistically deliver a measure of justice that will provide any level of comfort or closure to the grieving families and friends?

Ordinarily, calls for justice rely on demands to investigate, prosecute and punish those responsible. This is reflected in the resolution that the Security Council adopted. It emphasised the importance of a “full, thorough and independent international investigation” and demanded that those responsible be held to account.

Unfortunately, both history and recent events suggest that justice under international law is elusive and difficult to deliver. Several avenues may be pursued. None is swift or straightforward.

Obstacles to an ICC prosecution

 

An ICC prosecution is problematic despite Ukrainian prime minister Arseniy Yatsenyuk’s claim of an ‘international crime’ EPA/Andrew Kravchenko

The then-Ukrainian prime minister, Arseniy Yatsenyuk, initially suggested that this is an international crime that the International Criminal Court (ICC) should investigate. This is unlikely to occur, for a number of reasons.

Initial jurisdictional hurdles include the fact that neither Ukraine or Russia is a party to the ICC Rome Statute. Russia could also veto any attempt by the UN Security Council to refer the matter.

The ICC itself is limited to considering specific offences. While some have characterised the shooting down of MH17 as an act of terrorism, terrorism is not an offence within the jurisdiction of the ICC.

It has also been suggested that this may be either a crime against humanity or war crime. There are, however, difficulties with both of these characterisations given intelligence reports suggesting pro-Russian separatists mistook MH17 for a Ukrainian military transport plane.

Prosecutors would then struggle to show the act was part of a systematic attack directed against a civilian population or that a civilian object had been intentionally targeted. They would need instead to rely on recklessness in verifying a military target to establish a war crime.

The most significant challenges facing any ICC prosecution are practical. Finding the necessary evidence when the integrity of the crash site was so comprehensively compromised in the days after the disaster is going to be enormously difficult.

The ICC will also rely on the cooperation of individual states, notably Russia, to ensure that the responsible individuals and relevant evidence are handed over. The releases of images and videos reportedly showing the MH17 missile launcher in the area and then being moved into Russia is concerning in this respect.

Video posted by the Ukranian Ministry for Interior claiming to show the Buk missile launcher being driven towards Russia.

Russia did ultimately vote in favour of the Security Council resolution, which included a demand that all states cooperate fully with efforts to establish accountability. But Russian cooperation can certainly not be assumed.

Prospects for a domestic court trial

It is more likely that any criminal prosecution will take place in a domestic court. This has the advantage of likely being a faster option than the notoriously slow ICC processes.

The most obvious state with jurisdiction is Ukraine, which has a clear territorial connection. There are, however, difficulties, given both the ongoing conflict in Ukraine and the political reality that Russia will be less likely to cooperate with a prosecution that it would see as being inherently biased.

Any other state would first need to establish jurisdiction. One possibility is the Netherlands, which lost 193 citizens in the tragedy. The Netherlands’ International Crimes Act allows Dutch criminal law to be applied to war crimes or crimes against humanity committed abroad against Dutch nationals. Dutch public prosecutors have formally opened an investigation of the crash, which is the first step towards a domestic prosecution.

Any criminal prosecution, whether international or domestic, will face the practical challenges outlined above. That is, the initial interference with the crime scene and the likely need for Russian cooperation present significant hurdles. This will not be a straightforward prosecution wherever it occurs.

Can a state be held responsible?

A further possibility is that a state may be held responsible, as opposed to individuals. This would allow a case to be started before the International Court of Justice (ICJ).

There is evidence of strong links between Russia and the separatists who appear to be responsible for shooting down MH17. This includes Russia providing weapons and training throughout the Ukrainian conflict.

The White House deputy national security adviser Ben Rhodes recently acknowledged, however, that a “direct link” between Russia and the missile launch had not been established. In particular, it isn’t clear whether any Russian operatives were present at the launch. Nor is it clear whether Russia provided either the weapons or training to those who used them.

To attribute the conduct of individuals to a state, that state needs either to exercise effective control over the conduct, or to subsequently acknowledge and adopt it as its own.

It is difficult to argue that Russia has “acknowledged and adopted” the conduct of the separatists, particularly in light of its support of the UN Security Council resolution. The “effective control test” will also be difficult to satisfy. A high degree of control over the specific operation is required to be demonstrated at international law.

The acknowledged lack of a “direct link” at the present time suggests that current evidence is not sufficient to establish this case.

Can justice be delivered?

Clearly, considerable hurdles must be overcome before any individual or state will be held legally responsible for the deaths of the 298 passengers and crew aboard MH17. The most promising option would appear to be a domestic prosecution by a country like the Netherlands.

However, the contamination of the crime scene has made any prosecution significantly more difficult. Russian co-operation will likely be essential to any successful prosecution.

Justice under international law is often a frustratingly elusive concept. The UN Security Council resolution is a positive step, which signals an international commitment to seek accountability in this case, but there is still a long way to go before justice is delivered.

Lorraine Finlay does not work for, consult to, own shares in or receive funding from any company or organisation that would benefit from this article, and has no relevant affiliations.

Asylum seekers head to Australia

The arrival of 157 asylum seekers held on a Customs ship for nearly a month to the Australian mainland will end the federal government’s six-month drought of boat arrivals.

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But the government remains adamant it is not a sign its border protection policy is weakening.

The asylum seekers are reportedly set to travel from Cocos Island to Curtin detention centre in Western Australia within days.

They have been detained at sea in an undisclosed location since their vessel was intercepted 27km from Christmas Island on July 7.

Immigration Minister Scott Morrison on Friday would not confirm the transfer details but said the group will be moved to Australia to undergo identity checks from Indian consular officials.

India has agreed to take back any of its citizens and will consider taking Sri Lankan nationals who are Indian non-citizen residents.

Mr Morrison remained steadfast when questioned how the public should react to the development given his promise to stop the boats.

The government was resolved as ever to get the results it sought, he said.

Prime Minister Tony Abbott said this was the first boat that had come so close to Australia in the past six or seven months, proving the need for “permanent vigilance” to secure its borders.

He expected many of those detained would return home.

“Even if you get here, you won’t stay here,” he told reporters in Canberra.

The decision pre-empts the hearing of a High Court challenge against the government’s decision to hold the asylum seekers at sea, due the week after next.

Lawyers for the group say it’s still unclear what their clients’ legal rights will be once they reach the mainland.

They have yet to inform the asylum seekers of their options under Australian law and are waiting for the government to advise the High Court on the details of the transfer.

“This is a short-term reprieve, but welcome for the time being,” Human Rights Law Centre executive director Hugh de Kretser told AAP.

Labor and the Australian Greens accused Mr Morrison of losing control of his portfolio, saying the decision to bring the group to the mainland should have been made earlier.

“A few weeks ago, Scott Morrison refused to even confirm these 157 people existed,” Labor’s acting immigration spokeswoman Michelle Rowland told AAP.

“His border protection policy is in a complete shambles – his job is now being done by the High Court.”