Heavily redacted documents produced in accordance with Freedom of Information laws appear to imply that the Australian government has full knowledge of current and future operations taking place at Pine Gap and that it is given the opportunity to approve or deny proposed future conduct carried out at the base. This may have serious ramifications for Australia, a signatory to the Rome Statute, in any future proceedings in the International Criminal Court.
I recently issued a Freedom of Information request for copies of advices, cables, directives, emails and policies confirming the domestic or international laws which apply to defence personnel working on US drone missions from the Australian-American defence facility at Pine Gap from 1 January 2014 to date, which turned up some interesting material.
A ‘Joint Facilities and Full Knowledge and Concurrence Question Time Brief’ dated 23 May 2014 for the House of Representatives counsels:
‘If asked: What is ‘full knowledge and concurrence’?
Full knowledge and concurrence is an expression of Australian sovereignty
It is a reflection of the Australian government’s fundamental right to know and approve or deny the activities that foreign governments propose to conduct in, through or from Australian territory or national assets’
The words ‘approve or deny’ appear in only one further Question Time Brief (dated 7 March 2016) and are omitted from subsequent briefs dated 4 October 2016, 15 November 2016, 16 January 2017, 12 April 2017 and 26 July 2017. One wonders whether the omission of the words from briefs prepared for the lower house – the debates of which are televised – are a calculated attempt to contain public discussion and scrutiny about the matter, particularly when the words appear in all Senate Estimates briefs covering the period 1 January 2014 to date.
The documents produced also contain a letter from the Human Rights Law Centre dated 22 May 2014 to the Minister for Defence, the Prime Minister and the Minister for Foreign Affairs requesting “greater transparency about Australian involvement in drone strikes” following the deaths of two Australian citizens in drone strikes in Yemen in November 2013.
The letter included a list of questions regarding US drone strikes and Pine Gap’s legal and policy framework including the question ‘The Defence Minister says that Australia has “full knowledge and concurrence” of activities at Pine Gap. Does full knowledge and concurrence in relation to Pine Gap include full knowledge and concurrence in the purposes for which locational intelligence is shared?’
Putting to one side whether the question involves a non sequitur, the former Minister for Defence, David Johnston, included in his 25 June 2014 response to the letter that ‘Full knowledge and concurrence is a long standing Government policy and is the underpinning principle for the operations at Pine Gap. It is an expression of Australian sovereignty, of Australia’s fundamental right to know what activities foreign governments conduct in, through or from Australian territory.’ Again, the words “approve or deny” are omitted.
The last formal Australian government statement about “full knowledge and concurrence” was made to parliament by the former Minister for Defence, Stephen Smith, in 2013. It’s an attempt by the government to hedge its bets by maintaining joint use of the facilities with its “full knowledge and concurrence” while at the same time saying that Australia doesn’t necessarily agree with what the US is doing. In that situation the question is whether Australia can unilaterally absolve itself from responsibilities for the consequences of activities that it’s aware are being or will be carried out by simply saying that it doesn’t agree with the US actions but at the same time permitting them to occur through known use of the facilities.
In 2014 drone victims lodged a complaint with the International Criminal Court (ICC) accusing NATO member states of war crimes over their role in facilitating the US’ covert drone programme in Pakistan.
A media release issued on 19 February 2014 by Reprieve, which represents drone victims, said: ‘It has been revealed in recent months that the UK, Germany, Australia, and other NATO partners support US drone strikes through intelligence-sharing. Because all these countries are signatories to the Rome Statute, they fall under The ICC’s jurisdiction and can therefore be investigated for war crimes. Kareem Khan – whose civilian brother and son were killed in a 2009 drone strike – is at The Hague with his lawyers from the human rights charity Reprieve and the Foundation for Fundamental Rights who have filed the complaint on his behalf.’
The asserted amenability to investigation is no idle observation. The formal complaint refers to Article 25(3) of the Rome Statute [Individual criminal responsibility] in terms of evidence of locational intelligence sharing by the UK, Germany and other NATO countries for use in drone strikes. In its specific allegation against Australia it cites an article by journalist Philip Dorling published in the Sydney Morning Herald on 21 July 2013 ‘Pine Gap drives US drone kills’. Since that time documents leaked by Edward Snowden remove any doubt that intelligence from Australia’s Pine Gap base is being used to provide geolocation intelligence to the US military that can be used to locate targets, including for special forces and drone strikes.
If the Australian government has, as it says, full knowledge of, and the authority to approve or deny, the activities that foreign governments propose to conduct in, through or from the Pine Gap base then it cannot be other than complicit in the outcome of those activities.
It can be only a matter of time before Australia will be held to account for its role in civilian deaths across countries like Afghanistan, Syria, Yemen and Somalia as a result of lethal unmanned drones. That’s not an attractive prospect when considered in conjunction with Australia’s culpability for civilian deaths in conventional airstrikes in places like Syria.
Kellie Tranter is a Lawyer and Human Rights Activist