Subject: SMH: Tampa Affair: How the UN blocked East Timor solution

Sydney Morning Herald October 22, 2001

TAMPA AFFAIR

The Pacific solution

Frustrated by the increasingly embarrassing Tampa standoff, the Australian Government turned to its aid-supported neighbours for help. But, as Marian Wilkinson and David Marr reveal, when East Timor was approached, the UN Secretary-General, Kofi Annan, stepped in to block the plan.

First light in Dili on August 30 revealed a most moving sight: thousands of men and women, many of whom had slept overnight in the streets, were queuing at polling stations to vote in East Timor's first democratic elections.

For Sergio Vieira de Mello, the UN's chief administrator in East Timor, the day held massive logistical and security challenges. He was about to fly to the territory's most remote and unsettled regions where his officers were doing their utmost to ensure a free and fair election. Then suddenly he had Alexander Downer, Australia's Foreign Minister, on the line from Canberra. Could an East Timorese refugee camp be found to house the boat people from the Tampa?

John Howard's Tampa tactics had hit a snag. So far it had been possible - with the use of the SAS and in the face of great criticism from Norway - to maintain the first objective that no-one stranded on the deck of the Tampa should set foot in Australia. But with the failure in the early hours of the morning of the Border Protection Bill, Australia had no way of forcing the Tampa to take its human cargo somewhere else. Every hour it stayed in Australian waters increased the chances that this daring operation would unravel.

The master of the ship, Captain Arne Rinnan, was refusing to budge. He regarded his ship as unseaworthy while 433 passengers were sheltering by day under tarpaulins and sleeping at night on the deck. One of the clear legal principles in a crisis that involved colliding systems of local and international law was this: the seaworthiness of a ship on the high seas is determined only by the laws of the country whose flag that ship is flying. Norway. Australia has its own laws forbidding unseaworthy vessels to leave port, but those laws were not about to be enforced.

Norway backed Rinnan's refusal to sail all the more forcefully because it knew the Tampa had nowhere to take these people. Australia was still talking of Merak in Java as the natural destination for the ship - because in the aftermath of the rescue of the 433 boat people, authorities in Merak had given permission for them to land there - but both Australia and Norway knew by now that Indonesia had shut its ports to the Tampa. As far as the Indonesians were concerned, these illegals had reached Australia.

Accounts of the diplomacy involved in the East Timor option have left a fuzzy impression that Australia had second thoughts and withdrew its request to Dili. That's not so. Downer's request to park the Tampa people in one of the refugee camps was passed swiftly to Kofi Annan's office in New York. By that afternoon there was, in the words of Jonathan Prentice, Vieira de Mello's political officer, "a definite no".

The UN High Commission for Refugees (UNHCR) in Geneva was also briefed on the refusal and fully agreed. "It was a bad idea, " said Soren Jessen-Petersen, the senior UN officer handling the Tampa situation. There were many worries. Could East Timor's stretched resources cope? Would the Tampa people be willing to leave Australian waters and disembark at Dili? Would force have to be used? "There was also a risk - this was the feeling of the Secretary-General - that the problem was being handed over not to an independent state but to the United Nations."

Howard spoke to Kofi Annan. The Prime Minister came away from the telephone call with nothing to announce to Australia. In Jakarta, Megawati Sukarnoputri was still not taking Howard's calls.

Australia's dealings with the UN in the Tampa crisis continued in this schizophrenic mode. When the SAS were about to board the ship, Canberra rejected UN offers to mediate between Australia and Norway. "At that time the Australian authorities felt they did not need UNHCR," Jessen-Petersen said. A day later Downer had gone cap in hand to the UN for the East Timor option. That was knocked back as delegates were gathering for the UN's World Conference against Racism in Durban.

"Australia has the primary responsibility," declared Mary Robinson, the UN High Commissioner for Human Rights. "It is pointing to Indonesia. It is even pointing to East Timor, but I think it's very clear what the responsibility is." Robinson was to emphasise that whatever was to happen to the people on the Tampa, they must be allowed to land in Australia. Asked if Australia had broken international laws, she replied: "The most important thing should have been to allow them into Australia first, to remove them from that ship."

This is where the UN and Australia collided. Howard wanted to assert Australia's right to close its borders to boat people. The UN feared the Tampa crisis would see the return of the terrible practice of "pushing off" that began in the aftermath of the Vietnam War. Countries such as Thailand, Malaysia and Singapore, faced with the arrival of refugees by the tens of thousands a month, pushed their boats back out to sea. Many thousands died in the late 1970s in the South China Sea because merchant ships, unsure of ever being able to offload those they rescued, sailed past boats in distress.

THE UN had fixed the problem by arranging a system of multilateral Disembarkation Resettlement Offers (DISERO) to guarantee the shipping companies there would always be countries willing to take the boat people they rescued. Australia was one of those countries. Now, 20 years later, Australia was pushing off, closing its frontiers to asylum seekers. "That was our concern," said Jessen-Petersen. "Other countries might say, 'If Australia can do it, we can do it,' and there goes the whole international protection principle down the drain."

By now it was Thursday afternoon in Canberra, 24 hours after the SAS had seized the Tampa. Howard's ministers were busy looking for other islands on which to process the boat people, and other countries where they might finally be resettled. Downer was making approaches to Nauru and New Zealand. Australia might not have much clout in international forums, but they listen to us in the Pacific.

Ove Thorsheim stood next morning on the wharf at Flying Fish Cove. The ambassador had been on holiday in Norway when the crisis hit. He'd flown for 30 hours to Christmas Island, doing the last leg in a chartered Citation jet. He told the SAS guarding the port he wished to go out to the Tampa. He was not asking their permission. He had rights under the Geneva Convention to be taken to the ship. He was asking only for SAS assistance. The decision took hours.

Thorsheim's presence on the island might have unravelled the Howard Government's strategy of keeping the ship isolated. The danger facing Canberra was that Thorsheim might bring back an appeal for political asylum that would set the machinery of the Migration Act working and compel Canberra to bring everyone on the boat into detention. A group of Melbourne lawyers and civil-rights activists was already preparing for court action.

Thorsheim was taken out to the Tampa in an SAS inflatable. Australia was not going to finesse its obligations under the Geneva Convention. After five hours on board, the ambassador returned to shore with an appeal from Mohammad Wali: "We have no way but to run out of our dear homeland and to seek a peaceful asylum." By this time Justice North, in Melbourne, had ordered the Tampa to remain in Australian waters until the status of those on board could be determined legally.

Meanwhile, on this Friday, the UNHCR in Geneva was determined to act. "We decided whether they needed us or not we would have to play a role," Jessen-Petersen said. Geneva tried to put together a plan sensitive to Howard's political problems and to the UN's fundamental requirement that Australia's border not be closed to the Tampa people. Jessen-Petersen has told the Herald he had lined up many Western countries willing to accept Tampa asylum seekers who won refugee status. These countries included the US, Sweden and Norway. "We already had enought indication to know we could have solved the problem very quickly."

But Australia did not want this solution to the crisis - because the UN insisted the Tampa people be processed on Christmas Island. For the Howard Government that would be seen as a defeat. Once the asylum seekers came ashore, they would have access to the protection of Australian law which the Immigration Minister, Philip Ruddock, has consistently argued would allow far more of the Afghan asylum seekers to gain refugee status here than they would if processed offshore by the UNHCR. So the UNHCR solution to the crisis, put together within 48 hours of the Tampa arriving in Australian waters, was allowed to lapse.

Howard felt he didn't need the UN. By this time New Zealand Prime Minister Helen Clark had agreed, on humanitarian grounds, to take 150 of the Tampa people to New Zealand for processing and to resettle the refugees among them. New Zealand was not offered money. Nauru was. By late this same day President Rene Harris had agreed to take the rest of the Tampa people - but not forever. They would only be parked there (see below).

By Saturday morning, Howard and Ruddock were able to announce with a sense of triumph that the Pacific had come to Australia's aid. The Prime Minister said: "All the people on board the MV Tampa can be processed in third countries, not in Australia or in an Australian territory." Howard did not explain how these people would get to their Pacific destinations. He had hoped to ship them to Dili and fly them out to Nauru and New Zealand. But the UN had one more rebuff for Australia. Vieira de Mello's office said: "We couldn't take the risk of those passengers refusing to board the aeroplane."

At the end of the day, the Government had also managed to keep the Tampa people out of the courts. The letter the ambassador brought back from the boat alerted the world to the fact that these people wanted asylum but, without the specific instructions of a solicitor, the court wasn't willing to look at the application of the Migration Act to their predicament. Nor, ultimately, would the Federal Court support the claim that these people had been unlawfully detained on the ship by the Australian Government. By this time the Tampa people, plus another couple of hundred picked up from Ashmore Reef, were on their way to Nauru on HMAS Manoora.

GOING it alone has been immensely popular in Australia. But as officials of the UNHCR and the International Organisation for Migration (IOM) point out, this may not work even in the medium term. Australia will have to take many of the asylum seekers shipped to Nauru - not just those who qualify as refugees, but many who fail because of the near impossibility of repatriating them to their home countries.

The trouble is, the Tampa operation has used up much of the goodwill Australia once enjoyed on refugee questions. Those countries which offered early on to take the Tampa people off our hands are not offering any longer. And we have promised Nauru and PNG - where a detention centre is now being made ready on Manus Island - that none of these people will be left in their countries. If no-one else will take them, Australia must.

Nauruan officials say Australia first promised the asylum seekers would be gone after a maximum of four to six months. The same promise applied when another batch was brought on HMAS Tobruk. "That does not concern me at all," President Harris said. "I have an arrangement with John Howard that there won't be anyone left behind."

But with the erection of a second camp on Nauru and negotiations to build yet more camps on Fiji, Palau and Kiribati, the question remains: where can these people go in the end except where they were always heading, Australia? All we can say for certain is that they won't be back here before the election.


The island tour

• September 1 John Howard announces the ``Pacific solution'' for the Tampa asylum seekers. Nauru and New Zealand will take them for processing. Transshipment details to be given later. The UN refuses a request to transship them through Dili. • September 2: Howard announces HMAS Manoora will ship the asylum seekers to PNG for transfer to Nauru and New Zealand.

• September 3: The Federal Court allows the possibility that the asylum seekers can refuse to disembark in PNG.

• September 11: Justice Tony North in the Federal Court rules Tampa asylum seekers were illegally detained. Government says HMAS Manoora will bypass PNG and head for Nauru.

• September 19: HMAS Manoora docks in Nauru, first Tampa cargo come ashore and go into a detention camp for processing.

• September 26-27: Family groups from the Tampa flown from Nauru to New Zealand.


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