On 11 April 2003, 20 members of the Australian Special Air Service (SAS) captured 66 Iraqi, Iranian and Syrian men who were driving through the western desert of Iraq. Among those captured was a 43-year-old Iranian man, Tanik Mahmud.
The SAS forces detained Mr Mahmud and his associates for 10 hours. They were then handed over to the UK Royal Air Force (RAF) for transport to a US-run detention facility in Iraq.
Documents released to PIAC reveal that Mr Mahmud subsequently died on a RAF helicopter. A UK investigation suggested the strong possibility that three RAF members had beaten Mr Mahmud to death, however no criminal charges were laid. The UK and Australian governments have refused to release the full details of the events on 11 April 2003.
As set out in Story 1, Australia, the UK and the US entered into an agreement, known as the Trilateral Arrangement, which governed how detainees would be transferred between the parties to the agreement in accordance with international law. However, Australia sought to circumvent the operation of the Trilateral Arrangement (and thus sought to avoid its responsibilities under international law and the Geneva Conventions) by adopting a practice whereby at least one US military representative would be present with the ADF when detaining prisoners. Australia and the US asserted that the presence of this single US representative allowed the US to take sole responsibility for the detention.
This practice, which relies on a legal and logical fiction, was used on 11 April 2003. That is, because there was one US soldier present when the SAS forces captured and detained the 66 men, including Mr Mahmud, Australia maintained that the US was the detaining power. Australia therefore claimed no transfer took place and the Trilateral Arrangement did not apply.
Australia sought to avoid its international legal obligations in relation to Mr Mahmud and the 65 other men. However, it seems clear that Australia was in reality the detaining power of the men and thus had obligations under the Geneva Conventions to ensure their humane treatment. The transfer to the UK should have been pursuant to the Trilateral Arrangement, which would have required Australia to monitor the US’s and UK’s treatment of the detainees. Instead, Australia simply handed the 66 men to the UK for transport to US custody.
Australia did not know where the men ended up, whether they were given prisoner of war status or what their conditions of detention were. Australia sought these details from the US, but Australia’s ally refused to provide them. When the Iranian Government requested information about the four Iranian men’s whereabouts, Australia simply responded that it was not the detaining power.
Until the release of these documents to PIAC, Australian authorities have not revealed Mr Mahmud’s death in custody. The story behind Mr Mahmud’s capture and detention illuminates the way in which Australia has relied on a legal fiction to avoid its legal responsibilities towards detainees in Iraq. His unexplained death highlights the gravity of the possible consequences that flow from this policy.
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