INDONESIA : People smuggler unlikely to be extradited to Australia
19 December 2002
The people smuggler who organised a voyage that cost the lives of 353 people looks likely to walk free after just six months in an Indonesian jail. Egyptian Abu Quassey was the smuggler behind the boat known as SIEV X which sank on October 19 last year. He is currently serving a six month jail term in Indonesia on migration charges and is due to be released on New Year's Day. A former Ambassador claims the Australian government is deliberately obstructing the extradition of Abu Quessay to Australia - but international lawyers say extradition is not possible under current laws.
Presenter/Interviewer: Peter Mares
MARES: Tony Kevin is a former Australian Ambassador who has made it his mission to uncover the details of the sinking of the SIEV X, or suspected illegal entry vessel X, a boat carrying almost 400 asylum seekers that sank on October 19th last year with just 44 survivors. Tony Kevin's questions have now prompted a Senate inquiry, into the Australian Government's program to disrupt people-smuggling operations in Indonesia.
That disruption program involved the Australian Federal Police, working closely with the Indonesian National Police. In public lectures around Australia, and in contributions to a website devoted to the SIEV X issue, Tony Kevin has alleged that Egyptian Abu Quessay, who organised the fateful voyage, was not a people smuggler but a police operative.
KEVIN: More and more I am coming to the view that Abu Quessay was not actually a genuine people smuggler, but a disruption agent of the people smuggling disruption program which the Australian Federal Police set up and funded within the Indonesian police force
MARES: Do you have any evidence that Abu Quessay was a paid agent?
KEVIN: I have not got evidence in the sense that I could furnish it in court but I have a great many questions that would lead to a serious coronial inquest or to a serious police interest in Mr Quessay, taking part in their inquiries, if they were serious about making those inquiries.
MARES: Assistant Commissioner Ben McDevitt from the Australian Federal Police says it is 'absolutely not the case' that Abu Quessay was an AFP operative.
MCDEVITT: Abu Quessay is someone who we have vigorously pursued avenues to see that he is brought to justice for the role that he played in SIEV X. He fits the category of persons that the AFP focusses on, and they are people who are organisers of people smuggling ventures.
MARES: Tony Kevin has also suggested if Abu Quessay was not an operative of the Australian Federal Police, that he may have been an operative of the Indonesian poilce. Can you rule out his involvement in any way as an agent of the Indonesian national police?
MCDEVITT: I can only speak to the best of my knowledge and to the best of my knowledge the conspiracy theory that is being put forward there is highly misinformed.
MARES: The Australian Federal Police have issued four warrants for the arrest of Abu Quessay on charges of people smuggling that could carry penalties of up to twenty years imprisonment. However those warrants can not be used to extradite Abu Quessay because people smuggling is not a crime in Indonesia. A fundamental principal of any extradition is that it must satisfy the double criminality rule, in other words the same offence must be listed on the statute books of both countries. The warrants could be used if Abu Quessay moved or was deported to another country, which does list people smuggling as a crime.
MCDEVITT: We have Interpol red notices out in relation to Abu Quessay and in effect what that means is that depending where Abu Quessay travels to and where he ends up, arrangements could be made for him to be arrested by local law enforcement and we could then proceed with extradition to bring him back here to face our courts.
MARES: But if Abu Quessay cannot be extradited on people smuggling charges, then why not charge him with something else, like murder, which is on Indonesia's statute books?
MCDEVITT: We have sought legal advice in relation to that, matter of fact twice we've sought legal advice about applicability of a whole range of offences in relation to Quessay and we've explored all sorts of options as you would expect, you know in relation to homicide or offences on the high seas and that sort of thing and in relation to UN Conventions, Law of the Sea and so on, and we've got exactly the same advice back on two occassions, which is basically to say there are issues of jurisdiction, there are no applicable laws regarding navigation in international waters which could be applied in this case.
MARES: Tony Kevin from the SIEV X campaign is not convinced, he believes the Federal Government is deliberately obstructing the extradition of Abu Quessay so that his role as an Australian agent will not be exposed. Mr Kevin argues that there are a number of grounds on which Abu Quessay could be extradited.
KEVIN: Firstly that the people who died on SIEV X had relatives, close relatives, living legally in Australia, on temporary protection visas mostly. Secondly that the boat was manifestly heading for Christmas Island which is the second connection with Australia.
MARES: Tony Kevin also makes a third link with Australia, the fact that the SIEV X sank in an area that was under heavy surveillance by the Australian navy and airforce. However experts in international law told Asia Pacific that none of these are adequate grounds for extradition. Professor Gillian Triggs is Director of the Institute for Comparative and International Law at the University of Melbourne.
TRIGGS: The offence appears to have occurred in international waters and the difficulty is that for both countries but most particularly Australia, our criminal laws relating to either murder or negligent manslaughter of one kind or another do not apply extra-territorially and that is the fundamental complexity that exists in relation to this prospect of extradition. And that is the core difficulty that our criminal laws are confined to the territory over which we have sovereignty. And in international waters by definition, we do not have sovereignty, and we do not typically have jurisdiction. The fact that there are relatives in Australia is not legally relevant to the question of whether Australia has jurisdiction in international waters. Similarly, the fact that the people were purporting to come into Australian jurisdiction as illegal migrants is not in itself a basis for asserting jurisdiction in relation to murder or manslaughter.