Human Rights Day: Open Letter to The Australian Government

  • The in principle signing of the Reciprocal Access Agreement (RAA) between Australia and Japan was reported as a big milestone in the two countries’ bilateral relationship. This agreement will allow the Japanese Self Defence Force and the Australian Defence Force to carry out joint exercises, training, and stationing of foreign military personnel within the host country.

    However, there has been no public guarantee to date that Australian military personnel would not be subject to the death penalty in Japan. It was reported that the governments agreed to work towards a final agreement and resolve the death penalty issue on a ‘case by case’ basis. This approach would be a clear breach of the Australian government’s 2018 Strategy for Abolition of the Death Penalty if members of the Australian Defence Force could be executed in some cases, even if there was some kind of implicit understanding that this will not transpire.

    Eleos Justice, Capital Punishment Justice Project and Professor Donald Rothwell (ANU College of Law) drafted this open letter to urge the Australian government 1) to enter into an RAA only if there is a clear legally binding commitment that members of the Australia Defence Force will not face the death penalty in Japan, and 2) to ensure that the official statements and dialogues reinforce Australia’s principled position against the death penalty.

Attn:

Senator the Honourable Marise Payne

Minister for Foreign Affairs
Department of Foreign Affairs and Trade

Senator the Honourable Linda Reynolds CSC

Minister for Defence
Department of Defence Ministers

RE: Australia-Japan Reciprocal Access Agreement

Dear Senator Payne and Senator Reynolds CSC, 

We write to express our concern about the recent official reporting of the negotiations surrounding the Reciprocal Access Agreement (RAA) between Australia and Japan. 1 There has been no public guarantee to date that Australian military personnel would not be subject to the death penalty in Japan. It was reported that the governments agreed to work towards a final agreement and resolve the death penalty issue on a ‘case-by-case’ basis.

This approach would be a clear breach of the Australian government’s 2018 Strategy for Abolition of the Death Penalty if members of the Australian Defence Force could be executed in some cases, even if there was some kind of implicit understanding that this will not transpire. Such understandings are much harder to enforce in circumstances where governments change over time and the goodwill that ensured at the time of the agreement has dissipated for some reason. We appreciate that much of the negotiations between governments cannot be disclosed. What little is made public then becomes even more important in reinforcing Australia’s principled stance against the death penalty to its own citizens and to the international community.

The Australian government’s 2018 Strategy is unequivocal in its principled stance against the death penalty ‘in all circumstances for all people’. The Strategy firmly puts Australia as one of the most progressive abolitionist countries alongside the European Union states because of its outward-looking policy of pursuing abolition in other countries.

We urge the Australian government to enter into an RAA only if there is a clear legally binding commitment that Australia Defence Force members will not face the death penalty in Japan. Any legal assurance cannot rest on a commitment to exercise discretion in order to ensure that the death penalty is not applied: it must be an absolute and legally irrevocable.

We also urge the Australian government to ensure that the official statements and dialogues reinforce Australia’s principled position against the death penalty. The Prime Minister was silent on Australia’s 2018 Strategy when asked about the RAA between Australia and Japan. A policy of its kind needs to be repeatedly reinforced and acted upon, whenever relevant, for it to be truly effective.

Yours sincerely,

Mai Sato
Associate Professor Director, Eleos Justice
Faculty of Law, Monash University

Simone Abel
Chief Executive Officer
Capital Punishment Justice Project

Donald Rothwell
Professor of Law ANU College of Law


 

Endorsed by: CrimeInfo (Maiko Tagusari, Director; Mari Nakagawa, Chief Research Officer); Anti-Death Penalty Asia Network (Chew Chuan Yang, Executive Director)

Signed by: Please click here for signatories.

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A speech on the Commonwealth and the death penalty in Asia: developments, prognosis.