How the AFP trapped the Bali Nine August 27, 2010
Since the Bali Nine's capture, the AFP has been widely criticised for tipping off the INP and authorising their arrest in Indonesia, rather than allowing them to return to Australia where they might have led police to the leaders of the drug ring and then faced punishment under Australian law. The NSW Council for Civil Liberties has described the AFP's conduct as "outrageous", saying "If these Australians are put before a firing squad, it will be because the AFP helped to put them there."
http://www.theaustralian.com.au/new...ed-the-bali-nine/story-e6frg6z6-1225910600831
Australia's international obligations
By ratifying the Second Optional Protocol to the Covenant on Civil and Political Rights (ICCPR), aiming at the abolition of the Death Penalty Australia has committed itself to opposing the death penalty.
While the ICCPR recognises the right to life as a fundamental and non-derogable right, international human rights law does not require countries that retain the death penalty to abolish it, although it severely restricts its use.7
Countries which have not yet abolished the death penalty can only impose a death sentence following the final judgment of a competent court and only if a right to amnesty, pardon or commutation exist.
The imposition of a mandatory death penalty, which is retained by many of Australia's close neighbours, is a breach of the ICCPR.
Protecting Australian citizens from the death penalty
Australia's obligation to protect individuals within its jurisdiction from the application of the death penalty is not as straight forward as simply abolishing the death penalty in all Australian jurisdictions.
In a region where many of our nearest neighbours maintain the mandatory death penalty for a wide range of offences it is inevitable that occasionally Australians will find themselves on death row. And, in rare circumstances, Australians may find themselves facing the death penalty in a foreign country as a result of the actions of Australia.
There has, for example, been considerable media coverage about the question of whether or not the actions of the Australian Federal Police exposed members of the so-called 'Bali Nine' to the risk of the death penalty.
This raises the issue of how Australia should respond to a request for assistance in criminal investigations and prosecutions when providing assistance may expose a person to the risk of the death penalty.
There are two key ways in which Australia can provide a foreign country with information about a criminal investigation or prosecution.
The first way is by
Mutual Assistance. Mutual Assistance is a more formal process whereby Governments can ask other Governments for assistance in criminal investigation and prosecutions.
The second way is by
agency to agency assistance. Under agency to agency assistance - which includes police to police assistance - Australian law enforcement agencies can share information about criminal investigations with their overseas counterparts.
https://www.humanrights.gov.au/news/speeches/death-penalty-matter-principle
The AFP should have struck a deal with Indonesia to spare their lives or arrested the Bali Nine when they entered Australia. All too late now, but hopefully, when this situation arises again, and it will, the AFP will take a different route.
