Tony Kevin, A Certain Maritime Incident: The sinking of the SIEV X, Carlton North, Scribe Publications, 2004, reviewed by Jennifer Clarke, Australian National University.JAS Review of Books
Issue 30, February 2005
This book is part of the author's campaign to keep before the Australian public the mass drowning of 353 people (mainly Iraqi women and children) in the Indian Ocean in 2001, and to push for an Australian judicial inquiry into why this Indonesian fishing boat sank and whether more than the 44 survivors might have been rescued.
The first of these objectives is laudable and there may be grounds for the second. The Senate has passed four motions calling for such an inquiry. A single accidental drowning in Australian waters would be referred to a coroner, although deaths of Australians, or deaths from Australian ships, further offshore could be investigated by the Australian Maritime Safety Authority (AMSA) only. Although it seems inconceivable that no judge would investigate 353 Australian lives lost at sea, it is worth remembering that the 645 lives lost in wartime on HMAS Sydney were similarly neglected.
Unfortunately, Kevin's book suffers from deficiencies of substance and style which limit its effectiveness for the purposes of both public information and advocacy.
Although the scale of 'SIEV [Suspected Illegal Entry Vessel] X' has been eclipsed by recent events, this story contains all the elements of a great tragedy:
But most of these elements have been canvassed before - eg by David Marr and Marian Wilkinson in chapter 17 of Dark Victory (2003). Much of Kevin's material also seems to have been drawn from the website sievx.com.
Kevin's distinctive contribution (mostly rejected by the 2002 Senate 'children overboard' inquiry) is an explosive alternative explanation for the voyage and sinking. His theory is that 'SIEV X' was predestined to sink. Kevin argues (p 11) that the people smuggler (Abu Quassey) who overloaded the boat was a 'sting' operator with AFP connections, and that Australia wanted such a sinking (albeit with far fewer casualties) so that it could push Indonesia into accepting asylum-seekers returned to its shores - something Indonesia agreed to shortly afterwards.
The book does not make out this thesis convincingly. Sometimes this is because of the inherent difficulty of the subject-matter or lack of research: it is not easy to tell what makes a boat sink when there is no wreckage and few survivors; it is difficult for Australians to guess at the actions, connections and motivations of people they have never met in other countries. (Kevin does not seem to have left Australia to research the book. But some Indonesians, eg the late captain's family, may have been worth tracing; it may have been worth trying to follow Quassey's Egyptian trial (see below).)
At other times the book fails because of Kevin's tendency to strain the significance of particular events or connections between them, to raise arguments based on speculation rather than evidence, to prefer interpretations which seem to go against the evidence, or to take an excessively concrete view of factual material. An unsubstantiated allegation which would have been better left out (if only because it must disturb survivors without assisting them) is the 'possibility [which] cannot be excluded' that 'SIEV X' was carrying a sabotage device (p 62). Lack of connection with survivors is also suggested by the statement (p 54) that a group of minority Mandaeans got off 'SIEV X' near the islands Australians know as Krakatoa because of a tip-off from the smuggler's offsider. But in a Brisbane court last year, survivors testified that the Mandaeans decided to leave the boat because of religious prejudice: the Muslims with whom they were crammed cheek-by-jowl were blaming them for 'jinxing' the voyage. Kevin fusses (pp 195-200) about the fact that ADF flight path surveillance maps provided to the Senate inquiry turned out to show approximate flight paths only - he had decided to treat them as plotting exact routes taken. Yet the diagrammatic nature of these maps should be obvious to anyone familiar with government documents, as Kevin (a former senior public servant and ambassador) must be. Statements (pp 13, 209) that Quassey's Egyptian trial occurred in a 'closed' or 'semi-secret' 'national security court' are taken from limited media reports and contradicted by advice from the Commonwealth Attorney-General's Department.
Unlike the gripping Dark Victory, A Certain Maritime Incident is not a great read. Sometimes (particularly in the concluding chapter) it feels more like a personal diary or sermon: Kevin over-exposes the reader to 'my life as a whistleblower' and moral angst about the sinking without adding to the wider story. At other times (particularly when recounting events before the Senate inquiry), the book plods through minutiae like a public service memorandum. At the same time, Kevin's arguments can be difficult to understand without the background knowledge of the post-2001 'border protection' regime provided by other books in the field.
All of these books leave the reader with nagging doubts about how Australia handled 'SIEV X'. The most important question is the one on which the Senate Committee recommended a full inquiry: what exactly were the AFP doing in their people-smuggling 'disruption' program in Indonesia? As Kevin, Marr and Wilkinson and others have pointed out, Australia 'has form' sinking refugee boats, demonstrated in the post-Vietnam war era as well as more recently. It is not necessary to accept Kevin's full-blown theory - that the AFP infiltrated the trade, sending off 'SIEV X' with a hole in its hull as a lesson to those who would attempt the crossing to Australia (p 63) - to be concerned about the boundaries of such operations.
The AFP describes its 'disruption' program as 'legal', but this may avoid the question. In 2001, people-smuggling was not an offence in Indonesia (and it could not be made one now because the Indonesian Constitution prevents retrospective criminal laws). From the point of view of Australian legality, October 2001 amendments to the Crimes Act 1914 (Cth) conferred on AFP officers and their informers carte blanche immunity from prosecution for Commonwealth offences committed in the process of law enforcement, provided they didn't kill, injure or rape anyone or commit serious property damage. This immunity would have been lost if there was any 'SIEV X' criminality, but probably not if any crimes were committed 'disrupting' other voyages. Kevin may be right to question (pp 203-210) AFP Commissioner Mick Keelty's refusal to answer questions about 'SIEV X' before the Senate inquiry: greater disclosure of information did not affect Australia's prospects of extraditing one smuggler (see below) and may not have prevented it extraditing others. However, if anything untoward did occur in the name of the 'disruption' program, even an Australian judicial inquiry may find it very difficult to extract the Indonesian side of the story.
Kevin's 'sting' theory is bolstered by the odd fact that 'SIEV X' departed from south Sumatra, sailing he says an unnecessary 70 nm (18 hours) down the Sunda Strait before entering the Indian Ocean. The boat, he argues, was not intended to survive the strait: it should have sunk there, producing limited casualties while still sending the necessary message to those who would breach Australia's borders. However, there appears to be a plausible alternative explanation for the choice of departure point: south Sumatra was where the police protection (and, in this case, police-owned accommodation for asylum-seekers pending departure) was. Such a port may have been attractive at a time when smugglers were pressing to offload large numbers of passengers collected in Indonesia, before the monsoon deepened and Australia's 'border protection' intensified further.
Kevin makes much of the Australian government's attempts to cover up exactly where 'SIEV X' sank. The book is framed around a cable from Australia's Jakarta embassy four days after the sinking, which the government did delay releasing until after the 2002 Senate inquiry concluded. The cable puts the sinking site 'no further south than 8 degrees south latitude'. As Marr and Wilkinson have pointed out, this and similar evidence means (contrary to statements by the Prime Minister and other Ministers) that 'SIEV X' went down in international waters within Australia's 'Operation Relex' surveillance zone - an area over which PC Orions flew at least once a day and twice on the day of the sinking. (Relex was patrolling north of 7 degrees around the Sunda Strait exit without infringing Indonesian sovereignty.)
Kevin's theory is that 'SIEV X' was spotted but the ADF decided to do nothing about it. However, the Senate inquiry was not alone in accepting an equally plausible Navy account. Despite the new 'whole of government' approach to 'border protection', the ADF (unlike civilian agencies, but with some justification) did not believe intelligence that 'SIEV X' had departed Indonesia; the big storm which sank 'SIEV X' also turned the ADF surveillance plane, short on fuel, around. Of course, the ADF was embroiled in the 'border protection' politics of the 2001 election, and the Senate has expressed concerns about inconsistencies in, and heavy government censorship of, evidence before it. But in order to prefer Kevin's story to the Navy's, the reader needs more than mere speculation.
A more serious question, raised by both Kevin and Marr and Wilkinson, is 'why didn't the next morning's Orion flight spot another Indonesian fishing boat which rescued the survivors?' Unlike the wreckage of a SIEV, such a vessel should have been detectable by radar if not contactable by radio. It is unfortunate that a sister vessel to which the survivors were then transferred decided to dock in Jakarta three days after the sinking, not at a closer port on the south Java coast - but, as the Tampa episode illustrated, there is no firm rule about where those rescued at sea by private vessels must be landed. Much more evidence would be required to support Kevin's theory (pp 86-91) that the delayed arrival of survivors in Jakarta was part of a 'news management' strategy designed to put pressure on Indonesia.
Kevin attempts to answer the questions 'why didn't Australia extradite the alleged people smuggler Abu Quassey from Indonesia to stand trial for the smuggling or the deaths?' and 'why did we allow him to be deported to Egypt to stand trial, ultimately receiving a jail sentence of just over five years, when Australian courts sentence people smugglers to ten or twenty?' But after complaining that the AFP Commissioner struggles with 'Criminal Law 101' (p 207), Kevin makes similarly basic mistakes about legal issues. This is despite the fact that these issues were handled fairly well by several journalists in 2003.
Kevin speculates that Quassey was allowed to get away to Egypt in an AFP conspiracy to let their 'sting' operator off lightly (p 11). However, he acknowledges (pp 206-7) that 'SIEV X' sank on the high seas, where the national criminal laws, including the homicide and navigation laws, of Australia and Indonesia do not apply, except perhaps where nationals of those countries are perpetrators or victims. What Kevin doesn't grasp (p 208) is that Australia cannot extradite a person from Indonesia for an offence on which it cannot try him.
Australia's tough new 'facilitating illegal immigration' laws do apply outside of Australia, but when Quassey was organizing the voyage, people-smuggling per se was not an offence under Indonesian law. (Even now, Indonesia is not a party to the UN Convention Against Transnational Organised Crime or its People-Smuggling Protocol, which require such conduct to be criminalized and allow extradition for such crimes.) Australia's extradition treaties (including the bilateral one with Indonesia) contain standard provisions stating that a person shall not be surrendered up to a requesting state if the conduct of which he is accused is not on an agreed list, or is not otherwise a crime in the requested state (the 'double criminality' requirement). Extradition treaties also state that, while Australians must be sent home for offences perpetrated outside Australia, with other nationals, it's a matter for the requested state's discretion. So although Australia could have tried Quassey for people-smuggling had he been caught here, it could not seek his prior extradition from Indonesia.
By contrast with the Quassey case, Australia has been able to extradite his co-accused, Khaleed Daoed, from Sweden, because Swedish law did criminalize people-smuggling at that time and Sweden agreed to send him despite having given him Swedish nationality. One might have expected the Daoed extradition to give Kevin pause from his theory that Australia does not want to prosecute those responsible for 'SIEV X', but he dodges this conclusion by suggesting that Daoed might be a 'scapegoat' (p 211).
Luckily for the 'SIEV X' survivors, Quassey could be tried in his native Egypt. The Egyptian Penal Code applies extra-territorially to Egyptian nationals - there is a separate court which tries such offences. There is no Egypt-Indonesia extradition treaty, but Quassey was deported from Indonesia (in the company of an Egyptian police officer) after serving a short sentence there for a visa offence. The courts of some liberal democracies might frown on this method of presenting a defendant, but the Egyptian courts apparently did not, leaving Quassey triable for any offence under Egyptian law. His relatively light sentence (reduced from seven years to five years and three months by an appeal court in November 2004) would seem to be explained by two factors: it appears that the maximum penalty for negligent homicide in Egypt is five years, and Egyptian law attaches much lighter penalties to 'facilitating illegal immigration' than Australian law. Given Egypt's human rights record towards prisoners, Kevin should be careful in describing as 'purely notional' (p 209) such periods of imprisonment there.
Quassey's conduct may have amounted to a more serious form of homicide under Australian law, but it is difficult to tell from this distance whether Egyptian law would have allowed him to have been tried with a more serious offence, and impossible to know whether the evidence against him would have supported such a conviction before any court, Australian or Egyptian. Kevin's complaint (pp 209) that 'SIEV X' survivors were not invited to testify before the Egyptian court may be unwarranted: the Egyptian system is based on the French, in which there was a long tradition of preferring documentary over oral evidence. This is just one area in which more research and less speculation could have been helpful.
Quassey cannot be tried in Australia over 'SIEV X' now. We have no extradition treaty with Egypt, and Egypt has not signed the UN People-Smuggling Protocol (Australia acceded to the Protocol and ratified its parent Convention in May 2004). Although some countries permit extradition in the absence of a treaty, this is less likely where their own nationals are involved. Even if, on release from jail, Quassey travelled to a country to which such obligations do apply, extradition is not possible where a person has been punished elsewhere for the same offence (the 'double jeopardy' rule). However, if Quassey does enter a country with which Australia has bilateral or multilateral extradition arrangements, it may be possible to extradite him on three AFP warrants relating to earlier, successful smuggling voyages to Australia.
Conspiracy theories flourish after any disaster, even a natural one. Where large numbers of deaths result from human action, it is important to interrogate all possibilities. But under-researched, over-analysed attempts to explain such events, even well-meaning ones, can harm rather than help traumatised survivors and bereaved families. While it appears that Kevin was justified in pursuing his concerns before the Senate inquiry, without better evidence he is not (yet) justified in turning them into a book.
Reviewer: Jennifer Clarke, Australian National University