Australian women who were subjected to a compulsory intimate medical examination at Doha airport may have limited options for redress unless the government of Qatar agrees to provide compensation to avoid protracted public criticism of its human rights record, an international law expert has said.
The women had boarded a Qatar Airways flight bound for Sydney at Hamad international airport on 2 October when they were ordered to disembark, escorted by security staff to a non-public lower level of the airport, and ushered into waiting ambulances. They were then told to remove their underwear and subjected to a medical examination to see if they had just given birth.
The searches were prompted by the discovery of a newborn baby in one of the airport bathrooms. One woman, who was not examined because of her age, told Guardian Australia that the experience had been “terrifying”. Another woman told the ABC she would consider legal action.
“If the other 12 women came forward with a class action, I would definitely be part of that,” she said.
But avenues for legal redress for foreigners subject to unconscionable treatment by government officials in another country are limited. That is particularly the case in a country like Qatar, where the legal system has its grounding in sharia law and it is illegal to give birth out of wedlock.
Nick Kaufman, a former international criminal court prosecutor based in Israel, who represented Malka Leifer in fighting an extradition claim brought by the Australian government, said the most immediate outcome might be for the women to use diplomatic channels and the threat of litigation to obtain compensation directly from the Qatar government.
“The government of Qatar, in my opinion, will be eager to settle this matter quickly and in a fashion which will maximise its human rights credentials,” Kaufman said. “Qatar is very sensitive to international criticism as to its record on human rights, as evidenced by its attempt to deal with allegations of the exploitation of foreign workers.
“Qatar will not want the commercial potential arising out of its hosting of the [2022 men’s football] World Cup to be harmed by this incident and, accordingly, will be eager to settle. Any diplomatic pressure or legal action will be used as leverage to force just such compensation.”
Legally, he said, the women could pursue a civil claim against either Qatar Airways, which could be launched in Australia against its Australian offices, or against the government of Qatar.
“Most lawyers would advise women against pursuing their claim in Qatar,” he said. “Qatar is a patriarchal society and the very existence of the laws – the enforcement of which led to this disgraceful incident – suggests that the women’s chances of success in pursuing civil compensation in a Qatari court would be less than elsewhere in the world.”
Prof David Kinley, the chair of human rights law at Sydney University, said it might be possible to pursue a negligence claim against Qatar Airways, despite the flight crew not being aware of why they had been asked to send the female passengers off the plane, and Qatar Airways officially denying any involvement.
He said that insofar as the airline was charged with ensuring the safety of the passengers and provided them to security staff when asked, “there may indeed be a line of negligence to pursue against Qatar Airways in Australia”.
If they were to pursue another charge – such as assault – that would have to be prosecuted under Qatar domestic law. “If it had happened in Australia there would be no question that we would consider it assault,” he said.
The third legal option would be to make a complaint under international human rights law. Qatar ratified the international covenant on civil and political rights in 2018.
It would be possible for Australia to bring a claim against Qatar on behalf of the women but Kinley said that would represent a significant diplomatic incident and it was likely this “won’t be of sufficient gravity for the country, although of course it is for the women involved”.
Instead they will try diplomatic channels: the Australian foreign affairs minister, Marise Payne, this week hauled in the ambassador and demanded a report into the matter, first requested by the Australian government on 6 October, be completed by the end of this week. Another mechanism is further publicity: Hamad international airport did not respond to requests for information until after the story was published and nor did Payne, whose department was aware of the women’s treatment, make public comment until it was headline news.
But that can carry its own toll for the women involved. “It’s degrading and humiliating enough,” Kinley said. “To push it into the headlines may be something that people do not want to do.”
Dr Anna Arstein-Kerslake, an associate professor in human rights law and gender justice at Melbourne University, said in a case like this, the aggrieved person could make a complaint to the United Nations human rights committee. The treatment of the women could be argued to breach article nine of the covenant, on the right to liberty and security of a person, and article six, the right to be free of medical treatment without consent.
The UNHCR could then make a finding against the government of the offending country. “It’s a slap on the wrist, but it can be quite embarrassing,” Arstein-Kerslake said. “There have been significant changes in the laws of countries based on the UNHCR commenting on the actions of a particular state at a particular point.”
Kaufman said the “obvious mechanism” under the covenant would be to make an individual complaint to the UN special rapporteur on violence against women, which would not result in any compensation but could result in a declaratory opinion, which could in turn recommend the state provide redress.
“A similar and parallel mechanism was used by the partner of the murdered journalist Jamal Khashoggi,” he said. “Usually, such procedures are adopted as a means of shaming the offending sovereign state concerned and this also depends – to a large extent – on the ability of the victims’ legal team to generate maximum international media exposure.”
Arstein-Kerslake said it was possible that Australia, a country reliant on air travel, would view it as important to register an objection under international human rights law.
“It’s important for other governments in other countries to know that this is something that it’s not OK for them to do, and that there will be repercussions if they do this, even if the repercussions are just embarrassing publicity,” she said.