Offshore Justice: could Australia end up at the ICC for abusing asylum-seekers?
By Mark Kersten
Since 2013, the Australian government has taken a “zero tolerance” approach to individuals seeking to illegally migrate to Australia by boat. Irrespective of their situations or the dangers they may otherwise face, the government gives them an impossible choice: they can go return to the places from which they flee, they can find some other country that will take them in or they can live indefinitely in the dusty, sweltering, secretive, and caged-in holding facilities in Nauru or Manus Island, which is part of Papua New Guinea.
Staff working at those facilities have consistently complained of the horrendous, inhumane conditions faced by the people living there. According to leaked reports published by The Guardian, thousands of alleged abuses have gone uninvestigated. More than 50 percent of those reports involve children. They include allegations of sexual assault and self-harm or threats of self-harm by minors.
Nothing, including the current refugee crisis in Europe, the tireless work of human rights advocates in Australia, and the release of an investigative documentary on the subject, has been able to budge the Australian government towards a more compassionate approach to the people seeking refuge in the country. On the contrary, due to the fact that the facilities aren’t directly run by Australia or are located in overseas Australian territories, the government seeks regularly to wash its hands of this controversy, maintaining that any alleged abuses are up to (the poorly equipped) authorities in Nauru or Papua New Guinea to investigate. Another popular justification relies more on a xenophobic logic, insisting that Australia simply can’t accept more migrants and still be Australian.
In reaction to allegations, from its own staff no less, the Australian government has now decided to close its detention facility in Manus Island. It remains unclear what will happen with those currently living there. Moreover, there has been no word on whether the asylum centre in Nauru will be closed. But a larger question remains: do the abuses at these facilities - and the negligent approach to them by the Australian government - amount to crimes against humanity? And if they do, should the ICC intervene?
According to Richard Ackland, the answer is yes — the ICC can and should intervene:
"It’s hard to imagine [Australian Prime Minister] Malcolm Turnbull, [Immigration Minister Peter] Dutton and other ministers in the same Hague dock as Congolese warlords who conscript child soldiers. Yet, it is quite plausible that the ICC could mount a preliminary examination into Australia’s shocking treatment of offshore detainees who sought our protection under the Refugee convention.
"Even a preliminary examination by the ICC would be a major embarrassment for Australia which, so far, has been beyond embarrassment in the ruthless implementation of 'border protection'. It would flag internationally a pariah status for a country that wantonly abuses human rights, particularly as there are policy options far more humane than the one preferred by successive governments."
Not a first
This isn’t the first time that it has been suggested that the ICC examine allegations of abuses against asylum-seekers in Australian detention facilities. In 2014, Andrew Wilkie, an independent member of parliament, insisted that the Australian government was committing crimes against humanity against asylum-seekers and requested that the ICC investigate. Wilkie argued that the Australian government was guilty of imprisonment and other severe deprivations of physical liberty in violation of fundamental rules of international law; deportation and other forcible transfer of population; and other international acts causing great suffering, or serious injury to body and mental and physical health. He further declared that:
"The actions of the prime minister and members of his government against asylum-seekers are criminal. Actions such as forcible deportation, detention without trial, detention of children and conditions of detention constitute breaches of Article 7 (Crimes Against Humanity) of the Rome Statute, the treaty that governs the jurisdiction of the ICC.
"The government is pandering to racism, xenophobia and selfishness instead of acting like leaders. This is why I’ve asked the Prosecutor to initiate an investigation into the prime minister and the cabinet because - if they won’t listen to the swathe of community outrage - then hopefully they’ll listen to the International Criminal Court.More recently, an argument has been put forward from leading scholars of international law that the companies running the detention sites may be liable for crimes against humanity. Establishing the liability of such entities is critically important but, for the time being at least, the prosecution of corporate entities for international crimes remains a blind spot in international criminal justice."
Will the ICC intervene?
It’s unclear if the Office of the Prosecutor ever responded to Wilkie’s original request for a preliminary examination of the alleged abuses on Manus and Nauru. And Ackland is right: we won’t be seeing any indictments for top Australian officials any time soon. Still, the ICC has shown an interest in being a significant player on global issues that capture the interest of the international community. When the international community expressed its consternation about ISIS’s destruction of cultural historical sites in Timbuktu (Mali) the ICC charged an Islamic terrorist, Ahmad al-Faqi al-Mahdi. Showing more than a perfunctory interest in the the alleged abuses perpetrated by Australian officials would also demonstrate that the ICC won’t shy away from examining alleged abuses by Western states.
Of course, the best outcome of any ICC intervention would not be to lure Australian officials into the Court’s dock. Ideally, an ICC preliminary examination would galvanise meaningful domestic action to investigate the alleged abuses, hold any perpetrators to account, prevent such senseless detention centres from operating in the future and offer reparations to those who have needlessly suffered under this policy.
The muscle of the ICC’s preliminary examination can be significant. Perhaps this is the time to flex it.
This piece by Mark Kersten, the creator of Justice in Conflict, looking into the politics and dilemmas of international justice has been lightly edited since its first publication in August 2017. It was originally one of the bi-monthly column Courtside Justice columns.