ICC Communication About Australia’s Mistreatment of Refugees

by Kevin Jon Heller

As has been widely reported, 17 international-law scholars — including yours truly — recently submitted a 105-page communication to the Office of the Prosecutor alleging that Australia’s treatment of refugees involves the commission of multiple crimes against humanity, including imprisonment, torture, deportation, and persecution. The communication is a tremendous piece of work, prepared in large part by the Global Legal Action Network (GLAN) and Stanford Law School’s International Human Rights and Conflict Resolution Clinic.

Peter Dutton, Australia’s Minister for Immigration and Border Protection, has described our efforts as a “wacky cause.” Nothing could be further from the truth. The communication is serious, sober, analytic, and comprehensive. I think it establishes far more than a “reasonable basis” to believe that Australian government officials and officials of the corporations that run the prison camps on Manus Island and Nauru have committed crimes against humanity. Here is (most of) the executive summary:

The communication analyses a decade of arbitrary and inhumane offshore detention, established and maintained by Australian governments. The evidence compiled during this time, which the Stanford Clinic corroborated in its fieldwork in Australia, amounts to a reasonable basis for the OTP to find that Australian agents and personnel of their corporate partners have perpetrated crimes against humanity.

Since 2008, successive Australian governments have carried out a policy of preventing asylum seekers and refugees arriving by boat from accessing asylum procedures in Australia. As is documented by UN and other observers, they have implemented an offshore detention and resettlement scheme violating core human rights of one of the world’s most vulnerable populations. These centres’ locations, conditions, and extended periods of detention often lasting years all point to a criminally prohibited policy. This policy is calculated to inflict pain and suffering, both physical and mental, upon asylum seekers and refugees, for the sole purpose of “deterrence.” With Manus nearly 3000kms and Nauru over 1000kms from the Australian mainland, those held against their will are not only denied proper legal support and medical help but also hidden from public scrutiny.

Approximately 1246 asylum seekers and refugees are currently held on Manus Island, and on Nauru. The privatized camps entail indefinite detention in inhumane conditions, often including physical and sexual abuse of both adults and children. The conditions and resulting hopelessness have caused what experts describe as “epidemic levels” of self-harm among those held on these islands. The communication details the overcrowded and unsanitary conditions of detention; extensive physical abuse at the hands of guards and local gangs, in many instances meeting the threshold of torture; incidents of sexual violence, including against children; inadequate access to food, water and medical treatment; and extensive mental suffering of detainees, including children.

[snip]

Australian governments have attempted to contract-out the detention facilities, and thereby avoid responsibility, by concluding agreements with Nauru and Papua New Guinea and by contracting with private corporations to run the facilities. Nevertheless, that liability for international crimes can be traced not only to direct perpetrators on the ground, but also to public officials and corporate officers and directors. Such individuals are participating and essentially contributing to an overall common plan. That plan includes a critical element of criminality. The structures of government and corporate effective control over the camps further establish the superior responsibility of high-level public officials and corporate officers.

[snip]

Crucially, the impact of the crimes extends far beyond those detained: the Australian policy is intended to deter future asylum seekers and refugees. As the refugee crisis spreads, states are looking to the “Australian model.” The danger of the spread and normalisation of the crimes committed in this context heightens their gravity. While the Court has so far predominantly focused on investigations of spectacular violence in Africa, and has been criticized for this, the gravity of the crimes described here supports prioritizing this examination.

It is a great honour to have been asked to sign the communication — and to provide feedback on the communication as it evolved. Credit is particularly due to the Stanford students who spent more than a year interviewing former and current detainees and writing early drafts of the communication — and to the experts who did the bulk of the heavy lifting, most notably Stanford’s Diala Shamas and GLAN’s Itamar Mann, Ioannis Kalpouzos, and Gearóid Ó Cuinn.

I encourage all readers to take the time to read the communication. I trust you will be surprised, shocked, and outraged by how the Australian government has mistreated innocent refugees, including hundreds of women and children. For more than a decade, I have been railing against the tendency to associate international criminal law with spectacular violence — the Holocaust, the Rwandan genocide, civil war in the DRC, and so on. Those are terrible events, deserving of punitive mechanisms of accountability. But actions do not have to lead to piles of bodies to amount to international crimes, as this communication so powerfully demonstrates. I can only hope that the OTP, which in recent years has de-emphasised body counts in favour of a more qualitative emphasis on gravity (see Mali, for example) and has always insisted on the need to protect particularly vulnerable types of victims (such as children), will give the communication the attention it deserves.

Finally, it is worth noting that Diala, Itamar, Ioannis, and I — along with Matthew Phillips from GetUp Australia and Oxford’s Dr Cathryn Costello — held an event Monday night at City University London to launch the communication. It was an excellent panel, and you can find an audio recording of it here.

http://opiniojuris.org/2017/02/15/icc-filing-about-australias-mistreatment-of-refugees/

14 Responses

  1. A 105 page nonsense is what that will emerge when arm chair critics decide to seek enforcement of laws without looking at the ground realities. In matters relating to national security and self preservation, do not expect a sovereign nation to adopt self-destructive policies and suicidal measures. Australia has been sensible while the same cannot be said about some of the EU members, notably Germany. Why does this bunch of so-called scholars not address issues which will protect the human rights of citizens from terrorist groups like AQ and ISIS, for a change?

  2. It is precisely this kind of ignorant comment — demanding that governments discard any and all human rights in order to make the irrationally fearful feel safer from a refugee “threat” that is largely non-existent — that foregrounds why the ICC and all international institutions need to act.

  3. I am not ignorant. Foolishly you and your colleagues expect a nation to abide by a treaty even if it means that accepting these criminals who are not all refugees will cause the destruction of their society and state. Morons like you fortunately are not in government and occupy the post of professor and dean. Are you and the others blind to the happenings in Germany, Sweden and elsewhere? Or is it typical leftist idiocy?

  4. Once again Anon proves his inability to muster even a barely coherent argument. (Those children indefinitely detained by Australia pose quite an existential threat to “society and state”!) It’s all just rage borne of excessive, irrational fear.

  5. Why don’t these refugees ever go to neighbouring countries which follow their culture and religion? Why do the Afghans, Pakis and people from far flung African countries travel for weeks to come to Greece and then move onward?

    You and your types by your stupid and ill-advised acts are responsible for causing disservice to millions of your fellow Europeans. Even the dim-witted Merkel realised her folly a bit too late in her political career.

    Thanks to you and like myopic fools, Marine Le Pen and Gert Wilders will come to power. AfD has made substantial gains because of Merkel’s policy. Wake up to reality Mr. Professor!!

  6. As an Australian, thank you Kevin (and all co-signed) for your work into this Communication. I hope it increases pressure on the Australian Government to close the detention centres – one only has to read it and the accounts of the horror within the centres, particularly involving children, to know that there is no rationale for this barbarity.

    I had a couple of questions to ask – firstly you mention in the panel the role of ‘gravity’ (in arts 5 and 17 of the Statute) in opening an investigation. While acknowledging that the OTP has discretion, is there any case law from the Pre-Trial Chamber that interprets the requirement of gravity that would be relevant to the Australian case?
    I also wanted to ask about the meaning of ‘attack’ in article 7(1) of the Rome Statute. art 7(2) says there is a requirement of the ‘multiple commission of acts’ in expounding art 7(1). I note the ICTR Trial Chamber in Akayesu held these acts can be non-violent, but can omissions, such as doctors failing to provide care or guards failing to protect asylum-seekers from local attacks fall within the definition?
    Finally and more broadly, do you think there is any chance that if the OTP does open an investigation, instead of launching criminal prosecutions itself, Australia would ‘pull a South Africa’ and withdraw from the Rome Statute? What would the ramifications of this be?
    Sorry for the multi-barrelled questions, keep up the good work and ignore the trolls! As you can see, this topic is like Australia’s equivalent of gun control and abortion – nothing stirs up more controversy.

  7. http://allafrica.com/stories/201702090569.html
    “Now, this is the situation because we do not want to compromise our security and stability, and that is why we say the ICC statute needs to be amended so that sitting presidents should be allowed [to serve], and only be followed after this national responsibility given to them [is over],” Foreign Minister of Namibia.

  8. Mr. Professor do you even have an argument except for 105 page of nonsense? A majority of the ones involved in crimes in Sweden, Denmark are over-aged children between the ages of 18 and 27. A large chunk of Syrian ‘children’ were allowed to enter without determining the age of the ‘children’. What is your definition of juvenile, Mr. Professor?

    If these ‘children’ come in waves, Islamic caliphate of Europe will be a reality with you sporting a beard and your wife wearing a full body veil.

  9. Who wants to bet Anon hasn’t read more than a couple of pages of the communication? And his comment about Le Pen and Wilders is amusing, because his politics mirrors theirs almost precisely — at least concerning terrorism and immigration.

    Oh, by the way Anon: I’m not European. I’m American.

  10. Dan W,

    1. The PTC has not said very much about the gravity of situations, as opposed to the gravity of cases — and there isn’t much in the Rome Statute that clarifies things. So we are basically squarely in the realm of OTP policy. The only exception is the Comoros case, where the PTC second-guessed the OTP’s declination to investigate. But even there the PTC could only ask the OTP to reconsider; it could not order it to. (It can only order the OTP to proceed when the declination is based specifically on the interests of justice.)

    2. Omissions could be construed as “acts” for purposes of the contextual elements of CAH, but there is no need to in this situation. The communication details hundreds of positive acts — by the Australian government, by the corporations running the prisons, by specific actors in the prisons — which establish the widespread or systematic attack and the requisite state policy.

    3. I don’t think Australia would ever withdraw from the ICC. The reputational costs would be too great and wouldn’t stop prosecutions anyway. Far more likely, Australia would investigate the ICC suspects itself and invoke the principle of complementarity.

    Thanks for the questions!

  11. I am one of those most grateful we have international law scholars (like Kevin) that have abiding and principled concern for questions of due process, human rights, and international criminal law norms. In the U.S. we were recently fortunate enough to have immigration lawyers and constitutional legal scholars speak out and act against Trump’s executive order on immigration in conjunction with people taking to the streets (and airports!) in protest. Such things are beacons of light in a climate of apocalyptic-like darkness. “Serious, sober, and analytic” are among the precious rational and legal adjectives (and virtues) sorely needed in a time around much of the globe when people’s fears and insecurities have trumped their rational faculties, when states of denial and self-deception have made mincemeat of basic moral principles, and when wishful thinking and uninhibited fantasizing have seized imaginative powers (the productive power of sublimation having altogether disappeared) to the detriment of what used to be known as the “common good,” one that embraced all human beings: including those who are poor, vulnerable, working-class, exploited, marginalized, discriminated against, victims of unnecessary and thus avoidable suffering….

  12. If I were to be placed in a situation obtaining in France or Belgium, I will extend support to a person like Le Pen. I don’t need any certificate or permission for having a political view point. Just as Dan W and O’Donnell are entitled to their opinions. We don’t want to shove your leftist views on all and sundry. We have tolerated this nonsense from left intelligentsia for several decades. But thankfully characters like you are in the minority. You and others like you are no better than representatives of terrorists themselves.

  13. For those who want to bring in refugees in waves and destroy their society – “Extreme foolishness masquerading as justifiable compassion.” The harm from this error will be with the West for a very long time, perhaps forever.

  14. Anon, When Australia isn’t trying to solve these problems, international human rights have the potential to help out legally and thereafter morally. The fundamental idea with human rights is that all human beings have dignity. When you’re saying its extremely foolish to be compassionate, you are disregarding hundreds, if not thousands, of years of social progress. It’s always been demanding and challenging to help others, and its always been necessary to make sacrifices. Chances are that you would be alive today, if it wasn’t for the rule of law and human rights. Just as there are reasons to give you help for your hatefulness and bitterness, there are also good reasons to help tortured and sexually exploited children on Nauru and Manus. Please tell me, do you wish to help refugees? And if you do, how would you like to help them?

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