ICC Communication About Australia’s Mistreatment of Refugees
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.
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.
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.