The OTP Lets Australia off the Hook

A couple of years ago, I helped GLAN and the Stanford International Human Rights and Conflict Resolution Clinic prepare a 115-page communication to the OTP regarding Australia’s unconscionable treatment of refugees and asylum seekers detained on Nauru and Manus Island, Papua New Guinea. Here is the key paragraph from the Executive Summary:

The communication finds that there is a reasonable basis to believe that public officials and corporate actors may have committed and may continue to commit the crimes against humanity of unlawful imprisonment, torture, deportation, persecution and other inhumane acts. These crimes are at the heart of Australia’s immigration detention policy and constitute a widespread and systematic attack against a civilian population, within the meaning of Article 7 of the Rome Statute of the International Criminal Court.

We have never received a response to the communication, which is not terribly surprising. On February 12, however, the OTP did formally respond to similar allegations made by Andrew Wilkie, an independent member of the Australian parliament. Unfortunately, it informed Wilkie that it does not believe the ICC has jurisdiction over the situation in Nauru and Manus Island.

There is a bit of good news in the response: the OTP that believes the conditions of detention on Nauru and Manus Island are terrible enough to qualify as the “underlying act” of the crime against humanity of imprisonment or other severe deprivation of physical liberty, Art. 7(1)(e) of the Rome Statute. Here is what it says:

In terms of the conditions of detention and treatment, although the situation varied over time, the Office considers that some of the conduct at the processing centres on Nauru and on Manus Island appears to constitute the underlying act of imprisonment or other severe deprivations of physical liberty under article 7(1)(e) of the Statute. The information available indicates in this regard that migrants and asylum seekers living on Nauru and Manus Island were detained on average for upwards of one year in unhygienic, overcrowded tents or other primitive structures while suffering from heatstroke resulting from a lack of shelter from the sun and stifling heat. These conditions also reportedly caused other health problems—such as digestive, musculoskeletal, and skin conditions among others—which were apparently exacerbated by the limited access to adequate medical care. It appears that these conditions were further aggravated by an environment rife with sporadic acts of physical and sexual violence committed by staff at the facilities and members of the local population. The duration and conditions of detention caused migrants and asylum seekers — including children — measurably severe mental suffering, including by experiencing anxiety and depression that led many to engage in acts of suicide, attempted suicide, and other forms of self harm, without adequate mental health care provided to assist in alleviating their suffering. These conditions of detention appear to have constituted cruel, inhuman, or degrading treatment (“CIDT”), and the gravity of the alleged conduct thus appears to have been such that it was in violation of fundamental rules of international law.

Unfortunately, the rest of the OTP response is disappointing — and in a couple of critical respects, completely wrong.

To begin with, it’s important to understand the narrowness of the OTP’s conclusion concerning jurisdiction. There is no question that the Court has temporal jurisdiction over the acts in question, as well as territorial jurisdiction over acts that took place on Nauru and nationality jurisdiction (for Australian officials) over acts that took place on Manus Island. The OTP’s conclusion thus necessarily implies that the Court does not have subject-matter jurisdiction over the situation — which is only the case if not even one act committed on Nauru or Manus Island qualifies as a crime against humanity.

At first glance, that’s bizarre — after all, as quoted above, the OTP believes that conditions on Nauru and Manus Island were terrible enough to qualify as “imprisonment or other severe deprivation of physical liberty under article 7(1)(e)” of the Rome Statute. But here is where the OTP’s “underlying act” language becomes so critical. According to the OTP, the problem is that the imprisonment or other severe deprivations of physical liberty did not take place pursuant to a state or organizational policy:

Having assessed the information available, there is insufficient information at this stage to indicate that the multiple acts of imprisonment or severe deprivation of liberty were committed pursuant to or in furtherance of a State (or organisational) policy to commit an attack against migrants or asylum seekers seeking to enter Australia by sea, as required by article 7(2)(a) of the Statute. Specifically, the information available at this stage does not provide sufficient support for finding that the failure on the part of the Australian authorities under successive governments, whose policies varied over time, to take adequate measures to address the conditions of the detentions and treatment of migrants and asylum seekers seeking to enter Australia by sea, or to stop further transfers, was deliberately aimed at encouraging an ‘attack’, within the meaning of article 7. In this context, although Australia’s offshore processing and detention programmes were initiated to pursue, among other things, a policy of immigration deterrence, as confirmed by official announcements and statements, the information available at this stage does not support a finding that cruel, inhuman, or degrading treatment was a deliberate, or purposefully designed, aspect of this policy.

The Office could not otherwise establish a State or organisational policy to commit the acts described by the governments of Nauru and Papua New Guinea or other private actors. As such, based on the information available, the crimes allegedly committed by the Australian authorities, jointly with, or with the assistance of, the governments of Nauru and Papua New Guinea, and private actors, as set out in the communication, do not appear to satisfy the contextual elements of crimes against humanity under article 7 of the Statute.

The OTP’s factual conclusion is more than a little shocking, raising the question of what information it actually looked at. The Australian government did not simply “fail… to address” the terrible conditions on Nauru and Manus Island. On the contrary, it deliberately created those conditions in order to deter future would-be asylum seekers from trying to reach Australia. Here is just a small snippet from our communication (pp. 14-15):

Accounts from former employees with first-hand knowledge of the conditions provide further evidence that government officials, in coordination with corporate agents, designed conditions offshore to be cruel, so as to further deter arrivals. Greg Lake, a former department official at a processing centre, stated that the government specifically interned children to show how terrible offshore processing could be, thereby deterring individuals who might seek refuge in Australia. He affirms, they “wanted to send a deterrent message” and “it was important to send some children” who, while over seven years old, “looked the youngest” to detention centres.

According to Lake, by making conditions cruel and targeting children, the government believed boat arrivals might cease. Mark Isaacs, a former employee at a processing centre, stated that dehumanising treatment is “exactly the point;” “cruelty and isolation have become Australia’s strategy” in deterring migration. Australia’s government officials and representatives encouraged stories of hardship in detention to filter back to friends and family, thereby deterring future journeys.

The OTP’s credulity toward the Australian government is particularly problematic given that the OTP also insists it “could not otherwise establish a State or organisational policy to commit the acts described by the governments of Nauru and Papua New Guinea or other private actors.” In other words, the OTP apparently believes that no one was responsible for creating conditions of detention on Nauru and Manus Island terrible enough to amount to a crime against humanity. Those terrible conditions “just happened.”

Nor is that all. What the OTP says in the response’s only footnote is equally troubling:

[T]he Office notes that it appears that once the facilities on Nauru and Manus Island were converted into “open centres” as of October 2015 and May 2016, respectively, the migrants and asylum seekers can no longer be considered, under the particular circumstances presented, to have been severely deprived of their physical liberty, as required by article 7(1)(e) of the Statute.

This statement is more than a little Orwellian. Let me quote again from our communication (p. 66):

While the Australian government and Papua New Guinean/Nauruan governments claim they are now in “open detention,” asylum seekers and refugees cannot leave the islands, or even the detention centres. The conditions of this “open detention,” combined with remoteness of the islands and the reasons that first motivated asylum seekers to embark on their journey, guarantee a complete deprivation of liberty. Those held on Manus Island and Nauru “are in a cul-de-sac from which, as they have no safe country to go to, there is no escape.” One service provider on Nauru noted “the island is a prison—and nowhere is safe for them.”

The OTP seems to believe that the detainees are no longer “severely deprived of their liberty” because they are free to return to their home countries at any time. But that simply ignores why they left in the first place. As the Guardian reported in late 2016 regarding Manus Island:

Of the 551 men held there who have had their protection claims assessed, 541 – or 98% – have been recognised as refugees. That is, they have a “well-founded fear of persecution” in their homeland, they cannot be returned there, and they are legally owed protection.

A detainee’s freedom to leave Nauru and Manus Island is thus the freedom of the robbery victim to be killed instead of handing over his wallet.

It is also unfortunate how easily the OTP dismisses the possibility that other crimes against humanity have occurred on Nauru and Manus Island. With regard to torture, for example, the OTP simply says that “based on the information available, it does not appear that the conditions of detention or treatment were of a severity to be appropriately qualified as the crime against humanity of torture under article 7(1)(f) of the Statute.” But how can that conclusion be reconciled with the OTP’s own acknowledgment that “[t]he duration and conditions of detention caused migrants and asylum seekers — including children — measurably severe mental suffering, including by experiencing anxiety and depression that led many to engage in acts of suicide, attempted suicide, and other forms of self-harm, without adequate mental health care provided to assist in alleviating their suffering.” After all, Art. 7(2)(e) defines torture as the “intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused.” How exactly does “severe mental suffering” not qualify as “severe pain or suffering, whether physical or mental” — especially when the victims include children, a particularly vulnerable group?

Similarly, the OTP all too easily dismisses the crime against humanity of persecution. It claims that “the above identified conduct of imprisonment or severe deprivation of liberty does not appear to have been committed on discriminatory grounds.” It is true that Art. 7(1)(h) does not explicitly prohibit persecution on the basis of refugee status. But it does prohibit persecution on “other grounds that are universally recognized as impermissible under international law.” As one of the main authors of our communication, Ioannis Kalpouzos, noted on Twitter yesterday, a strong case can be made that the mistreatment of refugees falls into that category. At the very least, the OTP should have explained why it rejects that idea.

The OTP’s dismissal of persecution is, in fact, doubly unfortunate. As noted above, the OTP concluded that the Court does not have subject-matter jurisdiction over the situation on Nauru and Manus Island because it found — wrongly — that there was no state or organizational policy to commit the only acts that it believed rose to the level of crimes against humanity: namely, the conditions of detention terrible enough to qualify as imprisonment or other severe deprivation of liberty. Had the OTP found that detainees had been persecuted, it could not have reached the same conclusion. Given that Art. 7(2)(g) defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity,” a state or organizational policy is implicit in any act of persecution.

All in all, it is disappointing that the OTP decided a cursory four-page letter was a sufficient response to very serious allegations made against the Australian government by one of its own MPs. As I’ve tried to show in this post, the OTP’s analysis of those allegations is factually deficient and legally questionable. But perhaps that’s why the response is so cursory. A more searching analysis, one that took seriously the damning facts in our communication to the OTP, would almost certainly have concluded that the Australian government is responsible for a wide variety of crimes against humanity on Nauru and Manus Island.