Australia’s Offshore Immigration Detention Policy: The Prototype of Passively Encouraged Crimes Against Humanity

[Mathias Holvoet works as a Legal Officer at the Federal Prosecutor’s Office of Belgium.]

This post is a follow-up post on Kevin Jon Heller’s post ‘the OTP Lets Australia off the Hook’, in which he vehemently criticized the ICC’s Office of the Prosecutor’s decision not to open a preliminary examination over the situation in Nauru and Manus Island, after denying to qualify the Australia’s immigration detention policy as crimes against humanity. I agree with much of Kevin Jon Heller’s analysis, but in this post, I want to take further issue with the OTP’s finding that the imprisonment and other severe deprivations of liberty taking place on Nauru and Manus Island ‘did not take place pursuant to a state organizational policy’, as it is the OTP’s reliance on this particular contextual element that led it to withhold the qualification of crimes against humanity. As a reminder, the OTP held the following:

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.

For different reasons, this analysis wrongly interprets and applies the policy requirement under article 7(2)(a) of the Statute. First, the OTP’s finding that Australian authorities failure to address the conditions of detention and treatment of asylum seekers and migrants were not deliberately aimed at encouraging an ‘attack’ within the meaning of Article 7 erroneously interprets footnote 6 of the ICC Elements of Crime. This footnote specifies that, while a ‘policy to commit such attack’ normally requires a State or organization to actively promote or encourage such an attack (see paragraph 3 of the Introduction to the Elements of Crimes against humanity), such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. Critically, and certainly relevant for the Australian situation, the footnote further adds that the ‘existence of such a policy cannot be inferred solely from the absence of governmental action’. The OTP’s interpretation neglects the rationale of footnote 6 which was specifically included as a result of a compromise in the Elements of crimes against humanity to capture attacks against any civilian population pursued or furthered through a policy of omission. While most crimes against humanity prosecuted up to date involved active promotion or encouragement, crimes against humanity committed through passive encouragement have been consistently accepted in authorities related to crimes against humanity. As explained in detail by Darryl Robinson in his account on the negotiating process of the Elements of crimes against humanity, the ‘deliberate failure to take action’ phrase in footnote 6 was included to cover situations where there is an absence of a state’s action to particular crimes, where in addition there is evidence that the State had knowledge of the crimes and had the capacity to respond. Robinson cites the following passage from the final report of the Commission of Experts on the Former Yugoslavia as an authority which illustrates a policy encouraged through inaction:

Unwillingness to manage, prosecute and punish uncontrolled elements may be another indication that these elements are, in reality, but a useful tool for the implementation of a policy of crime against humanity.

This passage seems to capture the policy of the Australian government quite neatly. The OTP notes in its response that its qualification of the detention of migrants and asylum seekers on Nauru and Manus Island as an underlying act of imprisonment or other severe deprivations of physical liberty under article 7(1)(e) of the Statute are largely consistent with various assessments made by UN bodies, human rights organisations, and certain domestic inquiries in Australia. Despite these assessments, and numerous calls to amend its domestic laws which were in breach of international human rights law, the Australian government has persisted in its long-standing policy, by stating for instance ‘that it considered mandatory immigration detention to be an essential component of strong border control’. Given this deliberate failure of the Australia’s government to act upon its legal obligations and remedy the multiple breaches of international human rights law, one fails to see why the OTP did not see any reasons to believe that the existence of a policy behind crimes against humanity could be inferred. A reason more to infer the existence of such a policy is the acknowledgement of the OTP itself that ‘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 OTP continues by stating ‘that 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’. This, however, misses the point. The OTP was not bound to find that cruel, inhuman, or degrading treatment was a deliberate, or purposefully designed aspect of the Australian policy of immigration deterrence.  It solely had to establish that the Australian government consciously pursued or furthered the multiple acts of imprisonment or severe deprivation of liberty by deliberately failing to take action. Since a policy behind crimes against humanity will almost always be a matter of inference, the official policy of immigration deterrence as well as the inaction in the face of numerous calls to remedy breaches of international human rights law obligations are evidentially relevant factors to argue that there was indeed an Australian policy, albeit a covert one, behind crimes against humanity. It is indeed implausible to argue that the multiple acts of imprisonment or severe deprivation of liberty were a consequence of mere inaction on the part of the Australian government, as it had the knowledge and the capacity to respond to the crimes.

Off course, it would be premature at this stage to establish if and which current or former Australian government officials are individually criminally responsible beyond reasonable doubt for crimes against humanity. This would require further thorough investigations and careful analysis into complex questions related to the law and evidence of certain modes of liability such as joint or accessorial liability and command responsibility. At this very early stage, the analysis which the OTP had to carry out was akin to ascertaining whether Australia as a state was responsible for crimes against humanity. In this regard, the OTP could have informed its analysis by relying on the ILC’s Draft Articles for a Convention on the Prevention and Punishment of Crimes against Humanity. Most relevantly, article 4 of the ILC Draft Articles stipulates that ‘each State undertakes to prevent crimes against humanity, in conformity with international law, through: (a) effective legislative, administrative, judicial or other appropriate preventive measures in any territory under its jurisdiction’. In its commentary to Article 4, the ILC specified that the phrase ‘in any territory under its jurisdiction’ covers the territory of a state, but also covers situations in which a state is exercising de facto control. Interestingly and tellingly, in a comment on article 4, Australia asserted that ‘it would be useful to clarify’ that the obligation under draft article 4 ‘would not arise with respect to places of detention outside the territory of the State in circumstances where the State had control over the place of detention but not over the surrounding territory.’  It further submitted that ‘a high degree of control over territory is required for territory to be considered under a State’s jurisdiction.’ This comment by Australia was clearly made with the outsourcing of its obligations towards migrants and asylum seekers by establishing detention camps on the territories of Nauru and Papua New Guinea. Implicitly, Australia seems to recognize that its detention policy on Nauru and Manus Island could amount to crimes against humanity, but it seeks to avoid any future legal responsibility by arguing that it would have to exercise almost full control over the whole of the territories of Nauru and Papua New Guinea to be responsible for any crimes against humanity which would occur in these states. This seems legally questionable. Instead, as the ILC held, the criterion should be whether Australia exercised de facto control over the detention camps.

The aim of this post was to demonstrate that there are strong valid legal reasons to believe the Australian government is responsible for passively encouraging crimes against humanity by deliberately failing to take action. In any event, the OTP’s declining of jurisdiction even prior to the phase of preliminary examination is indefensible. In a recent article, Ioannis Kalpouzos explains the OTP’s position as a reinforcement of international criminal law’s ‘traditional and continuous focus on “radical” or “spectacular” criminality.’ In his view, Western states like Australia ‘may be guilty of “not doing enough in response,” but the OTP’s imaginary seems unable to understand this as an “attack.”’ If the OTP had studied the law more thoroughly and had applied it more scrupulously, it certainly could and should have imagined that the multiple acts of imprisonment or severe deprivation of liberty constituted an attack that was passively but consciously encouraged by the Australian government. It seems more conceivable that the OTP, being aware that the Australian situation did not spark as much public outcry and did not catch the (un)imagination in the same way as the persecution of Rohingya or the Israeli/Palestinian situation did for instance, opted for a dubious interpretation of the law to avoid being on a collision course with yet another state within the Western hemisphere.