Bringing suit against Canberra over its barbaric detention policy would show the ICC isn't just for African strongmen anymore.
- By Rebecca HamiltonRebecca Hamilton, an Australian, is an assistant professor of law at American University, Washington College of Law. She previously worked at the International Criminal Court.
Last week, a veritable who’s who of human rights lawyers, coordinated through Stanford Law School’s human rights clinic, lodged a 108-page brief with the prosecutor of the International Criminal Court (ICC), urging her to investigate alleged crimes committed by Australian officials and the Australian government’s private contractors. Among an ICC docket stacked with African warlords and strongmen, the folks from Down Under may seem like an odd fit.
But as the well-researched brief demonstrates, there’s every indication that Australian officials, over the course of successive governments, have knowingly enabled the commission of crimes against humanity. Their victims have been people whose only “crime” was to seek Australia’s protection from persecution. In light of trends in Europe and, most recently, the United States, toward abandoning the hard-won protections enshrined in the U.N. Refugee Convention, this is the optimal moment for the ICC to take a closer look — and a key opportunity for the ICC to prove that it isn’t just targeting developing countries, but is willing to take on the crimes of developed nations too.
The allegations of crimes against humanity, including torture, deportation, persecution, and other inhumane acts, stem from Australia’s post-9/11 policy toward asylum-seekers known as the “Pacific Solution.” Under the Pacific Solution, the Australian government and its partners prevent anyone trying to enter Australian waters by boat, including anyone seeking asylum, from reaching the mainland. They do this by forcibly intercepting and transferring asylum seekers to one of Australia’s offshore immigration detention facilities on the tiny Pacific island nation of Nauru, or on Manus Island, Papua New Guinea. The legal fiction underlying the policy is that because the asylum seekers never set foot on Australian soil, Australia can shirk the responsibilities it would otherwise have toward them under the U.N. Refugee Convention.
Australian government officials maintain de facto control over the offshore facilities: They pay for them, set the policies in operation there, and hire private contractors to run them. After the repeated efforts of whistleblowers to draw attention to the deeply ingrained violence and abuse in the facilities, there is no doubt that Australian officials know about the crimes being committed there. There is every indication that the creation of inhumane conditions at the detention facilities is central to Australian policy. And this is not the work of just one side of the political spectrum. Today the policy is executed by the center-right Liberal Party government, but the basic approach has been maintained across changes in government over the past decade. Moreover, the policy is consistent with Australia’s long history of entrenched racism with respect to immigration. Its “White Australia” policy, which systematically excluded non-Europeans from immigrating Australia, was not officially dismantled until 1973.
Per the brief submitted to the ICC last week, one former detention center official has explained how the Australian government intentionally made conditions at the camps cruel and targeted children in an effort to deter potential asylum-seekers. Another former employee described the dehumanizing treatment at the centers as “exactly the point” of a policy that seeks to deter any prospective asylum-seeker from trying to reach Australia. Damningly, the Australian government has made every effort to hide the plight of those at the detention centers from public scrutiny. It has criminalized whistleblowing and limited asylum-seekers’ access to judicial review.
Against this backdrop, it speaks to the tenacity of journalists and human rights lawyers that so much information about the conditions at these remote locations has come out. In March 2015, former U.N. Special Rapporteur Juan Méndez concluded that Australia had “violated the right of the asylum seekers, including children, to be free from torture or cruel, inhuman or degrading treatment.” An October 2016 report by Amnesty International concluded that the Australian government’s policy has been “explicitly designed to inflict incalculable damage on the hundreds of women, men and children on Nauru.” And the Guardian has published extensive reporting on the conditions on Nauru based on a cache of leaked documents written by staff there.
It is not by chance that Australia located its offshore facilities on Nauru and Manus Island. Both have long been sites of exploitation. Nauru in particular has long been vulnerable to external powers as the world’s smallest republic at just 8 square miles. Originally a site of valuable phosphate rock, poorly run strip mining operations left the island a virtual wasteland, unsuitable for any productive activity. Today payments by Australia for the detention facilities serve as the country’s most significant source of income.
In addition to violence and sexual abuse, in particular of children at the centers, the general conditions of life are inhumane. The brief to the ICC explains that on Manus Island, drinking water was restricted to 500 mL per day, in searing tropical temperatures where detainees have limited or no access to shade. A 24-year-old Iranian asylum-seeker died of septicemia following a minor blister on his skin, because of unsanitary conditions and inadequate care at the island’s medical clinic. On Nauru, the brief explains, the detainees’ sleeping facilities — tents housing up to 50 people each — are situated on a former phosphate mine with the associated dust generating chronic respiratory conditions, especially for children.
The ICC is a court of last resort, meaning it can only prosecute alleged crimes if the relevant domestic system is not doing so. The easiest way for Australia to avoid the ICC’s scrutiny would be for it to pursue its own prosecutions. But in the face of repeated allegations about the conditions on Nauru and Manus Island, the Australian government has stubbornly refused to act. This is exactly the scenario for which the ICC was designed to account.
The ICC has been roundly criticized for spending its first 15 years of operation pursuing allegations of crimes committed in Africa, to the exclusion of other regions. Although this recently began to change with the prosecutor’s decision to open an investigation into alleged crimes in Georgia, the court is still suffering from the perception of having an anti-Africa bias, and of being a tool wielded against the weakest members of the international system. Indeed, the African Union recently called for the withdrawal, en masse, of its member states from the court.
By opening an examination into the alleged crimes against humanity on Nauru and Manus Island, the court could demonstrate that it is willing to investigate serious crimes, even when the alleged perpetrators are from a relatively powerful Western nation. And at a time when Western nations are grappling with the largest refugee crisis since World War II, overlooking allegations coming out of Nauru and Manus Island would risk normalizing Australia’s abuse of refugees, setting a disturbing precedent for the rest of the world. If the ICC does not at least investigate credible allegations of crimes against people who have fled the world’s most dangerous places, then it seems fair to ask just what the point of the court is.
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