PNG rules refugees detention by Australia illegal: next – compensation, liberation, ICC re-submissions?

Asylum seekers housed in Delta compound look on from behind a fence as a court appointed party inspects the Manus Island detention centre in Papua New Guinea, Friday, March 21, 2014. Papua New Guinea expects to start resettling refugees detained in Australia's offshore processing centre on Manus Island as early as May. (AAP Image/Eoin Blackwell) NO ARCHIVING

Yesterday the Supreme Court of Papua New Guinea declared that the detention of refugees at the Manus Island detention centre on behalf of Australia was unconsitutional – i.e. illegal. Lawyer Ben Lomai will be applying to the Court for the immediate release of all 909 detainees, as well as full compensation. Some detainees have been held on Manus Island for years and Mr Lomai said they could be entitled to compensation of over A$100,000 each.

BREAKING: PNG PM has announced Manus refuge detention centre to be closed ASAP & Australia to organise resettlement outside PNG – see statement below.

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UPDATE: Refugee on Nauru sets himself alight while UNHCR inspectors watch.

The ruling by the Court was in relation to Section 42 of PNG’s constitution, which guarantees freedom of persons entering the country, including foreigners unless the foreigner has broken a law of PNG.

The Australian Governmernt wants the transportation (note the irony) of all 909 refugees to Christmas Island, where more refugees are detained in an overcrowded camp.

But there is another solution – one that the Australian Government is unlikely to accept – namely that the UNHCR organise the safe removal of all 909 refugees to countrries of their choice, where those countries have offered places. In recent months New Zealand and certain Scandinavian countries have offered to take in refugees detained offshore by Australia.

In the meantime, should proceedings to seek compensation go ahead then, presumably, this will be for not just ilegal and arbitrary detention (loss of liberty) by Australia, but kidnapping and exemplary damages in relation to physical and mental harm. There have also been incidents of rape by detention centre guards, hunger strikes and self-harming on Manus. Two years ago there were riots that saw refugee Reza Barati killed and scores of asylum seekers injured.

The ruling by the PNG court may have wider repercussions in that it proves that Australia’s offshore processing of refugees is illegal and, so, the Australian Government could be subject to criminal proceedings in the international courts (e.g. the ICC). Four submissions to the International Criminal Court have already been made. It is now up to the lawyers to step forward.

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Letter from detained Rohingya refugee boy on Manus on latest developments. (More pages below…)

Note on legal contraventions…

The Australian Government has obligations regarding several international treaties to ensure human rights are respected and protected. These treaties include:

These rights include the right not to be arbitrarily detained. As a party to the Refugee Convention, Australia also agreed to ensure that asylum seekers who meet the definition of a refugee are not sent back to a country where their life or freedom would be threatened. This is known as the principle of non-refoulement. Australia also has obligations not to return people who face a real risk of violation of certain human rights under the ICCPR, the CAT and the CRC, and not to send people to third countries where they would face a real risk of violation of their human rights under these instruments. These obligations also apply to people who have not been found to be refugees.

Under the International Covenant on Civil and Political Rights (ICCPR) articles 6 & 7, Australia also has an obligation not to send someone to a place where their life may be in danger or where they may be subject to cruelty or inhumane treatment. If it is shown that asylum-seekers are subjected to cruelty or inhumane treatment at Manus Island (or Nauru) then the Australian Government would be in breach of the convention.

ICC and Crimes Against Humanity: an explanation

The ICC was established in 2002 at The Hague in the Netherlands, by way of the Rome Statute and was given jurisdiction over the prosecution of crimes relating to genocide, crimes against humanity and war crimes.

The definition of “crime against humanity” for ICC proceedings has significantly broadened from its original legal definition or that used by the United Nations.

Article 7 of the Rome Statute states that:

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

  • (a) Murder;

  • (b) Extermination;

  • (c) Enslavement;

  • (d) Deportation or forcible transfer of population;

  • (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

  • (f) Torture;

  • (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

  • (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

  • (i) Enforced disappearance of persons;

  • (j) The crime of apartheid;

  • (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health;

Thus “Crimes against humanity” are defined by the Rome Statute of the ICC Explanatory Memorandum as “. . . particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings.” Such crimes are required to “not be isolated or sporadic events”, but be part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.

The section “Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” could be argued as bringing asylum-seeker policy within the definition, given the lengthy periods asylum-seekers are detained at Manus Island and Nauru and the enormously lengthy periods taken to process them and eventually if ever resettle them. Terms like ”other inhumane acts” and ”intentionally caus[ing] great suffering or serious bodily or mental injury” may cover asylum-seeker policies that limit access to medical treatment, keep children in detention and alike.

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