It’s official! Australia in court re Crimes Against Humanity

A case has been lodged against the Australian Government for Crimes Against Humanity. No, not in the International Criminal Court – that’s still live, see Appendix below – but in the High Court in Australia and in relation to those hundreds of men detained illegally, as per the recent Supreme Court ruling in Papua New Guinea. The case has been raised by Russell Byrnes solicitors as a class action. It has been lodged successfully. but is yet to be formally listed. If the high court finds against the Australian Government it will be yet another blow to the credibilty of the so-called Pacific Solution. Furthermore, it may encourage similar action in the court on behalf of those illegally detained on Nauru.

The lawyers who lodged the case will be seeking an injunction to order the immediate release of 757 detainees. It is understood that the Australian high court action alleges that the PNG and Australian governments have committed gross human rights violations and international crimes, constituting “crimes against humanity”, including: forcible deportation; arbitrary and indefinite detention; and torture, inhuman and degrading treatment.

The asylum seekers at Manus specifically allege that following the Rudd government’s announcement in 2013 that no asylum seeker arriving by boat would be settled in Australia, they were forcibly deported to PNG by the Australian Government. They also allege their detention on Manus Island constitutes arbitrary and indefinite detention, which is illegal under international law. They further allege negligence re duty of care contributed to the death of Reza Berati, who was killed during a riot at the centre in February 2014.

The PNG supreme court stated in its judgment last week that it had been “the joint efforts of the Australian and PNG governments” that brought the asylum seekers to PNG and kept them at the Manus Island processing centre “against their will”, and that their detention had been illegal from its inception.

On 16 May, PNG lawyer Ben Lomai will be separately seeking to joining the Commonwealth of Australia to his case contesting the constitutionality of the men’s detention; releasing all the asylum seekers and refugees into the custody of Australia; and ordering all the men returned to Australia. In addition, around A$110m will be sought in compensation for the detainees.

Appendix: ICC submissions

Below are the four submissions – still live (subject to updates – e.g. new prime minister, minister for Immigration etc) – to the International Criminal Court at The Hague.

1. Submissions by a) Julian Burnside, b) Greg Barns & Andrew Wilkie, and c) Tracie Aylmer

A. Julian Burnside:

In March 2015 Julian Burnside QC made inquiries with lawyers who specialise in ICC cases to see if the ICC would investigate Mr Tony Abbott and Mr Scott Morrison.

B. Greg Barns and Andrew Wilkie:

UPDATE: here is a copy of the last update sent by Andrew Wilkie MP (in conjunction with his submission with Greg Barns) to the ICC.

In October 2014 Andrew Wilkie MP and lawyer Greg Barns commenced a case in the ICC against the then prime minister Tony Abbott, Minister for Immigration and Border protection Scott Morrison, Assistant Minister for Immigration and Border Protection Michaela Cash, Minister for Foreign Affairs Julie Bishop, Former Chief of the Defence Force General David Hurley, and Commander of Operation Sovereign Borders Lieutenant General Angus Campbell (in total, 19 members of the Abbott cabinet). The submission called on ICC prosecutors to use Article 17(2) of the Rome Statute in relation to all onshore and offshore processing. The submission alleged that the Australian government committed atrocities in breach of Article 7 of the convention.

Here is the full submission lodged with the ICC.

Here is a summary:

• Tony Abbott and his Cabinet treat people who arrive by sea in search of Australia’s protection (‘asylum seekers’) as a specific class of person, engaging in a systematic attack on this class, intentionally carried out with full knowledge of the consequences and warranting ICC attention.
• Tony Abbott and his Cabinet are responsible for the fact that people in this class are isolated for the purpose of mandatorily and arbitrarily detaining them, removing access to legal recourse, and placing them in conditions causing great suffering and serious injury to mental and physical health.
• The scale and severity of this attack is of sufficient gravity to constitute a crime against humanity. There are several provisions in Article 7 of the Rome Statute, to which Australia has acceded, that are particularly relevant:
o Article 7(1)(d) relating to the deportation and forced transfer of persons. This is applicable to the transportation of people (including children) against their will to foreign sovereign nations such as the Republic of Nauru and Papua New Guinea;
o Article 7(1)(e) relating to imprisonment or other severe deprivation of physical liberty. This is applicable to the mandatory and indefinite detention of people in violation of international law including international treaties to which Australia is a party, despite the fact these people have not committed or even been accused of any crime at the time of detention;
o Article 7(1)(k) relating to other intentional acts causing great suffering or serious injury. This is applicable to the conditions to which detainees are subjected, which have led to widespread sickness, mental health deterioration, self-harm and suicide attempts, and death.
• The policies are in violation of fundamental principles of international law including, inter alia, those contained in the Refugee Convention, the International Covenant on Civil and Political Rights, the Convention against Torture and the Convention on the Rights of the Child. These are breaches in their own right, and also form a foundation for several contraventions of Article 7.
• Tony Abbott and his Cabinet have knowledge of the effects of their actions through their close involvement in administering these policies. They are aware of the scale and severity of the harm, which has affected thousands of people and is continuing to affect thousands more. They know there is a direct causal link between their policies and the suffering experienced by these people.
• Through numerous reports and findings, Tony Abbott and his Cabinet know that their policies breach international law. Relevant findings include the UN Committee against Torture’s Concluding observations of 26 November 2014, comments by the UN High Commissioner for Human Rights in an address to the Human Rights Council on 2 September 2014, reports prepared by myriad domestic human rights organisations, and individuals with first-hand knowledge of the treatment of asylum seekers,

C. Tracie Aylmer:

In May 2014 Tracie Aylmer submitted a case with the ICC for the prosecution of Mr Tony Abbott and several of his colleagues, regarding the treatment of asylum-seekers. In September the ICC informed Ms. Aylmer that her submission would not be considered, however the information she had submitted would be maintained in ICC archives and the decision not to proceed would be reconsidered “if new facts or evidence provides a basis to believe that a crime within the jurisdiction of the court has been committed”. However, in January 2015 Ms Aylmer was informed by the ICC that the case she submitted had been re-opened and that if, subsequently, a decision is made to prosecute, investigations based on evidence already received will commence. For more on this, see main part of this article. (See also the African dimension.)

2. Refugee Action Group submission to ICC (in full)

Communiqué for the Office of the Prosecutor regarding the application to the International Criminal Court by Refugee Action Collective (Victoria), July 2015.

Refugee Action Collective as a group, reflecting the dismay and revulsion of many other Civil Society groups and professional associations toward the current treatment of asylum seekers by the Australian government, wishes to file:

Notice of intention to request the ICC to investigate and act against the following persons:

– Mr Tony Abbott, Prime Minister of Australia

– Mr Scott Morrison, former Minister of Immigration and Border Protection

– Mr Peter Dutton, Minister of Immigration and Border Protection, and

– Mr George Brandis, Attorney-General

In its policies and treatment of asylum seekers who attempt to find protection in Australia, the Abbott Government is in clear violation of international law as codified in covenants to which Australia is a voluntary signatory. In particular, under the 1951 UN Convention and Protocol Relating to the Status of Refugees, Australia is obligated to offer protection to asylum seekers and refugees who arrive in Australia, regardless of means of arrival. Indeed at another time, the Australian High Court Judge, later leader of the Labor opposition, Dr H.V. Evatt was the President of the General Assembly of the United Nations when it adopted the 1948 Universal Declaration of Human Rights. He and Eleanor Roosevelt were instrumental in the inclusion of Article 14 which states:

“Everyone has the right to seek and to enjoy in other countries asylum from persecution.”

The Australian government also ignores the standards of human rights as set in the Rome Statute, the International Covenant on Civil and Political Rights, the Convention against Torture, and the Convention on the Rights of the Child.

The following activities of the Australian Government contravene these UN Conventions and Covenants in both spirit and action. Some of these actions constitute crimes against humanity:

1. The systematic deprivation of physical liberty in the form of mandatory incarceration of asylum seekers, and the deportation and forced transfer of asylum seekers to “offshore processing centres” in third-party countries.[1] As of April 2015, the numbers of asylum seekers incarcerated on Nauru and Manus Island (Papua New Guinea) detention centres was 1648 people, with another 1613 in domestic or Christmas Island detention centres.[2]
2. The lack of judicial oversight of Australia’s detention regime which breaches the right to affective remedy under article 2 of the ICCPR.[3]
3. Indefinite detention of two classes of people: a) refugees without ASIO (Australian Security & Intelligence Organization) clearance[4], and b) stateless asylum seekers who have been denied protection and cannot be returned to their country of origin.
4. Using potentially lethal policies such as boat turn-backs as deterrents against asylum seekers who may well have a valid case for protection (which themselves are inconsistent with the United Nations Convention on the Law of the Sea).[5]
5. The practice of detaining children in violation of the Convention on the Rights of the Child, to which Australia is a signatory.[6]
6. Incarcerating asylum seekers in harsh conditions which have resulted in deaths, soaring rates of self-harm, and exposure to sexual assault.[7]
7. Failing to pursue justice for the 2014 deaths of two young men—Reza Barati and Hamid Kehazaei—at Manus Island detention centre.
8. Deporting people without exhaustive assessment into situations of danger that may well include incarceration, persecution, torture and even death.
9. Contracting out its international legal obligations in relation to asylum seekers to neighbouring countries. According to international law, Australian can share responsibility with Nauru and Papua New Guinea, but it cannot devolve it.[8]
10. Exploiting poor and dependent countries in the region by dumping asylum seekers on them, thereby exposing those persons to attacks and persecutions in Nauru and Papua New Guinea.
11. In the context of the recent Rohingya refugee crisis in the Malacca Strait, refusing to assist in this major humanitarian crisis and encouraging Australia’s neighbours Indonesia and Malaysia to follow our example in turning back boats, resulting in what the UN described as “maritime ping pong.”[9]

These actions are not just a dereliction of Australia’s duty toward asylum seekers, but constitute the systematic and deliberate infliction of harm toward this vulnerable population. The Abbott Government has repeatedly brushed off a number of extremely damning reports—both domestic and international—that emphasize the brutality of the offshore detention system. These include:

• the 2015 “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment”, submitted to the UN’s Human Rights Council by Juan E. Mendez[10]
• the 2015 “Review into recent allegations relating to the conditions and circumstances at the Regional Processing Centre in Nauru” (otherwise known as the “Moss Report”), commissioned by former Minister for Immigration and Border Protection[11]
• the 2014 report “Forgotten Children: National Inquiry into Children in Immigration Detention 2010” by Professor Gillian Triggs, President of the Australian Human Rights Commission[12]

Such reports have amply condemned The Australian government for its cruel and unlawful detention of children, women and men who have committed no crime.

In order to understand the seriousness and intention behind the Abbott Government’s actions, we believe the following information pertaining to the concept of judicial notice [13] is necessary:

1. A challenge to the legality of offshore detention practices was mounted in the Australian High Court in 2014, but was rejected. Neither the Executive Government nor the highest court in the land have acted against the perpetrators of these crimes. Asylum seekers in Manus Island detention centre are now mounting a challenge in the Papua New Guinea High Court to claim that their detention breaches PNG’s constitution.[14] However, the advantage of third-country detention is clear: the asylum-seekers come under the protection of neither Australian law nor the host nation’s. This leaves no option but to pursue justice for asylum seekers in the ICC.
2. The Abbott Government’s persecution of asylum seekers arriving in Australia has been accompanied by the manipulation of public sentiment. It has encouraged and benefited from racist media coverage and the blatantly false demonization of “boat people” as a national security threat. They have misled the public by describing asylum seekers as “illegals”, when governments know that this is not the case.
3. The Abbott Government is exploiting poorer neighbours in the Pacific region by offering much needed aid money in exchange for the “offshore detention” and “regional resettlement” of Australia’s refugees in Papua New Guinea, Nauru and most recently Cambodia. Not only is this a blatant avoidance of Australia’s international responsibilities toward asylum seekers, it is negatively affecting these countries—especially PNG and Nauru—by placing enormous stress on their resources, undermining their national sovereignty, and causing social disruption.[15]
4. The actions of the Abbott Government have become negative models in the global management of asylum seekers. Since the beginning of the “Pacific Solution” in 2001, the practice of offshore processing has increased across the world with the establishment of “transit camps” across North Africa,[16] while boat turn-backs have become part of the repertoire of many states in their response to asylum seekers. As the recent tragic loss of life in the Mediterranean and Southeast Asia indicates, detention policies and boat turn-backs neither save lives nor serve as an effective deterrent to the worldwide movement of refugees.
5. Indicative of the Australian government’s wilful intent to break international laws is the way in which its tactics have steadily become more severe and inhumane. At first, boat turnbacks were performed “when safe to do so”; then they were done when it was in the “national interest” or when it “was necessary”. Most recently, the government has declared it “will do whatever we need to do to have this evil trade stopped.”[17] This included payments to “people smugglers” to turn back boats to Indonesia. Employing people smugglers is against both Indonesian and Australian laws.

In sum, we believe that the Australian government is a systematic perpetrator of crimes against humanity, in particular: the deportation and forcible transfer of a population, severe deprivation of physical liberty, and sexual abuse. We further believe that the Australian government’s disregard for international law concerning refugees is not just a problem for the asylum seekers affected, but for all United Nation member states who have a stake in upholding international laws concerning civil, political and children’s rights. It is in everyone’s interest to maintain a rule based international system. Prime Minister Abbott’s recent outbursts about not “succumbing to the cries of the human rights lawyers”, and being “sick of being lectured to by the UN” indicate this administration’s blatant disregard for the basic tenets of the international legal system.[18]

We therefore urge the Court to exercise its jurisdiction in initiating a criminal investigation of the above named persons. We acknowledge the prior (January 2015) submissions to the Office of the Prosecutor by Mr Andrew Wilkie MP, and Ms Rita Aylmer, Sydney solicitor and migration agent (May 2014), as well as the current support for a similar investigation urged by Mr Julian Burnside QC.

Our submission, by contrast, represents a diverse collection of Civil Society groups, indicating growing popular outrage against the Australian government’s policies and our collective will for a criminal investigation. A list of professional and civic organisations that endorse our submission is included in the attached appendix.

Yours sincerely, Refugee Action Collective (Victoria)

[Appendix of Civic and Professional Organisations in support of this submission to be added here.]

[1] In particular, see Article 7(1)(d) of the Rome Statute regarding deportation and forced transfer of the population; Article 7(1)(e) regarding imprisonment and deprivation of physical liberty; and Article 7(1)(k) relating to intentional acts causing great suffering and serious injury. For human rights violations in the detention centres on Manus Island and Nauru, see http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf

[2] See the Department of Immigration and Border Protection summary: http://www.border.gov.au/ReportsandPublications/Documents/statistics/immigration-detention-statistics-apr2015.pdf#search=detention%20numbers

[3] See Jane McAdam and Fiona Chong. Why Seeking Asylum is Legal and Australia’s Policies Are Not (Sydney, UNSW Press, 2014), p. 95.

[4] These refugees have committed no crime, had no trial and face no charges, yet some have been imprisoned for over 6 years.

[5] See McAdam and Chong, p. 142.

[6] See https://www.humanrights.gov.au/our-work/asylum-seekers-and-refugees/national-inquiry-children-immigration-detention-2014

[7] For human rights violations in the detention centres on Manus Island and Nauru, see   http://www.amnesty.org.au/images/uploads/about/Amnesty_International_Manus_Island_report.pdf

See also https://www.humanrights.gov.au/news/opinions/detention-shame-children-mothers-self-harming

[8] See McAdam and Chong, p. 131.

[9] See http://www.abc.net.au/news/2015-05-21/rohingyas-migrants-indonesia-says-australia-obliged-resettle/6486590

[10] See http://apo.org.au/research/report-special-rapporteur-torture-and-other-cruel-inhuman-or-degrading-treatment-or

[11] See https://www.immi.gov.au/about/dept-info/_files/review-conditions-circumstances-nauru.pdf

[12] See https://www.humanrights.gov.au/sites/default/files/document/publication/forgotten_children_2014.pdf

[13] Judicial Notice is defined by the Australian Law Reform Commission Report 102,

February 2006, Section 144, as: “ common knowledge [that] covers facts, both local and general knowledge, which are so widely recognized that requiring proof of them would be a superfluous exercise”. And further “while matters of common knowledge falling within s 144 need not be proved formally, parties to a proceeding are not precluded from leading formal evidence of such matters”. The complainants in this action are aware that the court has the choice of either a narrow or broad interpretation of the concept of judicial notice, and they urge the court to apply the latter, given that much of what is alleged is common knowledge in Australia and is much resented by both humane and expert opinions.

[14] See http://www.abc.net.au/news/2015-03-12/manus-island-asylum-seekers-fresh-challenge-against-detention/6308364

[15] See http://www.theguardian.com/australia-news/2014/dec/16/-sp-welcome-to-manus-island-changed-forever-australian-asylum-seeker-policy

[16] See Thomas Gammeltoft-Hansen. “The Extraterritorialisation of Asylum and the Advent of ‘Protection Lite’”. Working paper 2007/2. Danish Institute for International Studies. http://www.diis.dk

[17] Tony Abbott on radio station 3AW to Neil Mitchell, Friday 10 June 2015

[18] See http://www.theguardian.com/world/2015/apr/09/tony-abbott-declares-only-the-coalition-strong-enough-to-stop-the-boats and http://www.smh.com.au/federal-politics/political-news/tony-abbott-australians-sick-of-being-lectured-to-by-united-nations-after-report-finds-antitorture-breach-20150309-13z3j0.html