The Papua New Guinea (PNG) Supreme Court has confirmed that the PNG and Australian governments are jointly responsible for complying with an earlier ruling that the Manus Island refugee detention camp should be closed and that the imprisonment of the refugees there is illegal. This ruling enables lawyers representing the refugees to pursue enforcement applications for their immediate release and return to Australia, as well as financial compensation for their ordeal. This is good news for the refugees, but leaves the Australian Government without a clue as to what it should do next. Going by its past record, it’s likely the Australian Government will either refuse to abide by the PNG ruling, or it will make arrangements to move the refugees to Christmas Island until a further solution can be found. In other words, no change in policy – for to do so would mean loss of face. But when a Government reaches an impasse of its own making and is proving incapable of finding a solution, surely it is time that others should then step forward to take charge and relinquish that Government of its responsibilities.
(Note: this is a longer version of an article that is published in The Canary.)
This is the case – clearly – in regard to the Australian Government’s handling of the offshore refugee crisis as a whole. Neither it nor the Labor Opposition have shown they can manage this problem by seeking out and implementing a solution that would comply with normal human rights requirements.
Having spectacularly failed in this way, it is now opportune that other, non-government or international agencies, that are more qualified to deal with such a task, take charge.
Here is a brief outline of how this could work…
There are a number of agencies that are suitable to lead on such an initative: these range from UN agencies to NGOs, such as Amnesty International. Other Australian refugees or human rights agencies could help too, as also professional associations such as the Australian Medical Association.
But there would only be confidence in the initiative if certain basic conditions were met.
These conditions are listed here:
- All asylum-seekers and refugees held offshore to be freed from detention within weeks.
- All asylum-seekers and refugees who are liberated to be offered a range of countries to where they can be transferred.
- No asylum-seeker or refugee to be compelled to move to a country they have no desire to live in.
- Every asylum-seeker or refugee who has been detained by the Australian government, in conjunction witth either Nauru or Papua New Guinea, to receive an apology from those governments for wrongful imprisonment.
- Every asylum-seeker or refugee who has been detained offshore by Australia to be financially compensated for loss of liberty and for physical and mental suffering.
The agency – or agencies – that manage this process would call upon a number of countries around the world to make known their offer of places to the refugees and asylum-seekers. Countries approached for offers could be anywhere – e.g. Sweden, Canada, New Zealand… (Note: Australian state premiers have also offered places.)
It would be the task of the agency or agencies running the initiative to match those offers to the needs and wishes of the asylum-seekers.
This is a viable solution to the current and seemingly ongoing impasse.
Prosecution of Australian Government
Should, however, the Australian Government continue in its stubborness not to move forward in this way, then, inevitably, at some stage it will face prosecution on a variety of charges – notably ‘crimes against humanity’ in the International Criminal Court or via the principle of Universal Jurisdiction.
A reminder… Comdemnations of Australia’s offshore detention programme have come from the UN high commissioner for human rights, the UN committee against torture, the UN special rapporteur on torture, the UN special rapporteur on the human rights of migrants, and the UN high commissioner for refugees.
The following treaties have been violated by Australia:
- International Covenant on Civil and Political Rights (ICCPR)
- International Covenant on Economic, Social and Cultural Rights (ICESCR)
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT)
- Convention on the Rights of the Child (CRC).
Refugees’ 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.
Further, under the International Covenant on Civil and Political Rights (ICCPR) articles 6 and 7, Australia 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 Nauru or Manus Island then the Australian Government would be in breach of the CAT (Convention Against Torture) and that would have an impact on the supply chain (Ferrovial, etc).
In March last year the United Nations Special Rapporteur on Torture found that various aspects of Australia’s asylum seeker policies violated the Convention Against Torture and other cruel, inhuman or degrading treatment or punishment. The findings from the Special Rapporteur, Juan Mendez, were formally submitted to the UN Human Rights Council. The UN report found that Australia’s indefinite detention of asylum seekers on Manus Island, the harsh conditions, the frequent unrest and violence inside the centre and the failure to protect certain vulnerable individuals all amount to breaches of the CAT. The report also found that the recent amendments to the Maritime Powers Act, which give the Australian Government unprecedented powers to detain and return asylum seekers intercepted at sea, violates the CAT.
“Under international law, Australia can’t lock people up incommunicado on a boat somewhere in the middle of the ocean. Nor can we return people to a place where they face the risk of being tortured. Yet these are precisely the powers the Government has sought to give itself through recent amendments to its maritime law,” commented Daniel Webb of the Human Rights Law Centre (HRLC).
Diala Shamas, a clinical supervising attorney at the International Human Rights and Conflict Resolution Clinic at Stanford Law School. recently stated that “Individual officers at Ferrovial [which manages the detention camps via its subsidiary, Broadspectrum] might be exposed to criminal liability for crimes against humanity under the Rome Statute”.
Rachel Ball, director of advocacy at the HRLC, said Ferrovial also had obligations under the United Nations’ Guiding Principles on Business and Human Rights to respect international human rights standards. She said: “The company cannot evade responsibility simply because the violations are sanctioned by the Australian Government”.
All guards and sub-contractors who committed crimes of abuse are liable to prosecution. It’s also possible that government contracts and communications with sub-contractors could be investigated in regard to officials’ complicity or knowledge of systemic abuse.
Victims of these crimes
There has been a documented 300 cases of children committing or threatening self-harm, 67 cases of child abuse, 33 cases of rape or sexual assault of asylum seekers, 200 cases of assault and 30 cases of abuse against Australian staff – and that’s just on Nauru.
Also, more than 2,000 leaked incident reports from Australia’s detention camp for asylum seekers on the remote Pacific island of Nauru – totalling more than 8,000 pages – have been published by Guardian Australia. The Nauru Files provide evidence of assaults, sexual abuse, self-harm attempts, child abuse and living conditions endured by asylum seekers on Nauru.
Sub-contractor Wilson Security has been additionally accused of handcuffing children, assaulting asylum seekers and much, much more. An Australian Senate report into abuse at the Nauru asylum-seeker detention centre also made grim reading, providing evidence that could be used against the contractors.
Currently there are 843 men held on Manus Island, and 466 people, including 50 children, in the Nauru detention centre. Most have been there for three years.
(Note… The costs of this immoral and illegal programme by the Australian Government to the taxpayer is enormous. The Manus Island refugee camp has cost about $2 billion since it was reopened four years ago – that’s more than $1 million for each ever one of the 2000 people detained there. Detention on Manus Island and Nauru combined for June 2014 to June 2015 alone costs the taxpayer $1.2 billion. Surely, another crime to add to the list.)