RAC submission to the International Criminal Court

Communiqué for the Office of the Prosecutor regarding the application to the International Criminal Court by

Refugee Action Collective (Victoria)

 

15 October 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, former Prime Minister of Australia

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

– Mr Peter Dutton, Minister of Immigration and Border Protection

– Mr George Brandis, Attorney-General

 

In its policies and treatment of asylum seekers who attempt to find protection in Australia, the Australian 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] Arbitrary detention squarely contravenes Article 9, UN Universal Declaration of Human Rights 1948. It states:

“No one shall be subjected to arbitrary arrest, detention or exile”.

  1. The lack of judicial oversight of Australia’s detention regime which breaches the right to affective remedy under article 2 of the ICCPR.[3]
  2. 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.
  3. 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]
  4. The practice of detaining children in violation of the Convention on the Rights of the Child, to which Australia is a signatory.[6]
  5. Incarcerating asylum seekers in harsh conditions which have resulted in deaths, soaring rates of self-harm, and exposure to sexual assault.[7]
  6. Failing to pursue justice for the 2014 deaths of two young men—Reza Barati and Hamid Kehazaei—at Manus Island detention centre.
  7. Deporting people without exhaustive assessment into situations of danger that may well include incarceration, persecution, torture and even death.
  8. 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]
  9. 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.
  10. 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 Australian 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 Raporteur 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 2014” 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 Australian 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 Supreme 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.

 

  1. The Australian 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.

 

  1. The Australian 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]

 

  1. 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 indicate, detention policies and boat turn-backs neither save lives nor serve as an effective deterrent to the worldwide movement of refugees.

 

  1. 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 turn-backs 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. Former 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 government’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 Tracie  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.

 

Refugee Action Collective Vic asks the Court to accept and note any late endorsements and any additional evidence of wrongdoing by the above named

persons or any other person acting for the Australian Government now or in the future to design and implement policies and practices that breach international law.

 

 

Yours sincerely,

 

 

Peter Farago for

Refugee Action Collective (Victoria)

 

 

 

 

Appendix 1.

 

 

 

RAC Complaint to ICC

15 October 2015

 

Endorsed by:

 

Brigidine Asylum Seeker Project Melbourne

Compassion and Justice for Refugees Upper Spencer Gulf South Australia

Grandmothers Against Detention of Children:

Melbourne

Bendigo Vic

Ballarat Vic

Sydney

Rural Australians for Refugees:

Mansfield Vic

Queebeyan NSW

Warnambool  Vic

Grampians/Gairwerd Vic

Armidale ARAR  NSW

Macedon Ranges Vic

Bendigo Vic

Australians and Allies Against Mandatory Detention AAOAMD ( Worldwide )

Combined Refugee Action Group Geelong CRAG Vic

Refugee Advocacy Network RAN ( Melbourne )

Ballina Support for Refugees

UKi Refugee Project

Radical Women ( Melbourne )

Mums for Refugees

Project Safe Com Inc ( Narrogin Western Australia)

Catholic Asylum Seeker and Migration Office (Melbourne)

Gippsland Trades and Labour Council

Labor for Refugees

Pax Christi Queensland

Hunter Asylum Seeker Advocacy*

Melbourne Street Medics

Sydney Street Medics

Teachers for Refugees

Urban Neighborhood of Hope (Australia) UNOH

Australian Jewish Democratic Society

Jews for Refugees

Central Victorian Refugee Support Network

Kommonground Inc ( Melbourne )

Humanitarian Research Partners

Unionists for Refugees (Western Australia)

Darwin Asylum Seeker Support and Advocacy Network (DASSAN)

Civil Liberties Australia

Asylum Seekers Resource Centre (Melbourne)

Australian Nursing and Midwifery Federation Vic

House of Welcome Ballarat

National Tertiary Education Union (NTEU Vic)

Islamic Council of Victoria

Refugee Action Coalition (Sydney)

Tamil Refugee Council

Refugee Action Committee Canberra

Fremantle Refugee Rights Action Network (RRAN)

Bayside Refugee Advocacy and Support Association (Melbourne)

Central Victorian Refugee Support Network

Tasmanian Asylum Seeker Support Network

Victorian Allied Health Professionals (VAHPA)

Victorian Psychologists Association

Combined Refugee Action Group (CRAG)

 

*will file own complaint as well

 

 

 

 

 

[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