A year or even six months ago most pundits would have agreed it was highly unlikely that an Australian prime minister would face prosecution in the International Criminal Court (ICC) regarding Government policy and treatment of asylum-seekers. But that was before the weeks and weeks of abuse testimony, of leaks by detention centres workers, and before the ‘people smugglers’ funding affair. Revelations of abuse (physical, sexual, psychological) of detainees, including children, at the Manus Island and Nauru detention centres, has meant prosecution of the Abbott Administration in the ICC is now far more probable. Indeed, a case against the Abbott Government has been filed with the ICC. Below, we explain what this case with the ICC will involve and, on the way, examine the numerous Australian laws and international protocols that the Abbott Government is accused of violating.

A. Submissions to the ICC re Abbott Administration



In October 2014 Andrew Wilkie MP and lawyer Greg Barns commenced a case in the ICC against prime minister Mr 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. It alleged the Australian government committed atrocities in breach of Article 7 of the convention. Here is the full submission lodged earlier this year with the ICC. (A summary of the submission is included in an Annexe at the end of this article.)

In May 2014 Tracy Aylmer, an Australian migration lawyer, submitted a case with the ICC for the prosecution of Mr 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”.

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.

(Also, in March of this year Julian Burnside QC made inquiries with lawyers who specialise in ICC cases to see if the ICC would investigate Mr Abbott and Mr Morrison.)

B. Recent evidence of criminal activity by Abbott Administration



In recent weeks and months there has been an avalanche of evidence of abuse at the offshore detention centres. This has included a) evidence from the recent Senate Inquiry into abuse at Nauru detention centre (ended only two weeks ago) and b) extensive submissions from National Inquiry into Children in Immigration Detention (headed by Gillian Triggs) and c) the review conducted by Phillip Moss into abuse at Nauru detention centre,

See also:

There is now a greater chance than at any other time for the ICC to proceed with a prosecution.

(Note: should the ICC formerly indict Mr Abbott – or any of his colleagues – he can be arrested any time he sets foot outside of Australia.)

C. 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.

Conclusion: the ICC tries individuals, not government policies, so it would be particular people who would be indicted – hence Tony Abbott. (See also final paragraph in this article.)



D. International obligations of Australia (and infringements)



As well as possible infringements by which Mr Abbott could be arraigned at the ICC, there are other means by which Australia can be accused breaking international protocols.

While asylum seekers and refugees are in Australian territory (or under Australian jurisdiction) the Australian Government has obligations under various international treaties to ensure their human rights are respected and protected. These treaties include the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the Convention on the Rights of the Child (CRC). These rights include the right not to be arbitrarily detained. As a party to the Refugee Convention, Australia has 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.

Australia’s responsibilities under the ICCPR include protecting life (under Article 6) and ensuring that individuals are not subject to cruel, inhumane or degrading treatment or punishment (Article 7). Under the ICCPR, 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.

Conclusion: The transfer of asylum seekers to PNG and Nauru is therefore a clear violation of Australia’s international obligations.

E. Enforcement of international protocols

However, there is no effective means of enforcing Australia’s obligations at an international level and so it is left to Australian courts to monitor the legality of the government’s actions under domestic law (not international law).

The Gillard Government amended the Migration Act to remove the requirement for Australia to declare that a country will meet “relevant human rights standards” before transferring asylum seekers. In other words, domestic law previously protected asylum seekers from being taken to PNG, but this change made it far more difficult to offer that protection.

A couple of weeks ago the Abbott Government, with the co-operation of the Labor Opposition, passed another amendment that supposedly legalised the resourcing of the offshore detention centres. However, the Abbott Government neglected to amend the Migration Act with regard to the actual legal status of the offshore detention policy and so that policy is currently being challenged (with a hearing expected later in the year) by the Human Rights Law Centre.

Conclusion: Should this challenge be successful, Australia may have to cease the detention and processing of asylum seekers in PNG and Nauru.

F. Turnbacks of ‘people smugglers’ boats (and the laws that prohibit this)

1. Possible prosecution by Indonesia

The Migrant Smuggling Protocol does not refer to any international tribunal to prosecute offences; instead it is left up to individual states to prosecute. In the matter of Australia funding ‘people smugglers’ it is entirely with Indonesia’s power to prosecute Australian government officials under its own laws and any immunities (eg. for ASIS officials) presumed by Australia would not bind Indonesian courts.

Indonesia ratified the Transnational Crime Convention and the Migrant Smuggling Protocol. An offence of people smuggling was created under Indonesian law in 2011. Law 6/2011 on Immigration. Article 120 of Law 6/2011 states:

(1) Every Foreigner who conducts act [sic] aiming to seek advantage, either direct or indirect, for him/herself taking someone or a group of people, either organized or non-organized, or order other people to take someone or a group of people either organized or non-organized without having legal right to enter or exit the Indonesian Territory and/or enter other country without having legal right to enter the Indonesian Territory, either using legal document or false document, or without using the Travel Document, either through an immigration check or not, shall be punished for the reason of Human Smuggling with imprisonment for a minimum of 5 (five) years and for a maximum of 15 (fifteen) years and fine sentence at the minimum of Rp500,000,000.00 (five hundred million Rupiah) and for a maximum of Rpl,500,000,000.00 (one billion five hundred million Rupiah).

(2) Attempt [sic] to perpetrate the criminal act of Human Smuggling shall be punished with a similar criminal sentence as contemplated in paragraph (1).

In addition, Article 124 of Law 6/2011 makes it an offence to assist illegal migrants, with a prison term of two years and a fine of up to Rp 200 million (AU$19,500).

Conclusion: it is unlikely that Indonesia will prosecute Australia, for diplomatic (not legal) reasons.

2. Possible prosecution under the Australian Criminal Code

The Commonwealth Department of Public Prosecutions could prosecute Government officials under section 73.3A of the Commonwealth Criminal Code. However, in relation to the offence or organising or aiding people smuggling, such a prosecution would required the approval of the Attorney-General – this is unlikely. Nevertheless, this is still a possibility. Under the Commonwealth Criminal Code the offences are as follows:

under section 73.1, a person (the first person) commits an offence if they organise or facilitate the entry of another person (the second person) into a foreign country (whether or not via Australia), where the entry is irregular and the second person is not a citizen of the foreign country. The offence carries the same penalty as the Migration Act offence (10 years imprisonment or a fine of $170,000);

under section 73.3, a person commits the aggravated offence of people smuggling if he or she smuggles five or more people into a foreign country. The offence carries double the penalty of s 73.1 (ie 20 years imprisonment);

under section 73.3A, a person commits an offence if they provide material support or resources that aids someone to engage in people smuggling.

The offence of providing material support to people smugglers was introduced by the Anti-People Smuggling and Other Measures Act 2010 (Cth). Its purpose, as explained in the Explanatory Memorandum to the Bill, was ‘to provide greater deterrence of people smuggling activity and to address the serious consequences of such activity’, and to ‘provide greater capacity for Australian Government agencies to investigate and disrupt people smuggling networks’ (p 1). The Explanatory Memorandum states (p 7) that for the section 73.3A offence to be made out, a prosecutor would need to prove beyond reasonable doubt that: the person (again, the ASIS official) was reckless as to the circumstance that the provision of the support or resources aided the receiver or another person or organisation to engage in conduct constituting a people smuggling offence.

Pursuant to section 5.4(1) of the Criminal Code a person will be reckless with respect to a circumstance if he or she is aware of a substantial risk that the circumstance exists or will exist, and that in the circumstances known to him or her, it is unjustifiable to take the risk.

Conclusion: If the reported circumstances of the present case are correct, then it seems clear that Australian government officials paid people smugglers intentionally, and were indeed reckless to the circumstance that the money would aid the process of people smuggling as defined by the Criminal Code.

A potential hurdle to the launch of cases like this may be the jurisdiction in which the alleged payment was made. Section 73.4 of the Commonwealth Criminal Code requires either that:

(i) the person is an Australian citizen or a resident of Australia; and

(ii) the conduct constituting the alleged offence occurs wholly outside Australia; and

(ii) a result of the conduct occurs, or is intended by the person to occur, outside Australia.

If the alleged payment was made in Australian waters, it would appear to fall within section 73.4, as the result of the conduct (sending asylum seekers back to Indonesia) occurred outside Australia. However, even if the alleged payment was made outside Australian waters, Australian prosecutors would still have jurisdiction under the first limb of section 73.4, since any government official would necessarily meet the criterion of being an Australian citizen or resident.

While it appears that the alleged conduct of Australian officials would constitute an offence under the Criminal Code, there remain two more potential obstacles to any prosecution.

First, section 73.5 provides that the Attorney-General’s written consent is required before any proceedings may be commenced. Second, if the alleged payment was made by an ASIS official, then he or she may be immune from prosecution under section 14 of the Intelligence Services Act 2001. This immunity will depend on whether disrupting people smuggling into Australia is considered to fall within the ‘proper performance of a function’ of ASIS, as set out in section 6(1). This is certainly questionable since most ASIS functions relate to intelligence-gathering, not operational activities.

Conclusion: If the Attorney-General is shown to have directed an official to make the alleged payment then that official would be immune from prosecution, since section 6(1)(e) of the Act includes as an ASIS ‘function’ ‘other activities as the responsible Minister directs relating to the capabilities, intentions or activities of people or organisations outside Australia.’

c) Other means by which Australia could be prosecuted for violations



Professor Don Rothwell of the Australian National University says the Commonwealth and its officers have a wide capacity to interdict and engage and exercise control over vessels coming to Australia under the Migration Act, but that if the Navy and Customs personnel who are jointly responsible for Operation Sovereign Borders are deemed to have used force – as some asylum seekers have claimed – that could fall outside the of the Migration Act.

“The general context in which operation sovereign borders is being conducted is that it’s not, as I understand it, a law enforcement operation, in the sense that there’s no effort being made by the military to seek to detain and ultimately detain and arrest vessels or persons on board those vessels and ultimately to prosecute those persons. Rather this is a military operation that’s being conducted in which every deterrent is being put in place to stop vessels coming to Australia. And that in itself raises a different set of legal issues because much of Australian law is framed around the circumstances under which force would be used in a law enforcement setting.”

An expert in international maritime law, University of Queensland Adjunct Professor Michael White, commented:

“The government of the day if properly elected to run the country can give lawful orders to the navy and to the generals, the army and the air force. But if they’re unlawful then the admirals and the generals are entitled to challenge the government on that. And if they consider that it’s completely wrong policy they may well find that one or two of the heads of army, navy, air force and make it a whole, Australia-wide policy for debate about what the government is doing and requiring of Australian armed forces.”

White added that while it is lawful to turn back boats carrying economic migrants and criminals, it is is illegal for Australian authorities to force boats to turn back to Indonesia without first having established whether those on board are genuine asylum seekers. Regarding this, he cites a 2012 European Court of Human Rights ruling against attempts by Italy to turn boats back to Libya. Dr White says similar action could be taken against the Australian government for boarding Indonesian-manned boats on the high seas.

“Any of the other governments withstanding, if if it was their citizens or Indonesia, if it’s their boats, who said we are breaking international law can take us to the International Court of Justice, or the International Tribunal for Law of the Sea. Russia did that over one of our fishing boats. In fact, we’re taking Japan to the International Court on the whaling matter at the moment. And these countries can do it, and there’s no doubt in my or many other informed minds that we would lose.”

Conclusion: In turning back boats in this way Australia could be in breach of the 1951 UN Refugee Convention, which Australia has ratified.

G. UN condemnation of Australia



A lawyer with the Melbourne-based Human Rights Law Centre, Daniel Webb, says that aggrieved asylum seekers have every right to complain to the UN Human Rights Committee, which administers the International Covenant on Civil and Political Rights and that a case could be made at the UN against indefinite detention on Nauru and Manus Islands in Australian-run centres.

In March of this year the United Nations Special Rapportuer 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 Rapportuer, Juan Mendez, were formally submitted to the UN Human Rights Council. Daniel Webb, said that the report’s findings made it clear that the Australian Government’s actions breach international law. “The Government always assures the Australian people that it complies with its international human rights obligations. But here we have the United Nations once again, in very clear terms , telling the Government that Australia’s asylum seeker policies are in breach of international law”.

The report finds 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 Convention. The report also finds that the recent amendments to the Maritime Powers Act, which give the Government unprecedented powers to detain and return asylum seekers intercepted at sea, also violate the Convention.

“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,” said Mr Webb.

Conclusion: the UN report will assist greatly in any case for prosecution via the ICC.

H. Final conclusion:

Given the recently submitted evidence of human rights abuses at the Senate Inquiry, of other evidence leaked, of the breaches of the international conventions and protocols by the current Australian government, the turnbacks of asylum-seekers boats by the Australian Navy & Customs, the hijacking of asylum-seekers boats, etc, there is now a viable argument that a prosecution could and should be agreed by the ICC against Tony Abbott and his government.

Annexe:

Summary of submission to the ICC by Andrew Wilkie MP:

• 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.