What can be done to redress the horrible mistreatment of people held in offshore detention? Can Peter Dutton or any of his servants or agents be dragged into court and punished? Can’t international law come to the rescue of tortured asylum seekers and refugees? Are other civil or criminal remedies and responses available?

Big questions with interesting possibilities but much as many would like to see a punitive response dished out to those who implement this abuse, the pathway is relatively untrod and uncertain.

Australia is a party to the Rome statute that established the international criminal court, which can prosecute crimes against humanity – and that includes “inhumane acts ... intentionally causing great suffering or serious injury to body or to mental or physical health”. The first trials for crimes against humanity took place at Nuremberg after the second world war.

Some years ago the federal MP Andrew Wilkie wrote to the ICC prosecutor in The Hague requesting an investigation and prosecution of the then prime minister, Tony Abbott, and 19 of his cabinet ministers in relation to the mistreatment of asylum seekers.

Not much more was heard about this submission other than outrage from Andrew Nikolic, now an ex-MP, who said the accusations were “vague and embarrassing”, and the then immigration minister, Scott Morrision, who said he would keep on doing what he was doing and would not be intimidated.

As a condition to becoming a party to Rome statute and agreeing to the jurisdiction of the ICC, Australia introduced to the commonwealth criminal code provisions relating to crimes against humanity, providing for a penalty of imprisonment of 25 years (see: 268.12 and 268.13). This adds a frisson of excitement to the prospect of getting some really nasty types charged up and in court.

The provision in the code mirrors the relevant part of the statute of Rome, so our domestic law provides for such a crime with elements, such as: infliction of severe physical or mental pain or suffering which are not incidental to lawful sanctions; and the conduct is committed knowingly as part of a systemic attack on civilians. There are also provisions dealing with “imprisonment or other severe deprivation of liberty”.

Domestically, the commonwealth director of public prosecutions would be the prosecutor but only if the attorney general agreed and any offences would have to be prosecuted in the name of the AG. On the face of it there is plenty of evidence of conduct that fits the ingredients prescribed in the criminal code.

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But can you see the attorney general, George Brandis, going completely off-piste and prosecuting Peter Dutton, a man who displays such a lack of human empathy?

Because the relevant bit of the Rome statute is part of Australian domestic law, the ICC itself has stronger and more plausible arguments should it be inspired to look into what’s going on down here.

It’s hard to imagine Malcolm Turnbull, Dutton and other ministers in the same Hague dock as Congolese warlords who conscript child soldiers. Yet, it is quite plausible that the ICC could mount a preliminary examination into Australia’s shocking treatment of offshore detainees who sought our protection under the Refugee convention.

The ICC is undertaking the same process in relation to the Iraq war and in doing so will consider the findings of the Chilcot report. After a preliminary examination the next step would be an investigation and if all the dots lines up, a prosecution.

Even a preliminary examination by the ICC would be a major embarrassment for Australia which, so far, has been beyond embarrassment in the ruthless implementation of “border protection”. It would flag internationally a pariah status for a country that wantonly abuses human rights, particularly as there are policy options far more humane than the one preferred by successive governments.

Comparisons have been made with mistreatment of detainees at Abu Ghraib, where US military personnel have been tried and convicted by courts martial. Dutton dismissed as “ridiculous” other comparisons with Nauru and Guantánamo Bay. The barrister and refugee advocate Julian Burnside QC told Guardian Australia that Dutton is right, but not in the way he imagines.

“Guantánamo Bay holds people who are thought to be dangerous terrorists, whereas Nauru holds people who have been assessed as refugees, people fleeing terrorism, people who are not thought to be a risk to anyone at all.”

Dutton also said the mistreatment was out of Australian hands and was a problem for Nauru. He may not have caught up with the findings of the high court in February this year, in the M68 case, where even though, by a majority, the judges found that detaining people on Nauru was not unlawful, nonetheless Australia’s involvement in the regional “processing” centre was found to be “indisputable”. You might think that would put an end to the fiction that it has nothing to do with us.

There’s another aspect to the high court’s Nauru decision that puts the government on notice. The offshore regime is only lawful if it is “proportionate” to the requirement of processing refugees and not a system of permanent detention. The fact that there has been precious little resettlement puts the commonwealth on shaky ground. The longer refugees are held, the more unlawful the Nauru regional processing centre becomes.

There have also been calls by the Australian Lawyers Alliance to have Comcare prosecute relevant offenders under the Work Health and Safety Act. The alliance says the act applies to Australian activities on Nauru and makes liable people who are responsible in a workplace for the health and safety of others. An offence is committed where those with a duty to protect the health and safety of people in their care fail to do so, thereby exposing “an individual to a risk of death or serious injury or illness”.

Liability also arises for breaches of a civil duty of care and a couple of high-profile class actions have been launched on behalf of detainees.

Maurice Blackburn has a case under way in relation to Christmas Island “for people who sought asylum and were injured or pregnant while in detention and suffered physical or psychological injury or the exacerbation of an injury due to the failure of the commonwealth to provide adequate medical care”.

Slater & Gordon is also running a class action in Victoria on behalf of people detained on Manus Island. The defendants are the commonwealth, Transfield (now Broadspectrum and part of the Spanish Ferrovial group) and the former contractor G4S. The claim relates to the provision of substandard food, water, shelter and medical care.

Civil actions are slow, arduous and expensive. The remedy is in damages which is not much of a sanction to large global corporations or the commonwealth. History shows that, if the evidence looks like it might be too embarrassing for the defendants, they settle and the unsightly conduct stays buried.

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There’s certainly no shortage of legal advice since the Nauru files were published by the Guardian. The Law Council of Australia is calling, again, for the appointment of an independent inspector of immigration detention and an independent monitor of migration laws.

The Human Rights Law Centre and others have issued advice that an investigation of the abusive conditions in which children are detailed in Nauru is within the jurisdiction of the royal commission into institutional responses to child sexual abuses.

The royal commission earlier rejected an invitation to pick up that hot potato, but now the HRLC, Acoss and the Australian Council for International Development insist it should, and here’s the legal advice they proffered.

There are a range of possibilities for legal redress but, much as you might believe it would be a just outcome, don’t expect anytime soon to see Australian government ministers doing 25 years porridge for crimes against humanity.