The claim

Independent federal MP Andrew Wilkie recently condemned successive Australian governments for failing to meet their obligations under international law to asylum seekers and refugees who arrive by sea.

"We are a signatory to the Rome Statute," he said on the ABC's Q&A program.

"The Rome Statute addresses crimes against humanity, and it's a crime against humanity to forcibly transfer anyone to a third country and to detain them indefinitely without trial.

"We have a series of Australian governments that are guilty of crimes against humanity."

RMIT ABC Fact Check investigates.

The verdict

Mr Wilkie's claim is an allegation of criminal conduct that is untested in a court of law.

A number of communiques calling for Australian government officials to be investigated for crimes against humanity, as defined by the 1998 Rome Statute, have been submitted to the International Criminal Court (ICC) in The Hague in 2014, including a request by Mr Wilkie in 2014.

Lawyers and academics have also called on the court to investigate, but to date, no such investigation has been launched.

And it is unlikely to be tested in the ICC any time soon.

International criminal law experts consulted by Fact Check said that, in theory, the ICC could decide to investigate Australian government officials.

In reality, however, this was extremely unlikely to happen.

Furthermore, even if the ICC investigated, and then decided to launch a prosecution, the Australian Government could refuse to volunteer its officials for a trial, they said.

This would thwart any attempt to prosecute, since the Court cannot compel them to appear.

Fact Check has not assessed the extent to which Australia's treatment of asylum seekers meets the Rome Statute's definition of crimes against humanity.

According to the ANU's Professor Donald Rothwell, an expert in international law, "an enormous amount of assessment and analysis of the facts" would be required.

Mr Wilkie, the Stanford International Human Rights and Conflict Resolution Clinic and a group of human rights advocates including Julian Burnside have all asked for Australia's treatment of asylum seekers to be investigated. ( AAP: Department of Immigration )

What are crimes against humanity?

The ICC exercises its jurisdiction over people responsible for the most serious crimes of international concern: genocide, war crimes, crimes against humanity and the crime of aggression.

In other words, it investigates and prosecutes people — not states — who bear the greatest responsibility for these crimes.

The Court is governed by the Rome Statute, which sets out the crimes, and the functioning and jurisdiction of the court.

Its jurisdiction is only invoked when a state is unwilling or unable to carry out its own investigation or prosecution.

Article 7 of the statute refers to a number of acts that constitute a crime against humanity when they are knowingly committed as part of a "widespread or systematic attack" against people.

These include:

the deportation or forcible transfer of a population;

the deportation or forcible transfer of a population; imprisonment or severe deprivation of physical liberty; and

imprisonment or severe deprivation of physical liberty; and other inhumane acts intentionally causing great suffering, or serious injury to mental and physical health.

In addition to being "widespread or systematic", a crime must be also be of "sufficient gravity" to warrant action by the court.

Australia is a signatory to the statute.

Submissions to the International Criminal Court

Mr Wilkie wrote to the Office of the Prosecutor of the ICC in October 2014, requesting that the court investigate and prosecute then prime minister Tony Abbott and his 19 cabinet ministers.

These ministers included Scott Morrison, who was then the minister for immigration and border control.

Mr Wilkie lodged a formal communique in January 2015.

He alleged that Australian government representatives breached Article 7 by imprisoning, deporting and forcibly transferring asylum seekers and refugees detained on Manus Island in Papua New Guinea and Nauru, and that these people were suffering physical and mental harm as a result of the government's policies.

He has, since then, repeatedly claimed that successive governments have committed crimes against humanity, with his comments on Q&A a few weeks ago being the most recent.

Mr Wilkie is not alone in his call for Australian officials to be investigated for such crimes.

The Stanford International Human Rights and Conflict Resolution Clinic, a coalition of legal experts from Stanford Law School in the United States, also submitted a communique to the ICC requesting an investigation in February 2017.

And, barrister Julian Burnside told Fact Check, he and six other human rights advocates had also asked the ICC to investigate Australian officials for committing crimes against humanity, with a communique submitted in November 2016.

To date, none of these complainants have received any indication from the ICC that it plans to initiate an investigation.

It is worth noting, however, that two class actions, which allege torture and crimes against humanity over the treatment of asylum seekers and refugees, have been lodged in the High Court of Australia.

The International Criminal Court, located in the Netherlands, deals with cases crimes against humanity. ( M.M.R. / Flickr CC BY-NC 2.0 )

What is the likelihood of Australia being prosecuted?

A 2015 article in the Alternative Law Journal by Newcastle University's Amy Maguire and others argues that Mr Wilkie's allegations "may fall short of the kinds of situations that are currently before the court".

The authors argue "the bases which might permit ICC jurisdiction over Wilkie's claims are tenuous at best, due to the lack of analogous precedent cases and the significant jurisdictional 'loopholes permitting states to delay or even thwart the court's proceedings'".

"[It is] fairly unlikely that the ICC would either prosecute, or that a prosecution would be successful," Associate Professor Maguire told Fact Check.

She provided examples of three hurdles:

that the Australian government was unlikely to extradite its officials to the court for prosecution;

that the Australian government was unlikely to extradite its officials to the court for prosecution; that the case would likely fall short of the "gravity" threshold; and

that the case would likely fall short of the "gravity" threshold; and that the ICC's precedent history provided no grounds to expect that an investigation would be launched.

Dr Ben Saul, a professor of international law at Sydney University and a barrister who has worked on cases before the ICC, told Fact Check that whether Australia was committing crimes against humanity was "legally arguable and controversial".

The "widespread or systematic attack" threshold was developed in the context of mass violence against civilians in occupied territories, and Australia's immigration detention and processing may not fall within the scope of the offence, he said.

"It would be legally difficult to characterise these [Australian] cases as crimes against humanity," he said.

Fact Check also consulted La Trobe Law School's Professor Gideon Boas, who was a senior legal officer at the International Criminal Tribunal for the former Yugoslavia, and acted for accused war criminal Radovan Karadzic.

He said a case brought before the ICC didn't necessarily need to be in the context of armed conflict.

For example, apartheid policy could meet the definition of a crime against humanity.

"I think it's factually correct to say that that [Australia's treatment of those in offshore detention] could constitute a crime against humanity, under the ICC statute," he said.

He said despite the fact that crimes against humanity were enshrined in the Commonwealth criminal code, numerous legal hurdles meant it was "very unlikely that a prosecution would be laid against an Australian minister" in the ICC.

The ANU's Professor Rothwell told Fact Check a crime against humanity traditionally occurred in the context of an armed conflict.

"Australia is clearly not in that situation," he said.

"That does not mean to say that for forcible displacement of persons on a certain size and scale to achieve certain objectives may not reach the threshold for a crime against humanity.

"But I think you'd need to be a very ambitious lawyer to be trying to make that argument."

The case against Australia was "fairly weak", he said.

A definitive judgment on whether successive Australian governments had committed crimes against humanity was not possible, he said.

"In this type of situation, given that a crime against humanity is a political crime, it requires an enormous amount of assessment and analysis of the facts and obviously an understanding of the law."

Principal researcher: Sushi Das, chief of staff

factcheck@rmit.edu.au



SOURCES

The Guardian, Australia subjected refugees to crimes against humanity, class actions allege, December 10, 2018

