Asylum Seeker Policy, International Law and the ICC
Friday 24 January 2014 @ 12.04 p.m. | Crime | Immigration
Today's Sydney Morning Herald (SMH)(24 January 2014) presents an opinion piece that offers the conclusion that:
"Practically, there are a number of reasons why it is unlikely that any Australians will ever be charged by the International Criminal Court (ICC) for Australia's treatment of asylum seekers, particularly regarding the ICC's limited resources, which mean it can only investigate and try a few cases." (emphasis added)
And the article goes on to say:
"Yet while it [Australia] is unlikely to ever be tried by the ICC, the possibility still exists." (emphasis added)
In reaching this conclusion, the article considers whether Australia's current treatment of asylum seekers could ever be characterised as a "crime against humanity" for the purpose of action in the ICC and comes down in favour of the view that such characterisation would be possible even if unlikely to be ever prosecuted.
In the light of this it seems productive to consider the role of the ICC a little more.
What is the ICC and what are "Crimes Against Humanity"?
The ICC was established in 2002 at The Hague in the Netherlands and 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 what is a "crime against humanity" for ICC proceedings has significantly broadened from its original legal definition or that used by the United Nations, and 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."
They are required to "not be isolated or sporadic events", but are required to 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.
Isolated inhumane acts of the type described may amount to grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of "crimes humanity."
A Break Down of the Definition and How it Might Apply
One key element of the definition is "acts when committed as part of a widespread or systematic attack" and certainly several recent government asylum seeker policies and actions are open to such characterisation, for example as the SMH article indicates; transferring asylum seekers to Manus Island or Nauru, where such is a "forced displacement of people lawfully present in Australia" under the UN Refugee Convention may amount to a "wide spread or systemic".
Paragraph (e) of the above definition refers to "Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law" and is another aspect that could be argued as bringing asylum seeker policy within the definition, given the lengthy periods asylum seekers are detained 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'' might well be cover asylum seeker policies that limit access to medical treatment, keep children in detention and alike.
Who would be Pursued?
The SMH article points out that:
"the ICC tries individuals, not government policies as such, so it would be particular people who would be indicted by the ICC. This could be the responsible minister, or indeed the prime minister. Given that many of these policies were implemented under the last government, it is possible that the former minister and prime minister could also be indicted."
However, given also that the prospect of success in such prosecution would be very low and that generally, at least to date Australia, regardless of what one's on views are on current "asylum seeker" policies, is not seen as a rogue state and is seen as a supporter of human rights and fair treatment of individuals, it is unlikely that anyone would be prosecuted by the ICC.
Although if some commentators are correct this position may not last forever or even for very long, for example, as Mungo MacCallum points out:
"In the eyes of the rest of the world, Australia's hardline approach looks selfish and primitive - even barbaric. In Australia, a total of 7,983 boat people arrived in 2011-2012 - the time the great panic over unauthorised arrivals set in. In Italy, 30,100 migrants arrived by boat from North Africa between January 1 and September 30 last year. Yet the Italian government handled the situation calmly and humanely - there was never any talk of using military operations to turn boats back, or of offshore prison camps, or of temporary protection visas or any of the paraphernalia of cruelty successive Australian governments have employed as a deterrent. Instead, the asylum seekers were recognised by everyone from the Pope down as neighbours in need - not always refugees in the full and technical sense, but the wretched of the earth, to be treated with compassion and understanding."
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