12 February 2015
The Independent Member for Denison, Andrew Wilkie, and human rights advocate and lawyer Greg Barns have taken the next step in their formal request for the Prosecutor at the International Criminal Court (ICC) to investigate crimes against asylum seekers by members of the Abbott Government.
In October last year Mr Wilkie requested the Prosecutor at the ICC initiate an investigation, in accordance with Article 15(1) of the Rome Statute. In the latest development Mr Wilkie has provided the Prosecutor with a comprehensive brief on this matter.
Mr Wilkie said the damning report from the Human Rights Commissioner, Gillian Triggs, tabled in the Senate last night calling for a Royal Commission into children in detention just added more weight to his request for an investigation.
“Article 7 of the Rome Statute defines ‘crimes against humanity’ to mean acts such as deportation, imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law, and torture and other similar acts that are committed as part of a widespread or systematic attack directed against any civilian population,’’ Mr Wilkie said.
“Actions such as forced transfers to other countries, detention without trial, detention of children and conditions of detention clearly constitute breaches of Article 7.
“The actions of the Prime Minister and members of his Government against asylum seekers are criminal and I remain hopeful that the Prosecutor will initiate a proprio motu investigation.
A copy of the Communiqué is attached in full and the Executive Summary follows.
• 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.