Andrew Wilkie MP (@WilkieMP) and human rights advocate and lawyer Greg Barns (@BarnsGreg) have followed up their letter to The International Criminal Court (@IntlCrimCourt) in The Hague (ICC) of last October with a “comprehensive brief on this matter”.
The full brief is published below.
Wilkie and Barns first wrote to the ICC on October 22, 2014, requesting an investigation in accordance with Article 15(1) of the Rome Statute, “into crimes against humanity perpetrated by members of the Australian Government against persons arriving in Australian waters who are seeking protection”.
Wilkie announced the submission of their brief to the ICC via his website, where he 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.
News of the brief being provided to the ICC comes a day after the release of a report by the Australian Human Rights Commission (HRC), The Forgotten Children.
Australian Prime Minister, Tony Abbott, labelled the HRC report partisan and suggested the HRC should be “ashamed of itself”.
The HRC report revealed hundreds of cases of assault against children, which included more than 30 incidences of reported sexual assault and made the following recommendations.
- All children and their families be released into community detention or the community on bridging visas with a right to work.
- Legislation be enacted to ensure that children may be detained under the Migration Act for only so long as is necessary for health, identity and security checks.
- Assessment of refugee status be commenced immediately according to the rule of law.
- No child be sent offshore for processing unless it is clear that their human rights will be respected.
- An independent guardian be appointed for unaccompanied children seeking asylum in Australia.
- An independent review be conducted into the decision to approve the use of force to transfer unaccompanied children on Christmas Island on 24 March 2014.
- All detention centres be equipped with sufficient CCTV or other cameras to capture significant incidents in detention.
- ASIO review the case of each parent with an adverse security assessment in order to identify
whether their family can be moved into the community.
- Alternative community detention be available for children of families assessed as security risks.
- Children in immigration detention be assessed regularly using the HoNOSCA mental health
- Children currently or previously detained at any time since 1992 have access to government
funded mental health support.
- Children in detention who were denied education on Christmas Island for a year be assessed to determine what educational support they require.
- Children and families in immigration detention receive information about the provision of free legal advice and access to phones and computers.
- Legislation be enacted to give direct effect to the Convention on the Rights of the Child
under Australian law.
- A royal commission be set up to examine the continued use of the 1992 policy of mandatory
detention, the use of force by the Commonwealth against children in detention and allegations of sexual assault against these children and to consider remedies for breach of the Commonwealth’s duty of care to detained children.
- An independent review of the implementation of these recommendations be conducted in 12 months.
Pressure has been building on the Abbott Government both domestically and internationally in recent times over the mistreatment of asylum seekers.
In December, 2014, the United Nations Committee Against Torture released a report (below) critical of the Australian Government in relation to compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, regarding refugees, in the following areas:
- Mandatory immigration detention, including of children
- Offshore processing of asylum claims
- Identification of victims of torture among asylum seekers
The Executive Summary of the brief provided to the ICC by Wilkie and Barns states:
- 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:
– 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;
– 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;
– 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.
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