Australia and the ICC: a toothless tiger?

Originally published 7 November 2014 by Spook Magazine.

Independent Tasmanian MP Andrew Wilkie and barrister Greg Barns have written to the Prosecutor of the International Criminal Court (ICC), lodging a request to investigate the Australian Government’s treatment of asylum seekers.

In a press conference on 22 October, Wilkie explained that:

“the way we have been treating asylum seekers … over a number of years does constitute a crime against humanity and is something the ICC should look at.”

When analysed through the prism of international criminal law, there is evidence that Australia’s immigration policies, including mandatory offshore detention, breach commitments to uphold such principles.

While asylum seeker advocates will welcome Wilkie’s move, it is unlikely to result in any change to Australia’s immigration policies. This is because the ICC is a toothless tiger, given the court’s inability to arrest individuals and reliance on the enforcement powers of member States.

The current Government is belligerent in its approach to asylum seekers, and has shown little regard for the covenants of international law, which it claims to subscribe to. As Wilkie outlined in his letter to the Prosecutor of the ICC, Australia has failed to uphold several of its obligations, including aspects of the Rome Statute, the Refugee Convention, the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

As a signatory to the Rome Statue, Australia is obliged by international law to abide by the principles of the ICC, which is a permanent international criminal court, located in The Hague. It has jurisdiction to prosecute over the most serious of international crimes, including: genocide, crimes against humanity, war crimes, and crimes of aggression.

In particular, it is Australia’s immigration policies, designed to deter people who arrive by boat from seeking protection in Australia, which Wilkie aims to bring to the Prosecutor’s attention. Naming Prime Minister Tony Abbott and the 19 members of his Cabinet, including Immigration Minister Scott Morrison, Wilkie has accused the Government of pursuing policies that ultimately amount to Crimes against Humanity.

The Rome Statute defines such crimes in Article 7(1) as:

“Imprisonment and severe deprivation of physical liberty in violation of fundamental rules of international law; deportation and forcible transfer of population; and other intentional acts causing great suffering, or serious injury to body and mental and physical health.”

In accordance with this definition, the forcible transfer of asylum seekers to Manus Island and Nauru and their mandatory detention are clear violations of Article 7(1). The result being that women, men and children subsequently experience “great suffering as well as serious bodily and mental injury.”

Additionally, the forcible return of asylum seekers to their country of origin, including Sri Lanka and Afghanistan, a policy that the Government is actively pursuing, places individuals in immediate physical danger.

Predictably, Morrison played down the veracity of Wilkie’s claims:

“The Coalition Government will not be intimidated by attention-seeking advocates calling for a return to the failed policies of the past that resulted in unprecedented cost, chaos and tragedy on our borders including almost 1,200 deaths of men, women and children at sea.”

Whether the Prosecutor of the ICC will investigate these allegations remains to be seen. The majority of cases put forward to the ICC since its establishment have been a result of referrals made by member States. In his letter to the Prosecutor, Wilkie requested the initiation of a propio motu investigation, in accordance with Article 15(1) of the Rome Statue. This means that the Prosecutor may launch an investigation on the basis of relevant evidence and will only proceed if convinced that acts perpetrated by the Australian Government were “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”

Evidence of the Government’s wrongdoings with regard to immigration polices is abundant. Independent inquiries into detention facilities including the Australian Human Rights Commission’s National Inquiry into Children in Detention 2014, Amnesty International’s This is Breaking People, the UNHCR’s report on Manus Island, and a Letter of Concern, signed by 15 doctors on Christmas Island employed by the International Health and Management Services (which provides health care to Australia’s offshore detention centres), all provide damming assessments of the harmful effects of Australia’s immigration policies on individuals.

Yet these were not policies born of the current Government, but rather were introduced under the former Labor leadership. In naming Abbott and his Cabinet, Wilkie is seeking to bring under fire the military-led Operation Sovereign Borders, which has the explicit intention of stopping the boats, through deterrents such as boat turnarounds and mandatory offshore detention; both of which are documented facets of the Government’s immigration policy.

Ascertaining the finer nuances of these polices is likely to prove more difficult given the veil of secrecy surrounding the Government’s actions and refusal to comment on “on-water operations”. This complete lack of transparency is couched in terms of national security, allowing Abbott and Morrison to evade scrutiny, not only from the media, but ultimately the looming threat of bodies such as the ICC.

Since its inception, the ICC has only initiated two propio motu investigations: one against a Congolose warlord Thomas Lubanga Dyilo who enlisted child soldiers during the war, and another against militant Germain Katanga. A propio motu investigation against members of Government, such as the one Wilkie has requested, is unprecedented.

As such, it is unlikely that the ICC will investigate Wilkie’s claims. The Court is limited in its capacity to act, and is funded solely by its member States. Even if it were to do so, Abbott would likely dispute the ICC’s jurisdiction and refuse to comply with its findings. Indeed Morrison’s statement that “Australia is a sovereign country that implements our policies consistent with our domestic laws,” indicates that in the Government’s eyes, immigration policies and the treatment of asylum seekers are matters of national security and self-determination.

The Government has repeatedly thumbed its nose to the very principles of international law which it is bound to adhere to. It is willing to do so because the ICC has no enforcement powers, relying on the capacity of member States to arrest those indicted by the Court. In the event that Abbott and his Government were indicted for committing Crimes against Humanity, it would be Australia’s responsibility to initiate their arrest; the likelihood of Abbott turning himself and his Cabinet over to the ICC is elusive at best. This paradox illustrates the underlying weakness of the ICC: until there is an international law enforcement agency, capable of spanning territorial borders, incumbent members of governments and high-ranking officials responsible for committing breaches of international criminal law will ultimately evade justice, rendering the court a toothless tiger.

The recent ruling by the International Court of Justice (ICJ) against Japan with regard to whaling in international waters illustrates the inability of the international legal system to bring about justice. The ICJ differs to the ICC in that it is not a criminal court, and brings about judgements that are to be enforced by the United Nations Security Council. The rulings nonetheless found Japan’s behaviour to be in violation of international law and ordered a halt to the killing. Despite this, Japan has continued to engage in the slaughter of whales, unhindered.

In the absence of relevant enforcement agencies, it is expected that member States comply with international law because of a shared belief that it is right to do so. Many fear the wrath of sanctions and act out of self-interest to protect their reputation as good global citizens. In light of Australia’s current immigration policies, it is clear the Government’s priorities rest in the domestic realm rather than promoting Australia’s diplomatic reputation internationally. The Government’s recalcitrant attitude undermines the credibility of international law and the judiciary, which seek to order relations between nations and promote peace, human rights, and justice.

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