Executive Summary:

This communication calls upon the Office of the Prosecutor (OTP) of the International Criminal Court to launch an investigation regarding crimes against humanity which may have been committed against asylum seekers and refugees in Nauru and Manus Island, Papua New Guinea.
A coalition of legal experts from several jurisdictions, assembled by the International Human Rights and Conflict Resolution Clinic of Stanford Law School (“The Stanford Clinic”) and the Global Legal Action Network, has authored the communication. The communication analyses a decade of arbitrary and inhumane offshore detention, established and maintained by Australian governments. The evidence compiled during this time, which the Stanford Clinic corroborated in its fieldwork in Australia, amounts to a reasonable basis for the OTP to find that Australian agents and personnel of their corporate partners have perpetrated crimes against humanity.

Since 2008, successive Australian governments have carried out a policy of preventing asylum seekers and refugees arriving by boat from accessing asylum procedures in Australia. As is documented by UN and other observers, they have implemented an offshore detention and resettlement scheme violating core human rights of one of the world’s most vulnerable populations. These centres’ locations, conditions, and extended periods of detention often lasting years all point to a criminally prohibited policy. This policy is calculated to inflict pain and suffering, both physical and mental, upon asylum seekers and refugees, for the sole purpose of “deterrence.” With Manus nearly 3000kms and Nauru over 1000kms from the Australian mainland, those held against their will are not only denied proper legal support and medical help but also hidden from public scrutiny.

Approximately 1246 asylum seekers and refugees are currently held on Manus Island, and on Nauru. The privatized camps entail indefinite detention in inhumane conditions, often including physical and sexual abuse of both adults and children. The conditions and resulting hopelessness have caused what experts describe as “epidemic levels” of self-harm among those held on these islands. The communication details the overcrowded and unsanitary conditions of detention; extensive physical abuse at the hands of guards and local gangs, in many instances meeting the threshold of torture; incidents of sexual violence, including against children; inadequate access to food, water and medical treatment; and extensive mental suffering of detainees, including children.

The communication finds that there is a reasonable basis to believe that public officials and corporate actors may have committed and may continue to commit the crimes against humanity of unlawful imprisonment, torture, deportation, persecution and other inhumane acts. These crimes are at the heart of Australia’s immigration detention policy and constitute a widespread and systematic attack against a civilian population, within the meaning of Article 7 of the Rome Statute of the International Criminal Court.

Australian governments have attempted to contract-out the detention facilities, and thereby avoid responsibility, by concluding agreements with Nauru and Papua New Guinea and by contracting with private corporations to run the facilities. Nevertheless, that liability for international crimes can be traced not only to direct perpetrators on the ground, but also to public officials and corporate officers and directors. Such individuals are participating and essentially contributing to an overall common plan. That plan includes a critical element of criminality. The structures of government and corporate effective control over the camps further establish the superior responsibility of high-level public officials and corporate officers.

The International Criminal Court is a court of last resort. The absence of domestic criminal investigations or prosecutions means that the Court should exercise its jurisdiction, as required by Article 17 of the Rome Statute. Moreover, the crimes are particularly grave. Quantitatively, the crimes affect a large number of asylum seekers and refugees. Qualitatively, the nature of the crimes and the manner of their commission is grave, as they include instances of severe physical and sexual violence against vulnerable victims, and the systematic involvement of state and corporate superiors.

Crucially, the impact of the crimes extends far beyond those detained: the Australian policy is intended to deter future asylum seekers and refugees. As the refugee crisis spreads, states are looking to the “Australian model.” The danger of the spread and normalisation of the crimes committed in this context heightens their gravity. While the Court has so far predominantly focused on investigations of spectacular violence in Africa, and has been criticized for this, the gravity of the crimes described here supports prioritizing this examination.