Australia’s offshore detention regime is a “cruel, inhuman or degrading treatment” and unlawful under international law, an International Criminal Court (ICC) prosecutor has said.
However, the office of the prosecutor has stopped short of deciding to prosecute the Australian government, saying that while the imprisonment of refugees and asylum seekers formed the basis of a crime against humanity, the violations did not rise to the level to warrant further investigation.
‘RIFE’ WITH VIOLENCE
In a letter to the independent member of parliament for Clark in Tasmania, Andrew Wilkie, the office of the ICC prosecutor said conditions in the Australian-run camps on Nauru and Papua New Guinea’s Manus Island were dangerous and harsh, and an “environment rife with sporadic acts of physical and sexual violence committed by staff at the facilities.”
“These conditions of detention appear to have constituted cruel, inhuman or degrading treatment, and the gravity of the alleged conduct thus appears to have been such that it was in violation of fundamental rules of international law,” the letter said.
“In terms of the conditions of detention and treatment, although the situation varied over time, the office considers that some of the conduct at the processing centers on Nauru and on Manus Island appears to constitute the underlying act of imprisonment or other severe deprivations of physical liberty under article 7(1)(e) of the statute [crimes against humanity],” it said.
Still, the office said the matters did not fall within the jurisdiction of the court and did not demonstrate the “contextual elements” to warrant further investigation for prosecution.
NO ACTION
“Cases must be grave enough to justify action by the court ... it does not appear that the conditions of detention or treatment were of a severity to be appropriately qualified as the crime against humanity of torture,” the office said.
The ICC was established in 2002 to try individuals charged with “the gravest crimes of concern to the international community, such as genocide, war crimes, and crimes against humanity.”
Although the Rome statute that created the court has been ratified by 123 countries, including Australia, several major countries — including China, India, Russia and the US — have refused to join.
African countries have argued the court has been disproportionately and unfairly focused on crimes committed in Africa. The court has also been criticized for securing too few convictions.
Wilkie first wrote to the ICC in 2014, alleging that the government of then-Australian prime minister Tony Abbott was breaching international law by engaging in imprisonment, deportation and the forcible transfer of a population.
Abbott’s immigration minister — now the prime minister — Scott Morrison derided Wilkie’s request as an “attention-seeking” stunt, saying: “Australia is a sovereign country that implements our policies consistent with our domestic laws and our international obligations.”
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