By Lauren Kelly-Jones
On October 5, footage from Australia’s offshore refugee detention camps was projected onto the Australian High Commission building in London. Images of sexual abuse and self harm flickered against its walls. Chasing Asylum, the guerilla investigative documentary, joined a chorus of protests calling for action to close and remedy Australia’s offshore detention centers. But who is responsible for the human rights abuses committed there, under international law?
Australia’s Pacific Solution
The Pacific Solution – Australia’s policy of transporting asylum-seekers to Australian-run detention centers on island nations in the Pacific Ocean – has been met with widespread public criticism since its 2001-2007 implementation. Though the policy was suspended by the government in 2008, it has effectively been reinstated on the islands of Manus (in Papau New Guinea) and Nauru since 2012, with the support of both major political parties. Australia has a notorious “zero tolerance” approach to those seeking illegal entry to its territory, and this policy is no different: at its heart, it is a strategy of deterrence to those willing to make the dangerous journey to Australia by boat.
Under the 1951 UN Convention and 1967 Protocol Relating to the Status of Refugees, Australia has a responsibility to offer protection to asylum seekers. However, the U.N. Human Rights Council has repeatedly criticized the Australian government’s treatment of refugees. The Office of the UN High Commissioner for Human Rights (OHCHR) called for the end of Australia’s offshore detention policy in Nauru, given alleged human rights violations against the migrants detained by it. A leak of 2,000 incident reports from the offshore processing centers on Nauru reveal serious allegations of violence, sexual assault, degrading treatment and self-harm, often concerning children. Those detained have even set themselves on fire, in desperate protest. In April, Papua New Guinea’s Supreme Court ruled that restricting the movement of asylum seekers who have committed no crime was inconsistent with their Constitution. This month, the UN Committee on the Rights of the Child (CRC) issued a report expressing deep concern with the allegations of mistreatment, abuse and sexual assault against refugee and asylum-seeker children held on Nauru. But there is not enough information – journalist and international organizations do not have regular access to the offshore processing centers. The footage for the Chasing Asylum documentary was obtained illegally.
Australia, as a party to the Rome Statute of the International Criminal Court (Rome Statute) – which establishes the International Criminal Court (ICC) that can prosecute crimes against humanity – is ostensibly committed to its objectives. However, the “Pacific Solution” stands directly in contravention to Article 9 of the UN Universal Declaration of Human Rights, whereby “no one shall be subjected to arbitrary arrest, detention or exile.” Australia is also ignoring the human rights standards laid out in the Convention against Torture, and the Convention on the Rights of the Child, by detaining children in offshore processing centers, and holding asylum-seekers in dangerous and violent conditions. Under the Rome Statute, individuals are not immune to prosecution, as the ICC operates according to the principle of individual criminal accountability. Australia’s governmental heads may find themselves at risk of ICC prosecution for crimes against humanity – the deportation and forcible transfer of asylum-seekers, severe deprivation of physical liberty through detention, and systemic sexual abuse can be considered as such.
An added complication lies in the potential international criminal liability of Ferrovial. The large Spanish infrastructure group (a major investor in Heathrow Airport, and a toll road operator in North America) entirely owns Broadspectrum, the Australian government’s lead detention center contractor. In a damning report titled Association with Abuse, the human rights group No Business In Abuse (NBIA) spoke to the material legal, financial and reputational risks associated with Ferrovial’s complicity in human rights abuses in Manus Island and Nauru, via their acquisition of Broadspectrum in 2016 – Broadspectrum makes decisions about detainee conditions, including welfare, food and movement, and can use force against detainees.
The UN Guiding Principles on Business and Human Rights state that all
companies (regardless of size) are expected to respect internationally recognized human rights, and the OECD Guidelines for Multinational Enterprises (Spain is a member) give recommendations for responsible business conduct. NBIA contends that Ferrovial’s failure to conduct adequate human rights due diligence when acquiring Broadspectrum, its provision of material support to the offshore detention centers, and its failure to remedy the “adverse impact” on human rights that they have contributed to, render Ferrovial responsible for corporate involvement in the human rights abuses in Nauru and Manus Island. NBIA also holds a large number of North American and European companies responsible for financially backing Ferrovial: entities such as J.P.Morgan, Deutche Bank, Goldman Sachs, Societe Generale and HSBC are named, among others.
Concerns regarding Ferrovial’s liability for crimes against humanity by Stanford Law’s International Human Rights and Conflict Resolution Clinic have strengthened human-rights activists’ cries for Ferrovial to withdraw from the Manus Island and Nauru contracts. They have also added to the resounding call for Australia to halt their abusive imprisonment of refugees, and to close their offshore detention centers in the Pacific Ocean. Although the Australia stated in August that the Manus Island center will be closed, it is still running.
In an attempt to seek justice and protection for those detained by the Australian government on Manus and Nauru, the ICC must take inspiration from the Manus Island asylum-seekers who have begun a proceeding against the Commonwealth of Australia, G4S (the management and security contractor at Manus from 2013-2014) and Broadspectrum in the Supreme Court of Victoria. The class action is based upon on the problematic conditions under which the asylum-seekers were held, and the illegality of their detention. Holding individuals in the Australian government responsible for the Pacific Solution and all those it has harmed, on the international stage, should be the next step.