False Sanctuary: Australia, Ferrovial, and the Abuse of Refugees

By Lauren Kelly-Jones

Clifton Gardens, Sydney, Australia looking out towards the Heads
Clifton Gardens, Sydney, Australia looking out towards the Heads

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.

 

International Standards

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.

Ferrovial

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.

Dignity Denied to Refugee Women in Detention Centers

Dignity Denied to Refugee Women in Detention Centers

By Jenna Klein

With Famine Crisis Thousands of Somalis Flee to Ethiopia Refugee Camps

Photo credit: United Nations Photo

Only four months ago, in October 2015, the Australian government secretly flew a pregnant Somali refugee back to one of its immigration detention centers on the island of Nauru, preventing her from terminating her pregnancy. The woman, known by the pseudonym Abyan, was raped at the detention center in July, but because of the restrictive Nauruan abortion laws she requested to be flown to Australia in order to terminate her pregnancy. While her request was granted and she was brought to Australia, there was a “miscommunication” that led to her abrupt removal back to Nauru. The Australian government claims that Abyan refused treatment by declining to attend a medical consultation, but Abyan and her lawyers deny this allegation and protest that she only wanted further counseling.

After receiving international pressure to resolve the situation and advice from the UN High Commissioner for Human Rights to find a “decent” healthcare outcome for Abyan, the Australian government agreed to fly her back for further counseling and treatment. While Abyan’s particular story is troubling for many reasons, her case highlights broader international human rights violations in the treatment of female refugees and asylum-seekers, not only in Australia but worldwide. This story draws attention to the high rate of unprosecuted sexual violence and assault taking place within refugee camps and is indicative of the lack of reproductive rights and justice for refugees and asylum-seekers around the world.

A Note on Indefinite Detention

As fellow student contributor Sarah Hunter wrote last October, before the story about Abyan was even reported, human rights groups have condemned Australia’s policy of indefinite detention centers as a violation of international refugee laws. Prolonged detention can have grave physical and psychological consequences. These types of detention facilities have been denounced for their inhumane conditions and use of unnecessary violence. Moreover, refugees and asylum-seekers are inherently a more vulnerable population due to the conditions which forced them to leave their country of origin in the first place as well as their attenuated status in a given host country. And within this highly susceptible group, there are particularly vulnerable sub-categories of detained individuals who require heightened attention and care. While Amnesty International identified four of these sub-groups in their report (Stateless persons, Children, Family Groups and ‘Pacific Solution’ detainees), I believe that there is a larger group that deserves special consideration: Women.

Sexual Violence in Refugee Camps

Refugee women are entitled to and require far greater protection against sexual assault than they are currently afforded. Women often are forced to flee their homes due to extreme sexual violence, only to experience further assault and abuse as refugees. The United Nations High Commissioner for Refugees (UNHCR) issued guidelines in 1995 for the prevention and response to sexual violence issues for refugees. However, the prevalence in recent years of stories like Abyan’s is alarming. Even more troubling is the fact that many women, including Abyan, are too afraid of retaliation to report the crimes. This means that in addition to the number of reported cases, there are many more women suffering silently under violent attack as they try to gain access to safety in a new home.

Women are subjected to sexual violence and abuse not just from other refugee men in the camp but also at the hands of government and humanitarian officials. This obviously creates serious issues relating to execution of effective protection and prosecution policies. So while numerous international treaties and conventions work to provide protection for the rights of refugee women, continued international attention and support is required to adequately attend to the problems with their implementation and to provide uninhibited access to justice for these women. In December, in response to the consistent allegations of human rights abuses and sexual assault, concerned citizens circulated a petition urging Australia to ratify the UN’s protocol against torture, which would allow UN inspection of immigration detention centers. Countries like Australia with large populations of refugee and asylum-seekers need to address the human rights abuses taking place in their offshore refugee camps and the international community must hold them accountable.

Reproductive Rights and Justice for Refugees

International law clearly establishes reproductive rights for refugees. Again, UNHCR issued guidelines for the specific protection of refugee women. Moreover, reproductive rights for all human beings, including refugees and internally displaced individuals, were firmly recognized in the International Conference on Population and Development in 1994. However, just because the international community has acknowledged the right and identified a population in need of extra protection does not mean that countries have ensured effective care or protection for the sexual and reproductive health of these women. The truth is that many crucial reproductive health interventions for refugees, such as emergency contraception and access to safe abortion services, are surrounded with such ideological controversy that providing proper care becomes extremely difficult, if not practically impossible.

Without adequate services available, the acknowledgment of reproductive rights as fundamental international human rights is without force. Abyan’s story provides one example of the severe and disturbing consequences this lack of care can have. Another example emerged from the same refugee camp only weeks after Abyan’s story was released. Medical authorities on Nauru refused to send a refugee to Australia for a complex birth procedure, despite insistence that her and her baby’s health were both in extreme danger. While Australia cited its policy that refugee women must give birth on Nauru, doctors at the Nauru Hospital desperately scoured the Internet (specifically, LinkedIn) for a specialist who would fly to the island to provide the care that was required to save the lives of the woman and her child. The fact that medical professionals were forced to resort to such extreme measures demands closer international scrutiny of the quality of reproductive care that is offered to refugee women. Women who have already suffered unbelievable trauma, women whose precarious immigration status affords them little to no control over their reproductive choices, and women whose rights we have committed to protecting as an international community.

 Conclusion

Abyan’s experiences serve an important purpose as they prompt the international community to examine the severe human rights violations associated with the treatment of refugees in indefinite detention, sexual assault in refugee camps and reproductive rights for refugee women. These are issues of equality and human dignity. Non-citizens should have access to the same quality of fundamental health and justice services as citizens. And women deserve to retain control over their reproductive choices and bodily integrity, despite their immigration status. Refugee women represent one of the most vulnerable populations in the world and the international community has an affirmative duty to protect their rights and bodies from systematic, institutionalized abuse.

Jenna Klein is a J.D. candidate at Berkeley Law. She is a student contributor for Travaux.