This Day in International Law: November 4th

By Maribeth Lock

Apartheid was a system of racial segregation and discrimination in South Africa that began in the 1940s and persisted until the 1990s. On this day in 1977, the United Nations Security Council responded to the South African National Party’s continued imposition of apartheid by unanimously passing Resolution 418, a mandatory arms embargo against South Africa. This resolution followed the Security Council’s Resolution 282 (1970), which urged member states to participate in a voluntary arms embargo. The Security Council had also recently passed Resolution 392 (1975), which condemned the South African Government for its use of violence to enforce apartheid.

The impact to South Africa of the arms embargo was mixed. South Africa experienced immediate order cancellations of military goods from abroad, including submarines, fighter aircrafts, a missile boat, and enriched uranium. This had a direct impact on its ability to fight the South African Border War and to maintain its SAFARI-1 research nuclear reactor. However, the embargo prompted South Africa to further develop its domestic arms industry into what is today a multi-billion dollar industry. South Africa was also able to circumvent the embargo by smuggling and by hiring foreign technicians.

Ultimately, apartheid did not officially end until 1994. The country’s economic recession, combined with the continued protests and violence, made it clear to the South African Government and its observers that apartheid was not producing desirable socio-economic results. In 1989, F.W. de Klerk took control of the National Party and began to broker the end of apartheid. De Klerk’s administration repealed most of the legislation on which apartheid was based, and in 1994 it passed a new constitution that provided for democratic elections and enfranchised non-whites. The Security Council responded by repealing the 1977 arms embargo and all other restrictions against South Africa with its passing of Resolution 919.

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.

What Happened at the Refugee Summits?

By Sarah Hunter

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Photo: photos_mweber

Last week, there were two summits headed by world leaders to address the increasing global refugee and migrant crisis. Though historic in their initiation and lofty in their goals, whether the ideals advanced in these Summits will come to fruition remains to be seen.

UN Summit for Refugees and Migrants 

On Monday, September 19th, the UN General Assembly gathered for the inaugural Summit for Refugees and Migrants. The 193 member-states adopted The New York Declaration, which focuses on improving the social, political, and legal status of the increasing number of refugees and migrants. While the UN itself has advocated for a “soft law” approach to the crisis, which is very much what the New York Declaration is given that it does not bind countries to any particularized course of action but only encourages general concepts, many feel that this Declaration is toothless.

There are estimated to be 65.3 million forcibly displaced people worldwide, 21.3 million of whom are refugees. Nearly half of the refugees in the world are children. Given this historic rise in displaced population, the international response should be vigorous, not just symbolic. But world politics move slowly and world consensus even slower, so while the results of the Summit may not satisfy all involved, and certainly will not have an immediate effect on the lives of the many displaced, it is arguably a step forward. But with the more robust Global Compact on Refugees proposed by UN Secretary-General Ban Ki-moon postponed until 2018, organizations like Amnesty International have gone so far as to call the Summit an abject failure.

 

Leaders’ Summit on Refugees

On the heels of the UN Summit, 48 countries along with the World Bank and European Union, met for the Leader’s Summit on Refugees co-hosted by the US, the UN Secretary General, Ethiopia, Canada, Mexico, Germany, Sweden and Jordan to discuss the possibility of increasing global commitments to humanitarian efforts. The Leader’s Summit also focused on how international organizations could address the refugee crisis. Although this summit was more narrowly tailored in scope, as it only addressed refugees and not migrants or internally-displaced populations, it was still similar to the UN summit in its soft response to the problem. The Summit called for increasing education and work opportunities for refugees while creating more long-term solutions for refugees that address issues such as changing broken asylum systems.

Though still disappointing, the Summit did call for participants to pledge to resettle 360,000 refugees into third-party countries and increase funding to efforts by $4.5 billion. This includes efforts from the private sector as 51 companies have committed $650 million to finance efforts.

Some groups like the International Rescue Committee praise these efforts as well as the World Bank’s increased involvement in refugee response. But other groups including Human Rights First thinks that both of these Summits fail to adequately address this global humanitarian crisis by ignoring causes of the crisis and offering piecemeal solutions. After all, the UN has said that 10% of refugees globally, or over 2 million, are in need of permanent resettlement, and these commitments only chip away at that number. As far as actual commitments, neither Summit makes any binding promises and with the U.S. appropriations for 2017 currently showing cuts to the refugee resettlement program, it is hard to say what will actually come out of these well-intentioned, but ultimately unenforceable promises.