Will the International Criminal Court prosecute Australia for crimes against humanity?

Andrew Wilkie claims the Australian government is inflicting crimes against humanity upon asylum seekers and refugees. AAP/Alan Porritt

Independent federal MP Andrew Wilkie has written to the Office of the Prosecutor of the International Criminal Court (ICC), requesting the body investigate and prosecute the prime minister, Tony Abbott, and his 19 cabinet ministers over the treatment of asylum seekers.

In the letter, sent last week, Wilkie alleges that the Australian government is inflicting crimes against humanity upon asylum seekers and refugees in violation of the ICC’s Rome Statute.

The acts Wilkie cites as evidence of these crimes include:

  • imprisonment and other severe deprivation of physical liberty in violation of fundamental rules of international law;
  • deportation and other forcible transfer of population; and
  • other international acts causing great suffering, or serious injury to body and mental and physical health.

Wilkie also claims that the government is violating provisions of the Refugee Convention, Convention on the Rights of the Child and the International Covenant on Civil and Political Rights.

But what is the ICC, and what are the chances it will investigate Australia’s treatment of asylum seekers?

Reaction to the claims

Liberal MP Andrew Nikolic has condemned Wilkie’s “vague” and “embarrassing” accusations. He argues that the majority of Australians would see the claims as offensive and against Australia’s national interest.

Immigration Minister Scott Morrison derided Wilkie’s request as an “attention-seeking” stunt. In his view:

Australia is a sovereign country that implements our policies consistent with our domestic laws and our international obligations.

Morrison said that the Australian government would not be intimidated into:

… a return to the failed policies of the past that resulted in unprecedented cost, chaos and tragedy on our borders.

What is the ICC?

The ICC is the first permanent international court of criminal jurisdiction. It was established under the 1998 Rome Statute to end impunity for the most grave international crimes.

Since its establishment, the ICC has opened 21 cases from nine locations. All those investigated to date have been nationals of African states and implicated in armed conflict.

The ICC operates on the principle of individual criminal responsibility, as established in the Nuremburg war crimes trials:

Individuals have international duties which transcend the national obligations of obedience imposed by the individual State … crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

Under Article 5 of the Rome Statute, the ICC has jurisdiction over the crime of genocide, crimes against humanity, war crimes and the crime of aggression.

Testing Wilkie’s claim

Australia is a party to the Rome Statute and states its commitment to the ICC’s objectives. Heads of government and other state officials are not immune from prosecution by the ICC.

For the ICC to initiate a prosecution, it would have to be persuaded that Australia’s prime minister and cabinet have committed grave violations of international law. In order to convict Abbott and his ministers of crimes against humanity, the ICC would need to conclude that the acts alleged by Wilkie were:

… committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

Since its establishment, the ICC has initiated only two investigations propio motu (on the prosecutor’s initiative), as sought by Wilkie. The first of the ICC’s two convictions to date was against Thomas Lubanga Dyilo. The Congolese warlord was convicted of enlisting and conscripting child soldiers to engage in armed conflict.

The second of the ICC’s convictions was also against a Congolese militant. Germain Katanga was found guilty of being an accessory to war crimes in relation to a massacre of 200 Hema civilians.

A prosecution against members of the Australian government would be unprecedented.

Announcing his request to the ICC, Wilkie argued that:

… the government is pandering to racism, xenophobia and selfishness instead of acting like leaders … if they won’t listen to the swathe of community outrage, then hopefully they’ll listen to the International Criminal Court.

Wilkie denied that his initiative was a “stunt”. He and his advisor, prominent lawyer Greg Barns, are confident that the Australian government is guilty of crimes against humanity.

Australia’s treatment of asylum seekers and refugees undermines our self-perception as a responsible international citizen. Australia has been condemned for violations of human rights in this context, particularly in relation to its treatment of child asylum seekers.

However, the ICC is unlikely to initiate a prosecution against Abbott and his cabinet. Should it do so, the Australian government would surely reject the ICC’s claim of jurisdiction and refuse to volunteer its officials for trial in The Hague. In that case, the ICC would have no enforcement capacity and a conviction could not result in the punishment of the individuals involved.

Regardless, Wilkie’s initiative is a distinctive means of bringing the Australian government before the court of national and international public opinion. Enhanced international scrutiny is an important, if limited, means of holding Australia to account for its obligations to some of the world’s most vulnerable people.