Forum on legal aspects of refugee policy

September 10, 2016

An Australian lawyer who lodged a submission to the International Criminal Court (ICC) in 2014 calling for an investigation of Australian detention centres on Nauru and Manus Island, told a Refugee Action Collective (RAC) forum in Melbourne on September 5 that the release of the Nauru files has improved the chances of action being taken.

The lawyer, Tracie Aylmer, told the forum on legal aspects of the federal government's refugee policy about the history of efforts to punish those responsible for crimes against humanity and war crimes, beginning with the trial of Peter von Hagenburg in 1474 for murdering civilians in a captured town. She also mentioned the trials of Nazis at Nuremberg, as well as trials for crimes committed in Chile, Argentina, the former Yugoslavia and Rwanda.

Her main focus was on the ICC, which was established in 2002. Australia has ratified the ICC's Rome statute.

However, the only people who have been tried by the ICC have been a number of African leaders. Western countries have remained unscathed. Luis Moreno Ocampo, the first prosecutor of the ICC, claimed that this was because Western countries have strong internal laws dealing with violations of human rights.

Aylmer lodged a complaint with the ICC in 2014 over Australia’s offshore detention policy. The prosecutor accepted her submission, but decided not to act at that time. However, the publication of the Nauru files has provided further evidence, which improves the chances of action being taken.

She said the ICC has the power to impose jail terms and financial penalties on political leaders and the CEOs of companies involved in crimes against humanity.

Other speakers included Katie Robertson, a lawyer and advisor to Senator Sarah Hanson-Young, who said a change in Australia's policy towards asylum seekers seems likely, though the nature of the change is not yet clear.

The Papua New Guinea Supreme Court has ruled that the Manus Island detention centre is illegal. Robertson said although this had not yet had any significant practical effect, it adds to pressure for change. There is also a challenge to the legality of the Nauru detention centre under Nauruan law.

More than 300 people from Nauru and Manus are in community detention in Australia. They are unable to work and restricted in their movements. Robertson said it is essential to fight for their rights.

Thousands of other people on temporary visas are waiting for the processing of their asylum claims. Processing is very slow. There are a lot of suicides as people lose hope.

Robertson said the legal cases can be important as a basis for public campaigns, but the law on its own is not the answer.

Lachlan Marshall, representing RAC, spoke of the importance of "people power", which he said is "more powerful than the law". He highlighted the importance of trade union action.

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