The president of the International Criminal Court, Judge Silvia Fernández de Gurmendi, was in Uganda last week, trying to counter the widespread perception that the Court is “anti-African.” Speaking at a press conference in Gulu, Judge Fernández repeated the oft-used ICC defense to these allegations, pointing out that the Court’s Africa docket comes largely through the referrals of African states themselves. This, of course, is true, but as the African Union’s recent call for a mass withdrawal of African states from the ICC demonstrates, this defense has been – and continues to be – ineffective at countering the perception of bias by the Hague-based court. The challenge, as Martin Ngogo, the Prosecutor General of Rwanda has put it, is that “there is not a single case at the ICC that does not deserve to be there. But there are many cases that belong there, that aren’t there.”
Against this backdrop, a recent submission to the ICC alleging crimes against humanity by Australian government officials and their private contractors provides the Court with the opportunity to add to its docket a non-Africa situation that clearly deserves the Court’s attention. The 108-page submission, coordinated by Stanford Law School’s human rights clinic and the Global Legal Action Network, is thoroughly researched and makes a compelling argument for why the Office of the Prosecutor should launch a preliminary examination into the situation of asylum seekers held in Australia’s offshore detention facilities on the tiny Pacific island of Nauru, and on Manus Island in Papua New Guinea.
The allegations of torture, deportation, persecution, and other inhumane acts committed against asylum seekers all flow from Australia’s post-9/11 immigration and refugee policies. For those interested in the details, I have highlighted some of the key allegations over at Foreign Policy, where I also note that while Australia’s domestic legal system would be perfectly capable of addressing such crimes, the Australian government has refused to act, notwithstanding its undeniable knowledge of the allegations. Suffice to say, there seems to be enough material within the submission to satisfy the “reasonable basis” standard for opening a preliminary examination. The same could be said of course, for other situations, such as documented crimes against humanity in Mexico, in which the Court has thus far shown no interest. But the allegations against Australia come at a moment when it would make sense for the Court to investigate not only on the legal merits, but for strategic reasons as well.
If the Court is to counter the growing perception that it is a tool of powerful countries wielded against the weakest states in the international system, then investigating allegations against a middle-sized Western power like Australia is a sensible place to start. Moreover, asylum seekers, the victims of these allegations, fall within a category of people who are under growing attack – not just in Australia, but also globally.
By opening a preliminary examination into crimes against asylum seekers, the ICC would bolster the now-wavering norm that countries must uphold the rights of asylum seekers. The Australian Parliament is currently mulling an amendment to its Migration Act that would put a lifetime ban on the issuance of a visa to anyone who has tried to enter Australia by boat since 2013. Given Australia’s location, this encompasses all asylum seekers save the very few who have the means to buy a plane ticket. As a result, people whose only “crime” was to seek safety in Australia will never be allowed to enter the country — whether as tourists, students, for business, or to visit family members who were granted refugee status prior to 2013. In the US, President Donald Trump’s Executive Order has barred any Syrian refugees from entering the country. And in the face of the largest influx of asylum seekers since World War II, xenophobia is growing across Europe. If the Court wants to live up to its potential as a legal institution with a global impact, opening a preliminary examination into Australia’s treatment of asylum seekers would be a strong start.