Dear Fatou Bensouda, Prosecutor at the International Criminal Court,
You may have read on November 14 that Kurdish-Iranian author Behrouz Boochani has landed in New Zealand and is now a free man. This is a momentous event that should be celebrated the world over. One of the foremost thinkers of atrocity will now able to do his work from a position of safety. I don’t know if you had a chance to read his book, No Friend But the Mountains (2018). As you may know, it is a much-celebrated prison diary, written via WhatsApp in collaboration with Boochani’s translator, Omid Tofighian. The book methodically documents his long incarceration on Manus Island, where Australia has created a complex bureaucratic hell for asylum seekers. And it is squarely relevant to the kind of work you do.
In February 2017, I was part of a group of lawyers who worked with the Global Legal Action Network (GLAN) and the Stanford Law School Human Rights Clinic on a communication submitted to your office. Our message was simple: the well-documented human rights violations, conducted by Australian agents and corporations such as Broadspectrum and Ferrovial on Manus and Nauru, amount to international crimes. We relied on Article 7 of the Rome Statute, which defines your mandate. According to this provision, a “widespread or systematic attack” directed against a “civilian population” amounts to a “crime against humanity” when it takes specific forms such as torture or imprisonment “in violation of fundamental rules of international law.” It need not be an “armed attack” as that term is defined in international law – “multiple commission” of criminal acts, “pursuant to or in furtherance of State or organizational policy,” is the legal requirement, and sadly, the violations on Manus and Nauru meet that requirement.
When we submitted the complaint to you three years ago, we chose the Australian offshore system among several potential situations that present quite similar circumstances. The urgency of the specific case was not rooted in its exceptional nature. Nor did it compete with other cases under your investigation in terms of its body count. What we sought to highlight, rather, was the very clear risk that the Australian precedent represented an emerging global normalcy of human degradation when it comes to migrants and refugees. Although Papua New Guinea’s Supreme Court had already ordered, in a remarkable 2016 opinion, that the Manus facility be closed, the facility on Nauru remains open, and the grim prediction of normalization now seems valid. Aegean islands that back in 2015 symbolized European “welcome culture” have since become the sites of a mental health catastrophe. Policies such as child separation, caging, and detention in intentionally-cold temperatures will be familiar to you from reports on the U.S.-Mexican border.
And with the unfolding new normal, so did the use of vocabulary from international criminal law increase. Responding to events on the Mexican border, Stanford professor and former State Department official, Beth Van Schaack, argued that Trump put in place a policy of torture against migrants. She further emphasized a facet of the policy “acutely relevant to the U.S. definition of mental torture,” namely the unlawful drugging of children. As Judge Dolly Gee has found in a relevant case, children in detention are being over-medicated and administered psychotropic drugs without parental consent or judicial authorization. Separated children in detention have alleged that they had been forced to take multiple psychotropic medications simultaneously. Lawyers have alleged that detention facility personnel are administering these medications solely to control the behavior of and “pacify” the children, and not because the children have a psychiatric disorder in need of treatment. Under U.S. law, mental torture includes “the administration or application of … mind-altering substances” to persons within the government’s custody.
For her own part, former Attorney General of California, Sen. Kamala Harris, repeatedly described the President’s treatment of asylum seekers as a “crime against humanity.” Harris was following an earlier statement by a lawyer who embodies the history of international criminal law. Ben Ferencz, the 99-year-old Nuremberg prosecutor, had voiced the same opinion a year earlier. Whomever takes office in November 2020, the likelihood of prosecutions of officials from the current administration for such crimes against migrants seems low. It’s probably even lower than the slim chance, a decade ago, that Barack Obama would have prosecuted officials of the former George W. Bush administration for torture. Needles to say, the United States is not party to the Rome Statute, and your court has been wavering about prosecuting U.S. crimes elsewhere.
Despite following such developments with some interest, I was admittedly a little late to Boochani’s book. I received it only a couple of months ago as a gift from a dear friend and an admired scholar, Lyndsey Stonebridge. In her email, Lyndsey compared Boochani’s writing to Primo Levi’s. Unlike her, I’m not a literary critic, but I had suspected that her enthusiasm might be overdone. Any such suspicion quickly disappeared when I started reading. As other more qualified commentators have noted, the book is a masterpiece. But the comparison with Levi is relevant here for another reason, closer to our own profession. Levi offered his testimony as evidence of mass atrocity. Hopefully, one day Boochani will agree to play a similar role before an international criminal court. You have the authority to determine whether it will be yours.
Levi, the Italian literary giant and Auschwitz survivor, first submitted his written statement as evidence for use by the Israeli prosecution in Adolf Eichmann’s 1960 trial. We now know that he had witnessed facts directly pertinent to the discussion there, namely the deportation of Jews and other groups to death camps. Some commentators – Shohana Felman is one — believe that the Eichmann trial was “revolutionary” for the way it allowed the victims of mass atrocity to be heard. There may be something to that. Yet the Israeli prosecution did not introduce Levi’s statement, and so he was never called to testify. With Levi already a well-known literary figure in his home country, it seems fair to assume that this decision was not entirely arbitrary. Long before his statement was unearthed from an archive in 2007, Dan Miron offered that official Israel could not accept Levi’s work because he saw the Holocaust as “an extension of ‘normal’ human behavior and not ‘another planet.'” The latter are Ka-Tzetnik’s iconic words — a lesser author who unlike Levi, was called to the stand as a witness to the horrors of Auschwitz.
When Margalit Shlain found Levi’s text, journalist Meron Rappoport reported her discovery, highlighting Miron’s reading of Levi’s reception in Israel. Rappoport suggested that Israel’s prosecution found Ka-Tzetnik’s holocaust-sensationalism more adequate than Levi’s sober analysis of the systematic dehumanization of prisoners at Auschwitz. His testimony was rich with drama and culminated with a famous loss of consciousness. One can only imagine what Levi would look like on the witness stand. Commenting on Levi’s written statement, Italian critic Marco Belpoliti characterized it as “tranquil, precise and elegant.”
Boochani shares Levi’s sensibility, according to which mass atrocity is of a piece with our normal life. While his writing style is more turbulent, visceral and scattered with verse and surrealist imagery, Boochani’s philosophical challenge is remarkably similar.
Some of the themes Boochani confronts also echo those introduced so powerfully by Levi. For example, they both spend considerable time on the ambiguous roles that healthcare providers have taken in camps. In Boochani’s case, healthcare is often designed specifically to break prisoners’ will. This is apparent, for example, early in the book, upon his arrival to Manus:
The words of that nurse are more like a threat than words of concern for our wellbeing. It is like she is warning us: “Manus is a dangerous island with tropical and murderous mosquitoes. If we were in your place, we would fill out the voluntary deportation forms and go back to our homelands.”
The goal is to conclude the “voluntary” return of asylum seekers to countries where they may be exposed to persecution. While Levi described a system ultimately designed to murder, this is of course not the purpose of Australia’s offshore detention system. Rather than killing people, it is premised on a wish they would have never been born.
The Australian system of offshore detention was originally modeled after the U.S. facility in Guantanamo Bay. Its legal design emulates the elimination of accountability that the U.S. government had introduced there (brilliantly documented in a recent book by Jeffery Kahn). Alongside Levi, Boochani’s prose can be compared to that of another author who has written a compelling work from offshore detention, the former prisoner at Guantanamo, Mohamadou Ould Slahi. In both the Pacific and the Caribbean islands, governments pretend that what happens beyond their territory is also beyond their legal responsibility; such literature defies their jurisdictional games. Boochani offers a powerful refutation of such artifice, based directly upon experience: “This space is part of Australia’s legacy and a central feature of its history – this place is Australia itself – this right here is Australia.” While offshore incarceration aims to escape the territorial strictures of law, Boochani has argued that offshore detention comes to define, somehow, the governments that employ it. Extraterritorial incarceration is located right at the heart of the political system.
Three years after the submission, you may still be considering these allegations. But you have not launched a preliminary examination of the situation, nor have you addressed the relevant complaints in your periodic reporting. Apart from a confirmation that you had indeed received our complaint, we have heard nothing from your office.
If you do ultimately decide to examine the case and invite Boochani to testify, you will open a historic opportunity, missed not only by the Jerusalem court in 1961, but possibly ever since. Through the very processes of criminal law, we may at last be able to directly confront a problem that has perplexed generations of criminal lawyers: how do ordinary people come to play roles in the most heinous of crimes? There is no other context in which this problem is so crucial today as it is in the context of border violence.
Doubtless, this will be a difficult task. As Boochani explains,
Every prisoner is convinced that they or their group are the critical theorists of the systematic foundation, the chief analysts of the system’s architecture. But the greatest difficulty is that no-one can be held accountable, no-one can be forced up against the wall and questioned, no-one can be interrogated by asking them “you bastard, what is the philosophy behind these rules and regulations? Why according to what logic, did you create these rules and regulations? Who are you?”
For Boochani, detainees and prison guards are in constant conflict, but an underlying cluelessness unites them: “No person who is part of the system can ever provide an answer…” Now that Boochani is no longer part of the system, however, he may be positioned quite well to provide at least an outline for an answer; he may choose to expand on his experiences, or comment on the perennial problem of accountability for mass atrocities in international criminal law. Judging from his book, he will not be a regular witness. Rather than only helping you understand the facts, he may also give guidance on appropriate interpretation of the underlying law. Following his book, perhaps you can contact him and discuss the case. I’m sending you a copy.
IMAGE: This photograph taken on September 2, 2018 shows a general view of refugee Camp Four on the Pacific island of Nauru. A cluster of corrugated iron huts resembling military barracks jut out of Nauru’s sweltering rocky landscape to reveal refugee settlement camp number five, a place defined by desperation and rarely visited by outsiders. (Photo by MIKE LEYRAL/AFP via Getty Images)