Wednesday, 09 July 2014

Morrison: criminal case to answer?

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Recent events in an ocean somewhere to the North, kind of, we think, Australia, maybe, have raised questions about the legality or otherwise of some actions undertaken by the Royal Australian Navy and Customs on our behalf.

Many people have been claiming that our Immigration Minister is now an International Criminal and should be charged and tried in The Hague or wherever the International Criminal Court sits.

scott morrison

Is Mr Morrison an actual criminal? Are any of our other Ministers, or Department Heads, or our Chief of Navy, or Customs or the individuals who work for them? If they are, how can they be charged, if at all?

It is at the moment very difficult to determine exactly what is going on with the boatload of asylum seekers who are the subject of a High Court case. There are several legal questions, not least of which is trying to figure out which laws apply:

It's not clear at this stage whether it's lawful or not because nobody knows where they are or on what basis they're being kept. That will come out in these proceedings.”

Asked if he was sure the High Court had jurisdiction over the case, even though the asylum seekers may be in international waters, (Sydney solicitor George Newhouse) said: “Well the minister [Scott Morrison] certainly seems to think that he's got the jurisdiction. If he's got the jurisdiction, and they're in the hands of the Australian Navy, then certainly the High Court would have jurisdiction over them as well.

There is huge amount of law (and fact) at issue in the case of this particular boat – Maritime Law for one. If the boat is intercepted in Australian waters there are different responsibilities under law and convention that apply to the ones that apply if it’s picked up outside our territorial zone. And of course we’ve excised huge chunks of our coastline and seas from our Immigration Zone, just to muddy those waters even further.

There are also issues of legal responsibility – who personally (the Minister, the Head of Navy, the ship’s Captain), or what body (the Parliament, the Executive, the Office of The Minister or Ministers) bears the burden of culpability for an illegal act? And is that responsibility delegated by instrument?

The central point in this case though is the concept of Refoulement – returning a refugee to a place that he/she was trying to escape. I’ve copied a few chunks of Wikipedia to explain, which may seem lazy, but it references the same sources I’d be citing anyway and is a useful layman’s description of an unbelievably complex and ambiguous legal system.


The principle of “refoulement” was officially enshrined in the 1951 Convention Relating to the Status of RefugeesArticle 33 of the 1951 Convention contains the following two paragraphs that define the prohibition of the expulsion or return of a refugee:

1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

and is also contained in the 1967 Protocol and Art 3 of the1984 UN Torture Convention .

Article 3 prohibits parties from returning, extraditing or refouling any person to a state “where there are substantial grounds for believing that he would be in danger of being subjected to torture”. The Committee against Torture has held that this danger must be assessed not just for the initial receiving state, but also to states to which the person may be subsequently expelled, returned or extradited.[10]

Australia is a signatory to both conventions.

One of the grey areas of law most hotly debated within signatory circles is the interpretation of Article 33. Interdiction of potential refugee-transporting vessels on the high seas has been a common practice by the U.S. government in particular, raising the question of whether Article 33 requires a refugee to be within a country, or simply within the power of a country, to trigger the right against refoulement. This adds an extra level of complication to the process of bringing criminal cases to international courts. If such a case was successfully brought against Australia, what effect could that have on U.S. policy and practice?

It is debatable whether non-refoulement is a jus cogens (peremptory norm) of international law that forbids the expulsion of a refugee into an area, usually their home-country, where the person might be again subjected to persecution.

There is no clear agreement regarding precisely which norms are jus cogens nor how a norm reaches that status, but it is generally accepted that jus cogens includes the prohibition of genocide, maritime piracy, slaving in general (to include slavery as well as the slave trade), torture, and wars of aggression and territorial aggrandizement.

Anyone interested in a more detailed study on the law and principles of refoulement might be interested in this piece.

To narrow the Is Scott Morrison A Criminal? discussion to within a workable range, we need to make a few assumptions.

First, we assume that the occupants of the boat in question are refugees, in this case, Sri Lankan Tamils escaping prison, torture and execution because they were on the losing side of a civil war (ie, for their religious and racial status). And we assume that, wherever we have intercepted the boat, we have a legal obligation not to refouler them. Further, we assume that handing them over to the Sri Lankan Navy guarantees their immediate torture/imprisonment/execution (other than the two years’ “rigorous imprisonment” they’re already facing for leaving Sri Lanka in the first place). And we assume that legal responsibility rests with the Immigration Minister.

All that said, it appears that Scott Morrison has committed a breach of Article 33. What now? Has Morrison committed a crime triable by the International Criminal Court?

International Criminal Court

Again, referring to Wikipedia for a layman’s description of the ICC:

Part 2, Article 5 of the Rome Statute grants the Court jurisdiction over four groups of crimes, which it refers to as the “most serious crimes of concern to the international community as a whole”: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The Statute defines each of these crimes except for aggression. The crime of genocide is unique because the crime must be committed with 'intent to destroy'. Crimes against humanity are specifically listed prohibited acts when committed as part of a widespread or systematic attack directed against any civilian population.

So for Morrison, or any other Australian official to be tried in the ICC, it would have to be proven that the interception of a boatload of refugees and handing over of them to the very government they were trying to escape, is a Crime Against Humanity.

To date, such as case has never been heard in the ICC, which means we have no tested laws or treaties to assess as a benchmark.

Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, “are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings.” They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health;

Let’s not discuss whether Narau and Manus Island and the whole policy falls under (k) – it’s too subjective an argument to explore here, but it certainly is, and should be, a topic for public debate. Recent polling seems to indicate that most of Australia would not agree.

So, where and how is Mr Morrison to be tried?

War Crimes Tribunals

The United Nations has been primarily responsible for the prosecution of crimes against humanity since it was chartered in 1948.

The UN has instituted a number of Ad hoc War Crimes Tribunals:

  • Nuremberg trials 1945 (following World War II)
  • Tokyo trials 1946 (following World War II)
  • International Criminal Tribunal for Yugoslavia (following the Balkan conflict)
  • International Criminal Tribunal for Rwanda (following the Rwandan genocide)
  • Special Court for Sierra Leone (following the Sierra Leone Civil War)

The UN is responsible for referring cases concerning crimes against humanity to the ICC. The most recent cases were brought against Sudanese President Omar al-Bashir (found guilty), Thomas Lubanga (found guilty) and Joseph Kony (yet to be tried).

When the ICC President reported to the UN regarding its progress handling these crimes against humanity case, Judge Phillipe Kirsch said

The Court does not have the power to arrest these persons. That is the responsibility of States and other actors. Without arrests, there can be no trials.

It appears that, even if all our earlier assumptions turn out to be true, and even if the UN decides that the case against Mr Morrison is so strong and so serious as to justify a Tribunal or trial, it would be up to us (ie, the AFP on order of our government) to arrest him.

And keep him in custody through three or more levels of court hearings, then allow him to be extradited, through at least another four courts, then answer any subpoenas for documentary evidence against him. Then abide by whatever the ICC decides.

It’s a pretty safe assumption that a Liberal government would never take such action against itself. And any Labor government, with a record only slightly less murky than the current liberal government, is equally unlikely to kick over than anthill.

So the short answer to the question of whether Scott Morrison, or any other Australian official, could be charged with an international crime appears to be “no”.

While the facts may well prove that a breach of international law has occurred, the politics, both nationally and internationally, would far outweigh any moral or legal imperative.

It’s an interesting thought, but let’s stick with what we, as a nation, do best: keep voting for the two political parties who delivered, and continue to deliver, this wretched, shameful policy.


Justin Shaw

Follow Justin on Twitter: @JuzzyTribune