Showing posts with label international law. Show all posts
Showing posts with label international law. Show all posts

Thursday 27 July 2017

Shorter UN Position: Australia's policy of offshore processing has caused extensive, avoidable suffering for far too long


To add insult to injury our very own J. Edgar Tuber, Peter Craig Dutton, Minister for Immigration and Border Protection & just about everything that isn't nailed down, has apparently been lying to the United Nations.


Australia’s policy of offshore processing in Papua New Guinea and Nauru, which denies access to asylum in Australia for refugees arriving by sea without a valid visa, has caused extensive, avoidable suffering for far too long.
Four years on, more than 2,000 people are still languishing in unacceptable circumstances. Families have been separated and many have suffered physical and psychological harm.
In light of this dire humanitarian situation, last November UNHCR exceptionally agreed to help with the relocation of refugees to the United States following a bilateral agreement between Australia and the US. We agreed to do so on the clear understanding that vulnerable refugees with close family ties in Australia would ultimately be allowed to settle there. 
UNHCR has recently been informed by Australia that it refuses to accept even these refugees, and that they, along with the others on Nauru and Papua New Guinea, have been informed that their only option is to remain where they are or to be transferred to Cambodia or to the United States.
This means, for example, that some with serious medical conditions, or who have undergone traumatic experiences, including sexual violence, cannot receive the support of their close family members residing in Australia.
To avoid prolonging their ordeal, UNHCR has no other choice but to endorse the relocation of all refugees on Papua New Guinea and Nauru to the United States, even those with close family members in Australia.  
There is no doubt these vulnerable people, already subject to four years of punishing conditions, should be reunited with their families in Australia. This is the humane and reasonable thing to do. 
The Australian government’s decision to deny them this possibility is contrary to the fundamental principles of family unity and refugee protection, and to common decency. 
UNHCR fully endorses the need to save lives at sea and to provide alternatives to dangerous journeys and exploitation by smugglers. But the practice of offshore processing has had a hugely detrimental impact. There is a fundamental contradiction in saving people at sea, only to mistreat and neglect them on land.  
Australia has a proud humanitarian tradition, manifested in its support for overseas aid and its longstanding refugee resettlement programme. I urge Australia to bring an immediate end to the harmful practice of offshore processing, offer solutions to its victims, for whom it retains full responsibility, and work with us on future alternatives that save lives at sea and provide protection to people in need.
At a time of record levels of displacement globally, it is crucial that all States offer protection to survivors of war and persecution, and not outsource their responsibilities to others. Refugees, our fellow human beings, deserve as much.
 Background
Approximately 2,500 refugees and asylum-seekers have been forcibly transferred by Australia to ‘offshore processing’ facilities in Papua New Guinea and Nauru since the introduction of the current policy in 2013. Of these, some 1,100 remain in Nauru and 900 in Papua New Guinea.
Following the Australia-US bilateral agreement on relocation, UNHCR has referred more than 1,100 refugees to the US over the past eight months. Another 500 people are still waiting for the outcome of the refugee status determination processing being carried out by authorities in PNG and Nauru, under the Australian arrangement.

Thursday 22 June 2017

Legal profession sets out core principles and commitments on human rights as international spotlight shines on Australia


Medianet Logo
AAP Logo
 Medianet Release




16 Jun 2017 10:55 AM AEST - Legal profession sets out core principles and commitments on human rights, as international spotlight shines on nation





The Law Council today launched its Policy Statement on Human Rights and the Legal Profession, laying out core principles and commitments of behalf of the Australian legal profession.

The Policy Statement sets out a framework for evaluating the merits of legislation, policy, and practice by reference to international human rights law.

The Statement includes a commitment to advocate for a federal charter or bill of rights, as well as for more State and Territory charters of rights to join those of Victoria and the ACT. It also commits the Law Council to promote respect for human rights by Australian corporations and other incorporated and non-incorporated entities, including through implementation of the UN's Guiding Principles on Business and Human Rights.

The Law Council of Australia's President, Fiona McLeod SC, said with Australia bidding for a seat on the UN Human Rights Council this year the policy was particularly timely.

"Australia has a proud history in the human rights sphere. We played a prominent role in drafting the UN Charter and the Universal Declaration of Human Rights and have since been an active participant in the development of an international system for the protection and promotion of human rights," Ms McLeod said.

"The Law Council endorses a central and constructive role for Australia in the international human rights system. This year, as Australia seeks a seat on the UN Human Rights Council, it is important to assert and articulate the legal profession's principles and commitments on human rights.

"The Law Council supports an approach, consistent with international law and practice, which confirms that all human rights are universal, indivisible, and interdependent and interrelated.

"We believe this makes it vital to consider legislation and government action through a human rights lens. The principles in this framework guide myriad aspects of the Law Council's work in the policy space – from asylum seekers to marriage equality to metadata," Ms McLeod said.

The Policy Statement on Human Rights and the Legal Profession was prepared by the Law Council's National Human Rights Committee and approved by its Directors.

The Statement is available at https://lawcouncil.asn.au/
Patrick Pantano: Public Affairs / P 02 6246 3715 / Patrick.Pantano@lawcouncil.asn.au 
Anil Lambert: Media / P 0416 426 722 / anil@hortonadvisory.com.au



Distributed by AAP Medianet

JN#:880833


   Contact Us
© Australian Associated Press, 2017  

Sunday 19 March 2017

Trump's 'Muslim Ban' Mk2 also falls at first judicial hurdle


Massachusetts, New York, Oregon, Minnesota and Maryland joined with the State of Washington in seeking to restrain U.S. President Donald J. Trump’s Executive Order of 6 March 2017 which revised his earlier order of  February 2017.

Along with Hawaii in separate litigation that makes seven states opposing what is colloquially known as Trump’s Muslim Ban.

AP News, 16 March 2017:

HONOLULU (AP) — Hours before it was to take effect, President Donald Trump's revised travel ban was put on hold Wednesday by a federal judge in Hawaii who questioned whether the administration was motivated by national security concerns.

U.S. District Judge Derrick Watson also said Hawaii would suffer financially if the executive order blocked the flow of students and tourists to the state, and he concluded that Hawaii was likely to succeed on a claim that the ban violates First Amendment protections against religious discrimination.

"The illogic of the government's contentions is palpable," Watson wrote. "The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed."…..

The judge issued his 43-page ruling less than two hours after hearing Hawaii's request for a temporary restraining order to stop the ban from being put into practice.

The ruling came as opponents renewed their legal challenges across the country, asking judges in three states to block the executive order that targets people from six predominantly Muslim countries. Federal courts in Maryland, Washington state and Hawaii heard arguments Wednesday about whether it should be allowed to take effect early Thursday as scheduled.

In all, more than half a dozen states are trying to stop the ban.

Watson made it clear that his decision applied nationwide, ruling that the ban could not be enforced at any U.S. borders or ports of entry or in the issuance of visas…..

Court transcript of the temporary restraining order granted can be found here.

Seattle Times, 15 March 2017:

A Seattle federal judge who ruled against President Donald Trump’s first immigrant travel ban has taken another challenge to the president’s revised order under advisement, this one filed by the families of immigrants that have been separated because of the policy.

U.S. District Judge James Robart remained skeptical of the government’s continued claims that the president can bar people from immigrating because of their nationality. Attorneys for the families argued that statutes governing the issuance of immigrant visas specifically prohibit such discrimination.

Robart heard nearly 90 minutes of arguments Wednesday in a lawsuit challenging the travel order filed by several legal immigrants who are separated from their families and who fear the new order will prolong that separation. Their family members all are in various stages of attempting to obtain visas to enter the U.S.

The latest travel ban was set to go into effect at midnight Wednesday. However, a federal judge in Hawaii on Wednesday put the revised travel ban on hold.

Matt Adams, the legal director for the Northwest Immigrant Rights Project, which is spearheading the immigrant-family lawsuit, said the Hawaii order is a godsend for his clients, who will benefit from any delay in the order’s implementation.

Still, he said they will pursue a restraining order of their own.

Robart did not say when he would rule on the suit filed by several immigrants.

Daily Mail 14 March 2017:

Immigrant advocacy groups and the ACLU are suing in Maryland. They will ask a judge there early Wednesday to issue an injunction, saying it's illegal to reduce the number of refugees in the middle of a fiscal year. The lawsuit is broader, but the ACLU expects a ruling on that part of the case even if other aspects of the ban are blocked elsewhere.

The Baltimore Sun, 16 March 2017:

The Washington Post reported that U.S. District Judge Theodore D. Chuang issued a ruling early Thursday, using Trump's own comments against him in deciding the ban was likely unconstitutional.

The Maryland ruling marks another win for challengers of the president's executive order, which had been slated to take effect at 12:01 a.m. Thursday.

Trump expressed his displeasure in a typically dishonest prepared political speech he read from two transparent autocues.


Full speech video at https://youtu.be/z9ghcGzkpZo.

The revised text of the travel ban:


Wednesday 7 December 2016

United Nations requests Governments of Sweden and United Kingdom to allow Julian Assange "freedom of movement"



The United Nations Working Group on Arbitrary Detention has concluded its 77th regular session from 21 to 25 November in Geneva.

The Working Group has a mandate to investigate allegations of individuals being deprived of their liberty in an arbitrary way or inconsistently with international human rights standards, and to recommend remedies such as release from detention and compensation, when appropriate.

During the session, the Working Group adopted 18 opinions concerning 43 persons deprived of liberty. The adopted opinions will be transmitted to the Governments concerned and the sources. These opinions will also be published on the website of the Working Group.

The UN expert group also considered four requests for review* of previous opinions, submitted by the Arab Republic of Egypt, the State of Kuwait and the United Kingdom of Great Britain and Northern Ireland. The Working Group concluded that the requests did not meet the threshold of a review as enshrined in paragraph 21 of its methods of work,** and that they were thus not admissible.


Disposition

In the light of the foregoing, the Working Group renders the following opinion: The deprivation of liberty of Julian Assange is arbitrary and in contravention of articles 9 and 10 of the Universal Declaration of Human Rights and articles 7, 9 (1), (3) and (4), 10 and 14 of the International Covenant on Civil and Political Rights. It falls within category III of the categories applicable to the consideration of the cases submitted to the Working Group.

Consequent upon the opinion rendered, the Working Group requests the Governments of Sweden and the United Kingdom to assess the situation of Mr. Assange, to ensure his safety and physical integrity, to facilitate the exercise of his right to freedom of movement in an expedient manner and to ensure the full enjoyment of his rights guaranteed by the international norms on detention.

The Working Group considers that, taking into account all the circumstances of the case, the adequate remedy would be to ensure the right of free movement of Mr. Assange and accord him an enforceable right to compensation, in accordance with article 9 (5) of the International Covenant on Civil and Political Rights. [Adopted on 4 December 2015]

Tuesday 11 October 2016

On the basis of the Chilcot report an international law firm is attempting to sue former British prime minister Tony Blair for alleged war crimes & crimes against humanity


Despite the International Criminal Court (ICC) and at least one eminent silk reportedly ruling out the possibility of former British prime minister Tony Blair being prosecuted for war crimes and crimes against humanity, the law firm Nasser Hashem and Partners is preparing a case to be lodged in both British and international courts.

Gulf News, 5 October 2016:

Dubai: A Dubai-based lawyer has started legal action against former British prime minister Tony Blair, seeking his prosecution for committing war crimes and crimes against humanity during the invasion of Iraq in 2003.

Advocate Nasser Hashem and his partners in London will register the criminal case against Blair this month at the International Criminal Court and British courts for breaching human rights and committing war crimes that killed thousands of Iraqis.

Hashem and his partners in Cairo, Dubai and London decided to take legal action against the former prime minister after the publication of Chilcot's report on the Iraq war in July. Former British prime minister Gordon Brown announced an inquiry in 2009 and the inquiry's chairman Sir John Chilcot announced his findings in a public statement in July.

Speaking to Gulf News, advocate Hashem said: "Since the results of the inquiry were announced earlier this summer, my partners [in Cairo, Dubai and London] and I have decided to take Blair to court for the war crimes and crimes against humanity that were committed in Iraq. We are taking this legal procedure against Blair since he took the decision [in his capacity as the British prime minister then] to participate with the United States in the invasion of Iraq in 2003 without the permission of the UK's House of Commons. He produced unreasonable, bogus and wrong information to the House of Commons, according to Chilcot report, and based on that information, the UK participated in that war."

Hashem said Blair falsely and unfoundedly told the House of Commons that Iraq possessed weapons of mass destruction and biological weapons before the war was launched against Iraq.

According to the Chilcot report, Saddam Hussain did not pose an urgent threat to British interests and that the intelligence regarding weapons of mass destruction was presented with unwarranted certainty. Also, the report said UK and the US had undermined the authority of the United Nations Security Council.

"Based on all the lies and allegations that Blair produced before the members of the House of Commons, the decision to go to war alongside with the US was taken. Thousands of Iraqis were killed, injured, displaced and/or shattered. Blair committed war crimes against the people of Iraq and violated human rights. He should be taken to court for the crimes he committed," said Hashem.

A media statement issued earlier by Hashem and his partners said: "Our office in London will take all the necessary legal procedures before the British courts to prove the violations and crimes against humanity that have been committed against human rights in Iraq and breaching the human rights that was settled by International Organisation for Human Rights and to prove the oppression of Blair against Iraq, that led to the destabilisation of the Arab countries, (and) for taking wilful decision and committing grave acts." Hashem and his legal team are expected to announce further details about their legal action against Blair soon.

Nasser Hashem & Partners, media release, 25 July 2016:

Submitting the British former Prime Minister for trial

In this respect, we are ensuring the achievement of the international justice and the enforcement of law. Accordingly, we held a press conference in Cairo in order to start taking legal procedures against the former British Prime Minister "Anthony Charles Lynton Blair" before the international Criminal Court for committing War Crimes and crimes against humanity by taking this decision to participate with the United States of America in the invasion of Iraq in 2003 without the permission of the House of Commons of the United Kingdom by presenting unreasonable information to the House of Commons, According to Chilcot report in 2016 before the House of Commons of the United Kingdom.

We emphasize that our office in London will take all the necessary legal procedures before the British courts to prove the violations and crimes against humanity that have been committed against human rights in Iraq and breaching the human rights that was settled by International Organization for Human Rights, to prove the oppression of the former British prime Minister "Anthony Blair" against Iraq, that led to the destabilization of the Arab Countries for taking wilful decision and committing grave acts. We will submit all the documents which prove the conviction of the former Prime Minister "Anthony Charles Blair" specifically after his recognition of taking all responsibility of his decision

Since Egypt joined the Security Council, it has the authority to submit the case by the Security Council before the International Criminal Court. We are making investigations with the Egyptian Minister of foreign Affairs because of our dissatisfaction for violating the rights of Arab nation without any right.

It is important to mention that the United Kingdom claims for human rights and world peace, at the same time violating the respect of humanity. We consider that this is contradicting and this major evidence that led to the division of Iraqis, murdering of innocent children, displacement of families and classifying the Arab countries as a source of terrorism. Consequently, we can consider that what happened in Iraq is not an invasion but it is breaching the sovereignty of state without any right for the purpose of hidden aims and accordingly the former British Prime Mister will be convicted

Update​ 1/10/2016
Nasser Hashem & Partners is preparing all the documents regarding "Anthony Blair" Case to be submitted to the International Criminal Court and British Courts for committing war crimes against Iraqi citizens as a prelude to submitting a compensation case against United Kingdom and the United States of America for killing hundreds of thousands of Iraqi Citizens. We are currently preparing a team which will travel to the United Kingdom to proceed to take legal action and there will be a press conference before the flight to brief journalists on the actions that will be taken in the UK.

Saturday 24 September 2016

Our silence supports this..................



Fifty-one pages of February-March 2016 incidents reports from the Nauru Regional Processing Centre created and funded by the Australian Government with the implied consent of the Australian people.

Wednesday 3 August 2016

United Nations "shocked by the video footage that has emerged from Don Dale youth detention centre in the Northern Territory in Australia"


Spokesperson for the UN High Commissioner for Human Rights: Rupert Colville
Location: Geneva
Date:  29 July 2016  

(2) Australia

We are shocked by the video footage that has emerged from Don Dale youth detention centre in the Northern Territory in Australia, showing children as young as 10, many of whom are Aboriginal children, being held in inhumane conditions and treated cruelly. Some children were held in isolation for extended periods, sometimes for several weeks, in hot and dark cells with no access to fresh air or running water. In one incident, six children were tear-gassed by prison guards. The videos, from 2014, show another child hooded and strapped to a chair for several hours. Others are shown being repeatedly assaulted and stripped naked. According to the children’s testimony, these abuses took place over several years. Most of the children who were held at the detention facility are deeply traumatized. The treatment these children have been subjected to could amount to a violation of the Convention on the Rights of the Child and the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment, to which Australia is a party.

Article 37 of the CRC stipulates that “every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age.”
The announcement by the Government of an investigation into youth detention in the Northern Territory is an important step. We encourage the Government to extend the scope of the investigation beyond the Northern Territory in order to establish that such appalling treatment is not taking place in any other place of detention in Australia. We call on the authorities to identify those who committed abuses against the children and to hold them responsible for such acts. The children who were abused at Don Dale should receive psychosocial rehabilitation to overcome the trauma they have suffered. Compensation should also be provided.

We also call on Australia to ratify the Optional Protocol to the Convention against Torture. This important instrument focuses on the prevention of torture. Under the Protocol, Australia would establish a National Preventive Mechanism which conducts regular visits to all places of detention in the country. Events at Don Dale clearly show the immediate need to establish such a system of regular visits to ensure that what happened at Don Dale never happens again in Australia.

Thursday 5 May 2016

Australian Federal Election 2016: it couldn't happen to a more deserving multinational


The Australian, 28 April 2016:

Broadspectrum has entered a trading halt this morning as it seeks to clarify the impact of a potential closure of the Manus Island detention centre.

The detention centre operator’s Manus Island contract is highly lucrative and investors fear it may be taken away after the PNG Supreme Court labelled the detention centre “unconstitutional and illegal” this week.

That ruling preceded PNG Prime Minister Peter O’Neill’s assertion on Wednesday that the centre would “now be closed”, but there remains little clarity on the way forward with the Commonwealth insisting the asylum seekers will not come to Australia.

“The trading halt is requested following press speculation in relation to developments following the PNG Supreme Court decision and their possible impact on Broadspectrum,” the firm said in a statement.

It said it intended to release an update on Friday, April 29.

The action has come as an $800 million takeover offer for Broadspectrum appeared likely to fall over before Monday’s deadline.

In May 2016 Broadspectrum (Australia) Pty Ltd formerly Transfield Services (Australia) Pty Ltd has barely ten months left to run on its $2.189 billion contract with the Australian Government to provide operational, welfare and security services to asylum seekers on Nauru and Manus Island, so it is highly likely that there will be relatively low compensation payable to this multinational corporation flowing from the closure of the both Nauru and Manus Island off-shore detention centres.

Perhaps this is the moment that the federal government can finally begin to rid itself of a corporation plagued by allegations of human rights violations and violence.

Wednesday 27 April 2016

Manus Island detention Centre declared illegal by PNG Supreme Court in a unanimous judgment


Five judges sitting as the Supreme Court of Justice in Papua New Guinea have unanimously ruled that holding 905 asylum seekers at Manus Island detention centre is unconstitutional and a violation of their human rights.

Excerpts from the full judgment:


The Australian Lawyers Alliance is of the opinion that this judgment opens the door for the Australian Government to be sued for damages by detainees.



UPDATE

ABC News, 27 April 2016:

Papua New Guinea's Prime Minister Peter O'Neill says the Manus Island regional processing centre will be closed following a ruling from the country's Supreme Court….
Mr O'Neill has now released a statement said that his government "will immediately ask the Australian Government to make alternative arrangements for the asylum seekers".
"For those that have been deemed to be legitimate refugees, we invite them to live in Papua New Guinea only if they want to be a part of our society and make a contribution to our community," he said.
"It is clear that several of these refugees do not want to settle in Papua New Guinea and that is their decision."
Mr O'Neill has also stated that the local economy would suffer as a result and the Government would work with the Australian Government to ease the transition.

Thursday 4 February 2016

High Court judgment enables Australian Government to wash its hands of asylum seekers' fate


THE CHILDREN……
THE JUDGMENT……


Today the High Court held, by majority, that the plaintiff was not entitled to a declaration that the conduct of the first and second defendants in relation to the plaintiff's past detention at the Nauru Regional Processing Centre ("the Centre") was unlawful. The majority of the Court held that s 198AHA of the Migration Act 1958 (Cth) ("the Act") authorised the Commonwealth's participation, to the extent that the Commonwealth did participate, in the plaintiff's detention.

The plaintiff is a Bangladeshi national who was an "unauthorised maritime arrival" as defined by s 5AA of the Act upon entering Australia's migration zone. She was detained by officers of the second defendant and taken to Nauru pursuant to s 198AD(2) of the Act. Nauru is a country designated by the first defendant as a "regional processing country" under s 198AB(1) of the Act.

On 3 August 2013, the Commonwealth and Nauru entered into an arrangement relating to persons who have travelled irregularly by sea to Australia and who Australian law authorises to be transferred to Nauru ("the second MOU"). By the second MOU and administrative arrangements entered into in support of the second MOU (including arrangements for the establishment and operation of the Centre) ("the Administrative Arrangements"), Nauru undertook to allow transferees to remain on its territory whilst the transferees' claims to refugee status were processed. The Commonwealth was to bear the costs associated with the second MOU. Since March 2014, the third defendant has been a service provider at the Centre pursuant to a contract with the Commonwealth to provide "garrison and welfare services" ("the Transfield Contract").

Section 198AHA applies if the Commonwealth enters into an arrangement with a person or body in relation to the regional processing functions of a country. Sub-section (2) provides, in summary, that the Commonwealth may take any action, and make payments, in relation to the arrangement or the regional processing functions of the country, or do anything incidental or conducive to taking such actions or making such payments. The plaintiff brought proceedings in the original jurisdiction of the High Court seeking, amongst other things, a declaration that the Commonwealth's conduct (summarised as the imposition, enforcement or procurement of constraints upon the plaintiff's liberty, including her detention, or the Commonwealth's entry into contracts in connection with those constraints, or the Commonwealth having effective control over those constraints) was unlawful by reason that such conduct was not authorised by any valid law of the Commonwealth.

The Court held, by majority, that the plaintiff was not entitled to the declaration sought. The conduct of the Commonwealth in signing the second MOU with Nauru was authorised by s 61 of the Constitution. The Court further held that the conduct of the Commonwealth in giving effect to the second MOU (including by entry into the Administrative Arrangements and the Transfield Contract) was authorised by 
s 198AHA of the Act, which is a valid law of the Commonwealth.

* This statement is not intended to be a substitute for the reasons of the High Court or to be used in any later consideration of the Court's reasons.

Transcript of full judgement can be found here

WHAT THE JUDGMENT MEANS…...

George Williams, Professor of Law at the University of NSW, writing in The Sydney Morning Herald on 3 February 2016:

The result was that the federal government has the power to detain people who come to our shores claiming to be a refugee. It also has the power to send those people to other countries without first determining whether their claims are correct.

Once removed, their fate is put beyond Australian law and the oversight of our courts. As Chief Justice French and Justices Kiefel​ and Nettle stated, once removed from Australia, the plaintiff is 'detained in custody under the laws of Nauru, administered by the Executive government of Nauru'.

This follows from the fact that Australian courts do not rule on what occurs within another sovereign state. This is true even if that state, as is the case with Nauru, is beholden to Australia, and has a dubious record of upholding the rule of law within its own borders. In such a case, asylum seekers can find themselves removed from Australia to what is in effect a legal black hole.

These findings of a majority of the High Court put beyond doubt the capacity of the Commonwealth to continue its offshore detention policies in Nauru.

What is striking is just how few checks now apply to these policies. There is no requirement that children are well treated, or that their best interests are safeguarded. There is also no need for asylum seekers to be treated fairly, such as by having their claims promptly and properly assessed.

By sending them to Nauru, the law enables Australia to wash its hands of such matters.

I note that the High Court ordered the Bangladeshi woman "M68" to pay the Federal Government's legal costs in this case, so not only will she and her infant be returning to an island nation of only 21 km² whose income appears to be derived in part from acting as an open-air gaol, she will go back burdened with a debt she can not possibly pay.
 

Tuesday 31 March 2015

What the international legal system is hearing about Abbott's Australia


The West Australian 23 March 2015:

One of the nation's senior barristers, Julian Burnside, has started a campaign to convince the International Criminal Court to investigate Prime Minister Tony Abbott and former immigration minister Scott Morrison for crimes against humanity committed on refugees in offshore detention centres.
Mr Burnside, a Melbourne QC, told a Perth audience at the weekend he was trying to recruit high-profile international lawyers, including Amal Clooney, to conduct the investigation.
"If we got Tony Abbott, Scott Morrison and a couple of others in the dock at The Hague, the Nuremberg Defence ("I was only following orders") wouldn't work," Mr Burnside told a sold-out auditorium at the University of WA.
"I'm working on a plan to persuade the ICC to investigate the things that we are concerned about.
"I think the fact that an investigation was happening would have a real, chilling effect on their conduct.
"I'm trying to recruit (leading British barrister) Geoffrey Robertson and Amal Clooney."…..

ANDREW WILKIE Independent MP For Denison, media release 19 March 2015:

UN ADDS WEIGHT TO CASE AGAINST GOVERNMENT AT THE HAGUE


The Independent Member for Denison, Andrew Wilkie, and eminent human rights lawyer Greg Barns will be available to discuss the most recent correspondence with the International Criminal Court in regard to Australia’s non-compliance with the Rome Statute and crimes against humanity against asylum seekers.

In essence Mr Wilkie, in cooperation with Mr Barns, has drawn the Prosecutor’s attention to the damning findings in this month’s United Nations Report of the Special Rapporteur, Juan MĂ©ndez, on torture and other cruel, inhuman or degrading treatment or punishment.  He has also highlighted that the Prime Minster and his Cabinet have also repeatedly rejected the findings by the UN Human Rights Committee that the continued detention of refugees subject to adverse security assessments constitutes arbitrary detention.

Extracts of Mr Wilkie’s letter
           
``I wish to draw your attention to the findings contained in the United Nations Report of the Special Rapporteur, Juan MĂ©ndez, on torture and other cruel, inhuman or degrading treatment or punishment. The Report was released in Geneva by the Human Rights Council on 6 March 2015.

``In particular I respectfully draw the attention of the Office of the Prosecutor to the conclusions of the Special Rapporteur about the ongoing detention of 203 Sri Lankan asylum seekers and their incommunicado detention. I also note the Special Rapporteur’s conclusions about the impact of legislation drafted and introduced in the Australian Parliament by the members of the Cabinet of Prime Minister Tony Abbott. The Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill 2014 and the Migration Amendment (Character and General Visa Cancellation) Bill 2014 are now Australian law.

``The Special Rapporteur concludes that the above legislation violates the rights of a group of persons, namely asylum seekers and migrants, to be free from torture and cruel, inhuman or degrading treatment.

``I would also like to take this opportunity to draw your attention to the Prime Minister’s response to this Report. In a public statement he said that “Australians are sick of being lectured by the United Nations, particularly given that we have stopped the boats and by stopping the boats we have ended the deaths at sea”.

``It is respectfully submitted that the Prime Minister’s comments in relation to the Report indicate a state of mind that is, at the very least, reckless as to whether or not breaches of the Rome Statute are occurring as a consequence of his and the Cabinet’s policies. The issue of intent is of course one for your office.

``The Prime Minster and his Cabinet have also repeatedly rejected the findings by the United Nations Human Rights Committee that the continued detention of refugees subject to adverse security assessments constitutes arbitrary detention.

``For instance recently their government failed to comply with, and missed by almost a year the 180-day deadline to respond, the Committee’s July 2013 ruling regarding more than 30 recognised refugees. These people were subject to indefinite detention without trial and the Committee recommended they be released and compensated.’’

Background

In October last year Mr Wilkie, in cooperation with Mr Barns, requested the Prosecutor at the ICC initiate an investigation in accordance with Article 15(1) of the Rome Statute.

Article 7 of the Rome Statute defines ‘crimes against humanity’ to mean acts such as deportation, imprisonment or other severe deprivation of liberty in violation of fundamental rules of international law, and torture and other similar acts that are committed as part of a widespread or systematic attack directed against any civilian population.  Actions such as forced transfers to other countries, detention without trial, detention of children and conditions of detention clearly constitute breaches of Article 7.

``The actions of the Prime Minister and members of his Government against asylum seekers are criminal,’’ Mr Wilkie said.

Last month, Mr Wilkie provided the Prosecutor with a comprehensive brief on this matter.  The Office of the Prosecutor has replied that it is analysing the situation to decide if there is reasonable basis to proceed with an investigation.

A copy of the letter is attached.Andrew_Wilkie_MP_to_ICC_Prosecutor_19_Mar_2015.pdf

Sunday 25 January 2015

An open letter to Prime Minister Abbott and his coterie of knuckle-dragging fascists


This letter was reportedly sent to The Australian which appears to have declined to publish.

The Conversation January 2015:

We, the undersigned, are concerned about recent public criticism of one of Australia’s most respected independent public office-holders, Australian Human Rights Commission (AHRC) President Gillian Triggs. Below we comment on the relentless attacks, including from Prime Minister Tony Abbott, of her recommendation in the Basikbasik matter. In our view, they are based on a misunderstanding of the role of the commission.

Independent public office-holders are an important part of modern democratic societies. Their task is to ensure accountability for abuses of power by government. Their capacity to perform this role depends on their independence and ability to act impartially.

Independence and impartiality are undermined when a political leader publicly attacks holders of public office and when the media presents inaccurate accounts of the work of public institutions.

The Australian Human Rights Commission Act provides in Section 11(1)(f) that the commission has a function to:

… inquire into any act or practice that may be inconsistent with or contrary to any human right.

In the Basikbasik case, which has been at the heart of the recent criticism, the AHRC did not recommend that Mr Basikbasik be released into the community forthwith. Rather, the commission found that Mr Basikbasik had been held in detention for a total of 13 years – a six-year period of imprisonment following a criminal conviction, then a further seven years in immigration detention.

The commission found that the government had not established that continued detention after completion of sentence was necessary. It was therefore arbitrary and in breach of the human rights standards Australia has voluntarily accepted. The commission recommended that a less punitive form of community detention be found for Mr Basikbasik and that he be compensated for his lengthy arbitrary detention, in line with widely accepted national and international standards and precedents.

President Triggs has made clear that she respects the government’s right to reject her findings, including her recommendations. The government should likewise respect the commission’s role in investigating complaints and reporting its findings to the minister according to law.

If the government disagrees with the commission, providing a reasoned explanation of why it considers the commission’s reasoning or conclusions to be wrong as a matter of law would be the most constructive way of contributing to the discussion of the important and sensitive issues involved in this case.

In our view, the President of the Australian Human Rights Commission has carried out her duties under the Act with independence, impartiality and professionalism.

Signed by:

Professor Don Anton, Professor of International Law, Griffith Law School, Griffith University
Associate Professor Afshin Akhtarkhavari, Griffith Law School, Griffith University
Kevin Boreham, Lecturer, ANU College of Law, Australian National University
Professor Andrew Byrnes, Australian Human Rights Centre, Faculty of Law, UNSW
Professor Hilary Charlesworth, Centre for International Governance and Justice, College of Asia and the Pacific, Australian National University
Professor Holly Cullen, Faculty of Law, the University of Western Australia
Dr Alice de Jonge, Senior Lecturer, Department of Business Law & Taxation, Monash University
Professor Andrea Durbach, Director, Australian Human Rights Centre, Faculty of Law, UNSW
Emeritus Professor Judith Gardam, Law School, University of Adelaide
Professor Fleur Johns, Faculty of Law, UNSW
Professor Sarah Joseph, Castan Centre for Human Rights Law, Monash University
Professor David Kinley, Chair in Human Rights Law, Sydney Law School, University of Sydney
Professor Penelope Mathew, Griffith Law School, Griffith University
Professor Jane McAdam, Scientia Professor and Director, Andrew and Renata Kaldor Centre for International Refugee Law, UNSW Law
Associate Professor Adam McBeth, Faculty of Law, Monash University
Associate Professor Justine Nolan, Australian Human Rights Centre, UNSW Law
Professor Anne Orford, Michael D Kirby Professor of International Law, Law School, University of Melbourne
Professor Dianne Otto, Francince V. McNiff Chair in Human Rights Law, Director, Institute for International Law and the Humanities, Melbourne Law School
Professor Joellen Riley, Faculty of Law, University of Sydney
Professor Ben Saul, Professor of International Law, Faculty of Law, University of Sydney
Professor Tim Stephens, Professor of International Law, Faculty of Law, University of Sydney
Professor John Tobin, Melbourne Law School, University of Melbourne
Associate Professor Margaret Young, Melbourne Law School, University of Melbourne
Associate Professor Matthew Zagor, ANU College of Law, Australian National University