Over the past seventeen years, asylum seekers and refugees who arrive to Australia by boat are prohibited from entering and accessing asylum procedures on the mainland. Instead, they are sent by boat to Australia’s offshore detention centers located on the island nation of Nauru and on Manus Island in Papua New Guinea (PNG). Families with woman and children who arrive by boat are sent to Nauru, while male refugees and asylum seekers arriving alone are sent to Manus Island. Men, women, and children are sent to these islands for “offshore processing,” a harsh dysphemism, because upon arriving to Nauru and Manus, they are exposed to appalling conditions and held under arbitrary and indefinite detention. These detention centers have become notorious for their inhumane conditions and several organizations, such as the UN and Amnesty International, have documented various human rights violations occurring on both islands. Conditions are dire, resulting in widespread physical and mental suffering amongst detainees and causing what experts described as “epidemic levels” of self-harm with children as young as ten-years-old attempting suicide. By enforcing this offshore processing policy, the Australian government has not only violated several international human rights treaties, including the Convention on the Rights of a Child and the Convention Against Torture, but it has also committed crimes against humanity, within the jurisdiction of the International Criminal Court (ICC), against refugees and asylum seekers in these offshore detention centers. Australia experienced its first big wave of boat arrivals by refugees and asylum seekers in the 1970s, when half of the Vietnamese population was displaced during the aftermath of the Vietnam war. The Australian public initially received these arrivals with sympathy, but increased numbers of refugees quickly became a main political issue and a dominant topic in the news with widespread claims that Australia was losing control of migrant selection by allowing individuals who arrived by boat to stay in the country. In 1999, another wave of asylum seekers, who were predominantly from the Middle East, arrived to Australia’s shores in much larger numbers than before. In response, the Australian government introduced its first offshore processing policy in September 2001, known as the Pacific Solution. This policy was designed to deter refugees from seeking safety on Australia’s shores by intercepting all boat arrivals at sea and sending refugees and asylum seekers to newly established offshore detention centers on Nauru and Manus Island. Over the following years, human rights groups widely criticized the Pacific Solution, claiming that the policy conflicted with international refugee law, was unjustifiably expensive, and caused detainees severe psychological damage. As a result, the Australian parliament announced the decision to end the Pacific Solution and close both offshore detention centers on February 8, 2008. The abandonment of this offshore processing policy was short-lived, and the offshore detention centers were reopened in 2013 in response to another significant increase in boat arrivals, primarily from Syria. Since this reopening in 2013, succeeding Australian government officials have continued to orchestrate a complex legal architecture aimed at legitimizing the indefinite detention of refugees and asylum seekers entering Australia by sea, hoping to deter more arrivals. Not only have Australian government officials failed to prevent or investigate human rights violations on these islands over the years, but they have used Nauru and PNG as scapegoats, attempting to avoid complete responsibility by concluding agreements with them and contracting with private corporations to run the facilities on these two different countries. There is sufficient evidence to support that the Australian government’s actions resulting in the offshore detention of thousands of refugees and asylum seekers may amount to the crimes against humanity of imprisonment or other severe deprivation of physical liberty, torture, rape, deportation and forcible transfer, and persecution, within the jurisdiction of the ICC. The Office of the Prosecutor of the ICC should exercise her authority and initiate an investigation into these crimes. Under Article 7 of the ICC’s Rome Statute, a crime against humanity occurs when an individual knowingly commits a specifically prohibited act “as part of a widespread or systematic attack directed against any civilian population.” The refugees and asylum seekers arriving to Australia by boat constitute a “civilian population,” which includes victims of a “widespread or systematic attack” as defined by the Rome Statute. Factual allegations about both locations claim that the offshore detention centers on both islands are inadequate, overcrowded, unsanitary, and overall extremely unsafe; the Australian government’s subjection of detainees to these conditions constitute severe deprivation of physical liberty or imprisonment. According to findings by the UNHCR, since the 2013 reopening of offshore-processing on Nauru and Manus Island, the Australian government has forcibly transferred approximately 3,172 refugees and asylum seekers to these offshore facilities. In November 2016, the U.S. government agreed to accept some of the refugees on these islands for resettlement. As of 2019, the U.S. has resettled approximately 500 refugees from Australia’s offshore detention facilities; however, due to Trump’s administration policies, most Syrian, Iranian, Yemeni, and Somali refugees are not amongst those being resettled into the U.S. In November 2017, Australian authorities decided to shut down the Manus Island detention center, resulting in the forced relocation of male refugees and asylum seekers to three nearby locations on the island and heightening tension between these men and the local community, which responded with discrimination and violence. In July 2018, approximately 1,600 people were still detained on Nauru and Manus Island, including 850 men, women, and children on Nauru. Fortunately, in February 2019, the last four children held on Nauru were finally released and flown to the U.S. for resettlement; however, several men and women remain in offshore detention on Nauru. The release of these children, while an improvement, was long overdue and still no government officials have taken responsibility or been held accountable for these arbitrary detentions. Individuals detained at both locations were subjected to physical and sexual abuse, inadequate medical care and legal assistance, extremely severe mental health conditions, and insufficient access to food and water. This lack of sustenance, medical and legal aid, and the abuse committed against those detained at these offshore centers, amounts to torture, rape, and imprisonment or severe deprivation of physical liberty. In August of 2016, The Guardian published the “Nauru Files”, consisting of 8,000 pages providing approximately 2,000 leaked formal incident reports that were compiled and authored by security guards, teachers, and child protection workers at Nauru’s Regional Processing Centre (RPC). These incident reports, written by the staff at the RPC, stem from contractual obligations between the Australian and Nauruan government, requiring that regular documentation and records be kept regarding the events occurring at the center in Nauru. The events mentioned in the reports include mental health issues, such as attempts at self-harm, and incidents of sexual assaults, child abuse, hunger strikes, physical injuries, and more. Additionally, a former Salvation Army employee, Nicole Judge, who was contracted to provide welfare services at the RPC on Manus Island, described the center’s conditions:
“When I arrived on Manus Island during September 2013, I had previously worked on Nauru for one year. I thought I had seen it all: suicide attempts, people jumping off buildings, people stabbing themselves, people screaming for freedom whilst beating their heads on concrete. Unfortunately, I was wrong; I had not seen it all. Manus Island shocked me to my core. I saw sick and defeated men crammed behind fences and being denied their basic human rights, padlocked inside small areas in rooms often with no windows and being mistreated by those who were employed to care for their safety.”The Nauru Files and descriptions provided by welfare services paint an alarming picture of the inhumane conditions and practices that occurred at the Nauru RPC. Australian government officials, in partnership with corporate officers and government officials from Nauru and PNG, knowingly committed acts that amount to crimes against humanity, against thousands of refugees and asylum seekers who were in search of a safe haven on Australia’s shores. For years, these individuals have faced legal limbo under the uncertainty of their indefinite detention, while Australia’s government fails to appropriately address the atrocities occurring on these offshore facilities, despite widespread condemnation and thorough documentation provided to them. For these reasons, the Office of the Prosecutor of the ICC should investigate and prosecute the government officials responsible for these crimes against humanity, and the victims of these crimes should be compensated accordingly.