Amnesty accuses Australia of violating international law – but any prosecutions are unlikely

Amnesty International has accused Australia of illegal conduct in its anti-people-smuggling activities at sea. Its report, Australia: By Hook or By Crook, draws conclusions based on extensive interviews with asylum seekers, crew members from intercepted boats, Indonesian police and officials, and staff of international refugee organisations.

What are the allegations?

Amnesty has investigated two asylum-seeker boat turnbacks to Indonesia, in May and July 2015.

In the first case, 65 passengers (from Sri Lanka, Bangladesh and Myanmar) and six crew left Indonesia for New Zealand. Australian Border Force and Navy ships intercepted the boat on May 17 and 22. Fifty passengers were transferred to a Border Force ship and held in cells for around a week.

By May 30, all those who had set out had been transferred by Australian officials to two new boats. On May 31, one boat ran out of fuel and all passengers were transferred to a single boat. That boat struck a reef off Indonesia’s Landu Island and local people assisted in a rescue.

The crew members have been charged with people smuggling in Indonesia. The passengers are held there in immigration detention.

In interviews with Amnesty researchers, passengers, crew and Indonesian police have all alleged that Australian officials paid the crew a total of US$32,000 to return the passengers to Indonesia. They also allege that the Australians provided limited fuel and maps for the new boats to ensure they could not sail further than Indonesia.

At the time the allegations were first aired in June, Australian government ministers denied paying the crew to return people to Indonesia.

In the second case, 15 people (from Bangladesh, Pakistan and Myanmar) left Indonesia on July 22 or 23. They were relying on two Indonesian crew members to sail them to Australia. However, their poorly equipped boat quickly got into distress.

On July 25, Australian officials boarded the boat and transferred passengers and crew to a Navy ship and, later, to a Border Force ship. They were held until August 1, when they were transferred to another poorly equipped boat. Passengers allege they were directed to return to Rote Island in Indonesia. Indonesian police subsequently detained them while still at sea.

Amnesty also interviewed the 15 passengers on the second ship. The passengers claim that Australian officials had given extra bags to the crew members. They also claim that the Australians threatened to shoot them after the passengers demanded the crew sail back to the Navy ship.

Amnesty concludes that Australia has engaged in people smuggling.

Alleged forms of illegal conduct

Amnesty alleges breaches of law on transnational organised crime and human rights grounds. Australia is a signatory to both the UN Convention against Transnational Organised Crime and its Smuggling Protocol.

According to the report:

People smuggling is a transnational crime, though people who are smuggled are not criminals, and international law forbids states from penalising asylum seekers solely for the manner of their entry into a country.

Amnesty believes its evidence shows that Australia organised or directed the crew in the May case to commit the crime of people smuggling into Indonesia. The evidence cited includes:

• Australia’s provision of boats, fuel, maps and GPS devices;

• suggested covert modes of entry to Indonesian territory; and

• payment to the crew to procure illegal entry.

Amnesty rejects Australia’s claim that the May incident constituted a rescue operation. The testimony of all passengers and crew is that the boat was not in distress. Instead, the report asserts that the treatment of the passengers was at times abusive and – after the transfer to new boats – put their lives at risk.

On the available evidence, Amnesty refrains from alleging a similar crime in the July case. It does argue, however, that the incident warrants further investigation.

In both cases, Amnesty argues that Australia violated the principle of refugee non-refoulement. At least some of the people on the boats had legitimate claims for asylum, but they were never assessed by Australian officials or offered protection. They are all now in legal limbo in Indonesia.

Amnesty further asserts that, while the passengers were detained on Australian vessels, Australia violated their right to freedom from arbitrary detention.

Potential consequences for Australia

Amnesty’s report focuses on Australia’s conduct rather than the conduct of the boat crews, at least some of whom are facing criminal charges.

Amnesty’s interest in Australia’s conduct lies in the doctrine of state responsibility, whereby acts of state officials can be attributed to the state itself as international wrongs. It argues that Australia’s actions on the high seas trigger its international responsibility.

While people smuggling is also illegal under Australian law, it is likely that officials would enjoy immunity at the domestic level.

The equivalent of a “prosecution” of Australia for the alleged violations of international law is also highly unlikely. With no compulsory jurisdiction, the International Court of Justice relies on countries to submit voluntarily to its jurisdiction before it can hear disputes between them.

In the unlikely event that Indonesia would seek to take a case against Australia for people smuggling, Australia would almost certainly refuse to submit itself to the court’s judgment.

Recommendations for reform

In the absence of an enforceable consequence for Australia’s behaviour, it remains for international organisations to investigate, condemn and seek to persuade Australia to act differently.

In this case, Amnesty recommends a local means of redress by proposing a royal commission into Operation Sovereign Borders.

Amnesty also recommends:

• independent monitoring of boat turnbacks and enhanced public scrutiny;

• bringing Australian law into line with international law on people smuggling by removing exemptions for government officials;

• ending the prohibition on asylum claims from maritime arrivals and the turnbacks policy; and

• regional co-operation to improve protections for refugees and asylum seekers in the Asia-Pacific.

These arguments are strongly grounded in international law and human rights protections. But in a policy climate characterised by the Border Force Act and the ongoing saga of “Abyan”, Australia appears unbowed in the face of criticism.

Amy Maguire is a member of, and has spoken at events organised by, Amnesty International. She was not involved in the preparation of the report that is the subject of this article.