The International Criminal Court (ICC) has found offshore processing conditions may constitute a breach of international law but there is not enough evidence to prosecute the federal government over it.
This detention appears to amount to “cruel, inhuman, or degrading treatment”, according to the court.
However, the ICC also found the policy has not purposely been designed to “attack” migrants and asylum seekers.
An ICC prosecutor made the assessment in a formal letter to independent MP Andrew Wilkie responding to his allegations crimes against humanity could have been committed by the Australian government.
Mr Wilkie has seized on their findings as a “remarkable condemnation” of the "cruelty" of the asylum seeker policy despite no grounds for prosecution being found.
“We’ve long known that the Government’s response to asylum seekers has been barbaric, inhumane and expensive,” he said.
“But now there can be no doubt that it also puts Australia in breach of the Rome Statute and guilty of crimes against humanity.”
Independent MP Andrew Wilkie at Parliament House in Canberra. Source: AAP
The ICC provided a detailed response to evidence submitted by Mr Wilkie's office about life in offshore detention on Papua New Guinea and Nauru.
Offshore processing policies in Australia recommenced almost eight years ago under Julia Gillard's Labor government and have persisted as part of the Coalition’s border protection policies.
Home Affairs Minister Peter Dutton argues the harsh approach deters people smugglers from targeting vulnerable asylum seekers and many of those who were sent to offshore detention are being resettled through third-country deals.
Mr Wilkie said he first complained to the International Criminal Court five years ago and has been sending the prosecutor evidence ever since.
Director of the jurisdiction, complementary and cooperation division of the ICC office of the prosecutor, Phakiso Mochochoko said the evidence appeared to constitute “imprisonment” and “severe deprivations of physical liberty”.
“These conditions of detention appear to have constituted cruel, inhuman or degrading treatment,” he said.
“The gravity of the alleged conduct thus appears to have been such that it was in violation of fundamental rules of international law.”
Phakiso Mochochoko, director of the Jurisdiction, Complementary and Cooperation Division of the ICC Office of the Prosecutor. Source: AP
But the findings did not constitute crimes within the jurisdiction of the court, which also found conditions at the detention centres had "varied over time".
Mr Mochochoko's letter said evidence showed migrants and asylum seekers were detained on average for upwards of a year in “unhygienic, overcrowded tents and primitive structures”.
“While suffering from heatstroke resulting from a lack of shelter from the sun and stifling heat," he said.
“These conditions also reportedly caused other health problems – such as digestive, musculoskeletal, and skin conditions among others."
He wrote these concerns were reportedly “exacerbated by the limited access to adequate medical care” and conditions aggravated by an environment rife with “physical and sexual violence”.
Another concern was the mental strain placed on migrants because of the “duration and conditions of detention”, which had caused “measurably severe mental suffering”.
“Including by experiencing anxiety and depression that led many to engage in acts of suicide, attempted suicide and other forms of self-harm,” he wrote.
“Without adequate mental health care provided to assist in alleviating their suffering.”
The Rome Statute is the code of conduct of the ICC establishing a legal framework for prosecuting genocide, crimes against humanity, war crimes and crime of aggression.
With respect to the prosecution of “crimes against humanity” the ICC prosecutor wrote the “imprisonment” and "deprivation of liberty” did not appear to have been committed on discriminatory grounds.
Mr Mochochoko said although the policy had been adopted as one of “immigration deterrence” there was no finding that “cruel, inhuman or degrading treatment” was a “purposefully designed aspect of this policy.”
“Specifically, the information available at this stage does not provide sufficient support for finding that the failure on the part of the Australian authorities under successive governments, whose policies varied over time … was deliberately aimed at encouraging an ‘attack’ ... against migrants and asylum seekers,” he wrote.
But Human Rights Lawyer Greg Barns argued there has been a breach of international law by Australia.
“It is extraordinary and shameful that a nation which purports to believe in the rule of law should be found to be in breach of the international law which outlaws cruelty and inhumanity,” he said.
The number of people held in offshore detention under the Coalition has decreased by 23 per cent since peak levels in 2014, according to figures disclosed in Senate Estimates.
Home Affairs Minister Peter Dutton expects up to 1,000 people to be resettled under a deal with the United States, including about 250 who are yet to depart offshore processing centres.
His office was contacted for comment about the findings of the International Criminal Court.