Our treatment of refugees on Nauru shows international law is done

In a world where law per se is rapidly ceasing to have much meaning — I mean, the US president did just pardon or commute the sentences of 1,500 individuals who had attempted the violent overthrow of his own country’s government because he said they were “hostages” rather than convicted criminals — it is almost quaint to pretend that international law is even a thing anymore.

Our own attorney-general just went over to Israel to mend fences, comfortably ignoring the fact that its prime minister is the subject of an arrest warrant by the International Criminal Court for alleged war crimes. We are a signatory to the ICC’s enabling treaty, obliged to detain Netanyahu if he enters our jurisdiction, but I guess it’d be impolite to mention that.

Australia is also a party to the International Covenant on Civil and Political Rights (ICCPR), another of the United Nations’ instruments by which the whole world agreed to impose and maintain the so-called “rules-based international order” in the aftermath of World War II and the Holocaust.

Implicit in the global compact is the idea that states will follow the rules and, if they fail, accept the referee’s decision. While Australia has never incorporated the ICCPR into its domestic law, and therefore it can’t be enforced in our courts, as an advocate for the benefits of the order we have generally at least pretended to take it seriously.

It all began to fall down with John Howard, accelerating through every successive government because of our obsessive national dread of “boat people”, to the point where — when it comes to how we treat asylum seekers — these days we flout the rules with a middle finger to posterity.

So it is that two recent decisions of the UN Human Rights Committee, calling Australia out for gross breaches of the ICCPR in relation to our treatment of refugees on the outsourced hellhole of Nauru, have been simply ignored by both the Australian government and — disgracefully — the Australian media.

The cases were brought by an Iranian woman and 24 individuals from various points of origin, the latter all being unaccompanied minors when they were picked up trying to get to Australia by boat in 2013 and 2014. Under the offshore processing regime, they were detained on Christmas Island and then sent to Nauru, where they remained to rot.

The detention conditions on Nauru were inhuman, degrading and lethal. I’m not debating that.

The key legal question was whether Australia was responsible for what happened to the refugees it sent there. Australia maintained, as it always has, that no, they were solely the responsibility of the government of Nauru, pursuant to a memorandum of understanding signed between the two countries in 2012.

The same question was litigated in our High Court in 2016 — who was detaining the people on Nauru? The court ruled it was Nauru, despite the fact that Australia looked after literally every single aspect of the removal, detention and maintenance of the detainees on the island, either directly or through private contractors which it paid. All Nauru did was give them refugee status and rubber-stamp rolling protection visas at Australia’s behest, in return for tens of millions of dirty dollars.

Wrong as I believe that judgment was, it’s where Australian domestic law sits: having shipped them off, these people are not our problem.

The High Court didn’t consider the ICCPR, because it’s not part of the law here. The convention imposes very broad legal obligations on state parties. These include a guarantee in Article 9(1) against arbitrary detention, one of the basic human rights that international law recognises but we’ve never bothered enshrining in our own law.

The Human Rights Committee ruled that, by failing to justify why the detainees needed to be sent to Nauru, as opposed to being kept onshore in detention centres here, Australia violated Article 9(1).

In addition, because the offshore regime effectively prevented the unaccompanied minors from challenging the legality of their detention in our courts, Article 9(4) was also infringed.

The outcome depended on the committee’s finding that Australia had not succeeded in offshoring its legal responsibility for the detainees, despite the sophistry of its sham contract with Nauru. This does put the committee directly at odds with the High Court’s view, on essentially the same facts; however, the committee’s ruling stands as valid under the jurisdiction the ICCPR gives it.

The committee has the power to demand remedies, and it has called on Australia to compensate the victims, as well as review its laws to ensure it gets back in step with its international human rights obligations.

Australia can ignore the ruling, and will. In the old days, it might have nodded to it, then done nothing. Now it knows it doesn’t even need to pretend. Where the US (and Israel) go, we follow.

It has taken 80 years for the lessons of 1945 to be completely forgotten, not coincidentally the span of an average life. This particular case, a smallish example of inhumanity, will be lost in the rush as the whole rules-based order falls to the ground.

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