To all friends, in particular, those who have been following closely on our cause re ICC, I would like to draw your attention, especially, to this document prepared by Professor Kai Ambos, explaining the modes of individual criminal liability in large-scale political crimes [#1], such as the Crime Against Humanity. I am aware that most of us are being novice and layman with respect to Law etc.. (myself, not a lawyer); and I therefore apologize putting you through such a difficult-to-read document. But, I believe this article can be crucial in our understanding about how the ICC may come to operate on this particular situation of ours.
Solid criminal case, Inescapable Legal Net
In respect to the Australian government mis-treatment of asylum-seekers, there were quite a few individuals over the years had submitted their communications to ICC. For my part, I had submitted my communication to ICC in July 2017. In that communication, I've made specific allegations that the Commonwealth Government of Australia has, since 2014, been perpetrating the Crime Against Humanity of Enslavement of asylum-seekers [#2]. The legal arguments I've raised were being tested against the internationally known practices on the cases of modern day enslavements [#3]. The analysis indicates the government enslavement of asylum-seekers has been a solid criminal case. It is found that some elected parliamentarians within the government, along with certain individuals within the business community had formed Joint Criminal Enterprise (JCE) to the commissioning of this crime.
The specific description for this situation is said to be in the field of "macrocriminality", which is the systematic or mass criminality that has been organized, supported or tolerated by the State [see section. 9 of #1]. All of us have witnessed the Government and Opposition alike have been protecting the Offshore Detention Regime, which indicating the criminal complicity at the highest level of political establishment.
Australia is a signatory to 1926 Slavery Convention and 1956 Supplementary Convention to suppress all forms of Slavery. As such, Australia has a treaty obligation to correct the enslavement, i.e. prosecute the perpetrators. These Treaties and Conventions were signed long before the ICC Rome Statute had come into effect in 2002.
The way ICC taking its legal sources is, first and foremost, try within the Statute of ICC. Has this failed, the ICC will look again into international treaty and other obligations that may have held by the state. Only when these two steps had failed, the ICC would look for National Laws and cases in examples. As recently as 2008, Australia had a slavery case considered by the High Court, known to the legal community here as the case of "Queen vs. Tang" [#4].
All in all, those perpetrators of enslavement are to be aware that they will not escape from the ICC legal net.
The Vision of ICC
The ICC Rome Statute was formulated on the vision that "international crimes are committed by men not by abstract entities". As such, the court seek jurisdiction over natural person rather than entities. In fact, this will be of the "news" to the perpetrators of enslavement here in Australia. In the fist place, these perpetrators know, of course, what they are doing in the crime. But, these perpetrators do relied upon the forgetfulness of the electorate (i.e. us); hoped election cycles will have washed away all the government sin and crimes; and no accountability whatsoever be expected for the high ranking officials. Say, for example, if a minister have done something wrong and 'proved' that he/she is responsible, a compensation of some sort were to have been given by the State. And that minister can get off scot-free. Rest assured, this time they will not.
The line-up of Felons
For those 39 Senators who had voted against the motion 411 -- to evacuate offshore asylum-seekers in August 2017-- by Senator McKim [#5], there are specific clause in Article 25 of ICC for them:
"3.(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
"(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
"(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
"(ii) Be made in the knowledge of the intention of the group to commit the crime;"
The International Tribunals had defined 'aiding' as 'giving assistance to perpetrators' and 'abetting' as 'facilitating the commission of crime by being sympathetic there to'. The Clause 3(c) Aiding and Abetting is lowest the form of liability in ICC crimes. Whereas 3.(d) describing "contributes to the commission of such a crime by a group of persons acting with a common purpose" have higher liability, about which the legal text specifically fit in well with the action of those 39 felons. Once again, those Senators -- both in Government and Opposition -- can no longer hide their criminality in collective action. They shall now face consequences of their wrongful action re: voting against motion 411.
Justice is Inevitable
To those who are the principal perpetrators, their turn would come whether they have kept the majority in the parliament. The currently pressing issue for government is to sort out and make amicable resettlement for the offshore asylum-seekers on Manus Island and Nauru. Whether the government have made this resettlement cases successful or to become another disaster, the requirement for those perpetrators to face justice will not change. We, the activists, will bid the time and built up the case against those perpetrators. There shall be "no sick leaves" nor "no fly-outs to the Moon (I beg)", those perpetrator must face justice in the court. -- U Ne Oo, Sydney.
[#3] from the book “Slavery in International Law”, written by international legal scholar, Prof. Jean Allain of Queen's University, Belfast, UK. (Download => http://www.netipr.org/saorg/docs/20120101_jean-allain-slavery.pdf )