(2018-Apr) Additional Submission to ICC re: Enslavement

1. As noted in the previous communication on 30-Jun-2017, the Commonwealth Government of Australia has been perpetrating the crime of enslavement of 2,200 migrants/asylum-seekers on Manus Island of PNG and Republic of Nauru. [#1] The detention companies, Broadspectrum – formerly known as Transfield Services P/L – and Ferrovial, have co-perpetrated in this enslavement scheme. The commencement of that enslavement scheme has been estimated to be about 14th October 2014, which coincided with the induction of Chief of Transfield Service P/L into the Prime Minister’s Offices. [#2]

Formation of Joint Criminal Enterprise for Detention (JCED)

2. A situation of unusually large numbers of boat-arrivals who came through Indonesia in 2010-2012 had forced the then Prime Minister Kevin Rudd to re-introduce offshore detention regime. Earlier on 2008, the Prime Minister Kevin Rudd had closed one and the only remaining offshore detention centre on Nauru. The Transfield Services P/L, an Australian infrastructure services group, had entered into the offshore detention business in 2012.

To this author’s observation, neither Transfield Services P/L nor the Commonwealth Government of Australia in the beginning have had the plan to set up an enslavement scheme offshore. However, in the lead up to the general elections in 2013, the opposition Liberal and National Party (LNP) mounted a strong anti-boatpeople campaign. The continued large influx of boat-arrivals from Indonesia had caused two successive Labour Prime Ministers getting removed from their offices [#3]. The Australian public attitudes towards boat-arrivals had significantly hardened and that, on August 2013 general election, the LNP had won a landslide victory. The success of LNP government on the anti-boatpeople platform, along with the lucrative nature of offshore detention business may have encouraged certain business and political leaders to further extract substantial profit from the detention of asylum-seekers.

3. As of early 2014, there appeared to be behind-the-scene mobilization by Transfield Services P/L to monopolise offshore detention businesses on Nauru and Manus Island. This process for monopolization appears to have accelerated after the violent death of Iranian asylum-seeker Reza Berati on Manus Island [#4]. On October 2014, the Chief of Transfield Services P/L was inducted into Prime Minister’s Offices. The Transfield Services P/L ( renamed Broadspectrum) effort to monopolize offshore detention business had achieved its desired outcome in 2015, when the Transfield Services P/L had been named as preferred tenderer for the government. On August 2016, the government, once again, renewed the offshore detention business contract with Broadspectrum/Ferrovial up until October 2017 [#5].

In sum, by 2014 the elite business and political leaders in Australia had jointly set up the offshore enslavement scheme, i.e. Joint Criminal Enterprise for Detention (JCED). The mode of commissioning of the crime by JCED is in the field of “macrocriminality”, where a massive and systematic arrays of criminal activities that have been supported and tolerated by the State. The group members of JCED are the principal perpetrators of enslavement and they are fully aware about the common criminal plan for the offshore detention business. The common criminal plan by the members of JCED may include:

(i) collaborating with others to politically sustain the offshore detention regime;
(ii) concealing the business model and mode of profit extraction from the scrutiny of Parliament and general public;
(iii) otherwise render assistance in implementing the offshore detention regime.

Present Criminal Allegations

4. On August 2016, the LNP government had extended its detention contract with Ferrovial until October 2017. This communication concerns with the voting action on 10th of August 2017 in support of government by a group of Senators that has contributed to the enslavement of 2,200 asylum-seekers for the period of 1st July 2017 to 31st October 2017, whereas the government had been implementing common criminal plan laid out by JCED. This is also the period after the author had raised concerns about the issue of offshore enslavement with the government and general public [#6].

5. On 10th August 2017, the Senator Nick McKim put forward motion no. 411 to evacuate asylum-seekers from Manus Island and Nauru. Out of the 46 Senators, the 39 listed in the followings had voted against the motion [#7]. I am alleging that these Senators are criminally responsible for prolonging enslavement of the asylum-seekers in the said period, as a group of persons supporting the government’s common criminal plan that laid out by JCED.

Article 25 of Rome Statute has classified the modes of responsibility for individuals in commissioning of the crime against humanity. I have sub-divided these 39 Senators into two categories. In the first category, there are Senators who had been elected in the 2016 general election. That first group of Senators are to be charged with Article 25 (c):

“(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; ”

Aiding and abetting is the least severe form of criminal attribution. I believe those first group of Senators should be accorded as such because, whilst they have substantially contributed with their voting actions to the government’s plan for detaining asylum-seekers, they may not necessarily be aware that certain form of exploitation (enslavement) has been taking place. In other words, this first group of Senators certainly have the intention to keep asylum-seekers being detained, but uncertain they have the mens rea for enslavement offshore.

The second category of Senators -- both from the government and opposition -- consists of the long serving and distinguished members of Parliament. As such, they have the ultimate knowledge about the government and its offshore practices. Those Senators' individual voting actions, which have done so with their own volition and without any duress, have contributed substantially in furthering of the government’s common criminal plan for detaining and exploiting asylum-seekers. The second group of Senator are to be charged with Article 25 (d), in addition to aiding and abetting:

“(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; ”

6. In the second group of Senators, there are the members of LNP Government. There is the possibility that some of those individuals may have participated in JCED. Therefore, there will be additional submission of charges to be updated on them, as any relevant information has come into light in the future.

Sd. U Ne Oo
Sydney, Australia.

Footnotes:

[#1] 2017-Jun-30, Enslavement on Manus Island and Nauru, http://www.aus4iccwitness.org/node/48
[#2] 2016-Sep-17, The Saturday Papers. See the section on “Transfield awarded Manus without proof of efficiencies”. DIBP contracts with Transfield offshore activities were being consolidated after August 2013. https://www.thesaturdaypaper.com.au/news/immigration/2016/09/17/transfie... (or) http://www.netipr.org/saorg/docs/20160917_transfield-offshore-processing...
[#3] 2016-Jun-15: The boat-arrival and political situation leads up to 2013 election and the Government cover-up of boat-turnback policy had been discussed in this report. http://www.netipr.org/saorg/docs/20160615_OSB-Coverups.pdf
[#4] 2014-Sep-01: HRLC/RAID Complaint on G4S Australia, Sec. 5.3 “Violence Against Detainees Held at MIRPC” http://www.netipr.org/saorg/docs/20140901_hrlc-raid-g4s-report.pdf
[#5] 2016-Aug-08: Detention centre contract extend despite owner objection, by the Guardian. http://www.netipr.org/saorg/docs/20160808_detention-center-operator-cont...
[#6] This author had made efforts to publicize about the communication made to ICC on 30-Jun-2017, and alerting all relevant organisations and general public on the issue of offshore enslavement. http://www.netipr.org/saorg/docs/20171208_reply-by-attorney-general-offi...
[#7] 2017-Aug-10: Senator Nick McKim motion on asylum-seekers. http://www.netipr.org/saorg/docs/20170810_mckim-motion-asylum-seekers.pdf