(2022-Sep) OTP-ICC Preliminary finding and Request for ICC jurisdiction

Dated: 18th Sep 2022
Dear Prosecutor
RE: OTP-CR-220/17 Detention Slavery 7.1(c) with Torture 7.1(f), AUSTRALIA.
A preliminary finding and Request for urgent assertion of ICC jurisdiction

Firstly, I thank you for your letters of reply on 12/5/2022 and 12/2/2020, and especially notifying me that the ICC has special requirement to observe its complementarity role; and my previous communication efforts were lacking of any substantive findings. I also took note of the advise that this matter may be raised with national and other international authorities. The ICC Prosecutors may be aware, Australia held a general elections in May 2022, which sees a new Labour Federal Government coming into power. This has caused a slight shift in political atmosphere. But I cannot foresee, unfortunately, for any cooperation that would be forthcoming in regards opening up information on the cases of offshore detention from the new Labour Federal Government.

1. Regardless of prevailing political atmosphere, I have sent in early January 2022 an in confidence briefing note to some selected members of parliamentarians. On 20 February 2022, I've made a public submission in regards to Australia's Detention Slavery to the 53rd Session of UN Human Rights Council via Special Rapporteur Mr. Tomoya Obokata. As the ICC Prosecutors may aware, for a good many decades, the general public and global community's understanding for slavery, by and large, have not been moving much further beyond that of historic chattel slavery. I believe the general explanation on the possibility of the new forms of slavery ought to be made at any available forums. I posit that two documents for your information.

Faysal Ishak Ahmed (1989 - 2016)

Faysal Ahmed, Duty to Attend:
Public Legal Action

Faysal Ishak Ahmed:
Detail Case Determination

With this letter, I am submitting the analysis note: "FAYSAL AHMED, DUTY TO ATTEND AND PROXIMITY" as part of the preliminary findings. Background to Faysal Ahmed's case and the evidence I have collected are provided for in the linked URL. In this incident, the detention authorities have breached their duty to render assistance to severely ill Faysal Ahmed; and the doctors deployed by IHMS have breached their duty to attend to medical emergency. The incident had been witnessed by at least 60 Sudanese asylum-seekers colleagues who put up the petition and as many as 250 other asylum-seekers who were detained in Manus Island detention centre at that time.

I am calling upon ICC to asserts its additional jurisdiction on this Faysal Ahmed's case, with obvious application for all other cases, whereas the needs arising out from this incident. Following is my observation.

2. In 2002, when Australia ratified the Rome Statute, it has made the declaration that Australia will undertake the treaty obligation with the conditions [#1]:

=> It is Australia’s right to exercise its jurisdictional primacy with respect to crimes within the jurisdiction of the ICC, and;
=> Australia further declares that it interprets the crimes listed in Articles 6 to 8 [genocide, war crimes and crimes against humanity] of the Statute of the International Criminal Court strictly as defined in the International Criminal Court (Consequential Amendments) Bill.

The preference by Australian courts, therefore, is that the crimes of Genocide, Crimes against Humanity and War Crimes will be interpreted and applied "in a way that accords with the way they are implemented in Australian domestic law". Australian practices the [English] common law in its domestic courts.

In Conformity with Common Law

By the end of 2021, I was able to identify the wrongful conducts by Commonwealth government's immigration department (DIBP), the governent's health care services contractor International Health and Medical Services (IHMS) and the doctors deployed by IHMS in regards to the health care of asylum-seekers by utilising the concepts of "inalienable rights" together with the "customarily accepted ethical and professional standards" for doctors. The summary of these findings were being given details in "Sec. VII Inalienable Rights to Health and Offshore Medevac Context" [#2]. Although such analysis does make sense in describing wrongful acts expressed in terms of human rights, I am reasonably certain that Australian authorities and the common law courts for various reasons will not properly take it into consideration, if general public or the plaintiffs themselves were to put these allegations in human rights contexts. I have therefore make efforts to transcribe that analysis into common law contexts. My findings thus far with continuing research in this task are being updated at the "Sec. X. Medevac and Common Law Patient Rights " [#2].

Doctor-Patient Contract

3. In determining cases for medical malpractice, the common law offers two differing approaches that utilising the law of tort or the law of doctor-patient contract. I find that the approach using the law of doctor-patient contract is naturally suited to examine our offshore medical incidents. From the outset, the Commonwealth Government (the DIBP, now renamed Department of Home Affairs) have the health care services contracted out to International Health and Medical Services (IHMS) in regards to offshore asylum-seekers. Under Commonwealth Government's contracted out health services (i.e. the outsourcing) arrangements, the provisions for health care services have been fragmented between a variety of unconnected health service providers. One must break down that contracted out structure so as to identify the legal duty that owed by each service providing entities to an offshore asylum-seeker patient. Here, I use generic word "provider" to represent each layers of health care service provider. Hence:

=> the provider-DIBP has overall non-delegable duty on health care of offshore asylum-seekers;
=> the contractor-Broadspectrum has contractual duty in care of asylum-seekers that has been stipulated by written terms of contract with DIBP;
=> the provider-contractor-IHMS has contractual duty on health care of offshore asylum-seekers that has been stipulated by written terms of contract with DIBP;
=> the provider-doctor has written employment contract with IHMS. That provider-doctor also has the doctor-patient implied-unwritten contract when treating the asylum-seeker patient. The provider-doctor can be normal employee or subcontracted by IHMS. The provider-doctor can either be a physician or a psychiatrist.

The roles of DIBP and IHMS are to support and facilitate the provider-doctor on treating asylum-seeker patients. As such, the terms of doctor-patient contract -- implied and usually unwritten -- must be held as the highest order of precedence amongst, when in implementation. The common law required the provider-doctor to observes the primary legal duty to "advise and treat the patient with reasonable skill and care".

The Pivotal Role of Medical Doctors

4. When taking into consideration of the doctor-patient contractual relationship, the pivotal role that played by doctors in entire offshore detention enslavement scheme become apparent. These are the doctors who, by their own volition, have chosen to compromise the universally accepted ethical and professional standards to engaged in offshore detention scheme. In common law, these doctors will be seen not as mere accomplices, but as principals in commissioning of the crime of slavery.

The Nationality of IHMS Doctors & Other Medical Staffs

In Australia, all nurses & doctors are required to observe the medical practitioner's ethical and professional standards when treating patients. In addition, Australian medical practitioners have the mandatory reporting obligation when faced with a reasonable belief that departure from accepted professional standards (See Dr. Sanggaran et al(2013) and Dr. Young (2014) on Evidence [#3]). What I've also observed has been that, during 2013-2015 when the LNP Government moved to tighten asylum-seekers' access to reasonable medical care, there were certain objections made by professional peak bodies, such as Australian Medical Association, to these unlawful practices that taken place in offshore detention centres. As such, the Australian medical practitioners were necessarily discouraged to seek employment on offshore detention centres. The IHMS appeared, therefore, have sourced its medical staffs primarily from outside Australia. Therefore, by the time Faysal Ahmed health incident took place in 2016, the doctors and nurses who working at Manus Island detention centre, by and large, were not Australian nationals. Because the place of wrong has been that of Papua New Guinea, Australian domestic courts will have no jurisdiction to try those foreigners. However, Australian domestic courts shall still have jurisdiction to try Australian nationals and the entities registered in Australia under the provision of the Crime Act (1995, Cth) s. 268.117 extended geographical jurisdiction -- category D.

5. Another complicating factors in these offshore cases could be the possibility of some of those foreigner doctors who worked at offshore detention centres may now have acquired Australian residency or Australian citizenship. It is plausible that those foreigner doctors might be enticed to work with IHMS on the promissory note or, even with legitimate expectations, that they'll be given priority in migration decisions. Even if it is the case those doctors are now Australian residents, Australian domestic courts cannot simply put them on criminal trial; they must have to be tried as foreigners. Therefore, there is the potential to creating a mistrial, without having ICC jurisdiction as addition.

Also requiring the ICC's jurisdictional intervention is the involvement of oversea medical entities, such as Pacific International Hospital in Papua New Guinea and Republic of Nauru Hospital, in the offshore medical care processes. There are strong indicators from other few cases that these entities also have been part of unlawful activities.

6. Australia's promise for trying its own nationals accused of commissioning ICC crimes "in a way that accords with the way they are implemented in Australian domestic law" could also cause potential errors in laws. Australian Criminal Code Act (1995, Cth) have provisions for Div. 270 Slavery and Div. 274 Torture. The ICC Consequential Amendment Act with Div. 268 of Criminal Code Act (1995, Cth), at a first look, may give same provisions for slavery and torture crimes. However, the Div. 268.10 ICC Slavery law would required higher threshold than Div. 270 Slavery. These details in laws, to my view, are better be examined and plans laid out beforehand by the proper and competent national and international legal authorities so as to reduce potentials for creating mistrials, which can eventually cause the acquittal of perpetrators.

We can therefore conclude that in the offshore enslavement cases, Australia will be unable to genuinely carried out prosecution due to jurisdictional limitations. I am therefore renewing the call for ICC to assert its additional jurisdiction on this Faysal Ishak Ahmed enslavement case.

In closing, I thank the Prosecutor for your continuing attention in this investigative work.

Yours respectfully and sincerely,
(U Ne Oo)
Copy to:
1. United Nations Organisations. 2. Australian Commonwealth Authorities. 3. Others.

Enclosures
1. 5/1/2022: BRIEFING NOTE (IN CONFIDENCE)
2. 20/2/2022: SUBMISSION TO 51st SESSION OF HUMAN RIGHTS COUNCIL (PUBLIC)
3. 13 & 27/8/2022: FAYSAL AHMED, DUTY TO ATTEND AND PROXIMITY (PUBLIC)
References:
[#1] Implementation of the Rome Statute for the International Criminal Court: A Quiet
Revolution in Australian Law by Gillian Triggs, Sydney Law Review ( Vol 25, 2003).

[#2] Offshore Deaths, Detention Slavery and ICC Legal Contexts (Live-Updates).

[#3] Evidence, Incidents and Attributions.

Dear Prosecutor,
I thank you for your reply letter dated 12 February 2020, explaining about the strict jurisdictional mandates and the complementarity roles that the ICC is required to operate. You may be recalled that there were several communications from numerous people and organisations that your office have received, especially after 2013, in regards to Australia's offshore processing centres. This author himself had put forward the observational submissions on 30-Jun-2017 and 15-Apr-2018 pertaining the ICC subject matter, ratione materiae, of Article 7.1(c). This letter is informing your office that I intend to make further submission with newly acquired evidence and related information.

1. To recapitulate the developments that have taken place since my initial submission on 30-Jun-2017; Firstly, this author has remained seized of the subject matter in concern. I remained an independent private citizen throughout and not being affiliated with any political grouping nor non-governmental organisations. In the mean time, I have taken time to collect relevant information that were being imparted voluntarily to the public by various journalists, independent investigators, whistle blowers and, even, asylum-seekers themselves. These information were further analysed, summarized and then put forward, as the way I see fit, within the perspective of subject matter concerned on this dedicated independent website, "Australians for ICC Witness (www.aus4iccwitness.org) Est. December 2017", that is organised, administered and solely funded by this author.

2. In line with the thinking of refugee supporting community in Australia, the concerns for the welfare and freedom objectives of these offshore asylum-seekers have been most important to this author, in addition to the matters of justice. Over the years, therefore, I have also sought to communicate with various entities and international organisations as follows:

On 17-Nov-2017:
I have written to the Director of Australian Federal Police, informing the possibility of the incumbent Liberal/National Coalition Government may be committing the Crime Against Humanity of Enslavement at the offshore asylum-processing centres;

On 12-Dec-2017:
I have written to Dr. Peter Maurer, President of ICRC, requesting intervention by his organisation, in concerned with deteriorating humanitarian situation for asylum-seekers on Manus Island in particular;

On 18-Mar-2019 and 11-Sep-2018:
I have written to H.E. Baron Waqa, President of Republic of Nauru, requesting his government to withdraw from the Memorandum of Understanding with Government of Australia in regards to offshore asylum processings, noting that the latter government may be commiting Crime Against Humanity of Enslavement;

On 14-Aug-2018:
I have written to UN Special Rapporteur on Slavery for her attention in concerning with the situation in offshore processing centre on Republic of Nauru, following the death of asylum-seeker where authorities had failed to provide a respectful burial, and the deceased body had been reportedly stored in a refrigerator for more than a month and kept in a shipping container;

Also in Jun-July 2019, I have sought to write to all the members of House of Representatives from both the Government and Opposition Parties, informing that there has been the possibility of Commonwealth Government of Australia commissioning the Crime Against Humanity of Enslavement.

As of current, the cases of offshore asylum-seekers have still remained unresolved. Many of medically evacuated asylum-seekers to Australia have been released on "Bridging Visa E". It is of paramount concerns that these asylum-seekers, who are victims as well as being the eye witnesses to the Crime Against Humanity, are being accorded with such precarious legal status in Australia.

The Nov-2020 Breakthrough in ICC Law implementation

3. Australia practices the Common laws since colonization of its territories in 1788 and, with the commencement of Federal Constitution in 1901, it strictly observes the independence of judiciary. However, Australia is unique amongst former British colonies not to have included human rights bills in its constitution. The 1948 Universal Declaration of Human Rights, the ICCPR for example, has been signed (1972) and ratified (1980) but never has adopted it into Australian domestic law. This has caused great confusion within the communities supporting Human Rights and other international treaties, such as the 1951 Refugee Convention.

Also, in regards to ICC Rome Statute of 1988, our community's understanding on the implementations of treaty have been poor (We are not lawyers!). And, there has not been any legal precedent in Australia that person(s) being prosecuted under the ICC Laws. However, with the Afghan War Crimes Report in November 2020, the Judge Brereton brought former SAS soldiers who committed War Crimes in Afghanistan to Australian Court under the "extended geographical jurisdiction" under the ICC laws. This certainly has created a breakthrough in the community's understanding about ICC laws implementations in Australia.

4. As for the slavery offence that have taken place in Australian jurisdictions, such crimes are being covered by the Div. 270 of Australian Criminal Code Act(1995, Cth). The alleged crimes of enslavement that have taken place on Manus Island of Papua New Guinea and the Republic of Nauru can now be considered as the natural extension of Australian domestic court's jurisdiction under Div. 268 of Australian Criminal Code Act(1995, Cth). With this knowledge of "extended jurisdiction" in hand, from beginning of February 2021, I have re-examine the allegations for Commonwealth Government of Australia enslaving asylum-seekers on PNG and Nauru.

The Dilemma of Detailed Investigation

5. In previous report on 30-Jun-2017, the occurrence of slavery at offshore centre has been identified, without going into explicit details, by the approach akin to that of examining "factors indicia" of slavery. In that approach, governmental policy and political factors have been taken into account, then analysed and identified that certain group of asylum seekers are being specifically "used" to generate pecuniary gains for the detention companies. Here, the English word "use" is the same meaning and legal bearing as is in property ownership law "right to use;" where in connexion with slavery law text "the exercise of [any or all] powers attaching to the right of ownership". Therefore, that conduct has been identified as the manifestation of slavery.

Another manifestation of slavery which I am able to identified in 2017 report has been the case of Commonwealth Government disrupting resettlement offer that was made by the government of New Zealand. In this case, a group of asylum-seekers on Nauru attempting to apply resettlement offered by New Zealand, which was effectively obstructed by the Commonwealth. This conduct has been identified as Commonwealth Government exercising the "right to security" over this group of asylum-seekers. This legal phrase "right to security" has also been taken in direct analogy with property ownership law.

To my observation, this approach relying on "factors indicia" to identify slavery -- whilst obviously assisted in understanding the situation -- may not be the preferred method of investigation by the courts in Australia. The common law courts in Australia are likely to prefer a more orthodox method which in line with 1926 Slavery Convention that has been undertaken in the case of Queen vs. Tang (2008).

The approach that taken to establish slavery in the case Wei Tang, to my understanding, necessarily require to establish the perpetrator(s) means of control over the victim(s). In other words, it may require the proof for perpetrator(s) -- directly or indirectly -- exercising any or all powers attaching to the right of ownership over person(s). This has created a dilemma in choosing an appropriate area to focus on the investigation, especially as an ordinary citizen who has no means to extracting out requisite information, but only able to relied upon voluntarily provided information.

The Blueprint for Enslavement:
A pre-conceived plan to deflect the complaints and
liabilities against Australian Government

6. As has been shown in the "The Blueprint for Enslavement", the Commonwealth had indirectly exercised the powers of control over offshore asylum-seekers. Therefore, it is most likely to face difficulty for an ordinary citizen to focus on the conducts of detention companies, such as Broadspectrum and Ferrovial, which were contracted out by the government. The appropriate choice of focus for investigation, therefore, has been the medical evacuation and medical care of offshore asylum-seekers; an area in which we -- general public -- have reasonable suspicion that there were more direct government involvements in the operations.

Therefore, to start off with, I have focused my investigation on the deaths of a numbers of offshore asylum seekers over the period of 2013 until 2018. This investigative work has been conducted entirely in public domain and still ongoing, where the findings on points of law are now being updated at this URL: (www.aus4iccwitness.org/node/92) "OFFSHORE DEATHS, DETENTION SLAVERY AND ICC LEGAL CONTEXTS".

7. There have been the deaths of 12 asylum-seekers in offshore processing centres since 2013. Of these, 3 persons had died on Australian soil during the medical evacuations. The Australian government have totally refused to investigate those who died on offshore processing centres. For those who died in Australia, all three in the State of Queensland, the Coroner of the State Government had the duty to investigate and make the report to public. The Queensland Coroner had completed one of the reports in 2018 for Iranian asylum-seeker Hamid Kehazaei who died on September 2014.

The Coronial inquest, in a sense, has never been an "investigation" as such, but a process for establishing the facts. In recent months, I begun to be concerned that making of these reports were being intentionally delayed, especially with the case of Faysal Ishak Ahmed who died on December 2016. Australian public, the refugee supporting community in particular, has been aware that Faysal Ahmed had died as a result of undeniable medical negligence, whereas any type of substantive inquiry would have laid bare before the public of the facts who indeed was responsible. I therefore had communicated to the State Government of Queensland expressing this as unjustifiable delay. I enclosed the related correspondent with Queensland authorities for your information.

It is obvious that there has been the unwillingness by government of Australia to conduct investigation onto these offshore deaths. The unjustifiable delays in Coronial inquest for Faysal Ahmed has also been inconsistent with the authorities having a genuine desire to establish the truth. Given the gravity of crime that may have committed by the government, I respectfully urge the prosecutor to look into invoking Article 17 of the Statute.

The Preliminary Findings

• A mass scale enslavement have taken place on offshore asylum processing centres on Manus Island and Republic of Nauru. The duration for enslavement, ratione temporis, appears to have been between October 2013 and August 2018.
• Australia's offshore asylum-processing scheme presents to us as a new form of slavery -- the "Detention Slavery" -- whereas the government has created the slaves in order to shored up the detention industry.
• There have also been the crimes of torture. The torture has taken place when the Department of Immigration and Border Protection(DIBP) and Australian Border Force (ABF) refuse medical transfer and deny medical services to offshore asylum-seekers. In law, such conduct has been held as the practice of torture since the authorities are exahibiting "deliberate indifference to the serious medical needs of person(s) under their care". I've found reliable evidence that DIBP/ABF at the ministerial level have obstructed medical evacuations and medical care of asylum seekers.
• Therefore, ICC Rome Statute subject matter jurisdictions, ratione materiae, would be in two distinct areas: The Enslavement Art. 7.1(c) and The Torture Art. 7.1(f). The ICC, however, would be urged not to elect 7.1(f) and look into cases as that of the torture only. The ICC must view the items of torture as the integral part of enslavement scheme 7.1(c).
• Under offshore processing regime, there have been occurrences of distinct violation of the inalienable (fundamental) right of persons, i.e. asylum-seekers. There is evidence that these violations of inalienable rights were sanctioned by the Commonwealth Government of Australia.

In closing, I thank you for your kind attention to these matters.

Yours respectfully and sincerely,
(Sd. U Ne Oo) Dated: 5th Sept 2021
Copy to:
1. United Nations Organisations.
2. Australian Commonwealth Authorities.
3. Others.
Enclosure: Correspondence Re: Queensland State Premier

ADDRESS TO:
Information and Evidence Unit
The Office of Prosecutor, ICC
PO Box 15915
2500 CM The Hague
The Netherlands
Email: otp.informationdesk[AT]icc-cpi.int

TIME TO REKINDLE ICC ACTIONS (29/8/2021): Friends, I am reviewing the reply letters from ICC in regards to 'our' complaints against offshore detention on Manus and Nauru. I say this 'our' in a broadest sense of the people and organisation who apparently opposed to Australia's offshore detention, but are otherwise powerless to stop it and therefore sought the legal intervention from ICC. I have chosen the replies that ICC made out in February 2002 to following three entities:

(i) Hon. Andrew Wilkie MP, An Independent Member. The allegations to ICC were submitted 21/10/2014, with the assistant of high profile lawyer Greg Barns. ICC Replied on 12/2/2020.

(ii) Global Legal Action Network (GLAN), The Stanford Law School & International Lawyer Group. The Lawyer Group submitted there report on 15/2/2017. The ICC reportedly replied to them on 12/2/2020. The Lawyer Group conducted first-hand and extensive interviews with offshore detainees in May 2016. They also submitted their findings to the Australian Parliamentary Inquiries.

(iii) Myself as a grass-root refugee rights activist, the allegations to ICC had been submitted on June 2017. ICC had replied on 12/2/2020.[#1]

Remember, there are also other individuals and organisations over the years have submitted their allegations to ICC. But I could not readily find to review their respective ICC replies. In any case, to assist our study, I am adding the 2020 ICC reply to Hon. Andrew Wilkie; and the 2015 legal analysis by Assoc. Professor Amy Macguire etal that outlining the limitations of ICC [#1].

THE TIMELINE AND CHANGING PERSPECTIVES OF OFFSHORE PROCESSING/DETENTION

First to notice on all communications is about the different timeline. The earliest ICC submission has been that of Mr Wilkie (Greg Barn lawyer) in late 2014. Around that time, the observers who are of outside the government's inner circle really wouldn't 'know' exactly what have been the real purpose for offshore processing. By that time, two of the offshore deaths being reported: Reza Berati (Feb-2014) and Hamid Khazaei (Sep-2014). Nevertheless, the concerns that raised at early date had reflected the acute sense of the gravity of offshore crime as the "Crime Against Humanity".

The Stanford International Lawyers Group, GLAN, is probably the best resourced and systematic amongst those of activist groups. Its lawyers had conducted interview in May 2016 with the offshore detainees and statements were to have been properly taken. The GLAN's report detailing the aspects of international laws in connection with the 'unusual' government' conduct towards those asylum-seekers. Their report, however, is lacking the input on local political knowledge and therefore unable to elucidate the government's underlying purpose for the offshore detention. It is also the early days, i.e. 2016, while the observers were still unable to underpin on which way the government may be heading with its offshore policies.

During late 2015 to first half of 2016, I -- may be most other observers -- were still trying to find out the government cover-up on cash payments of Indonesian smugglers. I, for the first time, had put forward my evaluation on June 2016 that there had been the government cover up on bi-lateral boat turn-back agreement with Indonesia [#2]. Ever since that report, I have raised proper suspicion that the government is working with detention groups for the pecuniary gains regarding the offshore processing centres[#2]:

"... one has to wonder why these asylum-seekers are being kept in detention for so long ? Is it just a mere incompetence of the LNP government that they're unable to find the solution for those asylum-seekers ? Or has LNP government got any other ulterior motives ? Job for the boys, for instance. ...."

A year after in June 2017, I am able to conclude that the government with detention groups are enslaving these offshore asylum-seekers [#3]. My report to ICC -- lacking details however -- was more in line with political policy evaluation of the underlying motives by Australian Government re: offshore detention regime.

EVALUATING ICC RESPONSES

Obviously, the ICC Office of the Prosecutor was only assessing on the information it has received from those reports. In all replies, the ICC had affirms that there have been cases of severe deprivation of liberty:

"the conditions of detention and treatment, although the situation varied over time, the Office considers that some of the conduct at the processing centres on Nauru and on Manus Island appears to constitute the underlying act of imprisonment or other severe deprivations of physical liberty under article 7(1)(e) of the Statute"

Further to its assessment, based on the "information received", such "detention" can constitute "Cruel, Inhuman and Degrading Treatment (CIDT)", the Prosecutor said:

"These conditions of detention appear to have constituted cruel, inhuman, or degrading treatment (“CIDT”), and the gravity of the alleged conduct thus appears to have been such that it was in violation of fundamental rules of international law."

The ICC Prosecutor cannot, for obvious reasons, go on to include "Torture". We may well recalled UN Treaty and Articles on Rights: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". For torture to exists, there has to be the element of "authorities intentionally inflicting pains and sufferings" on those asylum-seeker detainees.

OUR NEWLY ACQUIRED INFORMATION ON "ENSLAVEMENT WITH TORTURE"

As you all know, in the last eight months (Feb-Aug, 2021), I have been working hard on the point-of-law approach on the issues of detention slavery. As regards information on offshore, in the latter part of 2018 to early 2020, there are various investigative journalists who had put out their findings on offshore detention, especially FOI reports, on the public domains. From these FOI reports, combined with our own analysis and evaluation, we can now conclude that the DIBP/ABF have committed the crime of torture upon as many offshore asylum-seeker patients [#4].

In my earlier note on the ICC reply, I've already said the Prosecutor does not "ruled out" the crime against humanity of enslavement 7.1 (c). I think it is about time to submit further information to ICC and other relevant UN organisations. -- Cheers, NetIPR.

[#1] http://www.aus4iccwitness.org/docs/20200212_icc-reply.pdf
[#2] http://www.aus4iccwitness.org/node/30
[#3] http://www.aus4iccwitness.org/node/48
[#4] http://www.aus4iccwitness.org/evidence/

A Weirdo ?(sic) diplomatic -- reply from ICC in February 2020.

 

WEIRDO ICC REPLY LETTER OF FEB 2020??: Friends, you might remember last year around this time, Feb/Mar 2020, many people who put forward complaints to ICC, i.e. Hon Andrew Wilkie amongst them [#17], received reply letters. I myself, too, received a reply letter of which the contents, at the first readings, are kind of looking weird considering reputation of the Court. Firstly, I did never mentioned about the offshore incidents in 2001 (remember Tampa?); and reply letter addressed nearly all the Rome Statute Article 7 Crime Against Humanity Options (7.1 e,f,d,k) and then said not quite on the footing the ICC could acted upon [check with Rome Statute of 2002 here #8]. Isn't that too weird ? In my communication made to ICC in June 2017 (OTP-CR-220/17, [#7]), I did specifically referred the Article 7.1(c) Enslavement. The ICC letter certainly didn't addressed directly to my "enslavement" concerns, but keep saying like, "...reported relevant conduct, based on the information available, it did not appear to the Office that any other acts constituted crimes within the jurisdiction of the Court....." Keep reading on, last two paragraphs in letter just said:

"Accordingly, the Prosecutor has determined that there is no basis to proceed at this time. Nonetheless, consistent with article 15(6) of the Statute and rule 49(2) of the Rules of Procedure and Evidence, this decision may be reconsidered in the light of new facts or information."

Article of Statute 15(6) said: " If, after the preliminary examination referred to in paragraphs 1 and 2, the Prosecutor concludes that the information provided does not constitute a reasonable basis for an investigation, he or she shall inform those who provided the information. This shall not preclude the Prosecutor from considering further information submitted to him or her regarding the same situation in the light of new facts or evidence."

Rule and Procedure of Evidence 49(2): "2. The notice shall also advise of the possibility of submitting further information regarding the same situation in the light of new facts and evidence." [#18]

The way I see it, the ICC-OTP is not ruling out possibility of 7.1(c) enslavement -- that's why deliberately keep out that item in the contents of their reply letter -- just arguing that other matters (d,e,f,h,k) weren't quite relevant in this case. I think, that may be ICC ways of saying the direction I've put forward in "7.1(c) enslavement" can be interesting one; ICC could neither confirm nor deny it; but ICC needs more information !!!

At that time in Feb/Mar 2020 I received letter, I feel I'm not fit to release that ICC reply letter to the public. As you know, we've been quite busy: the Covid-19 pandemic was in full swing; Medevac detainees' mystery was unresolved; and I myself, not being a lawyer and only been a volunteer community activist, cannot see in which way the prosecution forces might have to be coming in and where any further evidences could be gathered. Of course, this is before Judge Brereton's Afghan War Crime Report [#1], which definitely is the "game changer" in all aspects for us the activists. You can read full ICC reply letter in PDF, which is uploaded here [#16]. -- Cheers, NetIPR.