Ben Doherty
Who is accountable for what happens in an offshore processing centre? It’s remarkable this is still a question in Australia
Aarash lost his youth to offshore processing. Sixteen when he was sent to Nauru, he says he cannot remember a single birthday in more than a decade.
“When I see younger ones that age, having fun, playing, going to school, it reminds me of everything I lost,” he says. “I felt less human, not human at all.”
But who is responsible? Who is accountable for what happens in an offshore processing centre?
That this is still a question, after nearly a quarter of a century of Australian offshore practice, is remarkable.
Refugees, advocates, lawyers and a growing body of international law insist that Australia’s offshore processing system – whatever occurs within it and to those restrained by it – remains the responsibility of Australia.
For decades they have consistently argued that Australia can’t “outsource” its responsibilities towards those who arrive on its shores seeking protection, to those it is legally obliged to protect.
And in two landmark decisions published on Friday, the UN human rights committee spelled out that argument yet again.
“Where there is power or effective control, there is responsibility,” committee member Mahjoub El Haiba wrote. “The outsourcing of operations does not absolve states of accountability. Offshore detention facilities are not human-rights free zones.”
Australia, implacably, insists that is not so.
It says those sent offshore by Australia are no longer Australia’s responsibility, that it can’t be held accountable for the fates of those over which it has relinquished “effective control”.
“It has been the Australian government’s consistent position that Australia does not exercise effective control over regional processing centres,” a government spokesperson said in response to the committee’s decision.
The government told the UN committee it “works closely” with the government of Nauru “to support the provision of health, welfare and support services”.
Offshore processing, however, is not the policy of the Nauruan government. It is Australian government policy, enacted by Australian legislation and enforced by Australia’s Department of Home Affairs and its border force.
It is run by private contractors who have multimillion-dollar contracts signed with, and paid by, the Australian government.
Australian taxpayers pay for offshore processing, and it is done in Australia’s name. Those whose rights are violated by it seek remedy in Australian courts, and they are compensated by Australia.
But the Australian government insists offshore processing is not its responsibility: that the problems that occur there are not its problems.
The deprivations, the indignities and worse of offshore are well known, and have been exhaustively documented.
The UN has said Australia’s system violates the convention against torture and the international criminal court’s prosecutor said indefinite detention offshore was “cruel, inhuman or degrading treatment”.
At least 12 people have died in the Manus and Nauru camps, including being murdered by guards, through medical neglect and by suicide. Psychiatrists working in the camps have described the conditions as “inherently toxic” and akin to “torture”.
In 2016, the Nauru files, published by Guardian Australia, exposed the Nauru detention centre’s own internal reports of systemic violence, rape, sexual abuse, self-harm and child abuse in offshore detention.
Alison Battisson, of Heretic Law, brought one of the complaints before the UN committee on behalf of an Iranian woman who was held for more than four years on Nauru.
“This is an immensely significant decision,” Battisson tells the Guardian. “It is another nail in the coffin for the legality of Australia’s offshore detention regime.
“And individually it is significant: a decision that says ‘Australia did this to you and Australia is responsible’ is incredibly validating of their experiences.”
The Refugee Advice and Casework Service brought the other complaint, on behalf of 24 children sent to Nauru.
“These children lost their childhoods,” the service’s principal solicitor, Sarah Dale, says. “Many will never heal from the scars this has left. Many still remain in intractable limbo, not knowing when it will end.”
Aarash was one of those children.
The question of responsibility matters because, while these are historical detentions, this is not a question of history.
Nauru – now in its third iteration – currently holds about 100 asylum seekers and refugees, most of whom have been there more than a year. Nauru is Australia’s only “enduring” – in the government’s parlance – form of offshore processing, after the Manus Island detention centre was ordered shut by the Papua New Guinea supreme court, and tens of millions in compensation paid to those illegally incarcerated there.
But even Manus is not finally extinguished. The detention centre exists no more, but there are still more than 40 people held in PNG – most in Port Moresby – who have been subject to Australia’s offshore regime for more than a decade now.
And regimes like Australia’s are nascent around the world.
In 2022, then Australian prime minister Scott Morrison said the UK’s plan to send asylum seekers to Rwanda was demonstration “other countries are taking their lead from Australia’s successful approach”.
The UK’s Rwanda scheme was ultimately abandoned after courts ruled it unlawful and a change of government.
And Italy’s plan to shift asylum seekers to detention centres in Albania was stalled last year when a court raised doubts about its compliance with European Union law.
“These decisions send an incredibly clear message to other nations who may be thinking about following Australia’s practices,” Battisson says. “That it is not lawful under international law and that they will be held accountable for whatever happens on remote prison islands or remote detention centres outside your jurisdictions.”
Madeline Gleeson, a senior research fellow at the Kaldor centre for international refugee law at the University of New South Wales, says the UN decision was a significant win for those once detained, but carries ramification for the future too.
“The committee has told Australia in no uncertain terms that it is legally obligated to prevent similar violations from occurring in the future.
“These decisions should put an end to the Australian government’s claims that it is not responsible for what happens offshore, and compel it to reconsider the future of offshore processing.”
The UN human rights committee has urged Australia to compensate those it arbitrarily detained on Nauru. Arash wonders if that is even possible.
“I would like justice,” he says, “although I have no idea what that would look like.
“All those years that passed, they’re not coming back. I don’t know how they’re going to compensate me. What is money compared to 10 years of my life?”