In Focus: Paying people smugglers - Did the Australian government breach Australian law?
Published on the 01 Jul 2015
a. Migrant Smuggling Protocol
If the allegations are true, the alleged payment may constitute a breach of the Protocol against the Smuggling of Migrants by Land, Sea and Air (‘Migrant Smuggling Protocol’) which supplements the United Nations Convention against Transnational Organized Crime. Australia is a signatory to both treaties. They are intended to be read and interpreted together, taking into account the Protocol’s object and purpose (Convention against Transnational Organized Crime, art 37(4)).
The Protocol defines the ‘smuggling of migrants’ as:
the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.
Media reports have suggested that the crew of the Indonesian vessel were ‘recruited by people smugglers in early April’ and enlisted in Jakarta to work on a fishing boat with the promise of being paid 150 million rupiah ($14,000). This seems to fit the definition of obtaining a ‘financial or other material benefit’ and it can therefore be assumed that the crew were engaged in the ‘smuggling of migrants’, as defined in the Migrant Smuggling Protocol.
The Australian government may have violated the Migrant Smuggling Protocol for the following reasons. First, paying people smugglers to transport asylum seekers to any country they cannot lawfully enter is contrary to the stated purpose of the Protocol (art 2):
The purpose of this Protocol is to prevent and combat the smuggling of migrants, as well as to promote cooperation among States Parties to that end, while protecting the rights of smuggled migrants.
The practical effect of the alleged payment – and any other payments that may have been made in the past under both the current Coalition and the previous Labor government – is the creation of incentives for people smugglers to continue their activities, in the hope that they may also be paid to return their passengers. This clearly undermines the purpose of the Migrant Smuggling Protocol.
Second, the additional requirement in the Protocol’s purpose – that the rights of smuggled migrants be protected – suggests that any action that could result in refoulement or otherwise put asylum seekers’ lives or safety at risk would be contrary to the treaty. Article 19(1) clarifies that this is the case. It provides that:
Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein.
Third, article 7 of the Migrant Smuggling Protocol requires States Parties to engage in cooperative activities to prevent and disrupt people smuggling:
States Parties shall cooperate to the fullest extent possible to prevent and suppress the smuggling of migrants by sea, in accordance with the international law of the sea.
The alleged payment of people smugglers to return to Indonesia, without the knowledge or consent of the Indonesian government, undermines the principle of international cooperation. It seems clear that the Australian government neither consulted nor cooperated with the Indonesian government in facilitating the return of the asylum seekers to Indonesia, since Indonesia’s Foreign Ministry made repeated requests for information from Australia about the incident, all of which were refused.
Fourth, Australia’s alleged payment amounts to criminal conduct as an accomplice to people smuggling. Article 6(2)(b) of the Migrant Smuggling Protocol requires States Parties to make this a criminal offence in their domestic law.
The final question is whether or not the alleged payment by Australia itself constituted people smuggling.
First, it needs to be established that the people who were turned around were not nationals or permanent residents of Indonesia, and that they had no lawful right to enter Indonesia. The available information suggests that these elements of the definition are satisfied.
Second, it may be difficult to demonstrate that the Australian government obtained a financial or other material benefit by paying the smugglers to return the asylum seekers to Indonesia. The government does not appear to have received any financial benefit; the question is what a ‘material benefit’ encompasses.
The drafting records of the Migrant Smuggling Protocol state (at p 469) that:
The reference to “a financial or other material benefit” as an element of the definition in subparagraph (a) was included in order to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations.
This suggests that a ‘material benefit’ must also be for some kind of profit or gain. Anne Gallagher and Fiona David write in their book The International Law of Migrant Smuggling that ‘it is clear that the reference is intended to go beyond mere payment of money’ (p 46). Precisely what it is intended to cover is not altogether clear, however.
It will be recalled that the Migrant Smuggling Protocol supplements the Transnational Crime Convention. The Convention’s definition of ‘organized criminal group’ refers to people who commit offences for ‘a financial or other material benefit’ (art 2). An Interpretive Note in the Legislative Guide for the Convention explains the term’s reach (at p 334):
…the words ‘in order to obtain, directly or indirectly, a financial or other material benefit’ should be understood broadly, to include, for example, crimes in which the predominant motivation may be sexual gratification, such as the receipt or trade of materials by members of child pornography rings, the trading of children by members of paedophile rings or cost-sharing among ring members.
Any ‘benefit’ obtained by the Australian government through its alleged actions seems to have been a political one connected to the broader narrative of the government’s ‘success’ in ‘stopping the boats’. It remains untested whether a political ‘benefit’ might be capable of being interpreted as a ‘material benefit’.
b. Refugee Convention
Finally, the alleged incident may have also violated the principle of non-refoulement under international refugee and human rights law. International law prohibits States from sending asylum seekers to any country in which they have a well-founded fear of persecution (Refugee Convention, art 33) or face a real risk of significant harm, such as being arbitrarily deprived of life, tortured, or subjected to cruel, inhuman or degrading treatment or punishment (Convention against Torture, art 3; International Covenant on Civil and Political Rights, arts 6, 7). The principle also prohibits asylum seekers from being sent to a country that may, in turn, send them on to a place where they risk such ill-treatment (sometimes called ‘chain refoulement’).
Indonesia is not a party to the Refugee Convention, and does not have national refugee status determination procedures in place to identify protection needs, nor legislative or practical frameworks to adequately safeguard the rights of asylum seekers in their territory. While there is insufficient information to ascertain whether the 65 asylum seekers in the present case were in danger, the important point to note is that a policy of turning back boats creates an inherent risk that the principle of non-refoulement will be violated, because an individual determination of the protection needs of each asylum seeker is not undertaken. The legality of turnbacks under international law has been well canvassed by international lawyers and UNHCR.