How 'Legal' Is A Refugee Riot?

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As information slowly seeps out about the appalling violence on Manus Island, human rights defenders are renewing their calls for the closure of the camp. It is not the first time that NGOs and human rights agencies have spoken out about deplorable living conditions, the intolerable pressures created by uncertainty about the future, and the extraordinary folly of dumping vulnerable and desperate people into unchartered, and often hostile, territory.

As the story unfolds, reports increasingly support the view that the events on Manus Island were a planned attack by PNG insiders, not a sudden eruption of violence by detainees. Nevertheless, experience shows that previous unrest in detention centres and episodes of sabotage on asylum seeker boats have been used by politicians as evidence of the dangerousness and unworthiness of the asylum seekers themselves.

In light of this tendency, it is valuable to consider how legal bodies in other countries have viewed instances of escape from custody and violent protest in immigration detention.

In Britain, the Ombudsman’s inquiry into the burning down of Yarl's Wood Removal Centre in 2001, while not absolving the instigators of culpability, placed much of the responsibility on poor management and inhumane deportation processes that were driven by hastily imposed removal targets. Criminal charges brought subsequently against some of the detainees descended into "farce" due to inconsistencies in testimony and evidence of malpractice by Group 4 guards.

In Italy, a criminal tribunal in Crotone found in 2012 that detained migrants who rioted and threw stones at security guards in a nearby detention centre were justifiably acting in "legitimate defence", because they were being held in contravention of the EU Return Directive which stipulates that detention must be used as a "last resort". The court expressed the remarkable view that the group faced a situation where they could not expect the rule of law to protect their fundamental human rights. The detention centre was apparently destroyed soon after in another large-scale revolt.

Also in 2012, a local court in Igoumenitsa, Greece dismissed criminal charges against 15 migrants who escaped from long term detention in police cells, after wrestling with the guards. The court took the view that escape was a reasonable act of self-preservation given the appalling and life-threatening conditions in which the men were being held.

No doubt there are other court decisions relating to resistance and disruptive behaviour by immigration detainees that are less favourable to a human rights position. But the cases discussed here support what human rights campaigners already know: that indefinite detention in poorly regulated facilities is likely to produce misery, chaos and violence.

In both the Italian and Greek cases discussed above, courts made explicit reference to the European Convention of Human Rights in formulating their reasons for absolving detainees of criminal liability. Another important case involving human rights law supported the repeated criticisms about appalling detention conditions in Greece made by the Committee for the Prevention of Torture.

In January 2011, the European Court of Human Rights held that the return of asylum seekers to Greece from other European countries under the Dublin Convention was unlawful because it would expose them to cruel, inhuman and degrading treatment. This led many European countries to suspend removals to that country, at least temporarily.

In this country, international human rights law is nowhere near as accessible as in Europe. The High Court of Australia did support a human rights position when it struck down the "refugee swapping" deal with Malaysia proposed by the Gillard government. However, the outsourcing of detention to other countries, while it certainly does not absolve the Australian government of their duty of care, creates practical and legal obstacles which make the prospects for legal remedies even more remote.

It might well be argued that we don't need courts to tell us what is, and is not, a just and reasonable way to treat other human beings; and that political activism with a view to preventing abuses is a more powerful tool than belated legal redress. There is value in both these views, but victories for human rights in the legal domain can lend authority and provide sustenance to political action.

New Matilda

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