On 9July 2024 UN experts declared famine has spread throughout Gaza strip

 

A malnourished Palestinian baby is held while receiving treatment at the International Medical Corps field hospital, amid the Israel-Hamas conflict, in Deir Al-Balah in the southern Gaza Strip, June 22, 2024. REUTERS/Mohammed Salem

PRESS RELEASES | SPECIAL PROCEDURES

UN experts declare famine has spread throughout Gaza strip

09 July 2024

GENEVA (9 July 2024) – The recent deaths of more Palestinian children due to hunger and malnutrition leaves no doubt that famine has spread across the entire Gaza strip, a group of independent experts* said today.

“Fayez Ataya, who was barely six months old, died on 30 May 2024 and 13-year-old Abdulqader Al-Serhi died on 1 June 2024 at the Al-Aqsa Hospital in Deir Al-Balah. Nine-year-old Ahmad Abu Reida died on 3 June 2024 in the tent sheltering his displaced family in Al-Mawasi, Khan Younis. All three children died from malnutrition and lack of access to adequate healthcare,” the experts said.

“With the death of these children from starvation despite medical treatment in central Gaza, there is no doubt that famine has spread from northern Gaza into central and southern Gaza.”

The experts said the death of a child from malnutrition and dehydration indicates that health and social structures have been attacked and are critically weakened. “When the first child dies from malnutrition and dehydration, it becomes irrefutable that famine has taken hold,” the experts said.

“We declare that Israel’s intentional and targeted starvation campaign against the Palestinian people is a form of genocidal violence and has resulted in famine across all of Gaza. We call upon the international community to prioritise the delivery of humanitarian aid by land by any means necessary, end Israel’s siege, and establish a ceasefire.” [my yellow highlighting]

“When a 2-month-old baby and 10-year-old Yazan Al Kafarneh died of hunger on 24 February and 4 March respectively, this confirmed that famine had struck northern Gaza. The whole world should have intervened earlier to stop Israel’s genocidal starvation campaign and prevented these deaths,” the experts said. “Thirty-four Palestinians have died from malnutrition since 7 October, the majority being children. Inaction is complicity.”

The experts: Michael Fakhri, Special Rapporteur on the right to food; Balakrishnan Rajagopal, Special Rapporteur on the right to adequate housing, Tlaleng Mofokeng, Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Francesca Albanese, Special Rapporteur on the situation of human rights in the Palestinian Territory occupied since 1967; Pedro Arrojo-Agudo, Special Rapporteur on the human rights to safe drinking water and sanitation, Paula Gaviria Betancur, Special Rapporteur on the human rights of internally displaced persons; George Katrougalos, Independent Expert on the promotion of a democratic and equitable international order; Barbara G. Reynolds (Chair), Bina D’Costa, Dominique Day and Catherine Namakula, Working Group of Experts on People of African Descent

Special Rapporteurs, Independent Experts and Working Groups are part of what is known as the Special Procedures of the Human Rights Council. Comprising the largest body of independent experts in the UN Human Rights system, Special Procedures is the general name of the Council's independent fact-finding and monitoring mechanisms that address either specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent from any government or organization and serve in their individual capacity.

And the War on Gaza continues into its 207th day........

 

The Palestinian civilian death toll over the last 206 days of the State of Israel's war against Gaza has now reached at least 34,535 people, with another est. 77,704 injured. Approx. half of all those killed are thought to have been Palestinian women & children.

In that count is the premature infant rescued from her mother’s womb shortly after the woman was killed in an Israeli airstrike on Rafah. Baby Sabreen Jouda died in a Gaza hospital on Thursday, 25 April after her health deteriorated & medical teams unable to save her [Al Jazeera, 26 April 2024]

While at least 66 people were killed and 138 others were injured in Israeli attacks that took place last Saturday, 27 April.

That comes to a crude average of 545 civilians killed or injured every single day. 

GENEVA, April 24 (Reuters) - The Gaza Strip could surpass famine thresholds of food insecurity, malnutrition and mortality in six weeks, an official from the World Food Programme said on Wednesday.

"We are getting closer by the day to a famine situation," said Gian Caro Cirri, Geneva director of the World Food Programme (WFP).

"There is reasonable evidence that all three famine thresholds -- food insecurity, malnutrition and mortality -- will be passed in the next six weeks."

Israel's military response, to the Hamas militia terrorist attack on Israeli soil on 7 October 2023, ceased to be a proportionate response within a week of the commencement of aerial bombardment of northern Gaza.

TheGuardian, 30 April 2024:

The Israeli government believes that the international criminal court (ICC) in The Hague is about to file war crimes charges against Benjamin Netanyahu and other senior Israeli officials. We can’t know for sure – the ICC has kept its plans close to the vest – but the Israeli prime minister has good reason to worry, and the defenses he has offered so far are unlikely to help him.

The ICC chief prosecutor Karim Khan’s most likely target is Netanyahu’s starvation strategy for Palestinian civilians in Gaza. Because the Israeli government has refused to let ICC staff enter Gaza, it will take time for Khan to complete the detailed investigation required to demonstrate other possible Israeli war crimes, such as indiscriminately bombing civilian areas and firing on military targets with foreseeably disproportionate civilian consequences. But the facts surrounding Israel’s obstruction of humanitarian aid are readily available.

During his two recent visits to the region, Khan stressed that, as international humanitarian law requires, Palestinian civilians in Gaza “must have access to basic food, water and desperately needed medical supplies, without further delay, and at pace and at scale”. He warned the Israeli government: “If you do not do so, do not complain when my Office is required to act.” The standard he cited is endorsed by virtually every government in the world including Israel, Britain, the United States, and, as a United Nations observer state, Palestine.

For much of the war Israel has allowed just enough food into Gaza to avoid widespread death, but not enough to prevent pervasive hunger and, in some parts of Gaza according to the USAid administrator, Samantha Power, “famine”. Oxfam calculated that hundreds of thousands of people in northern Gaza were receiving on average only 245 calories a day, about one-tenth of normal requirements. At least 28 children younger than 12 were reported to have died of malnutrition as of 17 April.....

Read the full Guardian article here.

A little bit about the second set of International Court of Justice hearings in 2024 concerning 'The Question of Palestine'

Because The Question of Palestine, the nature of political and diplomatic processes undertaken to resolve this 76 year-old question — in order that Palestine is recognised under international law as a sovereign state whose citizens enjoy the full range of humanitarian and political rights and protections — will in large measure define the status and gravitas accorded to the United Nations going forward by nation states as the world moves further into an epoch of climatic, geo-political and social disruption, it does no harm to be watchful as events unfold. 

Additionally, mainstream media coverage has been rather limited in Australia concerning legal deliberations relating to Palestine since the International Court of Justice Order of 26 January 2024 and the Australian Government has been noticeable by its silence on the most recent hearings.

So here is a basic record of what occurred after the United Nation General Assembly's 12 page Request for an Advisory Opinion pursuant to General Assembly resolution 77/247 of 30 December 2022, with regard to Legal Consequences Arising From The Policies And Practices Of Israel In The Occupied Palestinian Territory, Including East Jerusalem, began six days of public hearings on Monday 19 February 2024, at 10 a.m. at the Peace Palace, with President Salam presiding.

The Court was asked to render an opinion on the following basis:

“considering the rules and principles of international law, including the Charter of the United Nations, international humanitarian law, international human rights law, relevant resolutions of the Security Council, the General Assembly and the Human Rights Council, and the advisory opinion of the Court of 9 July 2004:

(a) What are the legal consequences arising from the ongoing violation by Israel of the right of the Palestinian people to self-determination, from its prolonged occupation, settlement and annexation of the Palestinian territory occupied since 1967, including measures aimed at altering the demographic composition, character and status of the Holy City of Jerusalem, and from its adoption of related discriminatory legislation and measures?

(b) How do the policies and practices of Israel referred to in paragraph 18 (a) above affect the legal status of the occupation, and what are the legal consequences that arise for all States and the United Nations from this status?” 

The public hearings......

DAY ONE

The State of #Palestine opens the public hearings in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem, before the #ICJ

 https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_q64rcbqd/embed/dynamic

DAY TWO

The #Netherlands, #Bangladesh and #Belgium present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_4366a9cv/embed/dynamic

#Belize, #Bolivia #Brazil and #Chile present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_2ya4lbdu/embed/dynamic

 

DAY THREE

#Colombia, #Cuba, #Egypt, the #UAE and #USA present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem 

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_79dssjrs/embed/dynamic

 #Russia, #France, #TheGambia, #Guyana and #Hungary present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_ryz6ss88/embed/dynamic

DAY FOUR

#China, #Iran, #Iraq, #Ireland, #Japan and #Jordan present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_b46jqhoc/embed/dynamic

#Kuwait, #Lebanon, #Libya #Luxembourg, #Malaysia and #Mauritius present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_8wd5swem/embed/dynamic

 DAY FIVE

#Namibia, #Norway, #Oman, #Pakistan, #Indonesia and #Qatar present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_1m0ok1bf/embed/dynamic

#UnitedKingdom, #Slovenia, #Sudan, #Switzerland, #Syria and #Tunisia present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_vx79z7wp/embed/dynamic

DAY SIX

#Türkiye, #Zambia, #League of Arab States, #Organisation for Islamic Cooperation and #Africa Union present their oral statements in the advisory proceedings on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem

https://cdnapisec.kaltura.com/index.php/extwidget/preview/partner_id/2503451/uiconf_id/43914941/entry_id/1_vew5z58l/embed/dynamic

NOTE: Verbatim records of all oral proceedings can be found at: https://www.icj-cij.org/case/186/oral-proceedings

~~~~~~~~~~~~~~~~~~~~~~

Earlier, on 16 February 2024 in the matter of the Republic of South Africa v The State of Israel the International Court of Justice issued this media release in response to the situation in Rafah in the far south of the Gaza Strip near the border with Egypt:

PRESS RELEASE: the #ICJ issues its decision on South Africa’s request for additional provisional measures in the case of Application of the Convention on the Prevention and Punishment of the Crime of Genocide in the Gaza Strip (#SouthAfrica v. #Israel) https://t.co/dh9olqXtD9 pic.twitter.com/KLIMOD69uo

— CIJ_ICJ (@CIJ_ICJ) February 16, 2024

International Court of Justice has decided there is a prima facie case against Israel and a full trial will take place, with a provisional order now in place requiring the State of Israel to ensure with immediate effect that its military does not commit any acts of genocide

 

On 29 December 2023 the Republic of South Africa made an application to the International Court of Justice instituting proceedings in accordance with Articles 36 (1) and 40 of the Statute of the Court and Article 38 of the Rules of Court against the State of Israel. The Application included a request that the Court indicate provisional measures to protect the rights invoked (as found in the UN 1948 Convention on the Prevention and Punishment of the Crime of Genocide) from imminent and irreparable loss.

The Court sat for two days, 11 & 12 January 2024, and both South Africa and Israel put their cases concerning the rights and responsibilities found in the Genocide Convention and, whether the actions of the Israeli Government since 7 October 2023 had caused acts of genocide against the Palestinian people in the Gaza Strip, had established a credible risk of genocide or that Israel's actions did not in fact involve genocide.

The Court adjourned and deliberated for thirteen days, then delivered its findings and decision.

It couldn't be any clearer, the State of Israel is on notice and a full trial will take place.

International Court of Justice (The Hague), South Africa v Israel, Summary of the Order of 26 January 2024, (Provisional Measures), excerpt:

OPERATIVE CLAUSE (PARA. 86)

The full text of the operative clause of the Order reads as follows:

“For these reasons,

THE COURT,

Indicates the following provisional measures:

(1) By fifteen votes to two,

The State of Israel shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to Palestinians in Gaza, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and

(d) imposing measures intended to prevent births within the group;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;

AGAINST: Judge Sebutinde [representing the Republic of Uganda]; Judge ad hoc Barak [representing the State of Israel];

(2) By fifteen votes to two,

The State of Israel shall ensure with immediate effect that its military does not commit any acts described in point 1 above;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;

AGAINST: Judge Sebutinde; Judge ad hoc Barak;

(3) By sixteen votes to one,

The State of Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judges ad hoc Barak, Moseneke;

AGAINST: Judge Sebutinde;

(4) By sixteen votes to one,

The State of Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judges ad hoc Barak, Moseneke;

AGAINST: Judge Sebutinde;

(5) By fifteen votes to two,

The State of Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II and Article III of the Convention on the Prevention and Punishment of the Crime of Genocide against members of the Palestinian group in the Gaza Strip;

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;

AGAINST: Judge Sebutinde; Judge ad hoc Barak;

(6) By fifteen votes to two,

The State of Israel shall submit a report to the Court on all measures taken to give effect to this Order within one month as from the date of this Order.

IN FAVOUR: President Donoghue; Vice-President Gevorgian; Judges Tomka, Abraham, Bennouna, Yusuf, Xue, Bhandari, Robinson, Salam, Iwasawa, Nolte, Charlesworth, Brant; Judge ad hoc Moseneke;

AGAINST: Judge Sebutinde; Judge ad hoc Barak.”

*

Judge XUE appends a declaration to the Order of the Court; Judge SEBUTINDE appends a dissenting opinion to the Order of the Court; Judges BHANDARI and NOLTE append declarations to the Order of the Court; Judge ad hoc BARAK appends a separate opinion to the Order of the Court.

___________

In South Africa v Israel the full Summary of the Order of 26 January 2024 can be read and downloaded at:

https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-sum-01-00-en.pdf.

The full APPLICATION OF THE CONVENTION ON THE PREVENTION AND PUNISHMENT OF THE CRIME OF GENOCIDE IN THE GAZA STRIP (SOUTH AFRICA v. ISRAEL) - 26 January 2024 Order can be read and downloaded at:

https://www.icj-cij.org/sites/default/files/case-related/192/192-20240126-ord-01-00-en.pdf

The War on Gaza has entered its 10th week and nothing changes - a recounting in video clips

Yesterday, 10 December 2023 was the 75th Anniversary of the United Nation's Universal Declaration of Human Rights. 

The Universal Declaration of Human Rights was adopted by the UN General Assembly on 10 December 1948 during the tenure of Australia's Dr HV Evatt as President of the General Assembly. 

Australia had been on the UN Drafting Committee responsible for formulating the draft declaration and pushed for the declaration to include a covenant making it legally enforceable. Australia went on the become one of the original signatories to the final form declaration. 

Seventy-five years later...... 

On 10 December 2023 media sources stated that the death toll in the Gaza Strip was thought to be over 17,700 dead or missing presumed dead since Israel's sustained retaliatory bombardment began on 8 October 2023. UNWRA the UN relief & works agency confirms the vast majority of the dead are believed to be Palestinian civilians with an estimated 40 per cent being children, including newborns, infants and toddlers.

These deaths are now occurring in both the north and south of Gaza as Israel conducts its ground war.

"There is no safe place to go in the Gaza Strip" 

[Palestinian Health Ministry, 9 December 2023] 

The International Criminal Court (ICC) continues to investigate alleged crimes committed "in the occupied Palestinian territory, including East Jerusalem, since June 13, 2014". The Israeli Likud Government has refused the ICC and foreign media access to the Gaza Strip since 8 October 2023.

According to the World Health Organisation the Gaza Strip remains cut off from food, water, electricity, civilian telecommunications and health care, with little humanitarian aid allowed to pass though Israeli checkpoints.

The War on Gaza has entered its 10th week, nothing changes and Australia refuses to acknowledge those humanitarian obligations it espoused in 1948.

A recounting in video clips:

9 December 2023

[https://www.youtube.com/watch?v=vOe_6xoGXXA]

Note: Australia does not currently sit on the U.N. Security Council

7 December 2023

[https://www.youtube.com/watch?v=NtgfXG2Oimo]

BACKGROUND

[https://www.youtube.com/watch?v=CAuRU8wCG5w]

[https://www.youtube.com/watch?v=XJV3Tx2x56c]

[https://www.youtube.com/watch?v=1PsOw7hxiXs]

 

[https://www.youtube.com/watch?v=u24WzpCNKrY]

*Supplied transcript*

"And we will tell you, what we tell you every day.

We are coming to Gaza.

We are coming to Lebanon.

We will come to Iran.

We will come to everywhere.

Can you imagine how many we are going to kill?

How many of you, we are going to kill? On each of the 1,300 people you killed, kidnapped.

You did not see these numbers in all Arab history. i assure you, that it will come, in case you are confused.

I assure you it will come, Numbers that you did not imagine, that it is possible, it is possible to get them.

And we are ready to enter International Unity.

We are prepared to fight United States and the entire world.

How long it will take untill all of you, including all your supporters go up to meet Allah? We will kill, it will be clear. This is the sentiments.

So wait in the social media. Do a free palestine. Do all your crying. We will destroy you.

[https://www.youtube.com/watch?v=ZyKB1kwVbdY]

[https://www.youtube.com/watch?v=MYevQ467lA8]

DEEPER BACKGROUND

Twelve months ago on 11 December 2022......

Middle East Eye 

Far-right Israeli member of Knesset Zvika Fogel's disturbing response to Channel 4 Foreign Correspondent, Secunder Kermani, on how the new Israeli government intends to de-escalate the tension between Israelis and Palestinians in Israel and the occupied West Bank moving forward.

Tweets of the Week

Israel-Hamas war live: UN security council to vote on ‘humanitarian pause’; France expresses ‘serious concern’ over al-Shifa operation https://t.co/Qnp9II7l4j

— no_filter_Yamba (@no_filter_Yamba) November 15, 2023

"There is no way to physically transport them... when some people did try to leave the facility they were bombed."

We call for the protection of medical staff, patients and displaced civilians sheltered inside the hospital. We are extremely worried for their lives. #Gaza pic.twitter.com/v1UqfLHk9p

— Doctors Without Borders / Médecins Sans Frontières (@MSF_canada) November 15, 2023

"We can't move them out it's too dangerous... our problem is protecting the people of #Gaza from what's being visited upon them" - UN Relief Chief, Martin Griffiths for @UNGeneva⤵️ pic.twitter.com/nRt1RBYQba

— UN News (@UN_News_Centre) November 15, 2023

“I am deeply disturbed by the horrible situation & dramatic loss of life in several hospitals in Gaza.” –@antonioguterres calls for an immediate humanitarian ceasefire, in the name of humanity."https://t.co/hT01L9zPxx

— UN News (@UN_News_Centre) November 15, 2023

 

Reports of military incursion into Al-Shifa hospital are deeply concerning.

We’ve lost touch again with health personnel at the hospital.

We’re extremely worried for their and their patients’ safety.

— Tedros Adhanom Ghebreyesus (@DrTedros) November 15, 2023

UN expert Francesca Albanese: Under international law 'Israel “cannot claim the right of self-defence against a threat that emanates from the territory it occupies – from a territory that is kept under belligerent occupation”'https://t.co/Do380DNvbM

— no_filter_Yamba (@no_filter_Yamba) November 15, 2023

Francesca Albanese: "Israel has the sacrosanct right and duty to protect itself, its territory, its citizens. Although it tends to confuse a lot its own territory with the territory that it is trying to annex under occupation"...

— Greg Jericho (@GrogsGamut) November 14, 2023

Landmark High Court ruling delivered on 8 November 2023 in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023]

NZYQ is an undocumented stateless person whose age cannot be established, who entered Australian territorial waters by boat in 2012 seeking asylum.

The Minister for Immigration at that time was Labor MP Chris Bowen. During the subsequent years to date the following members of the government of the day have held that office: Labor MPs Brendan O'Connor & Tony Burke; Liberal MPs Scott Morrison, Peter Dutton, David Coleman, Alan Tudge (acting) & Alex Hawke; with the current incumbent being Labor MP Andrew Giles.

Since June 2017 NZTQ has been seeking resolution of his matter in the Australian lower courts and finally in the High Court of Australia in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 153 before the full Court.

Human Rights Law Centre, media release, 8 November 2023:

Indefinite immigration detention unlawful: High Court rules

The High Court has today ruled that it is unlawful and unconstitutional for the Australian Government to detain people indefinitely in immigration detention.

Nearly 20 years ago, the High Court upheld the constitutional validity of indefinite immigration detention in the case of Al-Kateb v Godwin. Today, a majority of judges of the Court overruled that decision. 

In this landmark legal challenge, brought by a person referred to by the pseudonym NZYQ, it was argued that Al-Kateb was wrongly decided, and that it is unlawful and unconstitutional for the Australian Government to continue to detain a person where there is no real prospect that they could be removed from Australia. 

Subsequent to the 2004 decision, attempts to overturn it failed. As a result, the Australian Government has routinely detained people for prolonged periods of time – some for over a decade. 

Today, the average period of time for which the Australian Government holds people in immigration detention is 708 days. There are 124 people in detention today whom the Government has detained for over five years. Many of those people are stateless or owed protection by Australia, meaning that they cannot be returned to their countries of origin as a matter of international law. 

The Human Rights Law Centre and UNSW’s Kaldor Centre for International Refugee Law appeared as amici curiae – friends of the court – to successfully argue that detention is unlawful for any person the Government is unlikely to remove in the foreseeable future.  

Quotes attributable to Sanmati Verma, Acting Legal Director at the Human Rights Law Centre:

“Indefinite detention ends today. The High Court has overturned a two-decades-old authority that allowed the Government to lock people up in immigration detention potentially for the rest of their lives. Today, the High Court held that the Government can no longer detain people if there is no real prospect that it will become practicable to remove them from Australia in the reasonably foreseeable future. Detention in these circumstances is unconstitutional.

“This has life-changing consequences for people who have been detained for years without knowing when, or even if, they will ever be released.

“The government must respect the constitutional limits of detention and act immediately to free people who have been indefinitely detained.”

Quotes attributable to Professor Jane McAdam AO, Director of UNSW’s Kaldor Centre for International Refugee Law:

“Indefinite detention has always been arbitrary and unlawful under international law. We welcome the High Court’s decision today, which will mean that Australia can no longer detain people for years on end. For decades, Australia’s approach to detention has been completely out of step with that of other democratic countries. As a result of this significant decision, this will now have to change.

“This is an important and long-awaited victory for human rights.”

Excerpt from NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCATrans 154 (8 November 2023), 8 November 2023:

AT 4.17 PM SHORT ADJOURNMENT

UPON RESUMING AT 4.33 PM:

GAGELER CJ: The order I am about to pronounce is the order of the Court with which at least a majority agrees. The Court will publish its reasons for the order in due course. The order is:

The questions stated for the opinion of the Full Court in the further amended special case filed on 31 October 2023 be answered as follows:

Question 1: On their proper construction, did sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the detention of the plaintiff as at 30 May 2023?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 2: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they applied to the plaintiff as at 30 May 2023?

Answer: Yes.

Question 3: On their proper construction, do sections 189(1) and 196(1) of the Migration Act 1958 (Cth) authorise the current detention of the plaintiff?

Answer: Yes, subject to section 3A of the Migration Act 1958 (Cth).

Question 4: If so, are those provisions beyond the legislative power of the Commonwealth insofar as they currently apply to the plaintiff?

Answer: Yes.

Question 5: What, if any, relief should be granted to the plaintiff?

Answer: The following orders should be made:

It is declared that, by reason of there having been and continuing to be no real prospect of the removal of the plaintiff from Australia becoming practicable in the reasonably foreseeable future:

(a) the plaintiff’s detention was unlawful as at 30 May 2023; and

(b) the plaintiff’s continued detention is unlawful and has been since 30 May 2023.

A writ of habeas corpus issue requiring the defendants to release the plaintiff forthwith. [my yellow highlighting]

Question 6: Who should pay the costs of the further amended special case?

Answer: The defendants.

The Court will now adjourn until 9.30 am tomorrow for the pronouncement of orders and otherwise until 10.00 am.

AT 4.36 PM THE MATTER WAS ADJOURNED

The Dept. of Home Affairs has reportedly stated that there are 92 detainees who were in a similar position to the Rohingya man, NZYQ.

Are We Still Locking Children Up & Throwing Away The Key in NSW? The number of minors who had spent time in police custody by the end of first three calendar quarters of 2022.

 

The Youth Justice system in News South Wales is being described with some justification in the mainstream media as being in crisis. Citing an increase in bail refusals sometimes apparently without sufficient cause, instances of segregation, and serious abuse, systemic failures, institutional racism, and neglect in youth justice facilities.

In NSW, like Victoria & WA, children at 16 years of age can be incarcerated in adult prisons in certain circumstances.

There are six youth detention centres in NSW with one being the Acmena Youth Justice Centre at South Grafton, which accommodates boys and young men aged between 10 and 21 years of age who have been sentenced or remanded in custody. Young women and girls may be held at Acmena YJC for short periods and accommodated in the Admissions Centre. Acnena was last scheduled for official inspected in January 2022 by the NSW Inspector of Custodial Services and an unflattering but factual media report of the findings of a 2021 inspection can be found here. A previous official inspection which also contained disturbing observations arrears to have been conducted in July 2019 with a follow-up visit in May 2020. 

By 30 June 2021 there were only 375 permanently funded youth detention centre beds in New South Wales, at which time there was an official daily occupancy average of 151 persons and a nightly occupancy average of 201.2 persons.

To place young offenders in police custody in 2022 into perspective, it is noted that from 1 January to 30 September 2022 there were 37,140 adults who had also spent time in police custody.

Total Young Offenders in NSW Police Custody from 1 January to 30 September 2022 [NSW Bureau of Crime Statistics and Research]:

585 individuals between the ages of 10 to 17 years inclusive.

That number represents an increase of 10 young people 

compared to the same period in 2021.

Of these 585 young people only est. 185 had been charged with an identifiably violent crime.

A total of 153 young offenders were recorded as “Sentenced” and 432 were listed as “On Remand”.

A total of 36 of these young offenders in police custody were female which represents a decrease of 8 girls compared to the same period last year. Of these 36 young female offenders only 10 were recorded as “Sentenced” and 26 were listed as “On Remand”.

There were 299 young offenders in police custody who identified as Aboriginal. This number represents an increase of 71 young individuals compared with the same period last year. Of these 299 Aboriginal young offenders only 59 were recorded as “Sentenced” and 240 were listed as “On Remand”.