Tony Abbott’s policy of turning back the boats and returning asylum seekers to Indonesia risks Naval officers breaking the laws of the sea and other international treaties of which Australia is a party to, according to a former Royal Australian Navy commanding officer and a Master Mariner.

“I find it almost unconscionable that Australian politicians are now contemplating the introduction of policies that might soon require the Navy to be party to the imperilling of life at sea,” the officer, who wanted to remain anonymous, told Crikey.

“Firstly, there is a need to recognise that, under customary international law of the sea, all mariners have a duty to save the lives of others in peril without expectation of reward.”

Captain Richard Morris, another Master Mariner, agrees. “As a master mariner and as a captain, there is no question: if I was at sea, it doesn’t matter what vessel I was on — a cargo ship, a superyacht, or as a commander of an Australian Customs vessel — if someone is in distress there is no other course of action other than to offer assistance,” he told Crikey. “It doesn’t matter about the situation, it overrides everything. It is the Law of the Sea.”

As the anonymous ex-officer said: “So, depending on the circumstances, an act of turning back a boat containing asylum seekers who claim to be in peril, particularly if that act forms part of some widespread or systematic practice, could leave our commanding officer open to charges under international law.”

They noted that Australia is a party to the 1998 Rome Statute of the International Criminal Court and that “the commanding officer might also be advised to consider some relevant provisions concerning one of the crimes that come within jurisdiction of the court: crimes against humanity”.

The part of the Crimes Against Humanity article that may apply here would be the “Deportation or forcible transfer of population” section which “means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law”. It is not illegal to claim asylum.

And that’s not the only charge under which this commanding officer might be liable, says the anonymous former naval officer, who notes that under the article 25(3) “Command Responsibility” provision contained within the Rome Statute: “A person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person … [o]rders, solicits or induces the commission of such a crime which in fact occurs or is attempted”.

The anonymous officer added: “Our commanding officer would also do well to remember that, should a criminal charge eventuate, a defence of ‘only following orders’ is likely to hold little sway in such a court. Under the article 33 ‘Superior Orders’ provision contained within the Rome Statute, the ‘fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility’. Crimes against humanity, by definition, are manifestly unlawful.”

These legal issues should be “at the forefront of the mind of any naval commanding officer who may soon be faced with such a dilemma”, according to the ex-seaman.

They join the throng of voices — including the former chief of the Australian Defence Force Admiral Chris Barrie and the Australian Defence Association — condemning the Coalition’s policy of turning asylum seeker boats around.

Morris says the actions of the Indonesian boat crews should also be more carefully scrutinised, since they are also ignoring legal standards.

“They are operating under the radar, literally,” he told Crikey. “Normally a vessel coming into Australian waters would announce their presence to the Australian government through the AUSREP Ship Reporting system, where they report every few hours on their speed, course and position. But because they are coming in illegally, they are not in that system and if they get into trouble, their predicament may not be known to the search and rescue authorities.”

The area between Java and Christmas Island is less than 200 miles, but it is prone to cyclones and subject to oceanic weather patterns, notes Morris. “Sometimes it is flat and calm, other times it is very rough. There is nothing calm and sedate about that stretch of ocean as was tragically demonstrated in Christmas Island a few years ago. Increasingly the Indonesian boat crews are proving that they have a possible criminal disregard for the safety of their passengers, putting to sea in boats that are unsuitable, overloaded, without appropriate lifesaving gear, and they are taking them into bad weather conditions which just increase by tenfold the risks, carrying the load that they do in grossly unseaworthy vessels,” he said.

Late last year navy chief Vice-Admiral Ray Griggs warned Senates Estimates of the dangers of returning boats to Indonesia, saying: “There have been fires lit, there have been attempts to storm the engine compartment of these boats, there have been people jumping in the water and that sort of thing.”

Peter Fray

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