Mr Burnside told Lawyers Weekly it was his personal view that Mr Abbott and Mr Morrison, as well as politicians responsible for the mistreatment of boat people in previous Liberal and Labor governments, are guilty of crimes against humanity.
“I’ve looked at it pretty carefully for quite a long time and I don’t think there is much scope for argument about it.
“The fact that our mistreatment of asylum seekers amounts to a crime against humanity, I think, is fairly clear,” he said.
Mr Burnside said he was preparing a communiqué to the ICC and was hoping that lawyers with international reputations might be prepared to lead the charge.
“Geoffrey Robertson has a great deal more experience in international criminal matters than I do… Amal Clooney is in the same chambers as Geoffrey Robertson and does a lot of human rights work," he said.
“My ideal outcome [is] that [they] would in effect champion a communiqué to the ICC.”
Mr Burnside said it was too early to tell whether these lawyers would be prepared to offer their support.
He said he did not expect that the ICC would have the resources to actually prosecute Australian politicians but was hopeful that an ICC investigation could be launched.
This alone would help send the message that the government’s asylum seeker policies fly in the face of core Australian values and beliefs, according to Mr Burnside.
“[The ICC] has a lot of more important things to prosecute at the moment but I thought if they were to start an investigation then a lot of Australians that are otherwise unconcerned about these things might sit up and take notice,” he said.
While the use of torture reported recently by the UN Special Rapporteur “was flicked aside dismissively by the prime minister”, an ICC investigation could not be so easily disregarded, continued Mr Burnside.
“Seventy per cent of the Australian public get their news from the Murdoch press. If Geoffrey Robertson and Amal Clooney took the communiqué to the ICC and the ICC began investigating the conduct of the Australian government, that’s the sort of thing that even the Murdoch press would have trouble ignoring,” he said.
“It is all about getting the message through to the voters who have been misled for more than a decade by politicians who won’t tell the truth about what we are doing,” he added.
Mr Burnside said the recent Forgotten Children report and the Moss Review, which highlight human rights abuses on Manus Island and Nauru, would form part of the evidentiary substrata of his communiqué but said he would not pretend to do the ICC’s investigation himself.
Late last year, independent federal MP Andrew Wilkie wrote to the Office of the Prosecutor of the ICC inviting them to prosecute Mr Abbott and his cabinet.
Mr Burnside said his appeal was “more modestly aimed at simply getting [the ICC] to say they are going to investigate” and was therefore more likely to succeed.
While naming Mr Abbott and Mr Morrison as the “two most recent candidates”, Mr Burnside said that “this sort of conduct has been going on since 2001, arguably before”.
“Scott Morrison is probably the worst of the worst, [but] he’s not the only one and I would not wish this to be seen as a partisan attack on the coalition,” he said.
The ICC makes a point of prosecuting individuals rather than abstract entities such as governments. With numerous governments complicit in the indefinite mandatory detention of boat people, the list of politicians with ‘blood on their hands’ is potentially quite extensive, according to Mr Burnside.
Lecturer in international law at University of Newcastle Amy Maguire wrote in The Conversation that if the ICC were to initiate a prosecution, the Australian government would reject the ICC’s jurisdiction and refuse to volunteer its officials for trial in The Hague.
Mr Burnside said he did not believe Australia, a party to the Rome Statute of the ICC since 2002, would simply ignore or sideline requests to extradite officials, although this has never been put to the test.
Signatory states are required to surrender persons called to The Hague. Thus, even if refuge could be found in Australia, politicians wanted by the ICC would find it very difficult to travel overseas without being arrested and extradited to The Netherlands to face trial, he added.
Mr Burnside said Australian politicians could be found guilty under Australian law, since one of the conditions of joining the ICC is to integrate the provisions of the Statute of Rome into domestic legislation.
However, prosecution under this section of the Commonwealth Criminal Code requires the blessing of the attorney-general.
“I don’t think George Brandis is going to go out of his way to give this a push along. Where the activity you are concerned about is a matter of government policy the prospect of a local prosecution falls to zero,” he said.