Anglican and Uniting Churches across Australia have made headlines by offering sanctuary to those who stand to be returned to Nauru under the latest High Court ruling in M68, including 37 babies and a raped five-year-old whose attacker still resides there. In doing so, they have been rediscovering an old concept and reminding the government what refugee law was for in the first place.
The tradition of sanctuary is an ancient one. In the biblical book of Numbers, chapter 35 verses 11–32, the Israelites are commanded to establish cities of refugee to which those accused of homicide could flee.
The early and Mediaeval Church developed the concept into a penitential one. A criminal, sorry for their sins, could gain immunity by seeking sanctuary in a church.
This was particularly useful in the rather fluid legal environment of Europe in the centuries after the fall of Rome. Central authority was often lacking and the Church provided a functional system for meting out a basic form of justice. Sanctuary, often coupled with exile after a period of time, provided an escape valve and a way of avoiding brutal blood feuds lasting for generations.
Later Mediaeval canon law, increasingly influenced by the newly revived Roman law and the rise of the nation state, came to see sanctuary as a matter of jurisdiction. While the early church had seen it as part of a penitential process and a circuit breaker in resolving disputes, the new generation of Roman-trained canon lawyers saw it as a matter of jurisdiction — the state's rule stopped at the church door.
Needless to say, as nation states became more powerful, especially after the 16th century Reformations, that argument cut less and less ice with secular governments.
Instead, the concept of sanctuary got transferred onto the international law stage. Now, it was no longer the Church that was sacrosanct but the territories of other states. As a result, states dealing with each other would regard each other’s missions as sovereign territory or, at the least, immune from the law of the state on whose territory they were located.
As a result, the concept of protection in another country's embassy came about. This became a particularly well-used custom in Latin America and is far from dead — as seen in examples like that of Julian Assange and his long stay in the Ecuadorian Embassy in London.
The concept of territorial protection extended further. While refugee in exile and extradition treaties are as old as history, the law of extradition and asylum really only took centre stage in the 20th century, when detailed principles were developed as to when states would agree to extradite people to other countries — and when they would refuse.
A landmark in this area was the Refugee Convention of 1951, when countries around the world determined to take steps to avoid a repeat of the horrors of the Nazi Shoah.
In Australia, the wheel has now come full circle. The state is unwilling to accept its protection obligations under the Refugee Convention (at least in respect of people arriving by boat).
And the majority of the High Court has declared that it is also unwilling to make the state change its mind. A retrospective removal of the plaintiff's rights after the court case began, and a nominal transfer of Australia's obligations to Nauru, have sufficed to ensure that Justice's blindfold remains securely in place.
In these circumstances, where the organs of the state are (as in the Dark Ages) unable or unwilling to protect the vulnerable, it is the churches who are speaking out once again.
This is not without precedent. While churches have had no legal rights to grant sanctuary for centuries (and even Canon Law's provisions in this regard were finally removed by the 1983 Code), both Catholic and Protestant churches have, on occasion, granted informal sanctuary to asylum seekers in Latin America, the United States and Europe.
Their calculation has been that to have jackbooted troopers kicking down the doors of houses of worship would be such a bad look that the fear of a PR backlash would provide some degree of protection. It has, surprisingly, often worked.
Unfortunately, the record is not unmixed. The time spent in sanctuary takes its toll on people who are already damaged. In this case, they are likely to be even more so, since they have the combined legacies of overseas persecution and Australia's 'welcome' in Nauru weighing on them even before they enter upon a new life in hiding in a Church.
There is also no guarantee that the optics of kicking down church doors will matter to a government content to return a five-year-old into the vicinity of his rapist. There are examples of previous Australian offers of sanctuary increasing the government's determination to go through with deportation.
So this is no easy solution. Nevertheless, the offer of sanctuary does indicate the presence of people of good will who remember a tradition of offering shelter in the face of persecution and indifference. It speaks to the hope of penitence of changed hearts in a world grown cold to the cries of the suffering.
Time will tell whether or not, in this year which Pope Francis has designated as one of mercy, Australia's churches can help its government and people rediscover the meaning of sanctuary.
Justin Glyn SJ
First published in Eureka Street