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 others' 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