Can the International Criminal Court Deter State Crime? An Australian Case Study

Ms Natalie Hodgson1

1UNSW Law, ,

The International Criminal Court (ICC) was created to prosecute ‘the most serious crimes of concern to the international community’, namely genocide, war crimes, crimes against humanity and aggression. In this sense, the ICC is a unique accountability mechanism with the potential to investigate and prosecute powerful state actors who might otherwise act with impunity. Since 2014, five communications have been sent to the Office of the Prosecutor at the ICC, calling for an investigation into Australia’s treatment of asylum seekers and refugees. However, despite there being an arguable case that Australia has committed crimes against humanity, the prospect of ICC prosecution appears to have had little, if any, effect in prompting change to Australia’s system of offshore detention. In this paper, I adopt a criminological perspective to understand why this is the case. By drawing on insights from deterrence theories, I explore the features of the ICC that hamper its ability to effectively deter crimes, with specific reference to the example of communications concerning Australia’s border protection policies. While some of the limitations to the ICC’s ability to deter crime are consequences of the ICC’s institutional structure, others can be more easily remedied. I conclude by suggesting how the Office of the Prosecutor and the ICC could enhance the Court’s deterrent effect moving forward.


Natalie Hodgson is a Scientia PhD candidate and Teaching Fellow in the Faculty of Law, UNSW Sydney. She has a Bachelor of Arts (Criminology) (Hons I) / Bachelor of Laws (Hons I) from UNSW Sydney and received the University Medal in Criminology for her research on female defendants in international criminal tribunals. Her PhD thesis examines criminal responsibility for state crime in Australian and international criminal law.


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