Exploring the International Criminal Court’s Deterrent Potential

Author:

Hodgson Natalie

Abstract

Abstract Despite proclamations that the International Criminal Court (ICC) will deter the commission of international crimes, empirical support for such a proposition is mixed and there is much that is still unknown about the ICC’s deterrent potential. In this article, I add to knowledge on the ICC and deterrence with a case study of the ICC’s impact on government decision-making in Australia. Through a thematic analysis of Australian parliamentary records, I explore four instances where the potential for prosecution at the ICC was raised because of a government decision or policy, with a focus on the possibility of Australian politicians being prosecuted concerning Australia’s refugee policy. The fact that the risk of prosecution at the ICC was raised in parliamentary debates suggests that the ICC is capable of featuring in government decision-making and thus could have a deterrent effect. However, with respect to Australia’s refugee policy, the risk of prosecution at the ICC was outweighed by domestic political considerations, and hence this study found that the ICC had little to no deterrent effect on the government in that case. The perceived uncertainty of ICC prosecution was a key factor hindering the ICC’s potential for deterrence, and I suggest that this could have a flow-on effect, hindering the potential for extralegal sanctions to produce any deterrent effect and additionally undermining attempts at positive complementarity. For the ICC to realize its deterrent potential, the perceived certainty of prosecution must be increased.

Publisher

Oxford University Press (OUP)

Subject

Law,Sociology and Political Science

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