International criminal law and civil society resistance to offshore detention

Abstract

ABSTRACT Since 2014, six communications have been made to the Office of the Prosecutor (OTP) at the International Criminal Court (ICC) regarding Australia’s offshore detention of asylum seekers. Applying Green and Ward’s framework of civil society resistance to state violence, this article explores how those communications drew on international criminal law’s legal and expressive functions to label, uncover and sanction Australia’s offshore detention regime. Article 15(1) of the Rome Statute created a communicative space for civil society to engage directly with the Prosecutor and indirectly with the Australian Government, the Australian public and the international community. Through Article 15(1), civil society employed expressive messaging to resist offshore detention, prior to any overt action from the ICC or the Prosecutor. Fundamental to this resistance was international criminal law’s normative expressive function; that is, the ability of international criminal law to articulate and reinforce norms and values to build support and solidarity among the international community. In 2020, the OTP declined to formally open a preliminary examination into the situation in Australia. While some aspects of this decision had the potential to undermine the objectives pursued by the communications, other aspects were used by civil society to continue to advocate against offshore detention.