Crimes Against Migrants and International Criminal Law
Since 2012, the Australian Government has sent asylum seekers to offshore detention on Manus Island (Papua New Guinea) and Nauru. A similar scheme of offshore detention is contemplated by the UK Government in their Nationality and Borders Bill.
Increasingly, international criminal law has been called upon to examine the treatment of migrants by states as they travel in search of protection. From 2014, at least seven communications to the Prosecutor of the International Criminal Court requested that the Prosecutor open a preliminary examination into Australia’s treatment of asylum seekers in its offshore detention centres on Manus Island and Nauru. The communications argued that the people in Australia’s offshore detention centres had been the victims of the crimes against humanity of deportation, imprisonment, torture, other inhumane acts and persecution. However, in 2020, the Prosecutor declined to open a preliminary examination into Australia’s conduct, ruling that the conduct did not amount to crimes against humanity within the Court’s jurisdiction.
The Prosecutor also received at least three communications concerning the treatment of migrants attempting to travel by boat from Libya to Europe. These communications addressed a range of harms experienced by migrants, perpetrated by state and non-state actors in Libya, as well as by officials and agents of the European Union. In 2022, the Prosecutor of the International Criminal Court, in his annual report to the Security Council on the Situation in Libya, highlighted that his investigation had expanded to include potential crimes against migrants. The Prosecutor noted that he had received ‘a wide range of credible information indicating that migrants and refugees in Libya have been subjected to arbitrary detention, unlawful killing, enforced disappearance, torture, sexual and gender-based violence, abduction for ransom, extortion, and forced labour.’ However, it is unclear what potential perpetrators the Prosecutor’s investigation is focusing on, and whether the Prosecutor’s investigation extends towards the complicity of the Global North in the crimes against migrants in Libya.
As the International Criminal Court slowly begins to focus on border crimes, the aim of this project is to situate the border violence of the Global North within international criminal law. The project is led by Natalie Hodgson, whose PhD dissertation Offshore Processing Torture: State Crime, Resistance and International Criminal Law explored the legality of Australia’s offshore detention policy under international criminal law.
In 2021, Natalie’s article on the use of international criminal law to challenge Australia’s policy of offshore detention was awarded the Australian Journal of Human Rights’ Andrea Durbach Prize.
In 2022, Natalie spoke at European Society of International Law Annual Conference, at the International Criminal Justice Interest Group, on ‘International Criminal Law and the Global North: Turning the Master’s Tools Against the State?’