Complementarity’s Gender Deficits – Analysing interactions between the ICC and national accountability processes for sexual violence crimes in Colombia and the DRC
When the Rome Statute of the International Criminal Court (‘ICC’ or ‘the Court’) entered into force in 2002, the relationship between international criminal law and the national law of those states that ratified became defined by the principle of complementarity: the ICC is a complementary court of last resort. The idea of positive complementarity, whereby actors at the international level (notably the ICC) encourage, facilitate or assist national authorities to deliver justice for Rome Statute crimes, grew out of this jurisdictional restriction and out of a realisation that the ICC simply cannot be the cure-all for international criminal justice everywhere.
My thesis focuses on this relationship between international and national criminal law: it analyses interactions between the ICC and national accountability processes for sexual violence crimes in Colombia and the DRC and questions whether, and if so how, Rome Statute norms around accountability for sexual violence have become active and effective in those national settings (a process I refer to as “domestication”). Analytically, my thesis relies on norm diffusion and translation theories in international law and human rights, such as Harold Koh’s transnational legal process, Karen J. Alter’s ’embedded international law’, or Sally Engle Merry’s theory of vernacularisation. Through a comparative analysis of interactions in the two national contexts, this thesis aims to identify variables that facilitate or inhibit positive synergies between ICC and state practice in relation to accountability for sexual violence. This research aims to develop a more nuanced understanding of positive complementarity within international criminal law, and serves to clarify and respond to claims around its catalyst impact.
To take into account some of feminism’s concerns around the law’s capacity to bring substantive change for harms suffered by women and challenge gendered assumptions in (international) criminal law, I focus on a broader understanding of accountability, inclusive of punitive, restorative, and reparative justice. However, as the thesis shows, within the current legal discourse on positive complementarity, the emphasis has remained on the retributive dimensions of justice for international crimes, which has consequences for positive complementarity and sexual violence.