Exploring the catalytic potential of the International Criminal Court in preliminary examinations: the role of norm-interpretive interactions in catalysing national prosecutions of sexual violence in Colombia and Guinea

Abstract

The problem investigated by this thesis is the continuing impunity for international crimes of sexual violence, notwithstanding States’ international legal obligations to investigate and prosecute these crimes and the creation of the International Criminal Court (ICC) intended to end their impunity. Operating on a complementary basis to national jurisdictions, the ICC’s goal is that States comply with their international obligations to exercise criminal jurisdiction over those responsible for international crimes. To promote this goal the ICC Office of the Prosecutor (OTP) has pursued a policy of positive complementarity to encourage and catalyse genuine national investigations of international crimes. Using a qualitative case-study methodology including desk and empirical research in Colombia and Guinea, this thesis offers both a theoretical and empirical contribution to the literature.

First, it offers a theoretical explanation, based on Koh’s Transnational Legal Process (TLP) theory, of how the OTP could catalyse national investigations and prosecutions of international crimes of sexual violence. Second, it contributes to empirical literature through field research on national proceedings regarding international crimes of sexual violence in two States under preliminary examination: Colombia and Guinea.

The data demonstrates that TLP does generally explain how the OTP’s engagements with various actors may induce or affect State investigations for crimes under OTP scrutiny. However, the discrepant lack in competence, frequency and adequacy between State responses for sexual violence crimes compared to other crimes was not well explained by TLP. As predicted by the thesis and consistent with feminist critiques of international and criminal law, TLP, as a gender-neutral compliance theory, could not account for this disparity. The empirical trends emerging from the two contrasting contexts indicate that explicit prioritisation of sexual violence crimes and a more nuanced gender-sensitive strategy by the OTP will yield more—and better quality—national investigations and prosecutions for international crimes of sexual violence. These findings inform recommendations on how to improve TLP’s explanatory capacity in relation to gender-based international obligations and the OTP’s catalytic influence on national proceedings for international crimes of sexual violence.