Many people have strong opinions about the International Criminal Court (ICC). According to its supporters, who are less numerous now than previously, the ICC is an essential tool for ending impunity, since it provides a unique mechanism for prosecuting massive violations of human rights when governments are unable or unwilling to intervene. According to a growing number of critics, the ICC is costly and overly bureaucratic, and its prosecutions are selective and increasingly unsuccessful. Despite many differences, both supporters and critics are united around one central point: the public and official face of the ICC is only part of a much larger story. Most of the political and legal action takes place off stage, and can therefore be difficult to access and analyse.

The inner workings of the ICC present a number of methodological and ethical challenges for researchers. In this piece, I reflect upon my own experiences researching the ICC, which focused upon the legal and political pathways which resulted in the ICC criminalising wartime rape and forced marriage in times of armed conflict. I was especially interested in understanding the kinds of roles different states, organisations and individuals played in moving the ICC in specific directions, and what motivated them to do so. This meant analysing both official records of ICC negotiations and using semi-structured interviews with individuals who participated in these negotiations.

The official record of the ICC negotiations in the Preparatory Committee (1996 to 1998) and Preparatory Commission (1998 to 2002) includes United Nations documents, advocacy papers written by non-governmental organisations (NGOs), commentaries and recommendations. Many of these are publicly and easily available online, for example through the ICC Legal Tools database, UN databases such as the Official Document System of the United Nations and the United Nations Dag Hammarskjöld Library, and the website of the Coalition for the International Criminal Court. However, the official record focuses on the participation and contributions of states and does not record which NGOs participated in the ICC negotiations. It also does not specify which individuals within state and non-state delegations played key roles and why. Instead, states and organisations are portrayed as speaking with one voice, which does not do justice to the contributions of specific individuals and ignores disagreements within delegations. This already indicates that the official record documents outcomes, but not what brought them about.

But official documents are not simply incomplete. They can also be misleading, since they perpetuate stereotypes of international law as the realm of states – of states as unified actors, and of international law as an obscure process which takes place behind closed doors. Any attempt to set the picture straight needs to include the people who were behind those closed doors, or at least nearby. However, the idea of legal research that is informed by theory and includes empirical research is still met with scepticism by some legal scholars. They argue that doctrinal approaches are “important for the vitality of the legal system and of greater social value than much esoteric interdisciplinary legal scholarship”.

Using empirics to research the law

While I aim to make a case for empirical socio-legal research, it is important to remember that even that will only straighten the picture to some extent rather than tell the whole story. The interviews I conducted for my PhD research were limited by the incomplete information about the actors who participated in the ICC negotiations. Still, I sampled members of state and non-state delegations on the basis of analysing official documents. Additionally, research participants suggested other names who could also contribute. While this countered the incomplete record, it still did not shed much light on questions of individual contributions beyond those of the interviewees. Too much time had passed since the negotiations took place. Memory had faded and personal records had been passed on or destroyed.

I addressed the incomplete information about the motivation of individuals, state delegations and NGOs to become involved and their understanding of wartime rape and forced marriage by sharing a list of general themes, rather than questions, with the research participants before the interviews. Together with the semi-structured nature of the interviews, this gave me greater flexibility and the interviewees the opportunity to add what they saw as relevant for the research area and that might not have been included in the official record. For example, the interviews highlighted that Colombia became involved in the ICC negotiations of wartime rape and forced marriage because it was aware that it might be investigated by the ICC in the future. Therefore, it had an interest in shaping the definitions of crimes its citizens might be accused of – something I did not know going in to the interviews. The interviews also explained that the Colombian delegation’s understanding of wartime rape was informed by Colombia’s national criminal law at that time and the crime of ‘carnal access’, which included rape. Even though there was no definition, rape was understood as penetration by the penis. Lastly, the interviews emphasised that English was the official language of the ICC negotiations. However, only a minority of the Colombian delegates spoke English. Therefore, some of their proposals had to be introduced by one of the delegation’s advisors.

Additionally, the interviews highlighted that previous women’s rights and international justice work at the Vienna and Beijing conferences or at the ad hoc tribunals for the former Yugoslavia and Rwanda had motivated individual women’s rights activists and women’s organisations to become involved in the ICC negotiations on wartime rape and forced marriage as part of the Women’s Caucus. One research participant stressed that female survivors of war violence were also involved in the ICC negotiations as members of NGOs as well as through grassroots organisations that worked with them and asked them for feedback on proposals that an NGO wanted to put forward. The interviews indicated that, while the Women’s Caucus generally worked in a democratic and cooperative fashion, some members advanced themselves as leaders and considerably shaped the Caucus’ position.

The above indicates that interviews, like any mode of knowledge production, are subjective. The researcher’s and research participant’s backgrounds impact the research projects, processes, approaches and outcomes and we have to reflect upon them. Consequently, every research project only tells one of many stories and it has to be presented accordingly.

Working with the record of the ICC negotiations highlighted that it is not neutral and objective. Arguably, it was influenced by state-centric traditions of international law-making and focuses on outcomes rather than processes. It tells one of many stories of the ICC negotiations. Any research project that aims to establish an alternative, more comprehensive account of law-making processes needs to be deliberately designed to include empirical research. However, researchers have to be aware that even empirical research is unlikely to give the complete answer. It has to be acknowledged that the information constructed in empirical research is also constructed for a particular purpose and influenced by the researcher and research participants. It hopefully fills in some blanks, but it will still not be the complete story.

Compromise between incompatible interests

The interviews I conducted, for example, revealed that the ICC definitions of rape and forced marriage are a result of actors’ incompatible mandates that pulled them into different directions. The Women’s Caucus, for example, aimed to advance women’s rights whereas the Arab bloc wanted to maintain male privileges. The International Committee of the Red Cross aimed to preserve international laws while the Arab bloc wanted to protect their national norms and rules. To develop definitions of crimes that everybody could agree on, they had to meet somewhere in the middle. This led to definitions of crimes that are partly progressive and regressive and reflect international as well as national laws.

In addition to actor’s incompatible mandates, divergent or non-existent precedents influenced the ICC definitions of rape and forced marriage. While a majority of delegations supported a rape definition using the term ‘invasion’, a minority of delegations stressed that most national rape definitions use the concept of ‘penetration’. The Women’s Caucus and Costa Rica mediated between the two sides and developed a definition using both terms. Their proposal went beyond national rape definitions like that of Colombia and combined the Akayesu and Furundžija definitions – in Akayesu, the ICTR defined rape as an act of invasion and in Furundžija, the ICTY defined rape as an act of penetration. This shows that the wording of the ICC definition of rape is simply the greatest common denominator found between actors who sought to define rape as an act of invasion or penetration.

Comparing rape to forced marriage, rape had already been widely discussed before the ICC negotiation and various precedents existed. Forced marriage, in contrast, only began to appear on the international agenda at this time. Supported by the Final Report of the Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict, the consensus in the international community was that forced marriage was a form of sexual slavery. Keeping the need for unanimity in mind, this left no space for dissenting voices and consequently no space to develop a more progressive definition.

The above comments on the effects of divergent or non-existing precedents on the ICC definitions of rape and forced marriage indicate the influence of the differences in standing between states and NGOs. Non-state actors like the Women’s Caucus, for example, presented problems and solutions to state delegations and influenced their interests and actions this way. They were successful when an issue was already well-established, like the crime of rape at the time of the ICC negotiations. The Women’s Caucus could build on this solid base and raise issues regarding the definition of rape. Rather than sticking to their initial proposals and including rape as constituting other crimes like an outrage upon personal dignity, for example, states followed the caucus and listed rape in the Rome Statute as a separate offense as well as possibly constituting other crimes.

The Women’s Caucus was also successful in ‘teaching’ the Costa Rican delegation to advocate for a definition of rape using the term ‘invasion’ rather than ‘penetration’, as it initially advocated. In comparison, the caucus was less successful in influencing states’ interests and actions when an issue was not already well-established. Here, it is important to remember that, in the end, it was states who decided. For example, the caucus proposed to directly mention forced marriage as a form of enslavement and sexual slavery but the proposals were not adopted by state actors. Here, the (Supplementary) Slavery Convention, the report of the UN Special Rapporteur on the Situation of Systematic Rape, Sexual Slavery and Slavery-Like Practices during Armed Conflict, and the Foča indictment appeared to have been more influential than the caucus. Since the mere direct inclusion of sexual slavery was already new, interviewees suggested that delegates wanted to err on the side of caution in defining the crime so that they would not jeopardise their gains and potentially even the whole ICC project. Therefore, they refrained from more progressive definitions that could have explicitly included forced marriage and relied on established international rules like the (Supplementary) Slavery Convention in defining sexual slavery.

And finally, as the internal dynamics within the Women’s Caucus and its reception by other actors in the ICC negotiations shows, the interviews suggested that the work in coalitions impacted the ICC definitions of rape and forced marriage. While the work in coalitions enabled some actors to participate in the negotiations more actively, it also silenced conservative but also progressive voices.

So, my research tells the story that the ICC definitions of rape and forced marriage are the way they are and could not have been different because of actors’ incompatible mandates, divergent and non-existing precedents, the dynamics between state and non-state actors, and the work in coalitions.