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.
