Complementarity’s Gender Justice Prospects and Limitations Examining normative interactions between the Rome Statute and national accountability processes for sexual violence crimes in Colombia and the Democratic Republic of Congo Dieneke de Vos Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Florence, 12 October 2017 European University Institute Department of Law Complementarity’s Gender Justice Prospects and Limitations Examining normative interactions between the Rome Statute and national accountability processes for sexual violence crimes in Colombia and the Democratic Republic of Congo Dieneke de Vos Thesis submitted for assessment with a view to obtaining the degree of Doctor of Laws of the European University Institute Examining Board Professor Ruth Rubio-Marin, European University Institute (Supervisor) Professor Nehal Bhuta, European University Institute Professor Morten Bergsmo, Peking University Law School and the Centre for International Law Research and Policy Professor Susana SáCouto, American University Washington College of Law © Dieneke de Vos, 2017 No part of this thesis may be copied, reproduced or transmitted without prior permission of the author Researcher declaration to accompany the submission of written work Department of Law – LL.M. and Ph.D. Programmes I , Dieneke de Vos, certify that I am the author of the work ‘Complementarity’s Gender Justice Prospects and Limitations: Examining normative interactions between the Rome Statute and national accountability processes for sexual violence crimes in Colombia and the Democratic Republic of Congo’, which I have presented for examination for the Ph.D. at the European University Institute. I also certify that this is solely my own original work, other than where I have clearly indicated, in this declaration and in the thesis, that it is the work of others. I warrant that I have obtained all the permissions required for using any material from other copyrighted publications. I certify that this work complies with the Code of Ethics in Academic Research issued by the European University Institute (IUE 332/2/10 (CA 297). The copyright of this work rests with its author. Quotation from this thesis is permitted, provided that full acknowledgement is made. This work may not be reproduced without my prior written consent. This authorisation does not, to the best of my knowledge, infringe the rights of any third party. I declare that this work consists of 124,665 words. Statement of inclusion of previous work (if applicable): I confirm that parts of chapter 3 draw upon: Dieneke de Vos, ‘Case Selection and Complementarity at the International Criminal Court: Exposing the Vulnerability of Sexual and Gender-Based Violence Crimes in the Admissibility Test’, in Morten Bergsmo (Ed), Thematic Prosecution of International Sex Crimes, 2nd Edition (Beijing: Torkel Opsahl Academic EPublisher, forthcoming 2017). Statement of language correction (if applicable): N/A Signature and date: 12 July 2017 SUMMARY OF THESIS Despite the centrality in the Rome Statute of both the principle of complementarity and gender justice norms, little research exists connecting these two core ideas. Using Harold Koh’s transnational legal process theory, this thesis seeks to fill that gap by analysing normative interactions between the Rome Statute and national accountability processes for sexual violence crimes in Colombia and the Democratic Republic of Congo (DRC). It examines how, why and in what way the Rome Statute’s gender justice accountability norms and standards have been domesticated in these two countries, and what this reveals about (positive) complementarity as a tool in the fight against impunity for sexual violence. This analysis starts from a doctrinal analysis of gender justice pressure points in the ICC’s admissibility framework, but also seeks to investigate the practical application of (positive) complementarity in both Colombia and the DRC. This analysis ultimately demonstrates that, while the existence of the ICC (as an institution) is important, most developments around accountability for sexual violence, while often grounded in the idea of complementarity and linked to the Rome Statute, happen through the actions of other actors. The ICC’s constitutive documents and the norms and standards around accountability for sexual violence enshrined therein, on the other hand, have provided an important normative impetus for these developments, particularly where catalysed by civil society organisations and domestic political actors acting as norm entrepreneurs. This thesis thus aims to contribute to illuminating both the prospects and the limitations of (positive) complementarity as applied to the fight against impunity for sexual violence crimes. ACKNOWLEDGEMENTS “De juiste keuze, is de keuze waar je energie van krijgt.” – Margreet Boesveldt, geschiedenisdocent, Baarnsch Lyceum, 2000-2006 As a fourteen-year-old high school student in the Netherlands, I never would have guessed that my history class would turn out to play such an important role in shaping my future career choices. I didn’t know it then, but it was ultimately two research projects in Ms Boesveldt’s class in Baarn – one on the Khmer Rouge in Cambodia, and one on Aletta Jacobs, the first woman to become a doctor and an avid women’s rights advocate in the Netherlands – that have shaped me and my career choices. I owe her a great debt, for inspiring me all those years ago and when I did not even know it myself, to seek a path that combines international criminal law and women’s rights. Professor Marjolein van den Brink’s encouragement years later in Utrecht really cemented my interest in this field, which ultimately led me to writing this thesis. I also wish to thank Professor van den Brink for her continued encouragement all these years. Doing a PhD is never the work of one person alone, and the list of people that have supported me at various times throughout these past four years is long; I am forever grateful for their friendship and encouragement. They know who they are, and I thank them from the bottom of my heart. There are a few people, however, I wish to mention by name. Thank you to my supervisor, Professor Ruth Rubio-Marin, for her supervision and for having my back when I most needed it. Thank you, Michele & Ismail, for giving me a home in Kinshasa; and Lauren for making my stay in Bogota so much better – my fieldwork would not have been the same without all of you. Thank you, Ingrid, Emily, Niamh, and Carrie, for getting me through 2016, when I seriously doubted whether it was all worth it. Thank you to my flatmate, Ciara, for our endless discussions about ICL and IHL, often deep into the night, and many an international law related movie with a glass of Baileys. And thank you to my ‘Florentine family’ both near and far – in particular Elena, Maria, Marianna, Mathilde, and Waltraud – for sharing the ups and downs of this extraordinary journey with me. Last but certainly not least, thank you to my parents, Tet and Jan, and my sisters, Machteld and Hanna – this thesis would not exist if it were not for your constant love and support. I wish to thank Professor Morten Bergsmo for his kind, encouraging words in the early stages of this research, and for encouraging me to publish parts of it as I went along. I also wish to thank him and the other jury members, Professor Nehal Bhuta and Professor Susana SáCouto, for agreeing to sit on my panel and providing me with their insightful comments. One issue I felt very strongly about in undertaking this research was to listen to the voices of those who work to make international criminal justice a reality on a daily basis. I feel fortunate to have had the opportunity to travel to some of these places, conducting fieldwork at the ICC in The Hague, in Kinshasa (DRC), and in Bogotá and Medellín (Colombia). My fieldwork was in part funded by the Law Department of the EUI, and I thank the Head of Department, Professor Giorgio Monti, for his willingness to extend additional research mission funds for this purpose. Visiting these places and speaking to so many people there has inevitably shaped my understandings and gave my thesis greater depth. A small number of these interviews I carried out in the context of a consultancy position I held with the International Federation for Human Rights (FIDH) in 2016. I thank the interviewees and FIDH for agreeing to the dual use of this select number of interviews. Of course, the views expressed in this thesis can in no way be attributed to FIDH. Although I cannot individually name my interviewees, I am eternally grateful to everyone I have come across during my fieldwork, and everyone who so selflessly dedicated their time to speak to me about their work and their impressions of the Rome Statute and the ICC, in Colombia, the DRC, Brussels, The Hague and, occasionally, via Skype. I can only hope that I have done your invaluable insights justice. I also benefited from an eight-month stay in the International Cooperation Section of the Office of the Prosecutor’s Jurisdiction, Complementarity, and Cooperation Division in 2015. I am grateful to all my colleagues there, in particular Miia Aro-Sanchez, Fabio Rossi, and Antônia Pereira De Sousa, and to Prosecutor Fatou Bensouda for offering me a chance to work with her Office. The informal interactions with many of my colleagues there, in addition to the interviews I carried out while there, have informed my thesis in important ways. Of course, my views expressed here can in no way be attributed to the Office of the Prosecutor, or the ICC, and any mistakes are mine alone. In memory of Alina Maria Vlad, who left this world much too soon, but leaves behind a legacy of love, laughter, incredible strength, and kindness.