Argument Continued

B. Admissibility

In addition to the questions about the Court’s jurisdiction, there is an additional issue of admissibility. Specifically, under Article 17(1) of the Rome Statute, a case over which the Court could otherwise exercise jurisdiction is inadmissible if either:

1. a State satisfies the complementarity principles described in subsections (a), (b), or (c) of that provision, or

2. under subsection (d), “the case is not of sufficient gravity to justify further action by the Court.”

Article 17 is written to apply to the admissibility of a specific “case,” but the same general ideas are relevant when, under Article 53, the Prosecutor decides whether to initiate an investigation of a “situation” in the first place. However, at the point at which he or she is deciding whether to commence an investigation, the Prosecutor will not have identified particular cases to bring to trial and looks instead to potential cases that might be brought.6

There is also an additional admissibility-like provision—set out in Article 53(1)(c)—which provides that the Prosecutor, in deciding whether to commence an investigation, should also consider whether there are “substantial reasons to believe that an investigation would not serve the interests of justice.” Taken together, these three elements—complementarity, gravity, and the interests of justice—narrow what would otherwise pass through the aperture as a suitable matter for the Court to take up.

Are there crimes that that fall outside these jurisdictional and admissibility rules that warrant the attention of the international community? Of course. Are there victims of other crimes whose plights should not be forgotten and whose rights deserve to be vindicated? Of course. So why create an ICC that is so limited? The framers of the Rome Statute needed to balance many considerations. Some kinds of cases—perhaps terrorist attacks—may be every bit as egregious but less amenable to prosecution before a new international court, or in comparatively less need of a fail-safe mechanism to guard against states pursuing cases with insufficient zeal. Others were excluded to help ensure that states have confidence “that their sovereign right to try crimes […] would not be encroached upon”7 and to frame the Court’s mandate in a way that would help it develop and maintain the support from other international actors that it requires in order to thrive. In a more general sense, the Court, like all international (and indeed domestic) institutions, has finite resources. It must compete for those resources with other priorities—global health, environmental, and development, just to name a few—and needs to make decisions about the kinds of situations and cases to which its resources and energies are best directed. These are the kinds of considerations to which the inclusion of the various aperture-control provisions in the Rome Statute were implicitly responding.

II. Concerns About the Aperture

All these provisions were of course agreed upon at Rome. At least in some quarters, however, there is lively debate about their interpretation and application, and about the number of preliminary examinations and investigations in which they have led the Court to become involved. Thus, although the Independent Experts Report did not use the word, “aperture” was a key point of departure for their analysis. They reported that, in the course of their consultations, they “repeatedly heard concern that the Court should focus on a narrower range of situations, and limit its interventions to the extent possible, focusing on situations.” In the face of concern that the Court is spread too thin to operate successfully, they concluded:

While it is a prospect that would be disappointing for many, and further restrict the already limited jurisdiction of the Court, the current situation is unsustainable having regard to the limited resources available.8

For their part, the Independent Experts recommended that the Prosecutor consider adjusting the aperture by raising the gravity threshold when considering what situations to investigate (though they did not make clear how they would calculate either the existing gravity threshold or their recommended replacement).9

The OTP appears to have accepted the Experts’ logic at least in part. “It is true,” said the OTP in responding to the Experts’ recommendations, “that, in order to succeed, the OTP must connect the ends it wishes to achieve with the means it has available to achieve them.”10 It said, however, that “insofar as [gravity] is applied as a legal threshold under the Statute, [it] cannot be addressed unilaterally by the OTP, since it will be subject to judicial review.”11

III. Admissibility and Jurisdiction in Practice

Lying beneath the surface of all this are questions about the manner in which the Rome Statute provisions on admissibility and jurisdiction have been interpreted and applied in practice.

A. The Gravity Threshold

The Chambers that have addressed the issue do not appear to have assigned gravity a significant filtering role. For example, according to the Appeals Chamber in last year’s Al Hassan decision, the four crimes over which the Court has jurisdiction are by definition the most serious crimes of international concern and these crimes “are, in principle, of sufficient gravity to justify further action.”12 In the view of the Appeals Chamber, it thus follows that the gravity test aims only at excluding “rather unusual cases” and that the purpose of the gravity requirement “is not to oblige the Court to choose only the most serious cases.”13 The Pre-Trial Chamber in the Comoros case was even more emphatic, saying that gravity “is not a criterion for the selection of the most serious situations and cases,” but rather is only “a requirement for the exclusion of (potential) cases of marginal gravity.” It further said that the gravity test is met if a situation gives rise even “to only one potential case that is not of marginal gravity.”14

Such a conception of gravity, and such an approach to selecting situations, could involve the Office of the Prosecutor in far more situations than those in which it is currently involved. It certainly seems a far cry from “the holocaust, the killing fields of Cambodia, and the genocide in the former Yugoslavia and Rwanda” that the newly-elected prosecutor has reminded us those present in Rome invoked as warranting the Court’s creation.15 For each of these, the selection of the situations that would be subjected to the scrutiny of the tribunal reflected an assessment of the overall level of atrocities that had been perpetrated and not simply the existence of particular cases.

This approach is particularly striking when combined with the Court’s jurisprudence interpreting and applying Article 53, which has regularly emphasized that—at least in situations that are referred—the mandatory nature of the wording of Article 53 (“the Prosecutor shall […] initiate an investigation”)16 leaves the Prosecutor without discretion to decline to investigate if the conditions under the Rome Statute are met.17 Thus, the Pre-Trial Chamber in the Comoros case concluded that, if the conditions are met, “the Prosecutor is duty-bound to open an investigation.” According to the Chamber, the Prosecutor would then have discretion to refrain from going forward only if he determines “that such an investigation would not serve the interests of justice,” which the Court treats as a policy factor rather than a factor going to the issue of admissibility.18 The result of all this has been a gravity test that plays a less robust role than it might in the process of filtering what situations will progress from preliminary examinations to investigations. Indeed, once there is found to be a single case that justifies the opening of an investigation, other incidents need not be “closely linked” to that one case in order also to be subject to that investigation. The result is an even wider aperture opening in terms of what the OTP can then choose to pursue.19

One reason so much attention flows to the issue of gravity is that the Rome Statute is worded in a way that would seem to make it an inviting target for playing a stronger role in aperture adjustment. Thus, Article 17 of the Statute simply says that a case must be “of sufficient gravity to justify further action by the Court.” The word “sufficient” can readily be interpreted as involving an assessment that takes into account the resources that an investigation of the situation would be expected to consume, and the alternative uses to which the Court might otherwise put those resources, in determining whether the gravity of a specific situation of case is “sufficient.” To give an admittedly over-simplified example: if the Prosecutor has resources for only one investigation, a situation involving one hundred atrocity victims may well not entail sufficient gravity if there is an alternative situation involving one million victims, but it might well do so if the alternative situation involved ten victims.

B. Complementarity and the Interests of Justice

Although not addressed by the Independent Experts in these terms, one can also imagine the principles of complementarity and the interests of justice as playing stronger roles in filtering than they presently do.

1. Complementarity

Much about complementarity is enigmatic. The basic principle is simple enough—the ICC should only step in where states are unable or unwilling to do so in a genuine manner—though at least arguably the words of the Rome Statute do not quite match this basic principle. Among other things, the principle of complementarity can help conserve the Court’s resources, defer to local actors who may well have a better understanding of local circumstances, promote local ownership of the process and development of local justice institutions, encourage states to implement their responsibilities to address these problems, allow and encourage states to self-correct, and reduce the number of situations in which the ICC might clash with states in ways that states would likely see as intruding on their sovereign rights. Questions about deferral under the principle of complementarity issues can, however, be particularly thorny, including because the same local actors to whom the Court would defer may well be aiming their efforts at shielding rather than prosecuting those responsible for alleged crimes. Nevertheless, one could easily imagine the principle of complementarity being applied in a manner so as to concentrate on—to allow to pass through the aperture—those situations in which the shielding is the most egregious or the most systematic, on the principle that this represents the heart of what the ICC was created to safeguard against.

In practice, the application of the complementarity principle, including the use of “same person/same conduct” and “inactivity” tests, has led to at least some criticism that the principle is being applied in a too “mechanistic” manner.20 The “inactivity” test was developed in the context of early self-referrals in the DRC and Uganda and helped avoid the need to show that those states were “unwilling” to prosecute in order for the ICC to exercise jurisdiction as the states had requested. Would it be palatable to assert that Uganda was at the time “unwilling” to investigate or prosecute members of the LRA who had perpetrated atrocities? The question could be avoided if the simple fact that Uganda had not done so was sufficient to make the matter admissible. At least from a policy perspective, however, situations in which a state has self-referred may present a poor model when figuring out how to balance the various equities that the Court must confront when facing a state that is contesting the need or propriety of ICC involvement. A different balancing may thus be appropriate in cases in which a state is not requesting the Court’s assistance, with greater deference given a state’s decision not to pursue criminal cases, at least if its failure to do so does not establish that it is driven by an intent to shield the perpetrators.

Beyond questions like this, there are also broader policy questions about whether the ICC might adjust its aperture to take into account responses that do not involve traditional criminal prosecutions, or that involve other forms of genuinely coming to terms with the past, in determining whether a state’s response is so inadequate that an ICC investigation of the situation should be pursued.

The more mechanistic approach to complementarity that the Court has applied can also interplay with the logic of the Court’s decision in the Comoros case that an investigation should be commenced—indeed that the Prosecutor may be required to commence an investigation—if there is even one potential case that would be admissible. Under a version of these principles under which greater reliance is placed on complementarity-related principles for filtering, the Court might look more broadly to the actions of the state in question, as opposed to the existence of particular cases; more squarely zero in on shielding and non-genuineness; and take account also of forms of accountability and coming to terms with the behavior in question that do not involve traditional criminal prosecutions or that otherwise involve other forms of genuinely coming to terms with the past.

2. Interests of Justice

The Rome Statute’s “interests of justice” language was unclear from the outset, and there appears to have been no clear agreement about what it was intended to encompass. There are of course different things that it could be understood as encompassing. At least some in Rome intended it to provide a basis for not pursuing investigations and prosecutions in situations where—as in the then-recent case of the truth and reconciliation commissions in South Africa—a society had made a good-faith decision to utilize alternatives to traditional modes of criminal accountability in order to come to terms with its past. Indeed, speaking shortly after the Rome Conference, then-U.N. Secretary-General Kofi Annan dismissed as a “travesty” any argument that the unwillingness or inability to pursue criminal accountability as part of such a reconciliation process could be a basis for ICC action:

No one should imagine that it would apply to a case like South Africa’s, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited power. It is inconceivable that, in such a case, the Court would seek to substitute its judgement for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future.21

In practice, the OTP has essentially read the interests of justice language as playing virtually no role as a filtering mechanism. This is reflected in its September 2007 policy paper in which the OTP reasoned that the “interests of peace” is not part of the assessment of the interests of justice that the Prosecutor should take into consideration in deciding whether to pursue an investigation.22 One can readily understand the reluctance of the OTP to take on responsibility for assessing these kinds of considerations that might be involved in evaluating the “interests of peace”—e.g., on what basis could the OTP claim a superior ability to assess such questions than other international actors involved in pursuing peace in a region? But this does result in an outcome that risks an under-filtering in which, from a policy perspective, crimes are too readily able to pass through the aperture. The “interests of justice” test may present the Prosecutor and the Court with politically difficult questions, but the fact that they are difficult does not mean they are unimportant.

The interests of justice test could also be interpreted to address the issue of infeasibility—i.e., where the prospects for success in a particular situation were sufficiently remote that it would not serve the broader cause of justice to devote limited resources to it. This was of course the approach taken by the Pre-Trial Chamber in its April 2019 decision declining to authorize an investigation in Afghanistan.23 That decision, coming in the wake of strident U.S. attacks on the Court, provoked a storm of criticism and was reversed by the Appeals Chamber,24 but the idea that feasibility is a factor that needs to figure in decisions about where to direct resources is hard to simply dismiss out of hand. It may be unfortunate that the Court will never have the resources needed to pursue investigations and prosecutions of all of the otherwise-unpunished crimes that deserve attention, but it is at the same time inevitable.

IV. Other Ways in Which the Aperture Opening Is Wide

There are a variety of other elements that affect the Court’s aperture in ways we might not ordinarily think about, three of which I will describe here.

A. Contextual Factors

The reliance upon contextual elements in the definitions of Rome Statute crimes plays an essential part in distinguishing between the type of conduct to which the Prosecutor and the Court should, and the type of conduct to which they should not, direct their attention and resources. As an obvious example, an “ordinary” murder is a horrifying crime, but it would not amount to a “crime against humanity” over which the Court has jurisdiction unless committed as “part of a widespread or systematic attack directed against [a] civilian population.” It is the contextual elements that tell us that the conduct is not only horrific, but that we are dealing with a crime against humanity that potentially warrants the involvement of the ICC.

Given the practical reality that almost all of the ICC’s actual prosecutions will continue to be for war crimes or crimes against humanity, it is worth comparing the contextual elements of the two crimes.

For crimes against humanity, a significant amount of filtering is at least in principle built into the definition of the crime by virtue of the requirement that the relevant act must have been committed as part of a widespread or systematic attack against a civilian population, and the associated requirement that the attack have been undertaken in furtherance of a state or organizational policy.25 Much of course depends on how the Prosecutor and the Court interpret these contextual elements and strong differences of view have in fact been expressed about how they should be interpreted and how strong a filtering role they should be expected to play,26 but at least the basic idea of a substantial filter is built into the definition.

The late Judge Kaul spoke to the importance of the aperture-setting function of the contextual elements in his famous dissent in the Situation in Kenya case, in which he described the risk of what he considered the setting of too low a standard for what qualified as crimes against humanity:

It is my considered view that the existing demarcation line between those crimes must not be marginalized or downgraded, even in an incremental way. I also opine that the distinction between those crimes must not be blurred.

Furthermore, it is my considered view that this would not be in the interest of criminal justice in general and international criminal justice in particular. It is neither appropriate nor possible to examine and explain in this opinion all the potential negative implications and risks of a gradual downscaling of crimes against humanity towards serious ordinary crimes. As a Judge of the ICC, I feel, however, duty-bound to point at least to the following: such an approach might infringe on State sovereignty and the action of national courts for crimes which should not be within the ambit of the Statute. It would broaden the scope of possible ICC intervention almost indefinitely. This might turn the ICC, which is fully dependent on State cooperation, in a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. Taken into consideration the limited financial and material means of the institution, it might be unable to tackle all the situations which could fall under its jurisdiction with the consequence that the selection of the situations under actual investigation might be quite arbitrary to the dismay of the numerous victims in the situations disregarded by the Court who would be deprived of any access to justice without any convincing justification.27

In contrast to crimes against humanity, the contextual elements for war crimes carry virtually no such water. The only real contextual element for war crimes is that the relevant acts must have the requisite nexus with an armed conflict. Article 8—the provisions that contains the Rome Statute definition of “war crimes”—does provide that the Court has jurisdiction over the war crimes listed therein “in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes.” But the Court has made clear that the use of the phrase “in particular” means that jurisdiction is not in fact limited to cases involving a plan or policy or large-scale commission. Indeed, the Appeals Chamber has said that “a single act could also amount to a war crime within the jurisdiction of the Court if it was committed in the context of and was associated with an armed conflict.”28

B. Article 53 Standard of Proof for Commencing an Investigation

The standard of proof that must exist in order to commence an investigation also affects the aperture.

How clear must it be that jurisdiction exists? The answer in practice has been: not very. I have mentioned above the language of Article 53 under which the Prosecutor shall “initiate an investigation unless he or she determines that there is no reasonable basis to proceed under the Statute.” This, various chambers have pointed out, is “the lowest evidentiary standard provided in the Statute”—requiring merely “a sensible or reasonable justification for a belief that a crime falling within the jurisdiction of the Court has been or is being committed.” The information available to the Prosecutor is not “required to point towards one conclusion,” and the existence of facts that are “unclear” is identified as an affirmative reason to commence an investigation.29 There has thus been an underlying tilt towards opening an investigation, reflecting a seeming premise that “we won’t know unless we investigate,” but also perhaps an unstated (though not self-evidently correct) premise that the resource, political, and credibility costs to the Court of commencing investigations are relatively small.

In proprio motu situations—i.e., those in which neither a state nor the Security Council has referred the situation—there are of course provisions under which the Prosecutor must persuade an ICC Pre-Trial Chamber of her conclusion that “there is a reasonable basis to proceed with an investigation and that the case appears to fall within the jurisdiction of the Court.” This requirement is designed to act as a check on the discretion of the Prosecutor and thus stands as another way in which the Court’s aperture might be regulated. In practice, however, the lowness of the standard and the way the Court applies it have resulted in little by way of filtering. Indeed, the ICC judges have recently said that, when the Prosecutor has concluded that an investigation should be commenced, the Prosecutor’s assessment of complementarity or gravity, or the interests of justice, is unreviewable.30 Following this, the Prosecutor accordingly provided no explanation whatsoever for her conclusion that the gravity, complementarity, and interests of justice tests had been met in the recent request for authorization to commence an investigation in the situation in the Philippines that she recently submitted to the judges.31

On the other hand, in its recent decision not to commence an investigation of UK forces in Iraq, the OTP appears to have subjected itself to a higher standard—moving away from a “we don’t know and therefore need to investigate” approach to a decision not to move forward because the OTP was not in a position affirmatively to substantiate that the UK had not proceeded in a genuine manner. It is hard to know whether this may be the beginning of a trend, but it at least potentially represents a move toward aperture adjustment efforts that could narrow the universe of situations on which the ICC would focus.32

How much leeway does the OTP have to set the aperture control in proprio motu situations as it sees fit? There is room for debate whether the language of Article 15 permits OTP to decline to move forward with a request for an investigation as a matter of complete discretion. For example, on the one hand, Article 15(3) of the Rome Statute says that the Prosecutor “shall” submit a request for authorization if she concludes there is a reasonable basis to proceed, and the OTP Policy Paper on Preliminary Examinations states that “[i]f the Office is satisfied that all the criteria established by the Statute for this purpose are fulfilled, it has a legal duty to open an investigation into the situation.”33 On the other hand, the OTP had suggested that the decision to seek authorization in a proprio motu situation is discretionary34 and the Appeals Chamber appears to have embraced this view in the Afghanistan case35 Perhaps most importantly, there is no apparent enforcement mechanism built into the Rome Statute to compel the OTP to move forward, as one might expect if there were an obligation to do so.

C. The “Situation as a Whole” Principle

When the Government of Uganda referred the situation “concerning the Lord’s Resistance Army” in northern Uganda to the ICC Prosecutor in 2003,36 the Prosecutor notified Uganda that the referral would be interpreted as covering “all crimes under the Statute committed in northern Uganda, and that [its] investigation would be impartial.”37 This episode embodies the essence of the “situation as a whole” principle, and the desirability of preventing a sitting government from instrumentalizing the ICC by empowering the OTP to proceed only against the forces of the government’s adversaries and not those of the government. At least in proprio motu cases, however, the Rome Statute requires the Prosecutor to persuade a Pre-Trial Chamber that the conditions warranting an investigation have been met before the investigative tools of the Prosecutor can be deployed against the personnel of a state that believes an investigation is unwarranted. The need for approval from the judges was a built-in check designed to protect states from the risk of being subject to the burden of an investigation absent a conclusion that the standards set out in the Rome Statute had been met. At least arguably, the fact that a state can—under the “situation as a whole” principle—be enmeshed in an investigation based on the conduct of other parties erodes the value of such assurances, and represents a kind of further opening of the aperture.

5. Observations

The sections above suggest various ways in which the ICC’s aperture is set. Each of the aperture settings affects the extent to which Court actors must bear the political responsibility for seeming to favor one kind of situation over another—even in such basic ways as precluding the need for the Court to address whether a crime beyond the four listed in Article 5 should contend for the Court’s attention. Some of the aperture settings may be easier to adjust and some less easy, depending for example on the extent to which they are grounded in the wording of the Rome Statute, and for each of the settings there can be legitimate questions about the extent to which it is the Prosecutor or the Court that is best positioned to widen or narrow the aperture.

All that said, the description above does not tell nearly the whole story because, in fact, there is an enormous amount of filtering that takes place behind the scenes via the exercise of prosecutorial discretion. One way this can occur is through the decisions made, after the Prosecutor commences an investigation, to prioritize or de-prioritize particular investigations, parts of investigations, or potential cases against particular individuals. Thus, there are easily hundreds—probably thousands—of cases that would fit through the aperture as the Court and the Prosecutor have to this point set it, yet only a small handful of actual prosecutions. Whatever the legal constraints that might be seen as requiring the Prosecutor to commence an investigation, there are few discernible standards that the OTP is required to apply in deciding how, or even whether, to actually proceed once an investigation is launched.38

Should not the de facto aperture narrowing that this kind of prosecutorial discretion supplies be good enough to ensure that the Court is not over-extended? My answer to that question is: I am not so sure. First, unless the Prosecutor can keep a matter bottled up interminably in the preliminary examination stage, this approach only works for dealing with matters after an investigation is commenced, and it will be the judgment of the Prosecutor rather than the application of rules laid out in the Rome Statute that will actually be decisive in what is actually pursued. To be sure, some discretion—indeed, a significant amount of discretion—is both unavoidable and desirable. But it is virtually inevitable that even the fairest choices by the Prosecutor will be criticized and attacked, and it may do the Prosecutor no real favor to saddle him with political responsibility for so vast a portion of the filtering process.

One can sense the way these issues both pull and tug the OTP. On the one hand, the OTP has published an extensive Policy Paper that in principle is supposed to give more substance to the criteria it applies in selecting and prioritizing cases.39 This is a way to elaborate in advance basic principles that can be visible to the public, and better position the OTP to be seen as applying these principles in an objective manner rather than simply exercising discretion. On the other hand, the paper is ultimately quite opaque in that it ultimately does little to clarify what the OTP will actually decide to pursue when facing real life situations and cases. For example, the Policy Paper includes an extensive discussion of gravity, with the OTP saying that the assessment “includes both quantitative and qualitative factors,” and that it is guided by “the scale, nature, manner of commission and impact of the crimes.” At the end of the day, however, it provides little real insight, sprinkled as it is with explanations like the “[t]he nature of the crimes refers to the specific factual elements of each offence.” In other places the Policy Paper sets out seemingly important principles (e.g.,, the OTP will consider “the extent to which the crimes were systematic or resulted from a plan or organised policy or otherwise resulted from the abuse of power or official capacity”), but never quite informs us how all these factors will actually be weighed against each other, how cases within a situation will actually be compared, or how the rules are supposed to apply in assessing cases across different situations. In the words of William Schabas:

The Policy Paper pretends to clarify and inform but in reality it only serves to obscure things, perpetuating the fiction that the process is fundamentally objective rather than one that is inevitably steeped in subjectivity.40

That said, the indefiniteness of the policy paper is not without an important rationale. Unstated is the understandable reluctance of any prosecutor to voluntarily rule out in advance any cases, or to bind the Prosecutor to a formula that he or she may later regret, particularly in a realm where it is so difficult to predict the many different situations that might arise in the future. More explicit is the fear that a more definite rule about what constitutes sufficient gravity “would hamper the deterrent role of the Court.”41 Better to have an enormous universe of conduct that might be prosecuted so as not to encourage would-be perpetrators to commit crimes that would fall outside a narrowed universe of crimes that the OTP would be saying in advance it would be willing to pursue. And, to be sure, it is hard to be unsympathetic to the idea that perpetrators of all serious crimes should be held to account.

But what does such an approach mean in practice? Is the goal to deter individuals who the ICC will not in fact pursue on the theory that the ICC might in fact pursue them? It is fair to ask whether such a strategy is sustainable over time. What is the effect of such an approach as the world comes to see, time and again, that conduct that the Rome Statute says we should treat as crimes that must not go unpunished do in fact go unpunished, or the risk that the ICC will be increasingly seen as an institution making a promise that it avows is sacred but does so little to vindicate?

This terrain is filled with conundrums for which there are no fool-proof answers, but there are two thoughts that might benefit from more discussion. First, we may be misconceiving the aperture issue if we place exclusive or too much focus on gravity. If it is true, as the report of the Independent Experts suggests, that the OTP and the Court will need to narrow the aperture in order for the Court to succeed, we should look to the various different ways that the aperture is controlled. In some ways, it is worth considering an approach in which the aperture-control mechanism can be applied in a more holistic manner—for example, an approach in which gravity is considered not solely in relation to the underlying conduct, but in relation to how egregious any failure to investigate or prosecute, or any decisions not to pursue conventional criminal responsibility, may be. Second, with respect to gravity as traditionally conceived, it is worth considering ways for tying its application to more tangible standards, so that the evaluation of gravity is seen more as an application of rules identified and agreed in advance, and less as a simple exercise of discretion. To be sure, the task of developing more concrete rules is a formidable one, particularly with respect to what the OTP calls the qualitative factors that go into its assessments. At the end of the day, both quantitative and qualitative factors will be important, but this may be an argument in favor of according greater weight to the quantitative factors, which can be applied in a manner that can more readily be seen as objective.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Independent Expert Review of the International Criminal Court and the Rome Statute System: Final Report (Sep. 30, 2020) [hereinafter IER Report], available online. ↩

2. 2.

   See, e.g., Shehzad Charania, Delivering the ICC Vision Through Deeds not Words: An Interview with Karim Khan QC, Opinio Juris (May 21, 2021) [hereinafter Charania Interview with Karim Khan], available online

   (“To have impact, you need to prioritise against the greatest need”). ↩

3. 3.

   See, e.g., Office of the Prosecutor, ICC, Situation in the Republic of Korea: Article 5 Report ¶ 55 (Jun. 2014), available online

   (The Rome Statute “does not impose criminal liability for all violations of the laws of armed conflict” but rather only those codified in Article 8). ↩

4. 4.

   (There are exceptions if the crime was committed on board a vessel or aircraft that is registered with a Rome Statute party, if the relevant state became a party to the Rome Statute after its entry into force, if a non-party has accepted the Court’s jurisdiction through a declaration under Article 12(3), or if the Security Council refers a situation to the ICC Prosecutor under Article 13(b)—but they do not affect the points that I am trying to make here. Also note that, for purposes of this comment, I am putting aside questions involving the Court’s jurisdiction over the crime of aggression, which is subject to a different jurisdictional regime). ↩

5. 5.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, ¶ 4. available online. ↩

6. 6.

   Situation in the Republic of Kenya, ICC-01/09-19-Corr, Corrigendum of the Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya ¶ 48 (PTC II, Mar. 31, 2010) [hereinafter Kenya Investigation Authorization], available online. ↩

7. 7.

   William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 447 (2d ed. Nov. 22, 2016), paywall. ↩

8. 8.

   IER Report, supra note 1, ¶ 646. ↩

9. 9.

   Id. ¶ 650, R. 227. ↩

10. 10.

    International Criminal Court, Overall Response of the International Criminal Court to the “Independent Expert Review of the International Criminal Court and the Rome Statute System—Final Report” Preliminary Analysis of the Recommendations and Information on Relevant Activities Undertaken by the Court ¶ 404 (Apr. 14, 2021) [hereinafter ICC Response], available online. ↩

11. 11.

    Id. ¶ 405. ↩

12. 12.

    The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18-601-Red, Judgment on the appeal of Mr Al Hassan against the decision of Pre-Trial Chamber I entitled “Décision relative à l’exception d’irrecevabilité pour insuffisance degravité de l’affaire soulevée par la défense” ¶¶ 55–56 (AC, Feb. 19, 2020), available online. ↩

13. 13.

    Id. ¶ 59. ↩

14. 14.

    Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13-111, Decision on the “Application for Judicial Review by the Government of the Comoros” ¶¶ 96–97 (PTC I, Sep. 16, 2020) [hereinafter Comoros], available online.

    (“Thus, if a situation gives rise to at least one potential case that is not of marginal gravity, the requirements of articles 53(1)(b) and 17(1)(d) of the Statute are met.”). ↩

15. 15.

    Charania Interview with Karim Khan, supra note 2; see also David Scheffer & Ashley Cox, The Constitutionality of the Rome Statute of the International Criminal Court, 98 J. Crim. L. & Criminology 983, 992 (Mar. 1, 2008), available online

    (The very nature of the exercise around which the international community circled was “to prosecute the masterminds of complex and massive atrocity crimes before an international court in The Hague”).

    Rome Statute, supra note 5, Preamble, ¶ 2.

    (The Rome Statute itself talks about the “millions of children, women and men [that] have been victims of unimaginable atrocities that deeply shock the conscience of humanity.”). ↩

16. 16.

    Rome Statute, supra note 5, Article 53 (emphasis added). ↩

17. 17.

    (See discussion in this comment at Section IV(B)). ↩

18. 18.

    Comoros, supra note 14, ¶ 15. ↩

19. 19.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan ¶¶ 61–63 (AC, Mar. 5, 2020) [hereinafter Afghanistan Appeals Chamber Decision], available online. ↩

20. 20.

    See Todd Buchwald, Part II: What Kinds of Situations and Cases Should the ICC Pursue? The Independent Expert Review of the ICC and the Question of Aperture, Just Security (Dec. 1, 2020), available online. ↩

21. 21.

    Press Release, U.N., Secretary-General Urges “Like-Minded” States to Ratify Statute of the International Court of Justice (Sep. 1, 1998), available online. ↩

22. 22.

    Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice (Sep. 2007), available online. ↩

23. 23.

    Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online. ↩

24. 24.

    Afghanistan Appeals Chamber Decision, supra note 19. ↩

25. 25.

    Rome Statute, supra note 5, Article 7(2)(a). ↩

26. 26.

    Compare Kenya Investigation Authorization, supra note 6, (majority decision) with id. (Hans-Peter Kaul dissenting). ↩

27. 27.

    Kenya Investigation Authorization, supra note 6, ¶¶ 9–10 (Hans-Peter Kaul dissenting). ↩

28. 28.

    The Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10, Decision on the confirmation of charges ¶¶ 94–96 (PTC I, Dec. 16, 2011), available online; Situation in the Democratic Republic of the Congo, ICC-01/04-169, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58” ¶ 71 (AC, Jul. 13, 2006) [hereinafter DRC Arrest Warrants Appeal], available online. ↩

29. 29.

    Situation in the Republic of Burundi, ICC-01/11-17-X, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Burundi ¶ 30 (PTC III, Oct. 25, 2017), available online; see also Comoros, supra note 14, ¶ 16

    (“Facts which are difficult to establish or unclear, or the existence of conflicting accounts, call for the opening of an investigation (rather than the opposite), since it is the very purpose of such an investigation to properly assess the facts and provide clarity.”). ↩

30. 30.

    Afghanistan Appeals Chamber Decision, supra note 19, ¶ 40

    (decision of the judges to authorize an investigation should not incorporate issues of admissibility).

    Id. ¶ 41

    (there is no basis for the pre-trial chamber to consider the issue of admissibility).

    But see Kenya Investigation Authorization, supra note 6, ¶ 24

    (Moreover, if the purpose of the article 15 procedure is to provide the Chamber with a supervisory role over the proprio motu initiative [then] the Chamber must equally consider whether the requirements set out in article 53(1)(a)–(c) of the Statute are satisfied for the sake of meeting the “reasonable basis to proceed” test before deciding whether to authorize the Prosecutor to commence an investigation). ↩

31. 31.

    Situation in the Republic of the Philippines, ICC-01/21-7-Red, Request for authorization of an investigation pursuant to article 15(3) ¶ 130 (PTC I, Jun. 14, 2021), available online. ↩

32. 32.

    See Office of the Prosecutor, ICC, Situation in Iraq/UK—Final Report ¶ 409 (Dec. 9, 2020), available online

    (taking as sufficient explanations of decisions not to prosecute that are “generally reasonable” and justifying OTP’s decision not to pursue an investigation on basis that “the evidence available to it […] does not allow [the OTP] to conclude that there was intent on the part of the UK authorities to shield persons […] from criminal responsibility.”). ↩

33. 33.

    Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations ¶ 2 (Nov. 2013) [hereinafter OTP Policy Paper], available online. ↩

34. 34.

    See ICC Response, supra note 10, ¶ 412. ↩

35. 35.

    Afghanistan Appeals Chamber Decision, supra note 19, ¶ 31

    (emphasizing that the “discretionary nature of the power accorded to the Prosecutor under Article 15” and that it would be contrary to the nature of this power “to suggest that a duty to investigate could be imposed by the pre-trial chamber in the absence of a request for authorisation of an investigation by the Prosecutor”). ↩

36. 36.

    Press Release, U.N., President of Uganda Refers Situation Concerning Lord’s Resistance Army (LRA) to International Criminal Court (Jan. 29, 2004), available online. ↩

37. 37.

    See Luis Moreno-Ocampo, ICC Prosecutor, Statement on the Uganda Arrest Warrants (Oct. 14, 2005), available online. ↩

38. 38.

    OTP Policy Paper, supra note 33, ¶ 14.

    (Another way this can occur is through decisions not to make decisions about whether to move from a preliminary examination to an investigation. As the OTP has noted, “[t]here are no timelines provided in the Statute for bringing a preliminary examination to a close.” By “parking” a matter as a preliminary examination, the Prosecutor can, at least for a time and probably an extended period of time, avoid the need to commence an investigation of a situation that could pass through the aperture but that the OTP believes does not really justify the use of the limited OTP resources that would be needed to conduct a proper investigation). ↩

39. 39.

    See Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩

40. 40.

    William A. Schabas, Feeding Time at the Office of the Prosecutor, Int’l Crim. Just. Today (Nov. 23, 2016), available online.

    (In his note, Schabas imagines an analogous OTP “Policy Paper on Meal Selection” that would explain how OTP staff members would choose menu items at a restaurant, including for example:

    “When selecting within a category, members of the Office take into account the following factors: (a) appearance; (b) the name of the dish; (c) anticipated taste and texture; (d) availability; (e) variety; (f) cost; (g) caloric intake. There is no hierarchy, however, and one or more of these factors may be of particular importance, depending upon the circumstances.”).

    (The point is not that the list of factors is wrong, but that it offers no actual insight into how the factors will be applied, or whether the staff members “will be eating fish, chicken, or beef, or drinking still water, sparkling water or diet Coke”). ↩

41. 41.

    Policy Paper on Case Selection and Prioritisation, supra note 39, ¶ 32, citing DRC Arrest Warrants Appeal, supra note 28, ¶¶ 69–79. ↩

42. Suggested Citation for this Comment:

    Todd F. Buchwald, The Aperture of the ICC—More Than Just the Issue of Gravity, ICC Forum (Jul. 1, 2021), available at https://iccforum.com/gravity#Buchwald.

    Suggested Citation for this Issue Generally:

    What is the Universe of Cases Upon Which the ICC Should Focus? What Should Be the Threshold for the Gravity That Warrants Investigation of a Situation or Prosecution of Those Most Responsible?, ICC Forum (Jul. 1, 2021), available at https://iccforum.com/gravity.

Argument

Introduction

The duties and powers of the Prosecutor outlined in the Statute of the International Criminal Court (Rome Statute) bestows a central role to the OTP in the functioning of the ICC, and in the selection and prioritization of situations and cases.4 The OTP is responsible for both the primary selection of situations and the subsequent determination of what cases to examine. Impartial selection of cases and their prosecution, along with effective communication, are critical in fulfilling the Court’s role in ending impunity for serious international crimes.5 The OTP Strategic Plan 2019–2021 acknowledged a period of mixed results and significant setbacks as well as unprecedented external challenges.6 A central challenge for the Court has consistently been to develop a sound approach to gravity, both as a threshold requirement for admissibility and as a discretionary relative consideration in the selection of situations and cases.7

Crimes within the jurisdiction of the ICC are outlined in the Rome Statute Articles 6, 7, 8, 8 bis (genocide, crimes against humanity, war crimes, and aggression), but Article 17 also requires that, in addition, the case must be of sufficient gravity to justify action by the Court.8 While this admissibility threshold is important in determining prosecutorial policy,9 according to Schabas, the “insignificance of article 17(1)(d) was confirmed by the Appeals Chamber” when it overturned an earlier ruling on issuance of an arrest warrant.10 The Pre-Trial Chamber had held that as all crimes within the jurisdiction of the Court were in principle serious, there was an additional gravity dimension to be assessed in determinations of admissibility.11 It required that the conduct be either systematic or large scale, and provoke what it referred to as “social alarm”. This test was rejected by Appeals Chamber. It considered that the criterion of “social alarm” depended upon “subjective and contingent reactions to crimes rather than upon their objective gravity” and that crimes within the jurisdiction of the Court are “the most serious crimes of international concern” and “the subjective criterion of social alarm” was not an appropriate test.12

The Pre-Trial Chamber had also expressed the view that the deterrent effect of the Court would be strongest if it focused on the highest ranking perpetrators only.13 The Appeals Chamber found this to be “questionable” and “that the deterrent effect of the Court is highest if no category of perpetrators is per se excluded from potentially being brought before the Court.”14 Unfortunately, the Appeals Chamber failed to provide an alternative test and did not offer any further guidance on the interpretation of Article 17(1)(d).

Gravity also remains a potentially contentious issue to be considered before initiating an investigation or prosecution under Article 53.15 This was evident in the OTP’s decision not to proceed to investigate the Gaza flotilla incident on the basis of lack of gravity, which was later subject to Article 53(3) review.16 Although the core crimes within the jurisdiction are all very serious in nature, the gravity threshold is intended to filter the seriousness of cases that come before the Court and thereby prevent it from being overwhelmed. Despite the concept of gravity being a central tenet of international criminal justice, the Rome Statute provides little by way of explanation into what this actually means in practice.

Policy and practice have dictated that international prosecutions be selective and limited to the most serious criminals.17 This does not mean that perpetrators other than leaders should not be brought before the Court. The Appeals Chamber disagreed with the Pre-Trial Chambers’ focus on only the most senior leaders.18 It considered that assessing the role of a suspect will vary “considerably depending on the circumstances of the case” and should not be based on “excessively formalistic grounds”.19 At the same time, the ICC was never intended to deal with all cases coming within its jurisdiction. Low-level perpetrators may be best dealt with by national courts. However, the decision whether to focus on a low-level perpetrator falls within prosecutorial strategy.20 Identifying precisely the criteria adopted by international prosecutors in the exercise of their discretionary powers was described as a real challenge and the lack of transparency as “occult or secret in nature”.21 According to the OTP, experience showed that the situations faced by the Court tended to involve large-scale commission of crimes, with an untold number of victims as well as many alleged perpetrators.22 For this reason, one of the most important elements of the strategy to take into account the global nature of the ICC and to facilitate the handling of several situations concurrently, was to focus investigative and prosecutorial efforts on those who bore the greatest responsibility for the most serious crimes. Selection of cases was said to be based on “objective and impartial analysis in accordance with the criteria set out in article 53 of the Statute.”23 Amongst the most important of these criteria was the gravity of the crime. The methodologies for determining gravity were not clear, but included the number of persons killed, the number of victims, and the impact of the crimes.24 In the past, the OTP did not necessarily limit investigations to situations where killing had been the predominant crime.25 Furthermore, the concept of gravity was not exclusively attached to the act that constituted the crime but also to the degree of participation.26

The policy and practice of the OTP has been subject to criticism. It has been accused of “missteps in the selection of cases” that “created significant credibility gaps for the Court [and] led to perceptions of bias.”27 This in turn was said to have undermined its potential positive impact in affected communities and, in some cases, “led to a loss of trust and confidence in the Court as an independent and impartial judicial institution.”28 Another criticism was that, in the past, the OTP’s case selection choices were seemingly driven by a somewhat ad hoc approach, involving the selection of one or two cases, followed by additional cases if and when resources permitted.29

While the ICC is neither mandated nor designed to prosecute all perpetrators of serious international crimes, the controversy in the early days regarding the selective investigation and prosecution of rebel or similar forces only, has probably been overtaken by events in later situations where attempts have been made (sometimes unsuccessfully) to investigate both sides.30 Such a policy created a danger of perceived political selectivity in the situations referred to the Court. However, there is a pre-investigation prosecutorial and judicial review, and, in theory at least, “situations” encompass all participants in a conflict and are not limited to particular groups or individuals.31 The question is, on what basis is the Prosecutor making her evaluation and is it a comprehensive, objective analysis based on sound criteria?32

Policy Paper on Case Selection and Prioritisation

In September 2016, the OTP published the Policy Paper on Case Selection and Prioritisation which outlines current practice.33 This marked an important advance in transparency surrounding the policy criteria being adopted in the selection of cases i.e. whom to prosecute and for what crimes. It also provides an important mechanism to make the OTP’s approach to selection and prioritization of cases more transparent while at the same time providing significant general guidance to all those involved in case selection and management.

The Policy draws on many of the same principles and criteria that are applied at the preliminary examination stage.34 According to the Policy, the jurisprudence of the Court distinguishes between “situations”, which are generally defined in terms of temporal, territorial, and in some cases personal parameters, and “cases”, which comprise specific incidents within a given “situation” during which one or more crimes within the jurisdiction of the Court may have been committed.35 Cases considered for prosecution must first meet the legal criteria of jurisdiction, admissibility, and interests of justice.36 The OTP must then decide which of those cases to select based on three factors: the gravity of the crime(s), the degree of responsibility of alleged perpetrators, and whether the charges would reflect the extent of the criminality that has occurred.37 The OTP aims to prosecute all cases that are selected according to the criteria above, but it prioritizes cases for prosecution based on such factors as a comparative assessment across the selected cases, the impact of investigations and prosecutions on both ongoing criminality and victims, and other factors.38

The history of the ICTR and ICTY demonstrates that some of the most serious international crimes may not in practice be prosecuted at an international level. This was reflected in the requirement to affirm in the Preamble to the Rome Statute that “the effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation.”39 Thus, in addition to the gravity test, the Prosecutor is obliged to consider the principle of complementarity in deciding whether or not to start an investigation.40 It is the primary responsibility of states to investigate and prosecute international crimes.41 This has important implications for self-referrals by states.42 The gravity of the crime is one of the express considerations to be taken into account in ascertaining the existence of a reasonable basis to proceed. Its inclusion in the Preamble may be seen as a reflection of the concern that the interests underlying the complementarity principle sufficiently permeate the Rome Statute.

The Preamble and Article 1 of the Rome Statute reinforce each other and confirm that the Court’s jurisdiction covers “the most serious crimes of international concern.” Crimes that are not of sufficient gravity will be left to possible domestic investigation and prosecution.43 The reference in Article 8 to war crimes committed “as part of a plan or as part of a large-scale commission of such crimes” may also be seen in this light and may imply that less serious war crimes should be prosecuted domestically. The final paragraph of the Preamble resolves to guarantee both lasting respect for international justice and its enforcement. It is of utmost significance in the prosecutorial policy to be adopted by the OTP and refers to the enforcement of international criminal law in international and national criminal jurisdictions.

The cornerstone of the Rome Statute is Article 17 dealing with admissibility.44 The Pre-Trial Chambers and the OTP have adopted a unified approach in the assessment of gravity and this is reflected in ¶¶ 32, 34 and 37 of the Policy.45

32. In relation to gravity as a criterion for admissibility under article 17(1)(d), the Appeals Chamber has dismissed the setting of an overly restrictive legal bar that would hamper the deterrent role of the Court.46 The factors that guide the Office’s assessment of gravity include both quantitative and qualitative considerations, relating to the scale, nature, manner of commission and impact of the crimes.47

34. The Office will select cases for investigation and prosecution in light of the gravity of the crimes, the degree of responsibility of the alleged perpetrators and the potential charges. The weight given to each criterion will depend on the facts and circumstances of each case and each situation, and the stage of development of the case hypothesis and investigation.48 The Case Selection Document will be reviewed as investigations proceed, by applying the same case selection criteria.49

37. The Office’s assessment of gravity includes both quantitative and qualitative considerations. As stipulated in regulation 29(2) of the Regulations of the Office, the factors that guide the Office’s assessment include the scale, nature, manner of commission, and impact of the crimes.50

The Policy drew on strategy papers, and other policy papers addressing particular fundamental issues on which the OTP wanted to provide more clarity and transparency.51 At the same time, the need for selection and prioritization remains owing to size and capacity restraints52 in the OTP and the need for “prioritization of activities.”53 In order to maintain a manageable workload for both the OTP and Court, prioritization is a necessity.54 The situation of work overload, according to Ambos:

[L]eaves the Court/the OTP no other choice than to deliver mere distributive (instead of retributive) criminal justice, where the main challenge is not so much the fair or just delivery of sanctions to individual defendants, but the fair distribution of justice to a selected number of suspects and/or perpetrators.55

An important focus of the OTP and Court as a whole should also be the impact for victims and those communities affected by the crimes.56 In that regard, the commitment to pursue charges that are “a representative sample of the main types of victimization and of the communities which have been affected” marked a progressive development.57

Prosecutor’s Discretion

The Policy recognizes the importance of the general principles of independence, impartiality, and objectivity to building the ICC’s legitimacy.58 In that context, the OTP has significant latitude and discretion when it comes to case selection and prioritization subject to limited judicial review.59 In the discharge of its mandate, the OTP exercises its discretion in determining which cases should be selected and prioritized for investigation and prosecution.60 The OTP also has discretion to define how many cases will make up the Prosecutorial Program for a situation.61

The Policy retains this discretion in the OTP while attempting to provide guidance and objective criteria by which to assess case selection and prioritization. It was intended to ensure that the exercise of such discretion “is guided by sound, fair and transparent principles and criteria.”62 It also emphasized that it is not the responsibility or role of the OTP to investigate and prosecute all alleged criminal acts within a given situation or every person allegedly responsible for such crimes. This would be impractical and run counter to the notion of complementary action at the international and national level, as highlighted in the Preamble and Article 1 of the Rome Statute. Given the importance of the role of the OTP under the Statute, it is difficult to envisage how the Court would otherwise be able to function effectively.

Applying discretion in the selection process remains the prerogative of the OTP. At the same time, Article 53, dealing with the initiation of an investigation and selection choices, ensures that the exercise of such discretion is not unlimited. The Prosecutor is bound by the criteria outlined in the Statute, especially with regard to issues involving some discretion and relating to “gravity” and “those bearing the greatest responsibility.”63 In this way, the exercise of a limited review power by the Pre-Trial Chamber is possible. Such a process, based on checks and balances between the OTP and the Pre-Trial Chambers and combined with a transparent selection strategy, should facilitate achieving coherence in the practice of the OTP and Court as a whole.

The shift in the attention of the OTP from African states to other regions is to be welcomed. Nevertheless, a major challenge for the Court is to avoid giving the impression that it only prosecutes nationals of weak states, and in so doing reinforces existing structural inequalities between states, while exposing itself to accusations of bias.64 Such perceptions may have been mitigated somewhat after the sanctions imposed by the U.S. during the Trump administration.65 The situation is further complicated by the fact that suspects may be selected as representative of certain categories of perpetrators, as opposed to individuals, to which a degree of collective blame may be attached.

Case Selection Document

The Policy introduces a significant innovation in the form of a Case Selection Document which identifies in broad terms the potential cases across all situations that the OTP intends to focus on.66 As each new situation is opened for investigation, the OTP will include the potential cases arising from that situation into the Case Selection Document. This is a “dynamic document”67 that will be reviewed as investigations proceed, by applying the same case selection criteria.68 This process is confidential until a person has been arrested or appears voluntarily before the Court.69

The process outlined in the Policy facilitates prioritization of cases,70 completion strategies, and the adoption of a holistic approach. The commitment to “investigate and prosecute all cases that are selected pursuant to the case selection criteria”71 is especially welcome and should address past criticism while establishing a clear strategic goal. However, this also creates a de facto tiered system which has the potential to undermine the commitment to investigate all cases that are selected.

The Policy clearly sets out the case strategic and operationalization criteria.72 It provides that these criteria stand in no hierarchical order to each other and that the specific weight to be given to individual criterion will depend on the circumstances of each case.73 This proposes a pragmatic approach taking into account quantity and quality of evidence, the nature of cooperation to support the OTP, and capacity and security issues as the overriding criteria when determining prioritization, with the more normative strategic case prioritization criteria outlined in paragraph 50 being a more secondary consideration. However, while deprioritization is not “deselection”, this may in fact turn out to be the de facto consequence.74

The Policy on case selection should be read in conjunction with the recently published Draft Policy on Situation Completion, which also references many of the same themes but in the context of a wider situational strategy. The latter also acknowledges the need to manage selected cases which have been effectively de-prioritized.75 The completion policy seeks to illustrate the considerations that lead to a decision, in the exercise of prosecutorial discretion, that sufficient prosecutions have been brought in a situation to satisfy the OTP’s mandate under the Rome Statute.

The current situation is that neither the ICC, nor any other international criminal tribunal, can hold corporations criminally liable for core international crimes.76 Among the reasons for this is that business activity, however serious, rarely reaches the gravity threshold required for international crimes within the jurisdiction of the ICC. However, while the Policy Paper on Case Selection and Prioritisation does not expand the ICC’s jurisdiction, it does provide a mechanism to focus on individuals responsible for business-related crimes.77 Furthermore, in assessing the gravity of crimes which is one of the fundamental case selection criterion, the document emphasizes that the OTP will give particular consideration to:

[C]rimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.78

In this way, the OTP is now more likely to consider crimes committed with the complicity of the private sector.79 However, there are potential disadvantages to this as it may create the false impression that the ICC can simply start proceedings following the filing of a communication, which may, in turn, lead to accusations of failure when it does not do so.80

The Report on Preliminary Examination Activities 2020 provides insights into the process and outlines that in order to distinguish the situations that warrant investigation from those that do not, and in order to manage the analysis of the factors set out in Article 53(1), the OTP has established a filtering process comprising four phases.81 Phase 1 consists of an initial assessment of all information on alleged crimes received under Article 15 (Communications). Although the nature of this assessment has generally tended to focus on questions of subject-matter jurisdiction, it may also consider questions of gravity and complementarity where they appear relevant.82

In practice, the assessments that require the most time and resources are those situations where alleged crimes are not manifestly outside the jurisdiction of the Court, but do not clearly fall within its subject-matter jurisdiction.83 In such situations, the OTP will first consider whether the lack of clarity applies to most, or a limited set of allegations, and in the case of the latter, whether they are nevertheless of such gravity to justify further analysis. The OTP will then consider whether the exercise of the Court’s jurisdiction may be restricted due to factors such as a narrow geographic and/or personal scope of jurisdiction and/or the existence of national proceedings relating to the relevant conduct.84

Conclusion

Gravity has a fundamental role to play in informing the OTP in the situation and case selection process.85 This may require the OTP to prioritize selected ICC goals, thus gravity factors, over others. At the same time, a distinction must be drawn between the gravity threshold for admissibility under Article 17 and considerations of gravity for the purposes of determining which situations or cases will be investigated or prosecuted as a matter of prosecutorial discretion under Article 53.86 The Policy provides greater clarity with regard to the criteria used for case selection.87 It also attempts to reflect and respond to the experience and needs of victims.88 It is imperative that these needs be respected in practice.

Taking into account the large number of communications and referrals to the Court, a focused strategy setting out the criteria for situation and case selection and prioritization is necessary. In this regard, the positive complementarity approach emphasizing cooperation with national jurisdictions while enhancing OTP prosecutorial capacity is a welcome and realistic policy approach.89 In this way, close and effective cooperation with national jurisdictions will enhance the Court’s capacity to end impunity.

In the past, the policy of identifying and pursuing the most senior leaders did have a certain pragmatic appeal. Nonetheless, such a policy should not be an overriding consideration in deciding whom to investigate and prosecute. The consequence of such an approach was problematic as it could mean the exclusion of others equally culpable of heinous crimes, but who did not hold positions of authority. The Rome Statute does not refer to the most senior leaders, it specifically refers to the “perpetrators” of “the most serious crimes”.90 The current Policy reflects this and provides that the overall aim of the OTP is to represent as much as possible the true extent of the criminality in an effort to ensure that the most serious crimes committed do not go unpunished.91 In so doing, the Policy requires that particular attention be paid to crimes that have been traditionally under-prosecuted.92

A consequence of this overall OTP strategy, which was first introduced in the 2012 OTP Strategic Plan,93 and this policy, is that very few cases brought under Prosecutor Bensouda have been leadership cases (other than cases she inherited), and most have involved mid-level perpetrators, some notorious, and a few in senior leadership positions. The “new” policy reflects the pragmatic reality that prosecutors need to retain some degree of flexibility based on the actual evidence available. Sometimes there is insufficient evidence to bring a prosecution against those alleged to be most responsible, but it may be useful to build a case based on insiders and/or lower to mid-level perpetrators, or there may be some symbolic value to going after a notorious perpetrator such as Al-Werfalli94 and Al Mahdi.95 Another danger with the adoption of a selective strategy focusing on those who bear the greatest responsibility is that it is discriminatory and by its very nature requires making value judgments that may be influenced by political or resource factors. Conducting impartial investigations does not mean prosecuting all groups in a given situation. Impartiality means applying the “same criteria for all, in order to determine whether the high thresholds of the Statute are met and our policy of focusing on the persons most responsible is satisfied.”96

It was said to be an open secret that international prosecutors, in selecting a potential accused, may take into account criteria relating to belonging to or affiliation with a certain group in order to present more balanced cases involving all parties to the conflict.97 It seems that the OTP was initially influenced by the experience of the ad hoc tribunals, the success of which depended on not exceeding the bounds of what is politically acceptable to the prevailing balance of power.98 The adoption of a policy based on the maxim “let justice be done, though the heavens fall”99 may not seem like a pragmatic recommendation in the “realpolitik world of international affairs,” but it encapsulates a fundamental principle of international justice.100 In this context, it would help if the OTP outlined a clear articulation of policy and reflection of that policy in practice in a way that generates perceptions of legitimacy. When the OTP decides not to bring any cases on the basis of insufficient gravity within an overall “situation”, it is important that it explain how this decision was arrived at. Failure to do so may alienate victims and undermine the legitimacy of the Court. Unfortunately, some degree of alienation is inevitable given the mismatch between resources/capacity and expectations, and the practical dilemma that any selection process creates. In this way, according to Rastan, the requirement for selection when prosecuting serious international crimes represents the most pressing and ethically challenging imperative in the task of applying the law to situations of large scale violence.101 Selection choices must not result in arbitrariness or bias.

The OTP’s strategy remains a work in progress. The importance of the general principles of independence, impartiality, and objectivity cannot be overstated.102 There was an urgent need for the OTP to publish its criteria for initiating an investigation and prosecution in order to create as transparent a process as possible. This should also help clarify any uncertainty arising from the Appeals Chamber decision in relation to Lubanga and subsequent decisions.103 The publication of the Policy brought enhanced transparency and accountability as the general policies relating to prosecutorial selection are known and can thus be subject to public scrutiny. There will always be some degree of controversy surrounding decisions by the OTP. The criterion for determining gravity was far from settled jurisprudence and required fine-tuning.104 The OTP continues to retain significant latitude and discretion when it comes to case selection and prioritization subject to limited judicial review.105 The Policy will help ensure that the exercise of discretion is based on appropriate principles and criteria.106

According to Human Rights Watch, the current Basic Size assumption regarding active cases per year is limited.107 For this reason, the ICC’s intervention in its situation countries in the past has likely been too limited to fully achieve the general principles and the specific legal and case selection criteria articulated in the Policy. These limits have intensified as the number of situations open before the Court has increased, without sufficient increases in funding to support its mandate.108 The Court will continue to face challenging resource constraints given the high number of situations opened. This renders prioritization between cases a matter of necessity. For this reason, available resources was included in the Policy as a prioritization criteria governing the roll-out of selected cases. While the OTP should be cautious in any over-reliance on prioritization,109 a recent independent expert review repeatedly heard concerns that the Court should raise the gravity threshold and focus on a narrower range of situations.110 It acknowledged that this was a prospect that would be disappointing for many as it would further restrict the already limited jurisdiction of the Court, but that the current situation is unsustainable having regard to the limited resources available. In response to the expert review, the OTP noted that the OTP cannot unilaterally do this as it would go against established jurisprudence of the Court and it would be subject to potential judicial review.111 Moreover, any raising of the gravity threshold at the start of investigations would result in raising of threshold also for individual cases, since both are applied on the basis of the same provision of the Rome Statute, Article 17(1)(d).

State Parties are bound to co-operate with the OTP irrespective of any agreement or understanding reached in relation to a situation or investigation. While the OTP does need the co-operation of State Parties in order to carry out investigations, this should be based on obligations flowing from ratification of the Rome Statute, not some understanding that certain perpetrators of atrocities will not be pursued. This is the real dilemma for the Prosecutor—how to work closely with the members of the international community and yet remain independent. The paradox is to be independent and interdependent at the same time. Ending impunity and deterring further serious crimes irrespective of who the alleged perpetrators are and where the crimes occurred must remain the overriding consideration.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Office of the Prosecutor, ICC, Policy Paper on Case Selection and Prioritisation (Sep. 15, 2016), available online. ↩

2. 2.

   Office of the Prosecutor, ICC, Draft Policy on Situation Completion (Mar. 24, 2021), available online. ↩

3. 3.

   See Fatou Bensouda, ICC Prosecutor, Statement on the Conclusion of the Preliminary Examination of the Situation in Nigeria (Dec. 11, 2020), available online; Fatou Bensouda, ICC Prosecutor, Statement on the Conclusion of the Preliminary Examination in the Situation in Ukraine (Dec. 11, 2020), available online; Fatou Bensouda, ICC Prosecutor, Remarks at the 19th Session of the ASP, Presentation of the 2020 Annual Report on Preliminary Examination Activities (Dec. 15, 2020) [hereinafter 2020 Annual Report], available online; Fatou Bensouda, ICC Prosecutor, Statement Regarding the Situation in Palestine (Oct. 17, 2018) [hereinafter Situation in Palestine], available online; Fatou Bensouda, ICC Prosecutor, Remarks at the 18th Session of the ASP, Presentation of the 2019 Annual Report on Preliminary Examination Activities (Dec. 6, 2019), available online. ↩

4. 4.

   International Criminal Court, Regulations of the Office of the Prosecutor, ICC-BD/05-01-09, R. 54, 34–35 (Apr. 23, 2009), available online; see also Morten Bergsmo, Pieter Kruger & Olympia Bekou, Article 54: Duties and Powers of the Prosecutor with Respect to Investigations, in The Rome Statute of the International Criminal Court: A Commentary 1381 (Otto Triffterer & Kai Ambos, eds., 3d. ed. Jan. 14, 2016); William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute 672–82 (2010). ↩

5. 5.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble ¶ 4, available online.

   (affirming that “the most serious crimes of concern to the international community as a whole must not go unpunished” and refers to the millions of children, women and men who have been victims of unimaginable atrocities that deeply shock the conscience of humanity).

   See also Margaret M. deGuzman, Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int’l L.J. 1400 (2008), available online. ↩

6. 6.

   Office of the Prosecutor, ICC, Strategic Plan 2019–2021 ¶¶ 3, 5 (Jul. 17, 2019), available online. ↩

7. 7.

   See deGuzman, supra note 5, at 1449. ↩

8. 8.

   Rome Statute, supra note 5, Article 17(1)(d)

   (“The case is not of sufficient gravity to justify further action by the Court”).

   See also Schabas, supra note 4, at 347–49.

   ( Article 1 and the Preamble to the Rome Statute also limit the Court’s jurisdiction to “the most serious crimes”). ↩

9. 9.

   Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 6.

   (“Gravity is the predominant case selection criteria adopted by the Office and is embedded also into considerations of both the degree of responsibility of alleged perpetrators and charging.”). ↩

10. 10.

    Schabas, supra note 4, at 348. ↩

11. 11.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2, Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58 ¶¶42–64 (PTC I, Feb. 10, 2006) [hereinafter Lubanga Warrant Decision], available online. ↩

12. 12.

    Situation in the Democratic Republic of the Congo, ICC-01/04-169, Judgment on the Prosecutor’s appeal against the decision of Pre-Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58” ¶ 70 (AC, Jul. 13, 2006) [hereinafter Arrest Warrants Appeal], available online. ↩

13. 13.

    Lubanga Warrant Decision, supra note 11, ¶¶ 54–55. ↩

14. 14.

    Arrest Warrants Appeal, supra note 12, ¶¶ 73–74. ↩

15. 15.

    William A. Schabas & Mohamed M. El Zeidy, Article 17: Issues of Admissibility, in The Rome Statute of the International Criminal Court: A Commentary 794, 811–16 (Otto Triffterer & Kai Ambos, eds., 3d. ed. Jan. 14, 2016). ↩

16. 16.

    See Situation on Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13-98, Judgment on the appeal of the Prosecutor against Pre-Trial Chamber I’s ‘Decision on the “Application for Judicial Review by the Government of the Union of the Comoros”’ (AC, Sep. 2, 2019), available online

    (rejecting the appeal filed by the OTP of the ICC Pre-Trial Chamber I’s decision on the November 15, 2018 “Application for Judicial Review by the Government of the Union of Comoros.” The Appeals Chamber confirmed the Pre-Trial Chamber’s decision, directing that the OTP must reconsider its decision regarding the Comoros referral. The Appeals Chamber did maintain that the “ultimate decision” regarding whether or not to initiate an investigation remains with the OTP).

    See also Press Release, ICC, Situation on the Registered Vessels of Comoros, Greece and Cambodia: ICC Appeals Chamber Rejects the Prosecutor’s Appeal, ICC-CPI-20190902-PR1477 (Sep. 2, 2019), available online

    (“[A] referral was received by the OTP from the authorities of the Union of the Comoros, a State Party to the Rome Statute, in relation to an attack on 31 May 2010 by the Israeli Defence Forces on the Humanitarian Aid Flotilla bound for the Gaza strip. On 6 November 2014, the Prosecutor issued her decision not to investigate the attack. On 16 July 2015, Pre-Trial Chamber I, by majority, requested Prosecutor to reconsider the 6 November 2014 decision not to investigate the attack. Subsequently, on 29 November 2017 the Prosecutor filed her decision, which she considered to be final, reaffirming her previous decision not to investigate the attack. On 15 November 2018, Pre-Trial Chamber I directed the Prosecutor to reconsider her decision of 6 November 2014 not to investigate the attack in light of the specific directions of the Pre-Trial Chamber’s 16 July 2015 decision. The Prosecutor then appealed this decision.”). ↩

17. 17.

    M. Cherif Bassiouni, Introduction to International Criminal Law 706 (1st ed. Sep. 2013). ↩

18. 18.

    Arrest Warrants Appeal, supra note 12, ¶ 73. ↩

19. 19.

    Id. ¶ 76. ↩

20. 20.

    Schabas & El Zeidy, supra note 15, at 815. ↩

21. 21.

    See Luc Côté, Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law, 3 J. Int’l Crim. Just. 162, 167, 171 (Mar. 2005), paywall, doi. ↩

22. 22.

    Luis Moreno-Ocampo, ICC Prosecutor, Informal Meeting of Legal Advisors of Ministries of Foreign Affairs 5 (Oct. 24, 2005), available online. ↩

23. 23.

    Id. at 6. ↩

24. 24.

    Id. ↩

25. 25.

    Id. ↩

26. 26.

    Id. ↩

27. 27.

    Human Rights Watch, Comments on the ICC Office of the Prosecutor Draft Policy Paper on Case Selection and Prioritisation (May 3, 2016), available online. ↩

28. 28.

    Id. ↩

29. 29.

    Id. ↩

30. 30.

    See, e.g., Situation in the Republic of Kenya, ICC-01/09, available online (last visited Jun. 15, 2021); Situation in the Central African Republic II, ICC-01/14, available online (last visited Jun. 15, 2021); Situation in Georgia, ICC-01/15, available online (last visited Jun. 15, 2021); Situation in the People’s Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19, available online (last visited Jun. 15, 2021); Situation in the Islamic Republic of Afghanistan, ICC-02/17-33, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Islamic Republic of Afghanistan (PTC II, Apr. 12, 2019), available online; Situation in Palestine, supra note 3. ↩

31. 31.

    See Situation in the Islamic Republic of Afghanistan, ICC-02/17 OA4, Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan ¶¶ 57–61 (AC, Mar. 05, 2020), available online; see also Payam Akhavan, The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court, 99 Am. J. Int’l L. 403, 411 (Apr. 2005), paywall, doi. ↩

32. 32.

    See Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations (Nov. 2013) [hereinafter Policy Preliminary Examinations], available online

    (describing the process and criteria for the opening of an ICC investigation in a situation). ↩

33. 33.

    Policy Paper on Case Selection and Prioritisation, supra note 1

    (describing the selection of cases for investigation in a situation, and their prioritization in light of the multiple situations under investigation in the OTP. It is part of a trilogy of policy papers describing the life cycle of the OTP’s operations in a situation, and must be read with the recent Draft Policy on Situation Completion, supra note 2). ↩

34. 34.

    Id. ↩

35. 35.

    Situation in the Democratic Republic of the Congo, ICC-01/04, Decision on the applications for participation in the proceedings of VPRS 1, VPRS 2, VPRS 3, VPRS 4, VPRS 5 and VPRS 6, ¶ 65 (Jan. 17, 2006), available online; The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-8-Corr, Decision concerning Pre-Trial Chamber’s Decision of February 10, 2006 and the Incorporation of Documents into the Record of the Case against Mr Thomas Lubanga Dyilo ¶ 21 (Feb. 24, 2006), available online. ↩

36. 36.

    Policy Paper on Case Selection and Prioritisation, supra note 1, at 4, 9–12; see also Office of the Prosecutor, ICC, Policy Paper on the Interests of Justice (Sep. 2007), available online. ↩

37. 37.

    Policy Paper on Case Selection and Prioritisation, supra note 1, at 5, 12–15. ↩

38. 38.

    Id. ¶ 50. ↩

39. 39.

    Rome Statute, supra note 5, Preamble ¶ 4. ↩

40. 40.

    Id. Article 17(1)(a); see also Schabas & El Zeidy, supra note 15, at 781–831.

    (Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 8 provides: “The overall aim of the Office is be to represent as much as possible the true extent of the criminality which has occurred within a given situation, in an effort to ensure, jointly with the relevant national jurisdictions, that the most serious crimes committed in each situation do not go unpunished.”).

    See also Rod Rastan, What is ‘Substantially the Same Conduct?’ Unpacking the ICC’s ‘First Limb’ Complementarity Jurisprudence, 15 J. Int’l Crim. Just. 1 (Mar. 2017), available online, archived, doi. ↩

41. 41.

    Rome Statute, supra note 5, Preamble ¶¶ 4, 6. ↩

42. 42.

    Ray Murphy, Gravity Issues and the International Criminal Court, 17 Crim. L. Forum 281, 286 (Dec. 2006), paywall, doi. ↩

43. 43.

    Bergsmo, Kruger & Bekou, supra note 4, at 1373. ↩

44. 44.

    Id. at 786. ↩

45. 45.

    Id. at 815. ↩

46. 46.

    Arrest Warrants Appeal, supra note 12, ¶¶ 69–79. ↩

47. 47.

    Regulations of the Office of the Prosecutor, supra note 4, R. 29(2); see also Policy Preliminary Examinations, supra note 32, ¶¶ 59–66; Situation in Georgia, ICC-01/15-12, Decision on the Prosecutor’s request for authorization of an investigation ¶ 51 (PTC I, Jan. 27, 2016) [hereinafter Georgia Investigation Authorization], available online; Schabas & El Zeidy, supra note 15, at 815–16. ↩

48. 48.

    Rome Statute, supra note 5, Preamble ¶¶ 4, 10; see also Office of the Prosecutor, ICC, Paper on Some Policy Issues Before the Office of the Prosecutor (Sep. 2003), available online. ↩

49. 49.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶¶ 13, 51, 53. ↩

50. 50.

    The Prosecutor v. Bahar Idriss Abu Garda, ICC-02/05-02/09-243-Red, Decision on the Confirmation of Charges ¶ 31 (PTC 1, Feb. 8, 2010), available online.

    Situation in the Republic of Côte d’Ivoire, ICC-02/11-14-Corr, Corrigendum to “Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire” ¶ 203–04 (PTC III, Nov. 15, 2011) [hereinafter Côte d’Ivoire Investigation Authorization], available online; Situation in the Republic of Kenya, ICC-01/09-19-Corr, Corrigendum of the Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya ¶¶ 62, 188 (PTC II, Mar. 31, 2010) [hereinafter Kenya Investigation Authorization], available online.

    (“In making its assessment, the Chamber considers that gravity may be examined following a quantitative as well as a qualitative approach. Regarding the qualitative dimension, it is not the number of victims that matter but rather the existence of some aggravating or qualitative factors attached to the commission of crimes, which makes it grave. When considering the gravity of the crime(s), several factors concerning sentencing as reflected in rule 145(l)(c) and (2)(b)(iv) of the Rules, could provide useful guidance in such an examination. These factors could be summarized as: (i) the scale of the alleged crimes (including assessment of geographical and temporal intensity); (ii) the nature of the unlawful behavior or of the crimes allegedly committed; (iii) the employed means for the execution of the crimes (i.e., the manner of their commission); and (iv) the impact of the crimes and the harm caused to victims and their families. In this respect, the victims’ representations will be of significant guidance for the Chamber’s assessment.”).

    Georgia Investigation Authorization, supra note 47, ¶ 51; Regulations of the Office of the Prosecutor, supra note 4, Article 29(2); Policy Preliminary Examinations, supra note 32, ¶¶ 9, 71. ↩

51. 51.

    Policy Preliminary Examinations, supra note 32; Policy Paper on the Interests of Justice, supra note 36; Office of the Prosecutor, ICC, Policy Paper on Victims’ Participation (Apr. 2010), available online; Office of the Prosecutor, ICC, Policy Paper on Sexual and Gender-Based Crimes (Jun. 2014), available online, archived; Office of the Prosecutor, ICC, Strategic Plan 2016–2018 (Jul. 6, 2015), available online, archived; see also Rod Rastan, Case Selection and Prioritisation at the International Criminal Court, in Criteria for Prioritizing and Selecting Core International Crimes Cases ¶ 7.3.2 (Morten Bergsmo ed., 3d ed forthcoming) [hereinafter Prioritisation Criteria]. ↩

52. 52.

    Assembly of State Parties, ICC, ICC-ASP /14/21, Report of the Court on the Basic Size of the Office of the Prosecutor (Sep. 17, 2015) [hereinafter Basic Size], available online

    (referred to in Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 11). ↩

53. 53.

    Id. ¶ 5. ↩

54. 54.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶¶ 11–12

    (referring to the “overall basic size and capacity constraints” and the limited “resources available”). ↩

55. 55.

    Kai Ambos, Office of the Prosecutor: Policy Paper on Case Selection and Prioritisation (Int’l Crim. Ct.), 57 ILM 1131 (Dec. 2018), available online, doi. ↩

56. 56.

    Rome Statute, supra note 5, Article 53(1)(c)

    (referring to the “interests of victims” while at the same time recognizing that there are factors that may outweigh that interest).

    See also Kenya Investigation Authorization, supra note 50, ¶ 62. ↩

57. 57.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 45. ↩

58. 58.

    Id. ¶ 16; see also Draft Policy Situation Completion, supra note 2, ¶¶ 11–15. ↩

59. 59.

    Rome Statute, supra note 5, Article 53. ↩

60. 60.

    Id. Articles 14(1), 42(1), 58(1)

    (reflecting the Prosecutor’s discretion). ↩

61. 61.

    See Id. Articles 53(2), 54, 48; see also Policy Paper on Case Selection and Prioritisation, supra note 1, ¶¶ 25–26, 29, 33; Situation in Darfur, Sudan, ICC-02/05-185, Decision on Application under Rule 103 ¶ 24 (PTC I, Feb. 4, 2009), available online

    (holding that “States Parties have granted the Prosecution discretion to decide whether to request the initiation of a case through the issuance of an arrest warrant or a summons to appear,” subject to the Pre-Trial Chamber’s verification of reasonable grounds to believe that the person in question is responsible for a crime under the Statute). ↩

62. 62.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 5. ↩

63. 63.

    Rome Statute, supra note 5, Article 53(1)(c) and 53(2)(c). ↩

64. 64.

    See Birju Kotecha, The Art of Rhetoric: Perceptions of the International Criminal Court and Legalism, 31 Leiden J. Int’l L. 929 (Dec. 2018), available online, archived, doi. ↩

65. 65.

    Human Rights Watch, US Sanctions on the International Criminal Court: Questions and Answers (Dec. 14, 2020), available online. ↩

66. 66.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 10; see also Rastan, supra note 51, ¶ 7.3.3. ↩

67. 67.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 10; Regulations of the Office of the Prosecutor, supra note 4, R. 33, 34; Draft Policy Situation Completion, supra note 2, ¶ 24. ↩

68. 68.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶¶ 13, 51, 53. ↩

69. 69.

    Id. ¶ 15. ↩

70. 70.

    Id. ¶ 11; Basic Size, supra note 52; Policy Paper on Case Selection and Prioritisation, supra note 1, § 6; Prioritisation Criteria, supra note 51, ¶ 47–53; Draft Policy Situation Completion, supra note 2, ¶¶ 33–35. ↩

71. 71.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 47. ↩

72. 72.

    Id. ¶¶ 50–51. ↩

73. 73.

    Id. ¶¶ 51–52. ↩

74. 74.

    Human Rights Watch, supra note 27. ↩

75. 75.

    Draft Policy Situation Completion, supra note 2, ¶¶ 33–35. ↩

76. 76.

    Nadia Bernaz, An Analysis of the ICC Office of the Prosecutor’s Policy Paper on Case Selection and Prioritization from the Perspective of Business and Human Rights, 15 J. Int’l Crim. Just. 527, 532 (Jul. 2017), paywall, doi. ↩

77. 77.

    Id. at 535. ↩

78. 78.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 41. ↩

79. 79.

    Bernaz, supra note 76, at 533. ↩

80. 80.

    Megan A. Fairlie, The Hidden Costs of Strategic Communications for the International Criminal Court, 51 Tex. Int’l L.J. 281, 292–96 (2016), available online. ↩

81. 81.

    2020 Annual Report, supra note 3. ↩

82. 82.

    Id. ¶¶ 15, 27–29. ↩

83. 83.

    Id. ¶ 28. ↩

84. 84.

    Id. ↩

85. 85.

    deGuzman, supra note 5, at 1465. ↩

86. 86.

    Susana SáCouto & Katherine A. Cleary, The Gravity Threshold of the International Criminal Court, 23 Am. U. Int’l L. Rev. 807, 814 (2007), available online. ↩

87. 87.

    Kai Ambos & Ignaz Stegmiller, Prosecuting International Crimes at the International Criminal Court: Is There a Coherent and Comprehensive Prosecution Strategy?, 58 Crim. L. & Soc. Change 415 (Jan. 19, 2013), available online, archived, doi. ↩

88. 88.

    See Id. ¶¶ 9, 33, 38, 40–41, 45, 50. ↩

89. 89.

    Id. at 415–37. ↩

90. 90.

    Rome Statute, supra note 5, Preamble, Article 5. ↩

91. 91.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶¶ 8, 45. ↩

92. 92.

    Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 45

    (focusing attention on crimes affecting children, rape and other sexual and gender-based crimes, attacks against cultural, religious, historical and other protected objects, as well as against humanitarian and peacekeeping personnel). ↩

93. 93.

    Strategic Plan 2016–2018, supra note 51. ↩

94. 94.

    Al-Werfalli Case, ICC-01/11-01/17, The Prosecutor v. Mahmoud Mustafa Busayf Al-Werfalli, available online (last visited Jun. 15, 2021). ↩

95. 95.

    Al Mahdi Case, ICC-01/12-01/15, The Prosecutor v. Ahmad Al Faqi Al Mahdi, available online (last visited Jun. 15, 2021). ↩

96. 96.

    Moreno-Ocampo, supra note 22, at 6. ↩

97. 97.

    See Luc Côté, supra note 21, at 175. ↩

98. 98.

    David P. Forsythe, Politics and the International Tribunal for the Former Yugoslavia, in The Prosecution of International Crimes: A Critical Study of the International Tribunal for the Former Yugoslavia 186 (Roger S. Clark & Madeleine Sann eds., 1996), paywall, doi; see also Rod Rastan, Comment on Victor’s Justice and the Viability of Ex Ante Standards, 43 John Marshall L. Rev. 569 (Mar. 2010), available online. ↩

99. 99.

    (The latin phrase fiat justitia ruat coelum, ascribed to Lucius Calpurnius Piso Caesoninus (d. 43 B.C.), translates to “Let justice be done, though heaven should fall.”). ↩

100. 100.

     Contra, Secretary General, Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law in the Territory of the Former Yugoslavia Since 1991, UN Doc. A/49/342, S/1994/1007, ¶ 18 (Aug. 29, 1994), available online.

     (“In sum, it would be wrong to assume that the Tribunal is based on the old maxim fiat justitia et pereat mundus (let justice be done, even if the world were to perish). The Tribunal is, rather, based on the maxim propounded by Hegel in 1821: fiat justitia ne pereat mundus (let justice be done lest the world should perish). Indeed, the judicial process aims at averting the exacerbation and aggravation of conflict and tension, thereby contributing, albeit gradually, to a lasting peace.”). ↩

101. 101.

     Rastan, supra note 51, at 589–93. ↩

102. 102.

     Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 16. ↩

103. 103.

     Arrest Warrants Appeal, supra note 12; Kenya Investigation Authorization, supra note 50, at 188; Côte d’Ivoire Investigation Authorization, supra note 50, ¶ 203; Abu Garda, supra note 50, ¶ 31; Georgia Investigation Authorization, supra note 47, ¶ 51; Regulations of the Office of the Prosecutor, supra note 4, Article 29(2); Policy Preliminary Examinations, supra note 32, ¶¶ 9, 71. ↩

104. 104.

     See Ignaz Stegmiller, The Pre-Investigation Stage of the ICC: Criteria for Situation Selection in Studies in International and European Criminal Law and Procedure (vol. 8) 329 et seq. (2011), paywall. ↩

105. 105.

     Rome Statute, supra note 5, Article 53. ↩

106. 106.

     Policy Paper on Case Selection and Prioritisation, supra note 1, ¶ 5. ↩

107. 107.

     Basic Size, supra note 52. ↩

108. 108.

     See Policy Paper on Case Selection and Prioritisation, supra note 1. ↩

109. 109.

     Human Rights Watch, supra note 27. ↩

110. 110.

     Independent Expert Review of the International Criminal Court and the Rome Statute System: Final Report ¶ 646, R. 227 (Sep. 30, 2020), available online.

     (“In order to address the disparity between the OTP resources and the high number of PEs resulting in investigations, the Prosecutor should consider adopting a higher threshold for the gravity of the crimes alleged to have been perpetrated. Gravity should also be taken into account at Phase 1 of PEs.”). ↩

111. 111.

     International Criminal Court, Overall Response of the International Criminal Court to the “Independent Expert Review of the International Criminal Court and the Rome Statute System—Final Report” Preliminary Analysis of the Recommendations and Information on Relevant Activities Undertaken by the Court 94 (Apr. 14, 2021), available online.

     ([Regarding Recommendation 411:] “However, as the Experts themselves appear to recognise, there is a difference between gravity as a legal threshold respecting the opening of investigations, with the ICC’s jurisprudence so far setting a relatively low gravity threshold, and gravity as a policy factor, where the OTP might raise the gravity threshold where it has broad discretion, such as in case selection or prioritisation decisions. It should be recognized that the OTP cannot unilaterally raise the legal threshold of gravity, although it can exercise its discretion in selecting which cases to investigate or prosecute.”). ↩

112. Suggested Citation for this Comment:

     Ray Murphy, Despite the Concept of Gravity Being a Central Tenet of International Criminal Justice, the Rome Statute Provides Little by Way of Explanation Into What This Actually Means in Practice and Applying a Clear Policy on Case Selection Remains a Challenge, ICC Forum (Jul. 1, 2021), available at https://iccforum.com/gravity#Murphy.

     Suggested Citation for this Issue Generally:

     What is the Universe of Cases Upon Which the ICC Should Focus? What Should Be the Threshold for the Gravity That Warrants Investigation of a Situation or Prosecution of Those Most Responsible?, ICC Forum (Jul. 1, 2021), available at https://iccforum.com/gravity.

Argument Continued

The policy reasons for such a proposal are appealing. The accountability architecture is changing. With growing institutional and normative critiques of ICC justice, such as its physical or cultural remoteness from crimes, superficial engagement in atrocity contexts, ICC-centric readings of complementarity, fragility of cases or lack of meaningful completion strategy, and a turn to new investigative mechanisms, supporting the exercise of domestic jurisdiction, targeted hybrid or specialized courts or emerging regional mechanisms, it becomes central to re-think how the ICC can make the most meaningful impact with the limited means at its disposal. As a matter of policy, it is tempting to argue that “less is more,” namely that the Court should engage in lesser situations, but do them well, rather than trying to fix all accountability problems that come its way, without leaving a lasting impact in the respective context. As the Independent Expert Review notes, some ICC engagements have had limited impact:

In several situations to date, only one case has been prosecuted and thereafter de facto closed. It is questionable whether a single prosecution is sufficient to address the justice needs of a whole situation.7

However, it is doubtful whether a higher gravity threshold for situations or selection of cases is the proper remedy to address the underlying problems. It might do more harm than good. It is preferable to search for alternative solutions, in order to address some of the valid concerns raised by the review process. Gravity should not be read as overriding factor for the selection of situations, but rather as a minimum threshold, in order to keep sufficient flexibility and contextualize crimes. As Pre-Trial Chamber I noted in Comoros, the purpose is “not to oblige the Court to choose only the most serious cases, but merely to oblige it not to prosecute cases of marginal gravity.”8 According to the drafting history, gravity under Art. 17(1)(d) of the Rome Statute was deemed to protect the Court from “being overwhelmed with less serious cases,” particularly with regard to the so-called treaty crimes, which have lesser inherent thresholds than core crimes.9

Neither States Parties nor the Court have given any serious consideration to develop the deeper social or criminological meanings or gravity. As Stuart Ford has shown, there is very limited empirical research as to what renders a situation or crime grave across different audiences, i.e. those affected by crimes, directly or indirectly affected states, or civil society more broadly.10 Margaret deGuzman has helpfully clarified that gravity cannot be considered in isolation of the goals of the Court.11 The proposal puts the cart before the horse. Based on the existing lack of understanding, it is premature to raise the bar through a different interpretation of gravity. Instead of trying to give new normative content to gravity, which may be impossible to achieve in light of the diversity of opinion, it may be more helpful to directly target the dilemmas that the expert review has identified. The policy to focus on the “most responsible,” which has been advocated in early prosecutorial strategy, turned out to be a Trojan horse. Experiences with cases, such as Bemba, Gbagbo, or Al-Bashir, suggest that it may be overly ambitious to target the highest political or military leaders, without a line of cases establishing command structures, hierarchies, or specific fact patterns, particularly in circumstances in which there has been no political transition and ICC cases are directed against state officials who remain in power. The rhetoric on targeting leadership crime only creates unhelpful expectations and needs to be differentiated. As more recent strategies indicate, it may be necessary to be more modest, pragmatic, and realistic.

II. Gravity in Context—a Plea for Caution

International law has an uneasy relationship to gravity. The notion plays a role across different areas. Systemically, gravity is not only a technical notion, which determines the applicability of norms or jurisdictional or admissibility thresholds, but a relational concept, which provides legitimacy to institutions.12 The discursive association with grave situations, grave crimes or violations, or the “most responsible persons” provides moral authority or symbolic importance to institutions. Gravity is like a magic spell. The cause pursued by institutions is deemed to create solidarity and compassion. Gravity is a means to increase the expressive potential of international courts and tribunals. It creates an aura that provides weight to their decisions. The institutions become too important to fail from a moral point of view.

Gravity serves at the same time to draw boundaries and distinctions. It organizes processes of inclusion and exclusion. For instance, it determines which issues deserve global attention, what constitutes an international or a domestic crime, or what scenarios come within the ambit of specific areas of law (e.g. use of force). Rachel López has provided an excellent comparative survey, showing how the concept of gravity is used to determine relations of affect and possible reactions to breaches of law. She has argued that the “gravity of a violation” may not only provide a cause for common concern, but “trigger” “obligations erga omnes” or determine “the severity of coercive measures that are permitted to enforce international law.”13 Gravity thus organizes legal gray zones and seeks to order or clarify permissible response schemes to violations.

The basic dilemma of gravity is its attempt to square the circle. The concept introduces dividing lines, labels, categorizations, or responses to diffuse social phenomena. It may create false binaries or hierarchies which contrast with normative complexity. For instance, the connection between international and domestic crimes is fluid. It is over-simplistic to assume that international crimes necessarily carry a greater degree of gravity than domestic crimes. Many crimes against humanity have a double face: they are both international and domestic crimes. The indeterminacy of the notion of “other inhumane acts” reflects this fluidity. Formally, the notion of gravity may not even be needed to distinguish international and domestic crime. One may simply say that a crime becomes international when it is defined in international legal instruments or triggers rights and obligations under international law.14

Gravity is a social construct. Its construction depends on cultural contexts and normative evaluation. The ICC Pre-Trial Chamber recognized this quite early in the Court’s jurisprudence when, in order to determine gravity, it relied on the social alarm test in the arrest warrant against Ntaganda.15 However, it drew the wrong conclusions from this point of departure. Gravity relies heavily on social awareness, consciousness, and perception.16 The Chamber did not try to determine the constituents of social alarm, but simply put forward a number of legal criteria, drawn from parallels of ad hoc tribunal jurisprudence under Rule 11 bis, without developing a methodology to take into account the social dimensions or the perception of gravity by those affected. Gravity was solely determined by the voice of the interpreter, i.e. the Chamber.

In the aftermath of the Lubanga decision, gravity was construed in a more flexible way.17 It has become a truism in decisions to argue that gravity involves both quantitative and qualitative elements. Gravity became everything and nothing at the same time. This approach created a circular logic. The Court did not determine gravity, but rather created it. In essence, a Court finding that something merits investigation and prosecution rendered it grave, rather than the other way around. Subsequent decisions, such as Al Mahdi or Comoros have relied on the international impact of crimes to highlight gravity. However, this is a very internationalist reading of social alarm, which reduces perspectives and marginalizes less internationally visible voices. It makes the ICC vulnerable to socio-legal or imperial critiques which postulate that international criminal justice entrenches existing inequalities and focuses predominantly on spectacular violence.18

Overloading the very concept of gravity with legal meaning may have counterproductive effects. It may feed into critiques of legalism, overstretch the limits of law,19 or reduce social complexity in artificial ways. There is thus some merit in the minimalist reading of the ICC which held that gravity should only:

[E]xclude from the purview of the Court those rather unusual cases when conduct that technically fulfills all the elements of a crime under the Court’s jurisdiction is nevertheless of marginal gravity only.20

III. Risks and Dilemmas of a Higher Gravity Threshold in the Selection of Situations

The proposal to apply a higher gravity threshold to the selection of situations creates a number of problems and potential unintended consequences which deserve critical review.

A. Dynamic Nature of Situations

A first problem of a higher gravity threshold is the unpredictability of gravity at the situation stage. Gravity is not an absolute, but a relative concept. In physics, it is a force that ties things together. In law, it builds on interconnectedness. It is challenging to determine a firm gravity benchmark, since it is dependent on purposes and variables, such as scale, nature, impact, or manner of commission, which need to be balanced against each other. Many of these factors only become apparent through examination or investigation. The Rome Statute lacks guidance as to what would render a situation sufficiently grave. As ICC jurisprudence has clarified, at the situation stage, gravity is assessed against the “potential cases” arising from the situation.21 Gravity involves thus hypothetical assessment.

Many conflicts are dynamic. A fundamental difference of the ICC to the ad hoc tribunals for the former Yugoslavia or Rwanda is that the ICC intervenes in contexts of ongoing conflict rather than after the fact. Situations such as Libya or Afghanistan show that the level of violence or the nature of the conflict may change over time. International armed conflicts are often followed by internal turmoil or violence. Low intensity conflicts or civil wars can easily take on international or transnational features, based on the involvement of third parties. Applying a burdensome gravity threshold at the start may compromise the ability of the ICC to act early on, namely when atrocities unfold. Both prevention and investigation and adjudication rely on instant response, i.e. the possibility of quick reaction in situations of urgency. The proposal may compromise this ability, since it would require the ICC to stay inactive in dynamic conflict situations. This may affect the ability to gather material and evidence immediately after atrocity, and ultimately hamper the prospects of potential cases.

B. Legal Black Holes and Blind Spots

A higher gravity threshold may also reinforce selectivity and compromise the perception of independence and impartiality. Modelling gravity at the ICC after the example of the ad hoc tribunals may render the ICC even more suspect in the eyes of those who view it as a tool of Western nations or the powerful. It would make it more difficult to deflect critiques that the ICC focuses predominantly on accountability dilemmas in states that suffer from governance flaws or political crises, while turning a blind eye on accountability deficits in stable democracies or their broader contributions to such conditions.22 This may reinforce geo-political critiques, such the ICC’s focus on certain parts of the world, or even prompt further pushback or backlash from those who are at the receiving end of ICC investigations or prosecutions.

A stricter gravity test might exclude situations with a narrower focus, such as the U.K. crimes in Iraq or the Comoros situation, which encompassed only a limited number of incidents. This may ultimately create greater legal black holes and perpetuate the impression that the Court goes after easy targets or “the weak” or leaves the more complex or subtle contributions to conflict aside. If the argument of complementarity is taken seriously, the Court may need to take up such situations in the absence of domestic investigations or prosecutions, precisely because other states will be reluctant to pursue them. Rightly understood, gravity derives not only from the number of incidents, crimes, or victims, but also from a culture of failing to prevent abuse, deception by institutions, or factors related to the authors of violations.

Another critical side effect of the adoption of a higher gravity threshold is the impact on prevention and cooperation, namely its potential to limit the capacity of the Court to contribute to prevention of crimes or support local investigations or prosecutions. The effect would reach far beyond the Rome Statute. For instance, U.N. fact-finding or investigative mechanisms would lose part of their leverage, since the prospects of ICC engagement would become more remote. This will ultimately reduce pressure on domestic jurisdictions to act and make international justice even more dependent on the U.N. Security Council, or hybrid tribunals, or “private” investigations, which are often highly donor-driven.

C. Problems of Judicial Assessment

A third problem is judicial assessment.23 Gravity under Art. 17(1)(d) is an admissibility requirement that needs to be examined ex officio from the early stages of proceedings by the Prosecution and judges. Gravity decisions do not only involve legal, but also contextual and political assessment. Introducing a higher threshold would introduce a high degree of uncertainty. As the situations in relation to Bangladesh/Myanmar or Palestine indicate, the OTP is unlikely to proceed with extended preliminary examinations or investigations, in cases where fundamental issues of jurisdiction or admissibility are unsettled. Starting proceedings on an uncertain basis involves risks. The OTP would likely seek early clarification from the Pre-Trial Chamber in order to avoid a waste of resources. The Rome Statute lacks clear procedures authorizing the OTP to seek guidance on admissibility, including the determination of the gravity threshold, at the situational stage.24 Even if such an option was provided or accepted as part of the inherent jurisdiction of Chambers, the following adjudication may not only delay justice intervention, but confront the judges with difficult predictions and contextual assessments that do not easily lend themselves to judicial review.

In existing practice, judges have largely shied away from detailed gravity assessments. The fluidity of gravity criteria has allowed judges to refrain from such determinations. The OTP as quasi-judicial body, with political expertise and a closer nexus to facts and circumstances, is better equipped to make delicate gravity assessments. Awarding greater power to judges to determine the appropriate threshold may not only create complex and lengthy litigation, but involve the Pre-Trial Chamber, and potentially the Appeals Chamber, in issues of social relevance or political impact which go to limits of the judicial mandate.

D. Exclusionary Effects

Most importantly, a higher gravity threshold may deprive the ICC of the flexibility to take on some of the most pressing cases of our time. Situation selection is the symbolic capital of the Court. Many atrocity crimes contain speech acts which violate norms and require denunciation to demonstrate the equality of perpetrators before the law or to affirm the violation of rights of victims and survivors.25 The success of the mandate of the ICC depends not only on the record of its own investigations and prosecutions, but also on its expressive effects,26 namely its ability to communicate and signal what types of crimes deserve prosecution or punishment. International criminal justice is far more than a means to provide retribution, inflict suffering, or protect society from the offender. Its strength lies partly in its ability to publicly denounce wrongdoing, affirm the legal order, send messages to future offenders, or communicate wrongdoing to the convicted person. The selection of situations should thus not only be driven by gravity factors, but also by the expressive potential of the Court, i.e. its ability to shape accountability practices in areas which are neglected and in need of greater attention. For instance, a prosecutor may have valid reasons to engage with criminal behavior that is not currently perceived to be as grave as existing atrocity crimes, but which is in need of further attention or public action.27

The current framework of atrocity crime has striking gaps in relation to cyber-crime, environmental crime, historical injustices such as colonial crimes, the intersection between economic and atrocity crime, or corporate criminal responsibility. Prompting accountability in contexts where states do not currently act is precisely one of the added advantages of the ICC as global institution. A technical gravity threshold, modeled after classical atrocity crime, may prevent the ICC from engaging with such phenomena.

For example, Rachel López has tried to map determinants of gravity, based on a comparative study of institutions. She has found that gravity is associated with violations that are:

[U]niversally condemned as grave, done deliberately, and either acutely harm a limited number of individuals or are so widespread and systematic that the cumulative harm is severe.28

If such “laws of gravity” were applied to selection of ICC situations, they might exclude a broad range of contexts, such as slow forms of violence, including environmental or socio-economic harms; non-intentional forms of wrongdoing, such as reckless, negligent, careless, or even thoughtless behavior; or non-anthropocentric forms of harm. Preserving the ability of the Court to select situations not merely based on existing gravity perceptions, but also by reference to expressive rationales, is key to its relevance, its capacity to react to changing patterns and perceptions of criminality, and its need to respond to structural critiques of international criminal justice.

IV. Risks and Dilemmas of a Higher Gravity Threshold in the Selection of Cases

The proposal to apply a higher gravity threshold to case selection faces similar critiques. The idea to “focus on those most responsible for the commission of such crimes” has proved to be unrealistic in practice and faces certain policy objections. Some flexibility is necessary, in order to allow the OTP to include certain expressive rationales in case selection. A hierarchization of criteria, based on factors such as “the gravity of the crimes” or the “degree of responsibility of potential suspects,”29 may unduly constrain the reach of the ICC and limit its ability to pursue more remote causes of criminality.

While it is feasible to broaden the number of cases per situation and develop strategic planning, “especially if mid-level perpetrators are to be prosecuted,”30 it may be counterproductive to theorize case selection predominantly based on evidence relating to political or military elites. The social roles and contributions enabling crime are more diffuse.

Given the existing experiences, the ICC will likely continue to struggle to bring cases against leaders who remain in power. However, the Court is well equipped to trace the global interconnections of crimes. A compelling example is corporate involvement in crime. The absence of corporate criminal responsibility is one of the structural deficits of the ICC regime.31 Tribunals, like the Special Tribunal for Lebanon, have made a start by holding companies accountable for contempt of court. In resource-driven conflicts or corruption-fueled violence, the ICC may benefit from bringing complicity cases against corporate representatives, even though they may not belong to social elites or be the immediate perpetrators of atrocity crimes. Such cases may have a more limited nexus to the crimes, but carry great benefit in terms of social alarm, prevention, or revealing the structural causes of violations. In specific circumstances (e.g. historical violations), there may also be merit in targeting bystanders, who become complicit in the enduring consequences of crimes.

The drafters of the Rome Statute foresaw this flexibility in the conception of modes of liability. They are adverse to a strict hierarchy, based on “degree of responsibility of potential suspects.” Depending on the circumstances, both commission and participation may potentially entail similar sentencing. This flexibility should not be artificially curtailed through the backdoor of hierarchized gravity criteria.

V. Some Alternative Paths

The notion of gravity has become one of the cornerstones of controversy over the policies and orientations of the ICC. In practice, the imprecise contours of the legal notion have been used as strategic argument by different actors in order to advance their interests. Judges have tried to give new normative content to gravity in order to enhance their control over investigative or prosecutorial choices. The OTP relied on the contested methodology of comparing situations in order to justify its initial decision not to proceed with a request for an authorization of an investigation relating to Iraq.32 Powerful states or non-States Parties push for stricter gravity requirements in order to avoid interference by the OTP. The Independent Expert Review has proposed a modified gravity threshold to transform the selection policy and record of the Court, including the prospect of success of cases. Others advocate for higher gravity in order to maintain budgetary control over the activities of the OTP.

A common trend is the use of gravity as an argumentative tool to solve specific normative conflicts, without full consideration to the implications that such choices have across situations or on the long term. Gravity has turned partly into a normative site or surrogate for underlying battles, which are far less clearly articulated.

A. Articulating Dilemmas: Less Rather Than More Gravity

The methodology needs to be reversed. In order to address existing problems, it may be helpful to rely less, rather than more, on gravity. A better way to reform Court practices may be to make dilemmas more apparent and explain choices and constraints more thoroughly and openly, rather than trying to fill the notion of gravity with further substantive criteria. Changes in practice depend on organizational factors, including changes in organizational culture.33 For instance, decisions by the OTP require greater transparency and motivation in order to understand selectivity dilemmas. The OTP needs to better articulate specific goals and priorities for each situation in order to justify its choices towards states, victims, and affected communities. Gravity may be a part of this, but its meaning should not be overstretched. Otherwise, the Court will easily apply inconsistent or incoherent approaches. In particular, decisions not to proceed under Art. 15 of the Rome Statute, decisions not to start investigations, or decisions to close situations require better motivation. Many of these dilemmas are silenced by mere recourse to gravity language.

B. Better Discursive Structures

The structures, which permit dialogue over situation or case selection, should be revisited. Gravity is often a means to end debate rather than to open dialogue. Stakeholders of the Court are confronted with outcomes rather than implicated in decision-making processes. Communication is one-sided rather than dialogical. In particular, affected communities are often left aside, since their interests are mediated through the Prosecution, the state, or victim representatives. Court policies claims that “people most affected by the crimes should have the right to understand, to participate in, but also to have a sense of ownership of the justice process.”34 However, this is still partly lip-service. Engagement with these communities remains highly selective and is often one-dimensional, i.e. framed as outreach rather than open consultation. As Margaret deGuzman has argued, gravity requires more “dialogical approaches” and openness towards alternate views of Court audiences in the decision-making process.35 The Court needs to develop its capacity to actively listen to others, including ideas that it might find difficult to engage with (radical listening).

C. Political Structures

Most importantly, many disputes over gravity are political in nature. They cannot be solved through abstract legal criteria, but require concrete and targeted political strategies and structures. It is important to respect prosecutorial discretion and expertise, while creating political channels to solve impasses. This requires investment in the governance structures of the Assembly of States Parties and the ability of States to mediate conflicts over the exercise of the Court’s mandate. For instance, I have elsewhere argued for a targeted forum inside the Assembly of States Parties to promote dialogue with non-states parties and strengthen complementarity on a political level, including in completion strategies for situations.

[It] could serve as a collective platform to create leverage for effective investigations or prosecutions, channel knowledge and expertise to facilitate domestic justice efforts, engage with states that face impediments or serve as a broader sounding board for concerns.36

Voices of the Global South need to be listened to more carefully. Such initiatives may be a better way forward than a restriction of the Court’s reach, based on shaky and malleable gravity considerations.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Megan A. Fairlie, The Hidden Costs of Strategic Communications for the International Criminal Court, 51 Tex. Int’l L.J. 281 (2016), available online. ↩

2. 2.

   Carsten Stahn, Damned If You Do, Damned If You Don’t: Challenges and Critiques of Preliminary Examinations at the ICC, 15 J. Int’l Crim. Just. 413 (Aug. 2, 2017), paywall, doi, earlier version archived; Morton Bergsmso & Carsten Stahn eds., Quality Control in Preliminary Examinations (TOAEP 2018), available online (I), (II). ↩

3. 3.

   Independent Expert Review of the International Criminal Court and the Rome Statute System: Final Report ¶ 650 (Sep. 30, 2020) [hereinafter IER Report], available online. ↩

4. 4.

   Id. R. 227. ↩

5. 5.

   Id. ¶ 650. ↩

6. 6.

   Id. R. 230. ↩

7. 7.

   Id. ¶ 683. ↩

8. 8.

   Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and the Kingdom of Cambodia, ICC-01/13-111, Decision on the “Application for Judicial Review by the Government of the Comoros” (PTC I, Sep. 16, 2020) [hereinafter Comoros], available online. ↩

9. 9.

   See The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud, ICC-01/12-01/18-601-Red, Judgment on the appeal of Mr Al Hassan against the decision of Pre-Trial Chamber I entitled “Décision relative à l’exception d’irrecevabilité pour insuffisance degravité de l’affaire soulevée par la défense” ¶ 57, n. 103 (AC, Feb. 19, 2020) [hereinafter Al Hassan Appeal], available online. ↩

10. 10.

    Stuart Ford, The Meaning of Gravity at the International Criminal Court: A Survey of Attitudes about the Seriousness of Mass Atrocities, 24 U.C. Davis J. Int’l L. & Pol’y 209 (2018), available online, archived. ↩

11. 11.

    Margaret M. deGuzman, Shocking the Conscience of Humanity: Gravity and the Legitimacy of International Criminal Law (Apr. 13, 2020), paywall. ↩

12. 12.

    Gus Waschefort, Gravity as a Requirement in International Criminal Prosecutions: Implications for South African Courts, 47 CILSA 38, 43 (Jul. 16, 2014), available online

    (“Gravity, as a foundational philosophy for the actual establishment of the ICC, as opposed to gravity in relation to the other listed spheres, exists to give legitimacy to the existence of the Court.”). ↩

13. 13.

    Rachel López, The Law of Gravity, 58 Colum. J. Transnat’l L. 565 (Apr. 1, 2020), available online. ↩

14. 14.

    See Carsten Stahn, A Critical Introduction to International Criminal Law 20–21 (2018), available online, doi. ↩

15. 15.

    The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2, Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58 ¶¶ 42–60, 63 (PTC I, Feb. 10, 2006), available online. ↩

16. 16.

    See generally Émile Durkheim, The Division of Labour in Society (George Simpson trans., 1964).

    (Sociologist Émile Durkheim has referred to the collective conscience in its justification of punishment. Durkheim argued that the evil nature of criminality lies not so much in the crime itself, but rather in its destructive effect on common beliefs. He claimed that judicial institutions are guardians of public conscience which are entitled to express social condemnation of crimes through punishment). ↩

17. 17.

    For a survey, see Marco Longobardo, Everything is Relative, Even Gravity, 14 J. Int’l Crim. Just. 1011 (2016), available online; Kevin Jon Heller, Situational Gravity Under the Rome Statute, in Future Directions in International Criminal Justice 227 (Carsten Stahn & Larissa van den Herik eds., 2010), available online. ↩

18. 18.

    John Reynolds & Sujith Xavier, “The Dark Corners of the World”: TWAIL and International Criminal Justice 14 J. Int’l Crim. Just. 959 (Sep. 16, 2016), available online, archived, doi; Frederick Cowell, Inherent Imperialism: Understanding the Legal Roots of Anti-imperialist Criticism of the International Criminal Court, 15 J. Int’l Crim. Just. 667 (Oct. 18, 2017), paywall, archived, doi; Christine Schwöbel-Patel, Marketing Global Justice: The Political Economy of International Criminal Law (Mar. 2021), paywall, doi. ↩

19. 19.

    Mark J. Osiel, When Law “Expresses” More Than It Cares to Admit: Comments on Heller in Future Directions in International Criminal Justice 254 (Carsten Stahn & Larissa van den Herik eds., 2010). ↩

20. 20.

    Comoros, supra note 8, ¶ 22; see also Al Hassan Appeal, supra note 9, ¶ 59. ↩

21. 21.

    Comoros, supra note 8, ¶ 18. ↩

22. 22.

    See William A, Schabas, The Banality of International Justice, 11 J. Int’l Crim. Just. 545 (Jun. 8, 2013), available online, doi. ↩

23. 23.

    See generally Priya Urs, Judicial Review of Prosecutorial Discretion in the Initiation of Investigations into Situations of “Sufficient Gravity”, 18 J. Int’l Crim. Just. 851 (Sep. 5, 2020), paywall, doi. ↩

24. 24.

    Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, U.N. Doc. A/CONF.183/9 [hereinafter Rome Statute], Art. 19, available online.

    (Rome Statute applies to cases, rather than situations). ↩

25. 25.

    See Carsten Stahn, Justice as Message: Expressivist Foundations of International Criminal Justice (2020), paywall, doi; Carsten Stahn, Justice as Message Symposium: Message from the Author, Opinio Juris (Dec. 14, 2020), available online. ↩

26. 26.

    On international criminal justice, see Barrie Sander, The Expressive Turn of International Criminal Justice: A Field in Search of Meaning 32 Leiden J. Int’l L. 851 (Dec. 2019), paywall, doi, earlier version archived.

    (Since the 1960s, expressive theories have been invoked in general theories of law to explain public regulation and domestic justifications of punishment. Expressive theories suggest that law has value because of its ability to convey social meaning, in addition to its ability to control behavior). ↩

27. 27.

    Nirej Sekhon, The Pedagogical Prosecutor 44 Seton Hall L. Rev. 1 (Jan. 10, 2014), available online. ↩

28. 28.

    Rachel López, The Law of Gravity: A Newtonian Proposal for Public International Law, Opinio Juris (Jul. 24, 2020), available online. ↩

29. 29.

    IER Report, supra note 3, R. 230. ↩

30. 30.

    Id. ¶ 683. ↩

31. 31.

    See Carsten Stahn, Liberals vs Romantics: Challenges of an Emerging Corporate International Criminal Law, 50 Case W. Res. J. Int’l L. 91 (2018), available online. ↩

32. 32.

    Letter from Luis Moreno-Ocampo, Chief Prosecutor, ICC, Regarding Situation in Iraq (Feb. 9, 2006), available online. ↩

33. 33.

    Birju Kotecha, The International Criminal Court’s Selectivity and Procedural Justice 18 J. Int’l Crim. Just. 107, 123 (Mar. 2020), available online, doi. ↩

34. 34.

    See Interacting With Communities Affected by Crimes, Int’l Crim. Ct., available online (last visited Jun. 28, 2021). ↩

35. 35.

    deGuzman, supra note 11, 196 et seq. ↩

36. 36.

    Carsten Stahn, Revitalizing Complementarity a Decade After the Stocktaking Exercise, 115 TOAEP Pol. Br. S. 1, 4 (2020), available online. ↩

37. Suggested Citation for this Comment:

    Carsten Stahn, Why a Higher Gravity Threshold May be Part of the Problem Rather than a Solution to the ICC’s Dilemmas, ICC Forum (Jul. 1, 2021), available at https://iccforum.com/gravity#Stahn.

    Suggested Citation for this Issue Generally:

    What is the Universe of Cases Upon Which the ICC Should Focus? What Should Be the Threshold for the Gravity That Warrants Investigation of a Situation or Prosecution of Those Most Responsible?, ICC Forum (Jul. 1, 2021), available at https://iccforum.com/gravity.