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], available online. عربي, 中文, English, Français, Ελληνικά, Русский, Español.

• Preamble

• Article 17: Issues of admissibility

• Article 53: Initiation of an investigation

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 (Apr. 14, 2021). Available online.

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

Office of the Prosecutor, ICC, Report on Preliminary Examination Activities 2020 (Dec. 14, 2020). Available online.

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

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 (AC, Mar. 05, 2020). Available online.

Office of the Prosecutor, ICC, Strategic Plan 2019–2021 (Jul. 17, 2019). Available online.

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

Office of the Prosecutor, ICC, Strategic Plan 2016–2018 (Jul. 6, 2015). Available online, archived.

Office of the Prosecutor, ICC, Policy Paper on Sexual and Gender-Based Crimes (Jun. 2014). Available online, archived.

Office of the Prosecutor, ICC, Policy Paper on Preliminary Examinations (Nov. 2013). Available online.

Office of the Prosecutor, ICC, Draft Policy Paper on Preliminary Examinations (Oct. 4, 2010). Available online.

International Criminal Court, Regulations of the Office of the Prosecutor, ICC-BD/05-01-09 (Apr. 23, 2009). Available online.

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

Independent Expert Review of the International Criminal Court and the Rome Statute System: Final Report (Sep. 30, 2020). Available online.

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

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.

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.

Cécile Aptel, Prosecutorial Discretion at the ICC and Victims’ Right to Remedy: Narrowing the Impunity Gap, 10 J. Int’l Crim. Just. 1357 (Dec. 2012). Paywall, doi.

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 (Jul. 2017). Paywall, doi.

Todd Buchwald, What Kinds of Situations and Cases Should the ICC Pursue? The Independent Expert Review of the ICC and the Question of Aperture, Just Security (Nov. 30, 2020). Part I, Part II, Part III.

Luc Côté, Reflections on the Exercise of Prosecutorial Discretion in International Criminal Law, 3 J. Int’l Crim. Just. (Mar. 2005). Paywall, doi.

Margaret M. deGuzman, Choosing to Prosecute: Expressive Selection at the International Criminal Court, 33 Mich. J. Int’l L. 265 (2012). Available online.

Decisions about who to select for prosecution is fundamental for the legitimacy of the Court. There is little international agreement about which crimes are so grave that they deserve the ICC’s attention and resources. Instead, the author argues that the ICC’s should choose cases that maximize the Court’s expressive impact.

Margaret M. deGuzman, How Serious Are International Crimes? The Gravity Problem in International Criminal Law, 15 Colum. J. Transnat’l L. 18 (2012). Available online.

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

Gravity should be determined based on a straightforward factor-based analysis, and only those cases that score at the bottom of the analysis should be excluded based on gravity.

Mohamed M. El Zeidy, The Gravity Threshold under the Statute of the International Criminal Court, 19 Crim. L. Forum 35 (Dec. 18, 2007). Paywall, doi.

Allowing a lower gravity threshold is appropriate and consistent with OTP Policy.

“The higher threshold established by the Chamber’s decision may, therefore, have a negative impact on the Court’s deterrent effect and the prevention of future crimes, since it would contribute to the exclusion of certain cases that should be tried before its jurisdiction.”

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.

After conducting a survey, finds relatively broad agreement about some factors that most people associate with crime gravity, and also finds that some factors considered by the ICC are not associated with crime gravity by most people. The strong factors could be used to construct a definition of crime gravity that most people would agree with and that they are more likely to view as legitimate and the weak factors could be removed.

Stuart Ford, What Investigative Resources Does the International Criminal Court Need to Succeed?: A Gravity-Based Approach, 16 Wash. U. Global Stud. L. Rev. 1 (2017). Available online.

Hyeran Jo & Beth A. Simmons, Running the Numbers on ICC Deterrence: When Does It Actually Work?, Open Democracy (Mar. 22, 2016)., Available online.

Mark Kersten, Lubanga and the Trouble with ICC Deterrence, Just. in Conflict (Mar. 20, 2012). Available online.

Marco Longobardo, Factors Relevant for the Assessment of Sufficient Gravity in the ICC Proceedings and the Elements of International Crimes, Questions of Int’l L. (Nov. 30, 2016). Available online.

Marco Longobardo, Everything is Relative, Even Gravity, 14 J. Int’l Crim. Just. 1011 (2016). Available online.

In other words, it is not possible to identify a clear ordinary meaning of the word “gravity”, but rather, it must be evaluated in relation to the actual context. Since gravity is never defined in the Rome Statute, its interpretation should be related to the material objects and circumstances to which the provision must be applied because of the clear link between the abstract interpretation and the concrete application of a norm. This includes relevant physical dimensions (i.e. “less” crimes may suffice in smaller spaces, like abroad a ship).

David Luban, A Theory of Crimes Against Humanity, 29 Yale J. Int’l L. 85 (2004). Available online, archived.

Luis Moreno-Ocampo, ICC Prosecutor, Integrating the Work of the ICC into Local Justice Initiatives, 21 Am. U. Int’l L. Rev. 497 (Jan. 1, 2006). Available online.

Christopher W. Mullins & Dawn L. Rothe, The Ability of the International Criminal Court to Deter Violations of International Criminal Law: A Theoretical Assessment, 10 Int’l Crim. L. Rev. 771 (Oct. 2010). Available online.

Ray Murphy, Gravity Issues and The International Criminal Court, 17 Crim. L. Forum 281 (Dec. 2006). Paywall, doi.

The ICC should only focus on the most severe, grave cases because it has limited resources.

Melanie O’Brien, Prosecutorial Discretion as an Obstacle to Prosecution of United Nations Peacekeepers by the International Criminal Court: The Big Fish/Small Fish Debate and the Gravity Threshold, 10 J. Int’l Crim. Just. 525 (Jun. 28, 2012). Paywall, archived, doi.

“A single incident of war crime should be enough for a prosecution, and in fact such a case may have an unforeseen impact on the formulation of international criminal law precedent.”

Megumi Ochi, Gravity Threshold Before the International Criminal Court: An Overview of the Court’s Practice, Int’l Crimes Database (Jan. 2016). Available online.

Farid Mohammed Rashid, The Hidden Discretionary Capacity of the ICC Prosecutor: Revisiting the Analysis of Legal and Relative Gravity, 24 Int’l J. of Hum. Rts. 773 (Sep. 26, 2019). Paywall, doi.

Analyzes the OTP’s different reasoning and justifications for choosing specific situations. Discusses gravity in the context of prosecutorial discretion. Advocates for a set definition not necessarily based on scale as that would often preclude crimes against minorities or crimes which are very serious in nature but have few victims.

Kenneth A. Rodman, Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court, 22 Leiden J. Int’l L. 99 (Mar. 1, 2009). Paywall, doi.

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

The gravity threshold should be analyzed as a matter of relative gravity, such that scale and scope are not the most important factors. This would allow the court to take into account situations which may not have affected a lot of people directly, but had a broad damaging effect to society (ex: 9/11).

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

Alette Smeulers, Maartje Weerdesteijn & Barbora Holá, The Selection of Situations by the ICC: An Empirically Based Evaluation of the OTP’s Performance, 15 Int’l Crim. L. Rev. 1 (2015). Available online.

Empirically evaluates the OTP’s performance in relation to its situation selection policy. Ranks the gravity of situations based on the Uppsala Conflict Database, Political Terror Scale and Failed State Index. OTP is actually looking into the “gravest” situations based on this analysis. Using the Upsala conflict database, the authors calculated an index of the aggregate seriousness of different situations in the 2002-2011 period. Id. at 14:

Ignaz Stegmiller, The Gravity Threshold under the ICC Statute: Gravity Back and Forth in Lubanga and Ntaganda, 9 Int’l Crim. L. Rev. 547 (Jul. 2009). Paywall, doi.

There are two notions of gravity under the Rome Statute: legal gravity and relative (discretionary) gravity. The ICC should create separate criteria (or factors) for each and then analyze each potential case under both notions of gravity.

M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Jul. 2011). Paywall, doi.

Kevin Jon Heller, Situational Gravity Under the Rome Statute, in Future Directions in International Criminal Justice (Carsten Stahn & Larissa van den Herik eds., 2008). Available online.

Gravity should be a qualitative—not quantitative—analysis based on three factors: (1) whether a case involves crimes that were committed systematically; (2) whether crimes alleged raise “social alarm” in the international community; and (3) whether a situation involves crimes committed by states, rather than rebel groups.